(dissenting):
I respectfully dissent and suggest that, contrary to the main opinion’s conclusion, Jones v. Trans-America1 should be disposi-tive of this case.
In Jones, the insured was paid by his no-fault insurer $365 in medical expenses and $567 for loss of wages. He was paid nothing for “household service.” Eighteen months later, long after the 365-day maximum pay period and without theretofore having lodged a claim with his no-fault insurer during such 365-day time frame, as is the case here, he claimed an additional $4,380 for inability to perform “household services” (one of the four main statutory items recoverable under the no-fault act). In the instant case, Wilde had filed a claim and was paid $1,296 for 108 days’ inability to perform “household services” by Mid-Century. She made no further claim until long after the 365-day period, after which she filed a claim for all amounts compensa-ble under the no-fault act, just as Jones had done.
After filing such claims with his no-fault insurer, but before the latter recognized or paid them, Jones settled with the tort-feasors for $6,000. He signed a written release “of any and all claims” he may have had against them for personal injury. It obviously included personal injury that would prevent him from doing “housework” —one of the no-fault compensable “threshold” items.
Mrs. Wilde actually settled with her no-fault insurer, which included $1,296 for “household services”; then sued Caffey, the tortfeasor, for additional amounts under circumstances identical to those in Jones and in Wilde v. Caffey, C-78-4523, Third District Court for Salt Lake County.
The main opinion departs from the decision in Jones and the judgment in Wilde v. Caffey, supra, both having rejected com-pensability for any and all claims, including “household services,” after the plaintiff insured had “released” all claims. It now concludes in this particular case that such “household services” can be recovered from the plaintiff’s no-fault insurer, even after the judgment in Wilde v. Caffey (not appealed) had foreclosed all claims for personal injury, including “household services.”
Two members of this Court (Hall and Stewart) sat on the Jones case, and they joined a unanimous Court in denying recovery against the no-fault insurer for “household services.”
The facts in the instant case, except for names and number, are identical to those in the Jones case. This being so, nothing short of an addendum to the present deci*422sion, reversing Jones v. Trans-America in toto appears to be mandatory, since that case covers all of the four “threshold” items mentioned. Ironically, the main opinion recognizes no recovery as to three of the items, on the technical grounds of collateral estoppel. The Jones case barred all recovery of all the threshold items on statutory grounds, not by way of collateral estoppel or any other defense, which to date has been the law. The instant decision appears to pull the little Dutch boy’s thumb out of the dike.
The Jones case itself states the purpose of the act and the reasons preventing recovery after settlement with a tortfeasor. It is suggested that such statement should control the instant case. Commenting on the no-fault insurer’s defense, it said:
... that by settling with his tortfeasors, plaintiff had chosen his remedy and had cut off defendant’s subrogation rights as provided by statute. With these contentions we agree.
The opinion then cited the trial court’s decision with approval to the effect that:
It is the opinion of this Court that the intent of the No-Fault Act was to provide benefits to those sustaining less serious injuries in automobile accidents, but to allow those sustaining more serious injuries the right to proceed against the party at fault without limitation as to amounts recoverable, but that the person would not be entitled to both recovery under the No-Fault Act and a suit against and recovery from the tortfeasor.
The emphasized portion above covers precisely the facts of this case and the conclusion was based on a written release of all claims without reservation of household services, which it also denied. A fortiori, the Jones decision should apply to the instant case where the trial court, Conder, J., denied recovery of any threshold claims by a document of even greater dignity — an unappealed judgment of a court of competent jurisdiction,2 where plaintiff had sued for all damages suffered. Such judgment is now set in cement and should be dispositive, as well as the case in Jones, absent reversal, since the plaintiff in Wilde v. Caffey filed no timely motion for a new trial, nor a notice of appeal. If she were unhappy with the judgment in that case, her remedy was not a new suit against Mid-Century, but an appeal to this Court on the grounds the jury erred in assessing too little damages.
The issue of “household services” was fully litigated in Wilde v. Caffey. Any suggestion in the main opinion otherwise simply ignores the fact that the trial court had before it all of the threshold issues, including “household services” for which Mrs. Wilde prayed under the act. The main opinion makes what appears to me to be an unwarranted distinction between “household services” and the other “threshold” items of compensable damages by saying that a no-fault insured is entitled, without proof, to a fixed sum of $12 per day for inability to perform “household services,” while in a tort action he would have had to prove the amount of damages. It says the distinction arises because the $12 per diem is fixed in the contract,3 i. e., the contract of insurance with Mid-Century, while live testimony must prove the amount in tort against a tortfeasor. The main opinion overlooks the fact that either the $12 arbitrary statutory damages or any amount found by proof in a tort action has as its condition precedent and common denominator, proof of disability. In Wilde v. Caffey, it was known that Mrs. Wilde suffered $1,296 for 108 days of disability when she was released by her doctor, but she presented no proof of disability thereafter. The jury was entitled to find that was the only disability she had, and that $1,296 was all she was entitled to, and so found as a fact by not awarding her any additional amount, the 365-day limit having long since passed before she filed her suit asking for more household service compensation.
The distinction appears to be illusory, since the legislature in fixing the amount of *423damages is only a substitute witness for the doctors and employment agents. In the one case, the damages are fixed by legislative fiat and in the other by live witnesses. Any difference that might result is only one in amount, and has nothing to do with the basic entitlement or compensability aspect of the no-fault act (Sec. 31-41-6). The same argument could have been made in the main opinion as to all of the threshold items, since each has its statutory mathematical exactitude, i. e., $150 per week for 52 weeks for loss of wages, and $2,000 for medical. The deciding factor is not “amount” but “disability” and the jury, by awarding her nothing more, obviously found she was not disabled after the 108 days when she was released by her own doctor as one able to go back to work.
The test for recovery is not what one might recover against a third party, but what he can recover against a no-fault insurer, under the no-fault act. Jones v. Trans-America says once one has chosen his weapon in a tort skirmish, he cannot draw blood anew in a contest with his no-fault insurer, and it made no reservation whatever in the case of “household services,” nor does it imply such exception. Nor does the no-fault act itself make or imply such exception.
The jury in Wilde v. Caffey, by awarding no specific amount for damages resulting from inability to perform “household services,” hardly could have found other than as a matter of fact that Mrs. Wilde was not disabled to do “housework,” which is another way of saying she was able to do so and hence was not entitled to any further compensation. The main opinion seems to say that the “household services” matter was not before the jury, but it appears that it was. The plaintiff sued for all damages, including those for “household services,” and the jury had all the items before it, including “household services.”
Mrs. Wilde should be denied this specific item of threshold damage which the decision here excepts for special treatment and procedure if for no other reason than the very basis it justifies rejection of “loss of wages” damage in Wilde v. Caffey — by collateral estoppel — adjudged by unappealed judgment in that case. The opinion says “household services” damage was not settled by collateral estoppel or otherwise because of a rule of evidence relating to “proof” that may result in an amount different from the $12 amount fixed by the legislature without proof in no-fault cases. Irrespective of any such distinction, Jones v. Trans-America resolved this case when it said that “settling with his tortfeasors,” plaintiff had chosen his remedy and cut off defendant’s subrogation rights as provided by statute. It is significant that Jones had been paid nothing for “household services” by his no-fault insurer, but made claims for the maximum benefit after he signed the release. The no-fault act itself reflects the conclusion arrived at in Jones, where the letter and spirit of the no-fault act are pointed out, as follows:
On appeal, the parties chose not to squarely address the basis of the trial court’s decision but focus instead on peripherally related matters. Basically the court’s ruling is correct. The whole tenor of the Act is that an injured person will not be permitted to recover from an insurance carrier (over and above what the carrier has previously paid in benefits) once he has successfully recovered from his tortfeasor for personal injuries. Any other interpretation would be to permit double damage recovery,
and also, that:
Double recovery for a single item of loss was never contemplated by the legislature and we will not permit any type of automatic reward or “windfall” to an injured plaintiff.
The act itself militates against the notion first advanced in the opinion here and not in appellant’s brief — that one item of damage, “loss of household services,” has one procedure and deserves more consideration and wider scope of review than the other three main items. This notion is new and was not urged by appellant, but who now knows from this decision how to proceed on remand. The act does not authorize the *424making of “household services” as item for special litigation, not subject to the defense of “collateral attack,” after judgment based on an “all loss” complaint simply because the legislature fixed damages therefor at $12 per day to run for 365 days. It does not reserve to the claimant a second lawsuit against the no-fault insurer that would invade its spirit calling for inexpensive, speedy settlements. The act’s purpose clearly is stated in its second Section:
The intention of the legislature is hereby to possibly stabilize, if not effectuate certain savings in, the rising costs of automobile accident insurance and to effectuate a more efficient, equitable method of handling the greater bulk of personal injury claims that arise out of automobile accidents, these being those not involving great amounts of damages.
The main opinion’s statement that “Plaintiffs seek in this suit to recover full benefits for ... household services” is completely accurate, but appears to assume entitlement to recover against a no-fault insurer is vested in Mrs. Wilde regardless of her settlement with the tortfeasor. It overlooks entirely the fact the no-fault act it relies upon specifically reserves a right of subrogation to the no-fault insurer, a right she has destroyed by settlement of all claims, which were litigated and satisfied.4 Any effort on the part of the injured relea-sor, Mrs. Wilde, thereafter to recover from the no-fault insurer would be a payment that the latter thereafter could not recover from the tortfeasor’s carrier that was released by the judgment, resulting in payment to the insured an uncontemplated, or in truth, a double payment upon which not only equity but the act itself frowns.
The main opinion’s contention is that sub-rogation is not an issue here because the judgment in Wilde v. Caffey, unappealed, barred it by collateral estoppel, and hence “we are left this issue: Are plaintiffs entitled to recover additional no-fault insurance benefits after having obtained a judgment against the tortfeasor?”
It is conceded that the issue accurately has been stated. It must also be conceded that Mid-Century had a right of subrogation since the main opinion said it had been eliminated by collateral estoppel. Having conceded the accuracy of the issue, the only remaining issue is whether a release of the tortfeasor of all claims is dispositive in barring recovery from the no-fault insurer, if written on a common ordinary piece of paper, as was clearly answered affirmatively in Jones, but is not dispositive where all claims against the tortfeasor have been resolved and satisfied by a judgment of a court of competent jurisdiction. If the judgment has the same dignity as a “release,” the Jones case is dispositive here. If it does not have the same or greater dignity, this Court has no course to pursue, but to reverse Jones v. Trans-America in its entirety.
Instead of the low expense cost settlement visioned in the act and expressed in the Jones case, involving a simple full release, it is believed that the present case should and could have been handled under the act, to encourage the same kind of inexpensive settlement of the claim involved here without resort to litigation. Nonetheless, Mrs. Wilde chose further to litigate. It involved a two-year procedure, lawyer’s fees on both sides, 100 pages of pleading, a number of court appearances with different judges, attendance and pay of court attaches, the employment of a jury, post-judgment procedure, and appeal here, *425preparation of a record, filing it, preparing briefs, and arguing the case before the Justices, who now reverse such process for another go at the same thing — with a good chance of another two-year delay, a second appeal and double expense.
Concededly, public policy justifies compensation for injuries suffered at the hand of the tortious conduct of another, insurance or not, but it strains credulity to believe that the legislature, clearly expressing a stated purpose inexpensively to compensate for comparatively small injuries only, intended a daily double, providing compensation twice, or maybe thrice, for the same identical injury. Such a conclusion, which appears to be unwarranted under the act, suggests inequity and unfairness. It would seem to create a new kind of white collar offense not yet codified.
The trial court should be affirmed, with no exceptions. However, the majority, disagreeing, should reverse itself on Jones v. Trans-America. Sending it back for further proceedings not only may result in double recovery for appellant, incident to a second trial, but in an unrealistic expense, anathema to the spirit and letter of the no-fault act, as pointed out above — all of which encourage more litigation and expense to be absorbed ultimately by way of increased premiums for no-fault insurance, to protect persons, such as is the case here, who pay no premiums, have no insurance of their own and obtain redress from two policies owned by others, in which the beneficiaries are not identified by name, but by accident with dual connotation.
HALL, C. J., concurs. MAUGHAN, J., did not participate herein; HENRIOD, Retired Justice, sat.. Utah, 592 P.2d 609 (1979).
. Wilde v. Caffey, C-78-4523, Third District Court for Salt Lake County.
. It was the legislature, not the contract, that fixed the price.
. The main opinion refers to Allstate v. Ivie, Utah, 606 P.2d 1197 (1980) in discounting Mid-Century’s right of subrogation. That case involved the no-fault insurer’s suit against an insured, unlike that here, where Mrs. Wilde is suing the no-fault insurer, Mid-Century, for benefits under the act that already have been settled by a judgment for all damages, general, special, no-fault and otherwise, which destroyed a subrogation right. Allstate v. Ivie concedes the right, by saying only that it must be asserted in an arbitration suit between the insurance companies. Its language: “However, Allstate is not precluded from claiming reimbursement from Travelers in an arbitration proceeding.” The case provided two strong dissents. Its ruling is suspect and if any case should be reversed it should be Allstate, not Jones, which was a unanimous decision.