specially concurring:
I agree with the majority opinion to the extent that it holds that the statutory exception contained in section 13-21-111.6, 6A C.R.S. (1986), applies to the facts of this case. Keelan entered into an employment contract that, in addition to a salary, contained fringe benefits that included a provision for disability pension payments. These fringe benefits were presumably not gratuitous, and it is self-evident that in exchange for these benefits Keelan received less salary than he would have received absent these benefits. See Police Board v. Bills, 148 Colo. 383, 388, 366 P.2d 581, 583 (1961) (pension plans are material inducements to the employee to remain in the employ of government); 3 M. Minzer, Damages in Tort Actions § 17.31[1] at 17-192 (payments to injured employees under retirement and disability pension programs may accurately be characterized as “bargained-for fringe benefits integrally incorporated into the employment contract”). Essentially, Keelan “paid” for these benefits by rendering his services for a lower salary; and he, rather than Van Waters, is entitled to the result of his own prudence.
I write separately to emphasize that the majority’s construction of section 13-21-111.6 will not ordinarily result in a windfall recovery for plaintiffs. Generally, an insurance policy will provide for subrogation or refund of benefits upon a tort recovery. Thus, the plaintiff will receive no double recovery. See 3 Damages in Tort Actions § 17.21[2] at 17-75 to -76 (subrogation serves to assure ultimate payment of a debt by a party which in equity and good conscience should assume liability for it); *1081Western Cas. & Sur. Co. v. Bowling, 39 Colo.App. 357, 565 P.2d 970 (1977). Such an approach is consistent with the legisla-. tive intent underlying section 13-21-111.6, see Comments of Senator Meiklejohn, maj. op. at 1077-78 (insurance company that pays hospitalization should be allowed to “collect from the tortfeasor to get their money back,” and the injured party should collect only once on those economic damages), and addresses three main policy concerns: (1) plaintiffs will be compensated for their injury; (2) insurance companies will be reimbursed for their expenditures on plaintiffs’ behalf, minimizing the societal cost of insurance; and (3) tortfeasors will bear the full economic cost of their actions.
However, there properly may be a line drawn between insurance, for which there is subrogation or refund of benefits provisions, and benefits represented by life insurance, retirement benefits, and disability pensions, for which there is no subrogation. These types of benefits may be regarded as “the proceeds of an investment rather than as an indemnity for damages.” Helfend v. Southern California Rapid Transit Dist., 2 Cal.3d 1, 84 Cal.Rptr. 173, 465 P.2d 61, 67 n. 17 (1970) (quoting Anheuser-Busch, Inc. v. Stanley, 28 Cal.2d 347, 170 P.2d 448, 453 (1946) (Traynor, J., dissenting)). Under those circumstances, it is proper to permit plaintiffs to benefit from their own prudence, rather than tortfeasors. See Comments of Senator Meiklejohn, maj. op. at 1078 (it would be an “injustice” to apply retirement benefits and life insurance against the damages in a lawsuit). A holding to the contrary would leave a plaintiff who has the foresight to invest in life insurance, retirement benefits and disability benefits in a worse economic position than an individual without such foresight. The prudent individual will have borne the economic cost of purchasing this investment, but will earn no benefit for their foresight. See Helfend, 465 P.2d at 66.
Accordingly, I specially concur in the majority opinion.