(dissenting). I would hold that the uninsured motorist funds are subject to the distribution formula set forth in sec. 102.29, Stats. The majority improperly ignores the full intent of this section.
Section 102.29(1), Stats., in part, provides as follows:
Third party liability. (1) The making of a claim for compensation against an employer or compensation insurer for the injury or death of an employe shall not affect the right of the employe ... to make claim or maintain an action in tort against any other party for such injury or death, hereinafter referred to as a third party . . .. The employer or compensation insurer who shall have paid or is obligated to pay a lawful claim under this chapter shall have the same right to make claim or maintain an action in tort against any other party for such injury or death. (Emphasis added.)
This section later sets forth a formula for distributing the proceeds of a third-party action.
Section 102.29, Stats., permits a worker's compensation carrier to seek reimbursement from uninsured motorist coverage available to an injured employee. Even though the source of funds is the injured party's uninsured motorist coverage rather than the third-party tortfeasor's liability insurance coverage, the basis of the liability is the same, the tortfeasor's conduct. The basis of the claim is tort. The amount recoverable from uninsured motorist coverage depends on the negligence of the tortfeasor. See, e.g., Employers Health Ins. v. General Cas., 161 Wis. 2d 937, 946, 469 N.W.2d 172 (1991); Nicholson v. Home Ins. Cos. 137 Wis. 2d 581, 591, 405 *656N.W.2d 327 (1987); Sahloff v. Western Casualty & Surety Co., 45 Wis. 2d 60, 69, 171 N.W.2d 914 (1969). Moreover, if the uninsured motorist coverage is not sufficient to cover the damages sustained by the insured, the uninsured tortfeasor remains liable for the uncompensated damages.
Our decision in United Fire & Casualty Co. v. Kleppe, 174 Wis. 2d 637, 498 N.W.2d 221 (1993), is distinguishable from this case. In Kleppe, the worker's compensation carrier agreed not to seek reimbursement from the injured employee's uninsured motorist benefits. 174 Wis. 2d at 641 n.2. The majority opinion leaves open the only recourse for the worker's compensation carrier to be against the insured for the carrier's share under the sec. 102.29, Stats., formula.
Accordingly, I dissent from the majority opinion.
I am authorized to state that Justices Shirley S. Abrahamson and WILLIAM A. Bablitch join this dissenting opinion.