Heritage Mutual Ins. v. Graser

1. Galina Graser and her minor son, Valera Smokvin, appeal from an order granting summary judgment to Graser's underinsured motorist insurance (UIM) carrier, Heritage Mutual Insurance Company. At the center of the controversy is approximately $45,000 in medical expenses that Wisconsin Health Organization (WHO) paid out for injuries Valera suffered when he was struck by a car. WHO has waived its right to subrogation against Heritage for those medical expenses; Graser now contends that the collateral source rule allows her to recover those expenses under her UIM policy. We affirm the decision of the circuit court on the basis that the collateral source rule, which finds its genesis in tort law, is inapplicable to claims made by an insured under his or her UIM policy.

2. Graser also appeals from the circuit court's denial of her motion for reconsideration based upon the recent decision in Koffman v. Leichtfuss, 2001 WI 111, 246 Wis. 2d 31, 630 N.W.2d 201. We agree with the circuit court that Koffman is inapplicable to the facts in this case and affirm its decision to deny the motion.

3. Valera suffered injuries in a June 22, 1994 accident when his bicycle was struck by a vehicle operated by Jean Fisher. Graser reached a settlement with Prudential, Fisher's liability insurer, for the policy limit of $100,000. WHO accepted $20,000 from Prudential in satisfaction of its subrogation interest for medical expenses.

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Click the case caption above for the full text of the Court's opinion.

¶17 Because we affirm the order for summary judgment in favor of Heritage, we do not reach Graser's counterclaims regarding bad faith and twelve percent interest. Heritage requests that we reverse the circuit court's denial of actual costs and attorney's fees for its defense of Graser's counterclaims. Because Heritage has not cross-appealed on this issue, we decline to address it. See State v. Huff, 123 Wis. 2d 397, 407-08, 367 N.W.2d 226 (Ct. App. 1985) (respondent seeking modification of an order must file cross-appeal).

By the Court. Orders affirmed.

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