dissenting.
Here, as found by the jury, the appellant is entitled to $40,000 for pain and suffering, as well as $52,996.09 for past, present, and future medical expenses and lost wages. However, he has previously been paid $50,000 for past and present medical expenses and lost wages by his no-fault liability insurer under the optional PIP coverage in his insurance policy. See OCGA § 33:34-5 (a) (1) (A), (B).
As recognized by the majority, under the so-called “No-fault Act,” the appellant’s insurer is subrogated to “the rights of the person for whom such benefits are provided.” Under the majority opinion, the appellant will ultimately receive $106,673 for medical expenses, lost wages, and pain and suffering (the $50,000 he received from his no-fault liability insurer, plus the $92,996.09 received from the jury, minus the $36,323.09 written off of the verdict). It would thus seem to me that the appellant’s insurance company, who paid the appellant the full $50,000 in optional PIP benefits, will only receive $36,323.09 as subrogee. This result is inconsistent with the intent of the jury in reaching its verdict and effectively grants to the appellant a partial double recovery, which the law does not favor. Allstate Ins. Co. v. Austin, 120 Ga. App. 430, 433 (170 SE2d 840) (1969).
The complicating feature of this case is the fact that the appellant’s insurance company, as owner of a portion of the claims being sued on by virtue of its subrogation rights, should have been a party to this suit. Cf. State Farm Mut. Auto. Ins. Co. v. Five Transp. Co., 246 Ga. 447 (3) (271 SE2d 844) (1980). Had the appellant’s insurance company been a party, it could have argued that even if it was only subrogated to $36,323.09 of the verdict rather than the full $50,000, the remaining $13,676.91 should have been set off from the verdict and paid to it so as to satisfy its claim against the appellant as a result of its overpayment to him, as found by the jury. However, even in the absence of the appellant’s insurance company as a co-plaintiff herein, it is my opinion that the doctrine of subrogation (of statutory origin here) nonetheless is flexible enough to do justice between all interested parties through a reduction of the jury verdict by the full $50,000. In that manner, the appellant will receive the sums to which the jury has found him entitled, and his insurance company, as subrogee, will receive the $50,000 paid to the appellant in optional PIP insurance benefits.
I respectfully dissent.
I am authorized to state that Justice Weltner and Justice Bell join in this dissent.
*20Decided April 24, 1986 Reconsideration denied May 28, 1986. Freeman & Hawkins, Alan F. Herman, Julia Bennett Jagger, for appellant. Dennis & Corry, Michael T. Thornton, for appellee.