(dissenting):
There is nothing about this case that warrants a departure from long-established *1205principles of subrogation. In adopting a contrary view, the majority not only ignores the language of the Utah Automobile No-Fault Act1 which specifically preserves subrogation rights, but also ignores the recent unanimous ruling of this Court in Jones v. Transamerica Insurance Co.,2 wherein we specifically recognized that the Act3 preserved subrogation rights between insurers whenever no-fault benefits are paid.
The pure and simple facts of this case are wholly supportive of the summary judgment appealed from. Ivie chose to compromise her claim against the tortfeasor by accepting the sum of $44,000 in full settlement thereof. Prior to the settlement, Travelers duly advised Ivie of its intention to include Allstate on its settlement draft and thereby satisfy its statutory obligation to reimburse Allstate for its advance of $7,394 in PIP payments. Indeed, at the time of settlement, it issued a separate draft for the exact sum of said PIP payments ($7,394), payable jointly to Ivie and Allstate.
Travelers is not a party to this appeal and Ivie makes no further claim against it, conceding that the only matter in dispute is her entitlement to the said $7,394. Hence, for this Court to award said sum to her and then to cavalierly suggest that Travelers is obligated to pay over an additional sum of $7,394 to Allstate by way of reimbursement, constitutes a grave injustice. Such a result was not sought, nor even contemplated, by the parties, least of all by Travelers, which is not present to defend its interests.
Notwithstanding the assertion of the majority to the contrary, the net effect of its holding is to afford Ivie a double recovery of PIP payments at the unbargained for expense of Travelers. In addition, it deprives Travelers of the benefit of its bargain struck with Ivie and increases its obligation from $44,000 to $51,394, by judicial fiat.
I have no particular apprehension as to the application of the new rule of law to future cases since its practical, dollars and cents effect would appear to be no different than if the doctrine of subrogation were adhered to. In a judicial proceeding, the court will simply no longer make an award for damages already compensated by PIP payments, and, similarly, in negotiating a settlement of a lawsuit, an insurer will no doubt “short” his settlement offer by a sum adequate to cover its reimbursement obligation for PIP payments advanced by the insurer of the injured party.
On the other hand, applying the new rule of law in the present case causes me considerable concern for it effects a highly unjust and harsh result. The majority would be better advised to abide by the so-called “Sunburst Doctrine” 4 and thereby make the change in the law prospective only.
. U.C.A., 1953, 31-41-1, et seq.
. Utah, 592 P.2d 609 (1979).
. U.C.A., 1953, 31-41-11.
. Laid down in the case of Great Northern Ry. Co. v. Sunburst Oil Co., 287 U.S. 358, 53 S.Ct. 145, 77 L.Ed. 360, cited in Rubalcava v. Gisseman, 14 Utah 2d 344, 384 P.2d 389.