(dissenting.) The majority errs when it attempts to avoid applying Heifetz v. Johnson, 61 Wis. 2d 111, 211 N.W.2d 834 (1973), in this case. In particular, the majority mischaracterizes how this court limited Heifetz in Rixmann v. Somerset Public Schools, 83 Wis. 2d 571, 579, 266 N.W.2d 326 (1978). Rixmann, in fact, only limits the Heifetz holding to cases involving indemnity insurance contracts. In other words, Rixmann holds that Heifetz does not apply to investment insurance contracts. In this case, the Jindras' automobile insurance contract with A&F is indisputably one of indemnity. See Rixmann 83 Wis. 2d at 578. Hence, Heifetz should apply.
*616Here, A&F paid the Jindras approximately $50,000.1 Heifetz should apply to bar the plaintiffs from making a claim for this amount. "Acceptance of payment from an insurer operates as an assignment of the claim ... The plaintiff loses his right to sue for any amount received from his insurer." Heifetz, 61 Wis. 2d at 124. This is still the law in Wisconsin in cases dealing with indemnity insurance contracts.
Under Heifetz, as soon as the Jindras accepted this payment from A&F, they assigned their claim for this amount to A&F. The majority asserts that A&F waived its right to this subrogated claim, and thus, the Jindras were again entitled to recover these damages.2 If this is the case, A&F might then be entitled to reimbursement from the Jindras based on a reimbursement clause in the insurance contract.
The outcome of this alleged waiver contravenes the outcome prescribed in Heifetz. Hence, contrary to the majority's assertion, A&F should have the burden of proving that it avoided Heifetz by waiving its right to subrogation. Public policy also favors placing this burden on A&F. The Jindras, and possibly A&F, are the only parties benefiting from the alleged waiver. In addition, A&F, not Continental, has access to any evidence concerning this waiver.
A&F has certainly not met this burden. In fact, as footnote 2 points out, A&F has not even attempted to prove that it waived its subrogated claim to the $50,000. The evidence presented to the trial court more likely demonstrates that A&F did not intend to waive *617its claim. Rather, A&F initially followed the Vogt procedure in an effort to preserve its subrogation right. The affidavit of A&F's claims manager admits as much. Only after A&F realized that its efforts had failed did A&F allege that it never intended to assert its subrogated claim. Hence, following Heifetz, I would reverse the court of appeals' decision and hold that the trial court properly reduced the judgment against Continental by the $50,000 already paid to the Jindras by A&F.
I am authorized to state that JUSTICE JON P. WILCOX joins this dissenting opinion.
This payment was made pursuant to a provision in the insurance contract that is based on the procedure this court set out in Vogt v. Schroeder, 129 Wis. 2d 3, 20-22, 383 N.W.2d 876 (1986).
A&F did not even make this argument to this court.