¶ 6. {concurring). In our opinion, Rhinelander is not entitled to reimbursement of its lien because the circuit court determined that the Iveses were not made whole by their settlement with the alleged tortfeasors.1 We start with a recitation of the facts as presented to us.
Facts and Procedural History
¶ 7. In November 1989, Michael Ives sustained severe injuries when he fell out of a tree after his homemade deer stand collapsed. Rhinelander Paper Company Group Health Plan for Hourly Employees Sponsored by Rhinelander Paper Company, Inc. *60(Rhinelander), paid $132,292 in medical expenses Michael incurred because of the accident.2 Michael and Tammy Ives sued the manufacturer and seller of a double-end snap cap Michael used to hold his deer stand in place, and also named the insurers of the manufacturer and seller (hereinafter, collectively, "the defendants"). The Iveses alleged that the double-end snap cap failed, causing the deer stand to collapse. Rhinelander employed counsel to participate in the Iveses' suit and to prosecute its subrogation claim for payment of Michael's medical expenses.3
¶ 8. Approximately one week before trial, the Iveses entered into a settlement with the defendants. The defendants paid $261,250 to fully settle the $1.5 million claim that included the past medical expenses previously paid by Rhinelander. This settlement extinguished Rhinelander's claim against the defendants. Schulte v. Frazin, 176 Wis. 2d 622, 634-35, 500 N.W.2d 305 (1993). The Iveses then requested a post-settlement subrogation hearing4 to determine their potential liability, if any, to Rhinelander out of the *61settlement proceeds. For purposes of the post-settlement subrogation hearing, the Iveses and Rhinelander stipulated to the following facts:
1. Plaintiffs' total damages as a result of injuries to Plaintiff MICHAEL IVES following his fall from a deer stand on or about November 10,1989, are 1.5 million dollars.
2. That the defendants' payment of $261,250.00 in full settlement of all personal injury and property damage claims arising out of Plaintiff MICHAEL IVES' fall from a deer stand on or about November 10, 1989, is full-value for the Plaintiffs' claims based on the following factors:
a. Liability difficulties; and
b. Uncertainty of successor corporate liability on the Coopertools defendants.
3. That due to liability problems and the uncertainty of successor corporate liability, the Plaintiffs accepted 17.42 percent of their total damages arising out of the November 10,1989, accident.
4. That Plaintiffs' decision to accept 17.42 percent of their total damages was not based on insufficient insurance coverage or the unavailability of funds on the part of the defendants to satisfy a 1.5 million dollar judgment.
5. That Rhinelander has paid medical expenses ($128,487.40) and accident and sickness benefits ($3,804.60) relating to this accident in the amount of $132,292.00.
¶ 9. Relying upon this court's decision in Rimes, 106 Wis. 2d 263, the circuit court held that the Iveses *62were not made whole. The court considered the stipulated facts, and found that the settlement did not compensate the Iveses for their entire actual loss. Further, the circuit court concluded that the equities of the case favored the Iveses. Thus, Rhinelander was not entitled to reimbursement of its subrogated lien.
¶ 10. The court of appeals vacated the order of the circuit court. Relying upon Sorge v. National Car Rental System, Inc., 182 Wis. 2d 52, 512 N.W.2d 505 (1994), the court of appeals remanded for a determination of Michael Ives' percentage of contributory negligence. Because the Iveses stipulated that they received 17.42 percent of their damages in the settlement, the appellate court calculated that the settlement would make the Iveses whole only if Michael was 82.58 percent or greater contributorily negligent. The court of appeals further concluded that Rhinelander had a right of priority in any money collected over the amount of the Iveses' total damages, discounted for the percentage of Michael's contributory negligence, up to the amount of benefits paid. The court held that a settlement discounted for factors other than the plaintiffs contributory negligence does not make the insured whole. Finally, the court of appeals held that the Wis. Stat. § 895.045 (1989-90) bar to recovery in negligence actions has no application to the equitable resolution of a subrogation dispute.5
*63Standard of Review
¶ 11. In this case we are asked to determine the rights of the insured and the subrogated insurer when the insured has settled with the defendants without involving the subrogated insurer. This case presents a question of law that we decide without deference to the lower courts. Schulte v. Frazin, 176 Wis. 2d 622, 628, 500 N.W.2d 305 (1993). In doing so, we apply principles of equity to the facts before us. Beacon Bowl, Inc. v. Wisconsin Electric Power Co., 176 Wis. 2d 740, 776, 501 N.W.2d 788 (1993).
Arguments of the Parties
¶ 12. Rhinelander asserts that the Iveses have been made more than whole by their settlement with the tortfeasors. The Iveses settled for an amount equaling 17.42 percent of their stipulated total damages of $1.5 million. According to their stipulation, the settlement of $261,250.00 was full-value6 and compensated the Iveses for their personal injury and property damage claims arising out of Michael Ives' fall. In light of that, Rhinelander proposes a formula whereby it would receive in reimbursement 17.42 percent of its lien. Such a formula incorporates the percentage of the stipulated total damages that the Iveses received. Under *64Rhinelander's theory this formula would prevent a double recovery of that percentage by the Iveses. Rhinelander alternatively argues for a full-blown evi-dentiary determination of contributory negligence.
¶ 13. Rhinelander asserts that the Iveses have been more than made whole, in fact, that their recovery has greatly exceeded the amount of damages they were legally entitled to recover. Rhinelander's assertion is premised on the assumption that, had there been an actual trial, Michael Ives would have been found at least 50% negligent. This is only an assumption, however, because at the Rimes hearing in this case the circuit court did not make a specific finding as to liability. Without hearing any evidence, Judge Kinney merely remarked that the most likely result would be a jury finding that the incident here was a "pure accident." Judge Kinney also acknowledged that this remark was speculation on his part.
¶ 14. The Iveses contend that the pre-trial release they executed does not make them whole because it does not compensate them for all of the elements of their damages under Rimes. They seek to distinguish the settlement agreement and stipulation they entered into here from the agreement and stipulation in an earlier subrogation case, Sorge, 182 Wis. 2d 52. There the plaintiff acknowledged that the settlement amount, which took into account a deduction for her contributory negligence, was all that she was legally entitled to receive. The Iveses agree, based on Sorge, that when a settling plaintiff receives all that he or she is legally entitled to receive, the plaintiff meets the made whole test of Rimes.
¶ 15. Finally, the Iveses ask this court to conclude that the circuit court here did all that it needed to decide the made whole question. The court relied on the *65stipulation between the parties and "on its knowledge of the evidentiary facts derived from having done extensive work on the file prior to the Rimes hearing," weighed the equities, and then held that the Iveses had not been made whole. Respondents' brief at 5.
Purpose and History of Subrogation
¶ 16. Our analysis leads us to believe that the made whole doctrine should be reaffirmed. As part of our analysis we review the development of the subrogation doctrine. Subrogation has its genesis in the principle of indemnity. Although an insured is entitled to indemnity from its insurer pursuant to coverage provided under a policy of insurance, the insured is entitled only to be made whole, not more than whole. Subrogation prevents an insured from obtaining one recovery from the insurer under its contractual obligations and a second recovery from the tortfeasor under general tort principles. The subrogation doctrine also advances an important policy rationale underlying the tort system. It forces a wrongdoer who has caused a loss to bear the burden of reimbursing the insurer for indemnity payments made to its insured as a result of the wrongdoer's acts and omissions. See Elaine M. Rinaldi, Apportionment of Recovery Between Insured and Insurer in a Subrogation Case, 29 Tort. & Ins. L.J. 803 (1994).
¶ 17. Another author traces the development of subrogation from cases involving the liability of a surety. Harriette R. Flinn, Subrogation - Insured Must Be Paid In Full For Loss Before Insurer Is Entitled To Subrogation Against Tortfeasor, 10 Mem. St. U. L. Rev. 161,162-63 (1979). Where an insurer pays its full obligation under the policy, but that amount is less than the insured's entire loss, the insurer's liability is none*66theless limited by the policy amount. Id. The question then arose whether the common law which developed to protect creditors in a surety situation should apply to the situation where the insurer has already paid in full compliance with his policy but the insured's loss exceeds the insurance payment. In the absence of an express agreement to the contrary, the traditional rule has been that the common law rule prevails and the insurer has no subrogation rights until the insured is made whole, that is, until the insured has been compensated for the entire loss sustained. Author Flinn also noted, however, that it has become standard practice for indemnity contracts to contain express provisions subrogating the insurer who has paid a claim to all of the rights of the insured against a wrongdoer. Id.
¶ 18. In 1977, this court held that a subrogation clause in an indemnity insurance contract did not change the common law rule that a subrogated insurer has no right to share in the funds recovered from the tortfeasor until the insured is made whole. Garrity v. Rural Mutual Ins. Co., 77 Wis. 2d 537, 546-47. The insureds suffered a fire loss to their dairy barn and other property, for which they were paid the limits under their Rural Mutual fire insurance policy. Id. at 539. The parties stipulated that the insureds' total loss exceeded the fire policy limits. Id. In other words, the Garritys were not made whole. Id. at 543. The Garritys then sued the owners of a feed mill, alleging that negligent operation of a feed truck caused the fire. Id. at 539. The alleged tortfeasors were also insured by Rural Mutual for liability coverage limits of $25,000. Id.
¶ 19. The Garritys executed a subrogation receipt under their fire policy granting to Rural Mutual a right of recovery against any party found liable for *67their loss. Because Rural Mutual also insured the alleged tortfeasors, it sought a declaration of its rights of subrogation against itself. Id. at 539-40.
¶ 20. The circuit court entered an interlocutory judgment granting Rural Mutual the right of priority in any recovery of money from defendants or their insurer, up to the amount paid under the fire policy. Id. at 540. Under that ruling, Rural Mutual would not have had to pay any more money to plaintiffs even if its insured tortfeasors were found negligent. Id.
¶ 21. This court disagreed with the circuit court ruling which incorrectly gave the contractual language primacy over the common law rule that an insured must be made whole before the insurer may recover from the tortfeasor. Id. at 541. The court focused on the distinction between the right of recovery provided in the subrogation clause and the common law rule dictating priority of payment to an insured who has not been made whole. Id. at 544-46. In Garrity, the court relied upon the following rationale for the made whole rule: "[t]he owner of the policy should be first to make good his own loss; where either the insurer or the insured must to some extent go unpaid, the loss should be borne by the insurer for that is a risk the insured has paid it to assume." Id. at 542.7 In other words, the insurer has no right of reimbursement against the insured where *68the total compensation received by the insured is less than his loss. Id. at 543. Garrity involved only a claim for property damage.
¶ 22. As the Garrity decision demonstrates, sub-rogation rights are common under policies of property or casualty insurance, wherein the insured sustains a fixed financial loss and the purpose is to place that loss ultimately upon the wrongdoer. 3 Appleman, Insurance Law and Practice s 1675, at 495 (1967). The more recent disputes concerning the propriety of subrogation reimbursement have occurred in cases of personal injury. In Rimes, this court reviewed a procedure applying the made whole inquiry to a personal injury case. 106 Wis. 2d 263. There the majority reluctantly approved the circuit court's use of a post-settlement evidentiary "mini-trial" to determine the plaintiffs' total amount of damages and apportionment of negligence between plaintiff and tortfeasors. Id. at 276-79.
¶ 23. In Rimes, the plaintiff was injured in an automobile accident involving three other vehicles. Id. at 265. The plaintiff ultimately dismissed one of the *69defendants with prejudice, and on the second day of trial accepted settlement from the insurers of the remaining vehicle owners. Id. at 266-67. The settlement included the $50,000 policy limits of one policy, and $75,000 out of a total $300,000 limit from the other policy. Id. at 267.
¶ 24. The plaintiffs and their subrogated insurer then agreed to seek a "trial" concerning the insurer's claim to reimbursement for medical payments previously made on behalf of the injured plaintiff. Id. at 267. The circuit court held a.two-day hearing, found no contributory negligence and found total damages of over $300,000. Id. at 268-69. The circuit court held that only the amount of total damages would make the plaintiffs whole. Because the settlement amount fell far short, the subrogated insurer was not entitled to reimbursement. Id. at 269.
¶ 25. On appeal, the insurer asserted that the plaintiffs' voluntary settlement and release in Rimes was the legal equivalent of being made whole. This court disagreed for several reasons. Id. at 273. There was no evidence of an acknowledgment by the plaintiffs that the settlement during trial had made them whole. Id. at 267-68, 273. No recital in the plaintiffs' stipulation evidenced an acknowledgment of wholeness. Id. at 273. The court particularly noted that the plaintiffs, in their general release, set aside an escrow fund in the amount of the insurer's subrogated claim. That escrow fund indicated to us that the plaintiffs did not consider themselves whole. Id. The court therefore refused to assume that the grantor of a release acknowledged full reimbursement for the wrong done. Id. By their settlement with the tortfeasors, the Rimes plaintiffs gave up their right of action against the defendants for consideration that may or may not have made them whole. Id.
*70¶ 26. Only where an injured party has received an award by judgment or otherwise that pays for all of his or her elements of damages, including those for which the insured has already been indemnified by an insurer, is there a right to subrogation reimbursement. Id. at 275.8 In light of the facts in Rimes, and in accordance with the general principles of subrogation stated in Garrity, this court concluded that the settlement in Rimes did not make the plaintiffs whole. Id. at 276.
¶ 27. Four years later, this court cautioned that the made whole principle oí Rimes and Garrity was not absolute. Vogt v. Schroeder, 129 Wis. 2d 3, 16-17, 383 N.W.2d 876 (1986). There we were asked, prior to a trial, to balance the equities between an underinsurer who had paid benefits and an underinsured tortfeasor who had not paid for the damages he caused. Id. at 17. In doing so, the court recognized the equitable principle derived from Garrity that "the wrongdoer should be responsible for his conduct and not be allowed to go scot-free by failing to respond in damages while another, an indemnitor for the injured party, is required to do so." Id. at 13. The court concluded that once the injured plaintiffs underinsurance carrier paid at least the maximum amount obtainable from the underinsured motorist's carrier, the underinsurer could assert a subrogation reimbursement claim *71against the tortfeasor's insurer. The outcome in Vogt was based on this court's policy of promoting prompt settlement, and served to put the burden of final payment on the tortfeasor for the amount in excess of his coverage. Id. at 19. Under Vogt, a plaintiff can take advantage of the defendant's settlement offer and an underinsurer can protect its right to subrogation reimbursement. Id. at 23.
¶ 28. In 1993 the court considered a claim for subrogation where the insurer sought subrogation recovery against the tortfeasor regardless of the answer to the made whole inquiry. Schulte v. Frazin, 176 Wis. 2d 622, 628. In Schulte, the injured plaintiffs and defendants entered into a $2,460,000 settlement of a medical malpractice claim. Id. at 626. The settlement agreement did not provide for any payment to the sub-rogated carrier. Id. The settlement agreement did provide that the plaintiffs would indemnify the defendants for any liability arising out of the incident. Id. at 626-27. Application of the subrogation principle depended upon the equities, and thus upon the facts at hand. Id. at 631. This court also recognized that any determination of rights to subrogation reimbursement must consider the realistic competition between an insured and the subrogated insurer for limited settlement funds. Id. at 633.
¶ 29. The ultimate holding in Schulte reiterated the Rimes rule and affirmed the need for a made whole inquiry. However, we also concluded in Schulte that where the plaintiffs settled with defendants, indemnified the tortfeasors and moved for a subrogation hearing, the plaintiffs not only extinguished their claim against the tortfeasors but also extinguished the subrogated insurer's claim against the tortfeasors. 176 Wis. 2d at 634-35.
*72¶ 30. Not long after Schulte this court confronted the effect of contributory negligence on the made whole inquiry. Sorge, 182 Wis. 2d 52. There, the parties asked us to determine whether an insurer had a right to sub-rogation reimbursement when the plaintiff settled before trial. Unlike the plaintiff in Rimes, however, the Sorge plaintiff admitted contributory negligence. Id. at 55. She settled for what she later stipulated would have been her recovery following a jury trial. Id. at 55-56.
¶ 31. It is clear that the Sorge case was brought to this court based on stipulated facts, and not following a trial or the traditional Rimes hearing. In our view, it is unfortunate that the Sorge stipulation did not provide us with the usual facts necessary for a made whole determination. The stipulation did not identify the amount of the plaintiffs total damages, that is, the amount that would have made her whole under Rimes and Garrity. Alternatively, the stipulation did not identify the particular percentage of plaintiff Sorge's negligence. Sorge's attorney represented that the stipulation did, however, provide that "Ms. Sorge settled the case for an amount less than the total damages that she had, minus the total amount of the subrogated — the subrogated carrier's liens, but in an amount which would have been equal to what she would have received from a jury after a reasonable deduction for — for her contributory negligence." Brief for Petitioner at App. F-4, Sorge, 182 Wis. 2d 52.9
*73¶ 32. Although the Rimes and Garrity decisions did not apply the made whole doctrine to a contribu-torily negligent injured person, in Sorge this court tried to satisfy the underlying policies behind both the doctrine of subrogation reimbursement and the made whole rule of those earlier cases. Sorge said that a contributorily negligent injured person is made whole such that her insurers may assert their reimbursement rights when the insured has been compensated for all of her losses less the amount corresponding to her contributory negligence. Sorge, 182 Wis. 2d at 58, 62.
¶ 33. This court ultimately concluded in Sorge that an injured plaintiff who is at most 50 percent negligent must reimburse the insurance company for the share of the medical bills it paid corresponding to the tortfeasor's share of negligence. Id. at 61-63. As we now read Sorge, that conclusion would lead to the following result: for example, if a jury finds a plaintiff to be 10 percent contributorily negligent, the plaintiffs net award is 90 percent of his or her awarded damages. Likewise, the subrogated insurer would recover 90 percent of the subrogated medical expenses rather than the full 100 percent. The Sorge court wrote that if no subrogated amounts were to be paid back until the insured had received 100 percent of his or her total damages, a plaintiff who conceded contributory negli*74gence would never have to repay any subrogated medical expenses.10 Id. at 60. We now are of the opinion that our conclusion in Sorge was erroneous.
The Made Whole Inquiry Today
¶ 34. We recognize that, in light of our decision in Sorge, the court of appeals below took a logical step by remanding for a determination of Michael Ives' contributory negligence. Although not explicitly directed by the court of appeals, the circuit court would necessarily have to determine the negligence of all of the alleged tortfeasors. The court of appeals also was compelled to rule on the applicability of the contributory negligence bar as contained in Wis. Stat. § 895.045. The Iveses' attorney vividly described the possible outcomes, based on prior case .law:
In this case, under the Court of Appeals ruling, Michael Ives'(sic) is made whole if he is found to be 82.58 percent or greater contributorily negligent. *75So, at the "mini-trial," Rhinelander must focus on Michael Ives' contributory negligence and get a ruling of at least 82.58 percent of contributory negligence from the trial court in order to recover at all. If the trial court reaches that magic number, then Rhinelander recovers. Under the Court of Appeals formula, they would recover up to 17.42 percent of its total lien.
However, if Rhinelander does a somewhat better job in proving Michael Ives' negligence, and the trial court finds Michael Ives 90 percent negligent, Rhinelander recovers only 10 percent of its total lien. To take this a step further, if Rhinelander does the best job it can in proving Michael Ives' contributory negligence, and the trial court finds Michael Ives 100 percent negligent, Rhinelander gets nothing, just as it would have if Michael Ives had not been made whole.
Respondents' brief, at 12.
¶ 35. The parties before the court acknowledge the uncertain and unworkable status of the current law on subrogation reimbursement. They seek guidance so that the principles of earlier decisions may be properly applied, where possible, to pre-trial settlements.11 Neither party seeks a trial on liability.12 At oral argument, counsel for Rhinelander and the Iveses agreed that a full trial on liability would be unworkable, time-consuming, expensive and contrary to judicial economy.
*76¶ 36. To respond to the parties before us, we would return to traditional principles of subrogation. We give the doctrine of subrogation a liberal application. D'Angelo v. Cornell Paperboard Products Co., 19 Wis. 2d 390, 402, 120 N.W.2d 70 (1963); Perkins v. Worzala, 31 Wis. 2d 634, 639, 143 N.W.2d 516 (1966). However, subrogation reimbursement will not be permitted where it works a result that is contrary to public policy. First Nat. Bank of Columbus v. Hansen, 84 Wis. 2d 422, 429, 267 N.W.2d 367 (1978). "Subrogation is based on equity and is permitted only when the rights of those seeking subrogation have greater equity than those who oppose it." 84 Wis. 2d at 429. As the court said in Cunningham v. Metropolitan Life Ins. Co., 121 Wis. 2d 437, 455, 360 N.W.2d 33 (1985), we are not ready to dispose of our long standing doctrine of equitable subrogation. Here we would reaffirm the equitable principles which underlie the doctrine.13
¶ 37. The made whole principle has been characterized as the primary doctrine developed to alleviate the harshness of subrogation. Roger M. Baron, Subro-gation: A Pandora's Box Awaiting Closure, 41 S. Dak. L. Rev. 237, 238 (1996). This court defined made whole in Rimes by saying that where there is a claim for either equitable or conventional subrogation, the insurer will not share in the recovery from the tortfeasor if the total amount recovered by the insured from the insurer and the wrongdoer does not cover his or her entire loss. 106 Wis. 2d at 271. After the plaintiff *77and defendants have settled, either the settling plaintiff or the subrogated insurer may request a Rimes hearing. At that hearing the circuit court will determine whether the injured plaintiff has been made whole, that is, whether the injured plaintiff has been fully compensated for the loss sustained.
¶ 38. We believe that the Sorge court failed to apply this formula, in part because the parties created a stipulated record that did not contain the plaintiffs total damage figure.14 Nonetheless, the Sorge court proceeded to rule that the insurers were entitled to reimbursement because the insured had "received all that she was legally entitled to receive," without actually calculating her total damages. We would now vote to overrule our holding in Sorge. By doing so, we would preserve the requirement for a made whole determination before a subrogated insurer may be reimbursed.15
*78¶ 39. A majority of jurisdictions that still permit reimbursement to a subrogated carrier in personal injury actions adhere to the made whole rule of Garrity and Rimes.16 See, e.g., Powell v. Blue Cross & Blue Shield, 581 So. 2d 772, 777 (Ala. 1990); Marquez v. Prudential Property & Cas. Ins. Co., 620 P.2d 29, 32-33 (Colo. 1980) (interpreting statute to be consistent with insured-whole rule); Magsipoc v. Larsen, 639 So. 2d 1038, 1042 (Fla. Dist. Ct. App. 1994); Hardware Dealers Mut. Fire Ins. Co. v. Ross, 262 N.E.2d 618, 621 (Ill. App. Ct. 1970); Capps v. Klebs, 382 N.E.2d 947, 951 (Ind. Ct. App. 1978) (construing statute as intending to confer right of subrogation only in event the insured has been fully compensated for his or her adjudged losses); Ludwig Farm Bureau Mut. Ins. Co., 393 *79N.W.2d 143, 144-46 (Iowa 1986) (upholding made whole rule, but permitting subrogation reimbursement where amounts recovered by insured from tortfeasor can be identified and credited toward subrogated claims); Southern Farm Bureau Cas. Ins. Co. v. Sonnier, 406 So. 2d 178, 180 (La. 1981); Wescott v. Allstate Ins. Co., 397 A.2d 156, 169 (Me. 1979); Frost v. Porter Leasing Corp., 436 N.E.2d 387, 389-90 (Mass. 1982) (where insurance policy contained no subrogation clause, court unwilling to extend implied rights of sub-rogation to insurance for personal injuries); Union Ins. Soc'y v. Consolidated Ice Co., 245 N.W. 563, 564, (Mich. 1932); Westendorf v. Stasson, 330 N.W.2d 699, 703 (Minn. 1983); Home Ins. Co. v. Hartshorn, 91 So. 1, 3 (Miss. 1922); Skauge v. Mountain States Tel. & Tel. Co., 565 P.2d 628, 632 (Mont. 1977) (holding that insured is entitled to be made whole for his or her entire loss and any costs of recovery, including attorney fees, before insurer can assert its right of legal subrogation); Providence Washington Ins. Co. v. Hogges, 171 A.2d 120, 124 (N. J. Super. Ct. App. Div. 1961); St. Paul Fire & Marine Ins. Co. v. W.P. Rose Supply Co., 198 S.E.2d 482, 484-85 (N.C. Ct. App.) cert. denied, 200 S.E.2d 655 (N.C. 1973); Lombardi v. Merchants Mut. Ins. Co. 429 A.2d 1290, 1292 (R.I. 1981); Wimberly v. American Cas. Co. of Reading, Pa., 584 S.W.2d 200, 203 (Tenn. 1979); Ortiz v. Great Southern Fire & Cas. Ins. Co. 597 S.W.2d 342, 344 (Tex. 1980); Hill v. State Farm Mut. Auto Ins. Co., 765 P.2d 864, 868 (Utah 1988); Vermont Indus. Dev. Auth. v. Setze, 600 A.2d 302, 307 (Vt. 1991); Thiringer v. American Motors Ins. Co., 588 P.2d 191, 193-94 (Wash. 1978); Kittle v. Icard, 405 S.E.2d 456, 464 (W. Va. 1991).
¶ 40. We now believe that our decision in Sorge, while seemingly reasonable, misapplied the made *80whole rule of Garrity and Rimes. Because the stipulation by the parties focused the court on what the plaintiff was legally entitled to receive, instead of focusing on what loss the plaintiff had actually sustained, none of the courts considering the issue addressed Ms. Sorge's total damages. Total damages, however, are the heart of the made whole determination. The focus of made whole is not on what the plaintiff can legally receive, but on what the plaintiff lost. See, e.g., Rimes, 106 Wis. 2d at 275:
It is clear that a payment of [the settlement amount], unless that sum had been arrived at by a jury whose intent was to make the plaintiff whole, was irrelevant. Under the facts of this case, the payment. . .was the price that the defendant tortfeasors were willing to pay to avoid the risk of greater exposure; and it was the sum that [the injured plaintiff] was willing to accept. It has nothing to do with the determination of whether [the injured plaintiff] was made whole.
¶ 41. Therefore, we would overrule the holding of Sorge that a plaintiff is made whole when he or she receives all that he or she is legally entitled to receive taking into account his or her contributory negligence. Instead, we believe that reaffirming the made whole rule would restore consistency of results and lead to more prompt resolution of subrogation claims between an insured and his or her insurer.
¶ 42. Justice Steinmetz' concurrence asks "[o]f what value is precedent when a unanimous holding can be overruled two years later due to a change in the minds of members of this court?" Steinmetz cone, at 88. We answer by saying that it is now clear that Sorge misapplied 18 years of precedent by not correctly applying the made whole theory recognized in Garrity *81and Rimes. Thus, it is indeed Sorge which changed existing precedent and which has created the problems now facing this court.
¶ 43. Justice Steinmetz' concurrence states that settlements should be encouraged. We agree. We disagree, however, with the implication that the made whole rule of Garrity and Rimes has worked to discourage settlements. Very few cases have come to this court in the past twenty years, other than Sorge, where the parties have asked us to interpret the Garrity and Rimes decisions. We can only assume that parties have successfully achieved settlements, applying the made whole principles of our earlier cases.
¶ 44. The made whole rule may best be explained by an example:
A plaintiff has total damages of $60,000. That is the made whole number. The insurer has paid $40,000 in medical expenses on behalf of the plaintiff. The plaintiff settles with the tortfeasor for $30,000! Thus, the plaintiff has received, or received the benefit of, $70,000, or $10,000 over his or her made whole number. That excess $10,000 is available to reimburse the subrogated insurer.
After that, the plaintiff will likely pay $10,000 in attorney's fees (1/3 of $30,000 settlement) and have $10,000 left over to pay costs of litigation, and as compensation for all of the other elements of damage for which the plaintiff was not insured.
¶ 45. Contrary to the position of Justice Steinmetz' concurrence, insureds may well settle for an amount which, when combined with the dollars already paid by the insurer, is in excess of the insured's total damages or made whole number. Justice Steinmetz' concurrence fears that our willingness to maintain the made whole rule of Garrity and Rimes *82would work an injustice to insurers who seek subrogation reimbursement. This fear is misplaced. Were our analysis that of a majority, it would not allow insured plaintiffs to reap a new benefit. Simply put, we believe that the rule of Garrity and Rimes should remain. And, as we have noted earlier, the made whole rule is applied in a vast number of states permitting subrogation in personal injury actions.
¶ 46. Nonetheless, in place of the made whole rule Justice Steinmetz' concurrence would adopt Rhinelander's position and allow the insurer to recover a pro rata portion of the settlement proceeds from the insured, even when the sum of the subrogated payments and the settlement dollars does not equal the plaintiffs' total damages. Justice Steinmetz' concurrence offers no Wisconsin precedent for this proposal, a proposal which would effectively overrule Garrity and Rimes. Instead, the concurrence cites a bar journal article written 15 years ago, in which the author proposed to attorneys that they settle subrogation cases by executing a pro rata agreement with the insured.17 Donald H. Piper, The Garrity and Rimes Dilemma, The Milwaukee Lawyer, October, 1982, at 3.
[I]t is possible in an appropriate case for an insurer and its insured to enter into a binding agreement modifying the Garrity-Rimes rules for purposes of the specific lawsuit. . . .The essence of such a solution to the problem would be an agreement that the insured and the insurer would share pro rata in any recovery according to a negotiated percentage that reflects the amounts of the claims of both parties, the strengths and weaknesses of the *83plaintiffs noninsured claims, and the roles that both parties intend to play in prosecuting the litigation.
Attorney Piper's proposal was not directed at the courts, but at the parties to the subrogation dispute.18
¶ 47. Although not required by the facts of this case, Justice Steinmetz' concurrence also proposes a formula for sharing of attorney's fees between the insured and subrogated insurer. In that discussion, the concurrence relies again on the Piper article. While Justice Steinmetz' concurrence seeks to be "completely equitable," Steinmetz cone, at 92-93, it fails to recognize the varying degrees of participation by lawyers for subrogated insurers. In any given case, the insurer may have a lawyer who enters an appearance and does nothing, or who does little work and advances no costs, or who is substantially involved in the prosecution of the claim. Applying the suggestion of Justice Steinmetz' concurrence, under either of these three scenarios the insured plaintiff would have to bear the full amount of his or her attorney's fees and litigation costs.
¶ 48. In sum, Justice Steinmetz' concurrence proposes a fractured remedy for subrogation claims. Under that proposal, resolution of a claim for subrogation will depend upon whether there is a trial finding of contributory negligence, a stipulation as to gross dam*84ages and contributory negligence,19 or a settlement without such stipulations. Our position is simple — only one rule should apply. The made whole rule as set out in Garrity and Rimes, and as applied in subsequent case law, best meets the equitable and legal principles behind subrogation and should apply to each of the situations addressed herein.
¶ 48a. I am authorized to state that Chief Justice Shirley S. Abrahamson and Justice William A. Bab-litch join this concurring opinion.
Chief Justice Shirley S. Abrahamson and Justice William A. Bablitch join in this concurrence.
The parties make no claim that the insurance coverage provided by Rhinelander was part of a self-funded ERISA plan. Subrogation provisions of a self-funded ERISA plan trump state subrogation rules. FMC Corp. v. Holliday, 498 U.S. 52, 58-65 (1990). According to the pleadings, the original subrogated plaintiff, Employers Insurance Company, sold health insurance policies for a premium, and had issued a policy to Michael and Tammy Ives, pursuant to which it may have made payment of medical bills relating to the accident.
In this case, counsel agreed at oral argument that this is a claim for contractual subrogation. The insurance policy under which Rhinelander makes its claim, however, is not part of the record before this court.
Following the decision in Rimes v. State Farm Mut. Auto. Ins. Co., 106 Wis. 2d 263, 316 N.W.2d 348 (1982), this type of *61post-settlement subrogation hearing came to be known as a "Rimes hearing."
Wis. Stat. § 895.045 (1989-90) provides:
Contributory negligence. Contributory negligence shall not bar recovery in an action by any person or his legal representative to recover damages for negligence resulting in death or in injury to person or property, if such negligence was not greater than the negligence of the person against whom recovery is sought, but any damages allowed shall be diminished in the proportion to the amount of negligence attributable to the person recovering.
*63All further references are to the 1989-90 statutes unless otherwise noted.
This court is not called upon by the parties to interpret the meaning of "full-value" as used in their stipulation. The circuit court also refused to interpret that term. For purposes of this concurrence, we read the terms of the entire stipulation to recognize that the plaintiffs and alleged tortfeasors decided to settle all of the plaintiffs' claims for damages arising from this accident, rather than assume the risks facing each of them at a trial.
Although Justice Steinmetz' concurrence criticizes an alleged reliance on Essock v. Mawhinney, 3 Wis. 2d 258, 88 N.W.2d 659 (1958) for the made whole theory in Garrity v. Rural Mut. Ins. Co., 77 Wis. 2d 537, 253 N.W.2d 512 (1977), neither Garrity nor Rimes v. State Farm Mut. Auto. Ins. Co., 106 Wis. 2d 263, 316 N.W.2d 348 (1982) even cite to Essock. Essock stands for the proposition that mere uncertainty as to the amount of damages does not preclude a right of recovery. See, e.g., Hein v. Torgerson, 58 Wis. 2d 9, 18-19, 205 N.W.2d 408 *68(1973); Hope Acres, Inc. v. Harris, 27 Wis. 2d 285, 298, 134 N.W.2d 462 (1965).
Justice Steinmetz' concurrence is also critical of the Garrity court's failure to rely on Wisconsin precedent in adopting the made whole theory. The issue in Garrity was one of first impression in Wisconsin. Any time there is a case of first impression, we look to other state jurisdictions and treatises for guidance. At the time the Garrity decision was published it was consistent with the rule in several other states and with the interpretations of commentators such as 4 Williston on Contracts, sec. 1269 (Third ed. 1967) and Couch on Insurance, sec. 61.61 (2d ed. 1968). For the past twenty years, Garrity has been precedent in this state. Many cases, including the decision in Sorge v. National Car Rental System, Inc., 182 Wis. 2d 52, 62, 512 N.W.2d 505 (1994), have cited to or relied upon Garrity.
The made whole rule of Rimes v. State Farm Mut. Auto. Ins. Co., 106 Wis. 2d 263, 316 N.W.2d 348 (1982) has become the default federal common law rule in the Seventh Circuit where an employee benefit plan fails to designate priority rules or provide its fiduciaries the discretion necessary to construe the plan accordingly. Schultz v. Nepco Employees Mut. Benefit, 190 Wis. 2d 742, 751-52, nn.9-10, 528 N.W.2d 441 (Ct. App. 1994), citing Sanders v. Scheideler, 816 F. Supp. 1338 (W.D. Wis. 1993), aff'd by unpublished order, 25 F.3d 1053 (7th Cir. 1994).
There appears to be confusion in the Sorge record as to what damages the settlement amount included. The attorney for the subrogated insurer claimed at the same hearing at which the plaintiffs attorney recited the stipulation, that "[t]he medical expenses were paid on her behalf by the medical providers, and then she received a settlement which included in it the *73medical expenses again. She’s paid twice. Rimes wants to avoid that." Brief for Petitioner at App. F-9. Attorney Stingl later argued, "Judge, I don't think the reduction — I don't think there's any stipulation anyplace that said the reduction is because of the medical expenses. . . .What was said was the reduction was for her own negligence." Brief for Petitioner at App. F-12, Sorge v. National Car Rental System, Inc., 182 Wis. 2d 52, 512 N.W.2d 505 (1994). It does not appear from the Sorge record that this dispute was ever resolved.
Justice Steinmetz' concurrence incorrectly asserts that the Wisconsin Academy of Trial Lawyers (WATL) proposed factoring in the plaintiffs contributory negligence when determining the made whole number. Steinmetz cone, at 88, n.4. WATL's proposal, referred to in footnote 4, is consistent with Rimes and Garrity: the settlement amount plus the insurers' payments equals the total amount of her losses, or the made whole number. Both Justice Steinmetz' concurrence and the opinion in Sorge misinterpret WATL's position. WATL's amicus brief in Sorge did not advocate a proration of the settlement recovery from the tortfeasors between plaintiff Sorge and her subrogated insurers. Rather, WATL merely suggested that any amounts the plaintiff recovered beyond her made whole number be divided between her two insurers. Brief of Amicus WATL at 8, Sorge v. National Car Rental System, Inc., 182 Wis. 2d 52, 60 n.5, 512 N.W.2d 505 (1994).
When we refer to a settlement by the parties here, we refer to a settlement between the injured plaintiff and all remaining tortfeasor defendants. In this concurrence, we do not address a settlement with fewer than all of the defendants.
Nor did either party request a jury to hear the evidence offered at the post-settlement subrogation hearing.
The made whole rule, requiring as it does case-by-case "satellite litigation" after the underlying action has been settled, has been criticized as counterproductive and as further diminishing the funds available to the injured insured for compensation. Roger M. Baron, Subrogation: A Pandora's Box Awaiting Closure, 41 S. Dak. L. Rev. 237, 251 (1996).
It is appropriate to note at this juncture, as even counsel for the Iveses stated at oral argument here, that Sorge was a "set-up" case. The payments made by the insurers were quite small, and represented a very small portion of plaintiff Sorge's total damages, based on her ultimate settlement amount. It is clear that the parties, including the amicus in that case, were interested in a rule of law to apply to future cases. Unfortunately, at the time Sorge was decided this court did not envision the problems we now face in determining rights to subrogation reimbursement. The Sorge decision represented a fundamental change from our long-standing rule in Rimes, and in our view, is not tenable. Without performing the made whole calculation established in Rimes, the Sorge court erred by broadly stating that a contributorily negligent plaintiff could never be made whole.
We take this view notwithstanding our recognition of appellate decisions that a statute may limit or preempt the common law made whole rule. See, e.g., Waukesha County v. Johnson, 107 Wis. 2d 155, 161-62, 320 N.W.2d 1 (Ct. App. 1982) *78(reimbursement formula set forth in Wis. Stat. § 49.65 (1977) rendered inapplicable common law rule and permitted counties to be reimbursed for medical assistance payments from the proceeds of automobile accident settlements despite the fact that the recipients had not been fully compensated); Martinez v. Ashland Oil, Inc., 132 Wis. 2d 11, 15-16, 390 N.W.2d 71 (Ct. App. 1986) (distribution scheme in Wis. Stat. § 102.29 (1975) permitted a worker's compensation carrier to share in the settlement proceeds recovered from a third party by a wife and child of a worker killed in an industrial accident, even though the wife and child had not been made whole); Petro v. D.W.G. Corp., 148 Wis. 2d 725, 727-28, 436 N.W.2d 875 (Ct. App. 1989) (by enacting Employee Retirement Income Security Act of 1974, Congress preempted state's subrogation law and proof that the injured person had been made whole not necessary for insurer's recovery from the settlement proceeds).
See Roger M. Baron, Subrogation: A Pandora's Box Awaiting Closure, 41 S. Dak. L. Rev. 237, 250 (1996). See also collected cases in Elaine M. Rinaldi, Apportionment of Recovery between Insured and Insurer in a Subrogation Case, 29 Tort & Ins. L.J. 803, 807 (1994).
At least as of the time he wrote this article, Mr. Piper's practice included representing insurers who have subrogation claims. Piper at 3.
It is interesting to note that Mr. Piper is one of the authors of the publication, The Law of Damages in Wisconsin, (State Bar of Wisconsin CLE Books, 2d ed. 1995). Sec. 32.20 of that volume sets out the made whole rule of Garrity v. Rural Mutual Ins. Co., 77 Wis. 2d 537, 253 N.W.2d 512 (1977) and Rimes v. State Farm Mut. Auto Ins. Co., 106 Wis. 2d 263, 316 N.W.2d 348 (1982).
We doubt that the parties will stipulate to gross damages and contributory negligence with any frequency.