Lumbermen's Mutual Casualty Company appeals from a judgment dismissing its complaint against West Bend Mutual Insurance Company. The issue is whether a worker's compensation carrier has the right to reimbursement for benefits it paid to an employee when reimbursement is sought from the uninsured motorist coverage available to the employee as an additional insured. We conclude that a compensation carrier does not have that right because the employee's *663right to uninsured motorist coverage is contractual. We therefore affirm.
Section 102.29(1), Stats., provides in material part:
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 bring action, to make claim or maintain an action in tort against any other party for such injury or death, hereinafter referred to as a 3rd 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.
On August 6, 1986, Jennifer Berna-Mork was injured in an automobile accident in the City of Stevens Point. She was a passenger in an automobile operated by Jane Jones. While the Jones automobile was stopped in traffic, an automobile driven by Keith Plasky struck the rear of the Jones automobile and injured Berna-Mork. The Plasky vehicle was not insured and Plasky has been granted a discharge of bankruptcy. Berna-Mork filed a worker's compensation claim for benefits on account of her injuries. Lumbermen's is the worker's compensation insurer of her employer. The Department of Industry, Labor and Human Relations ordered Lumbermen's to pay benefits to Berna-Mork, and Lumbermen's has done so.
Berna-Mork brought a third-party action in tort against Plasky, Jones and Jones' liability and uninsured motorist carrier, West Bend Mutual Insurance Company. West Bend's policy is of record. As a passenger in Jones' car, Berna-Mork is an insured with respect to the uninsured motorist coverage. Lumbermen's commenced an action against West Bend to participate in the third-*664party action. Lumbermen's amended complaint alleges that it is entitled to reimbursement from West Bend for payment Lumbermen's made to Berna-Mork by virtue of West Bend's policy providing uninsured motorist coverage. Lumbermen's complaint seeks no relief against Jones and does not allege that Jones was negligent. The two actions were consolidated.
The trial court granted summary judgment dismissing Lumbermen's action against West Bend on grounds that Lumbermen's action against West Bend sounds in contract rather than in tort. Lumbermen's appeals from the judgment dismissing its action against West Bend.
An action on uninsured motorist coverage is based on contract. This is true even though "in order to recover the insured must prove the negligence of an uninsured motorist." Sahloff v. Western Casualty & Sur. Co., 45 Wis. 2d 60, 70, 171 N.W.2d 914, 918 (1969).
Because its action against West Bend is based on contract, Lumbermen's action cannot be brought under sec. 102.29, Stats. In New Amsterdam Casualty Co. v. Acorn Products Co., 42 Wis. 2d 127, 166 N.W.2d 198 (1969), a worker's compensation insurer attempted to enforce its subrogation claim against a defendant for the latter's breach of a contract to obtain worker's compensation insurance. The court held that the insurer had no right to relief under sec. 102.29(1), Stats., since its complaint failed to allege that the defendant was a tort-feasor. New Amsterdam, 42 Wis. 2d at 131 n.1, 166 N.W.2d at 200 n.1.
In Kottka v. PPG Indus., Inc., 130 Wis. 2d 499, 514, 388 N.W.2d 160, 167 (1986), the court said:
*665We construe sec. 102.29(1), Stats., to apply to all claims in tort for an employe's injury or death for which the employer or its insurer has or may have liability. As one commentator emphasizes, this section "... preserves to an employer or compensation insurer, the same right possessed by an employee to bring suit against a third-party whose negligence caused injuries to the employee." See Arnold, "Third Party Actions and Products Liability,' 46 Marq. L. Rev. 136 (1962).
Other Wisconsin decisions contain similar language. Mulder v. Acme-Cleveland Corp., 95 Wis. 2d 173, 176-77, 290 N.W.2d 276, 278 (1980); Skornia v. Highway Pavers, Inc., 34 Wis. 2d 160, 165, 148 N.W.2d 678, 680 (1967); Severin v. Luchinske, 271 Wis. 378, 382-83, 73 N.W.2d 477, 479 (1955).
Consequently, because Lumbermen's action against West Bend is based on contract and not on tort, it has no rights against West Bend under sec. 102.29(1), Stats.
In reaching that conclusion, we have not neglected the cases in other jurisdictions which have reached a contrary result. See Harris v. New Castle County, 513 A.2d 1307, 1308-09 (Del. 1986) (per curiam), citing Montedoro v. City of Asbury Park, 416 A.2d 433 (N.J. Super. Ct. App. Div. 1980) and Johnson v. Fireman's Fund Ins. Co., 425 So. 2d 224 (La. 1982) for support and five cases in 2A Arthur Larson, Larson's Workmen's Compensation Law sec. 71.23(e) and (i) (1990), to the contrary. In view of New Amsterdam, we see no reason to discuss those authorities.
We are told that the effect of our holding is to permit the employee, Berna-Mork, a double recovery, since she has recovered worker's compensation for her injuries and she may, under our holding, also recover against her driver's insurance carrier by virtue of the uninsured *666motorist coverage with no participation by Lumbermen's in the latter recovery.
That may be. "The theory of third party procedure in compensation law rests on the assumption that typically the third-party recovery will cover all of plaintiffs loss, and that therefore to retain the tort recovery and compensation would result in double recovery . . . exceeding [the plaintiffs] actual loss." Larson's, sec. 71.23(h), at 14-37. Here there is no evidence one way or the other as to whether Berna-Mork's double recovery will exceed her actual loss. Larson points out, "There can be no conceivable [public] policy objection to allowing an injured person to retain two recoveries that, when combined, still do not make him whole." Id. at 14-38.
West Bend asserts that no double recovery will occur because the amount it pays under its uninsured motorist coverage is reduced by amounts payable under any worker's compensation law. Whether West Bend is right we need not decide. The trial court did not decide the issue, and neither will we.
Past decisions by our supreme court bind us regarding the rights of a worker's compensation carrier under sec. 102.29(1), Stats., and the nature of an action on an uninsured motorist clause. Whether the case law should be changed is for the supreme court to decide. Whether sec. 102.29(1) should be changed is for the legislature.1
By the Court. — Judgment affirmed.
It is worth noting that in this case the employee, Bema-Mork, did not pay a premium for the uninsured motorist coverage which may result in a double recovery. She is covered because of Jones' policy. Thus, if Lumbermen's could recover under sec. 102.29(1), Stats., the employee would suffer no true loss whatever, not even the cost of an insurance premium.