(concurring). I concur with the result reached by the majority. However, in coming to the appropriate conclusion, the majority ignores the clear holding in Heifetz v. Johnson, 61 Wis. 2d 111, 211 N.W.2d 834 (1973), and instead relies on this court's recent decision in Jindra v. Diederich Flooring, 181 Wis. 2d 579, 511 N.W.2d 855 (1994). According to the maj ority," [a] ssignment of a claim by means of subrogation is not automatic. The party that wants to impose subrogation has the burden of proving it."
In Heifetz, 61 Wis. 2d at 124, this court made it clear that assignment of a claim by means of subrogation is in fact automatic. "Acceptance of payment from an insurer operates as an assignment of the claim ...." Id. This holding in Heifetz has never previously been challenged as it applies to indemnity insurance contracts.
In this case, I would find that a claim for $150,000 was automatically assigned to American Family when Voge accepted American Family's UIM payment. I agree with the remainder of the majority's analysis. Following this automatic assignment, American Fam*735ily expressly waived this claim or assigned it back to Voge, as it has the right to do under Leonard v. Bottomley, 210 Wis. 411, 417, 245 N.W. 849 (1933). The parties stipulated to the existence of the waiver. Because of this waiver, the collateral source rule applies and Voge is entitled to keep this double recovery.
I am authorized to state that Justice Jon P. Wilcox joins this concurring opinion.