¶ 49. {concurring.) This concurring opinion and the one of Justice Geske result from a 3-3 vote on the merits of the case. I would reverse the court of appeals decision.
¶ 50. The origin of the theory of "made whole" for an insured in Wisconsin can be traced back to Essock v. Mawhinney, 3 Wis. 2d 258, 88 N.W.2d 659 (1958). Essock had nothing to do with liability and attending subrogation of an insurance company; rather, Essock was a case dealing with a mortgage. The suit was against an auctioneer for negligence. The court held the auctioneer liable for negligence in conducting a sale, which resulted in delay and departure of prospective buyers, on the ground of probability that prices obtained were reduced. The circuit court also considered the negligence of the loan company in rendering its decision.
¶ 51. The closest the Essock case came to the current made whole theory was the jury being satisfied that the $10,700 payment was accepted upon the Mawhinneys' indebtedness and not as payment in full. *85The court held that "[s]ince the Mawhinneys are to be made whole by the granting to them of damages suffered, it follows that the Loan Company is entitled to credits for its commission and to the amount which it will have paid to plaintiffs in excess of the sale proceeds." Id. At 272. From this case, where the concept of being made whole had nothing to do with subrogation, it is a far leap to Garrity v. Rural Mut. Ins. Co., 77 Wis. 2d 537, 253 N.W.2d 512 (1977), a case upon which Justice Geske's concurring opinion in the present case relies heavily.
¶ 52. Without precedent, in Garrity, 77 Wis. 2d at 538, this court held "the insured is entitled to be made whole before the insurer may share in the amount recoverable from the tort-feasor."1 This was a new and substantial holding as to subrogation without any basis in Wisconsin law. The Garrity court repeats this holding twice again without precedent. Id. at 540. Thus, a giant step was invented by this court, changing *86the law of subrogation and ignoring existing insurance contracts.
¶ 53. In Garrity, this court relied on Hammill v. Kuchler, 203 Wis. 414, 232 N.W. 877, 234 N.W. 879 (1931), a case involving a mortgage and a warranty deed. The court discussed subrogation: " 'Subrogation is based on rules of equity. It is a creation of the law whereby the substantial ends of justice may be accomplished regardless of contract relations.'" Hammill, 203 Wis. at 425 (citation omitted). The case did not deal with the concept of being made whole.
¶ 54. In declining to apply the doctrine of subro-gation to the situation, the court in Hammill noted: "The general rule is that a person is not entitled to be subrogated to a creditor's securities until the claim of the creditor against the debtor to secure which the securities were given has been paid in full. ..." Id. at 426, quoting 25 Ruling Case Law at 1318. This is not a valid basis to support the holding in Garrity which allows courts to ignore existing insurance contracts under the guise of the "common law."
¶ 55. In Rimes v. State Farm Mut. Auto. Ins. Co., 106 Wis. 2d 263, 316 N.W.2d 348 (1982), this court reluctantly found that the only way the amount of Palmer and Patricia Rimes' damages could be ascertained was through a post-settlement trial. The Rimes court concluded that the amount of the insured's losses can best be established through a trial or hearing. This court further held in Rimes that the cause of action against a tortfeasor is indivisible. "Accordingly, it is only when there has been full compensation for all the damage elements of the entire cause of action that the insured is made whole."2 Id. at 275. At the mini-trial in *87Rimes, the trial court determined the plaintiffs total loss. It also considered contributory negligence, and determined that Rimes did not negligently contribute to his loss. Id. at 268. However, determining this requires establishing the nebulous "damages elements," as further explained below.
¶ 56. Only two years ago in Sorge v. National Car Rental System, Inc., 182 Wis. 2d 52, 57, 512 N.W.2d 505 (1994), the petitioner advanced the following argument:
[A]n injured party is made whole when she receives compensation for all her losses. The settlement in this case did not compensate Sorge for all of her losses because her recovery was reduced by an amount corresponding to her contributory negligence. Sorge claims, therefore, that the settlement did not make her whole.
Sorge, 182 Wis. 2d at 57. The court unanimously rejected this theory which Justice Geske's concurrence now embraces.
¶ 57. Instead, in Sorge the court unanimously adopted the respondent's argument that "an injured party is made whole when she receives the amount of compensation she would be legally entitled to recover from a trial in which the jury awarded her damages and the court reduced the damage award to account for *88the injured party's contributory negligence pursuant to Wis. Stat. § 895.045." (Emphasis added.) Id.3 In Sorge even the amicus curiae brief of the Wisconsin Academy of Trial Lawyers (WATL) allowed for consideration of contributory negligence of the injured party in the made whole formula. Id. at 60, n. 5. WATL further argued that a pro rata formula should be applied to determine the rights of the parties. Id.4 The holding in Sorge that a plaintiff is made whole by a settlement covering his or her losses less the amount corresponding to his or her contributory negligence is now plainly ignored by Justice Geske's concurrence.
¶ 58. Of 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? For persons writing insurance contracts, there is no precedent. Justice Geske's concurring opinion in this case contributes to the charge that there is no certainty in *89the law, because the law can change with the whims of the majority.
¶ 59. Justice Geske's concurrence is further flawed in that it fails to recognize the difference between damages awarded as a result of a trial and damages awarded as the result of a settlement. Settlement does not establish value of the plaintiffs loss; but rather, it is a compromise, a coming together of minds considering the potential award after a trial to a court or jury. This involves the consideration of many factors such as the insured's contributory negligence, time before trial, attorney fees, attorney's ability, availability of witnesses and their credibility, and the .potential and time for recovery. However, the value of the insured's claim considering the pain and suffering can only be established by trial by a judge or a jury, or a post-settlement hearing. Therefore, to say subrogation is available only after the insured has recovered all his or her losses from his or her own insurance company and the tortfeasor is incorrect.
¶ 60. Under the theory advanced by Justice Geske's concurrence, the insured is not made whole until all of his or her losses have been recovered. See concurring op. at 66. The insured will rarely or never receive in excess of his or her losses because it is unlikely the insured will be paid more than the value of losses that include damages such as pain and suffering, lost past and future wages, embarrassment, disability, loss of consortium. Consequently, the concurring opinion of Justice Geske effectively kills all future subrogation claims by a subrogated insurer.
¶ 61. In addition, the concurrence allows the plaintiff to reduce or eliminate reimbursement to a subrogated insurer in at least two ways. First, the injured plaintiff can settle with the alleged tortfeasors, *90thereby extinguishing the subrogated insurer's right of action against the tortfeasor. Schulte v. Frazin, 176 Wis. 2d 622, 634-35, 500 N.W.2d 305 (1993). Second, the plaintiff can settle with the tortfeasor for a little less than his or her total damages and then claim to have not been made whole or compensated for all of the elements of damages. Rimes, 106 Wis. 2d at 275.
¶ 62. Despite its potential downfalls, settlement should be encouraged by this court. It provides the parties with a fair, more rapid solution to their dispute than does a trial. The parties also often reach a settlement to avoid the expense and headaches of a drawn-out trial, and many of the factors that affect the outcome of a trial are taken into consideration by the parties in reaching the agreement, including the contributory negligence of the parties. However, there are still differences between settlements and trials that should be considered in determining a subrogated insurer's rights.
¶ 63. Based on the precedent of Rimes as spelled out by Sorge, then, if a case goes to trial, a plaintiffs contributory negligence as determined by a jury is a factor in determining if a plaintiff has been made whole.5 Sorge should also be applied in a settlement situation if the parties have stipulated to the plaintiffs gross damages and to the plaintiffs contributory negligence.6 If, on the other hand, a case settles and there have been no stipulations to a plaintiffs gross damages and contributory negligence, then fairness and equity *91require that the court assess the subrogated insurer's rights of recovery at a rate equal to the percentage of the plaintiffs recovery in relation to his or her gross damages.
¶ 64. This pro rata recovery in such a settlement situation is a fair and equitable solution because to require a post-settlement hearing to determine contributory negligence defeats the purpose of settlement, since contributory negligence of the plaintiff is generally a factor that is considered by the parties in reaching an agreement. As Justice Geske's concurring opinion notes, this approach, as embraced by the court of appeals, could open the door to manipulation by the plaintiff:
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. So, 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.
Concurring op. at 74-75, citing Respondents' brief, at 12. Consequently, the pro rata solution works best in such a situation.
¶ 65. Justice Geske's concurrence seeks to "reaffirm" the rules set forth in Garrity and Rimes while overruling its recent unanimous decision in Sorge. Concurring op. at 81. However, the concurring opinion overlooks the fact that the Garrity rule was merely invented by the court and had no basis in precedent, and the Rimes decision was reached through reliance *92on this tenuous Garrity rule. The concurrence of Justice Geske is based on shaky precedent, at best. It serves to effectively destroy all subrogation claims because, under its reasoning, a plaintiff will rarely be "made whole" because he or she will not likely ever recover in excess of his or her losses if all factors are considered.
¶ 66. The better decision would be that circuit courts need not determine whether a plaintiff has been made whole by a settlement. Instead, a circuit court should only need to determine the amount of the plaintiffs gross damages and apply a pro rata formula to determine the amount, if any, of the subrogated insurer's recovery.7
¶ 67. In order for our solution to be completely equitable, attorney fees should be considered by the trial court in certain circumstances. There are arrangements in subrogation cases that may burden the *93subrogated insurer. Such a situation is described as follows:
In those cases in which the loss payment of the insurer is large enough to warrant a subrogation effort, it is the insurer who most often conducts the bulk of the investigation to marshal sufficient evidence to proceed against the wrongdoer, for example, by engaging and paying for experts and complicated testing in products liability cases. Under these circumstances, the insured, regardless of whether his claim of uninsured damages is reasonable or unreasonable, often secures the equivalent of a "free ride."
Donald H. Piper, The Garrity and Rimes Dilemma, The Milwaukee Lawyer, October 1982, at 3, 4. Occasionally, the plaintiff may bear the bulk of the expenses and attorney fees, and often, both the plaintiff and the sub-rogated insurer will employ counsel on their own. For example, in the case at bar, both the Iveses and Rhine-lander employed counsel to represent their interests. See concurring op. at 59-60. In such a case where both the plaintiff and the subrogated insurer have employed their own attorneys, attorney fees and costs should not be considered in applying the pro rata formula explained here. However, if the insurance company relies on the insured's attorney and does not hire its own attorney, then the attorney fees and costs should be paid by both the insured and his or her insurer, each paying 50% of the attorney fees and costs.8 "Such case-by case analysis is. . .consistent with the equitable *94underpinnings of the doctrine of subrogation." Piper, supra at 5.
¶ 68. I would reverse the decision of the court of appeals and remand with directions to apply the principles of this concurrence. Full or gross damages are at the heart of the equation. I would therefore hold that by accepting the settlement, which includes medical expenses paid by Rhinelander, the Iveses must reimburse Rhinelander its pro rata share of the settlement recovery. Because the Iveses settled for 17.42 percent of their stipulated gross damages, the result in this case would be to award Rhinelander 17.42 percent of the subrogated amount. Such a decision would return some certainty to subrogation law with an easy pro rata formula. Additionally, such a decision would be grounded on the traditional principles of equity and fairness that underlie the subrogation doctrine as embraced by this court in Sorge.
¶ 69. I would reverse the decision of the court of appeals for the reasons stated herein which are contrary to the reasoning of Justice Geske's concurrence and remand with instructions to apply the principles embraced by this concurrence.
¶ 69a. I am authorized to state that JUSTICES Jon P. Wilcox and N. Patrick Crooks join this concurring opinion.
See Judge Posner's discussion contrasting the economic merits of applying the make whole interpretive principle versus utilizing a subrogation clause in Cutting v. Jerome Foods, Inc., 993 F.2d 1293, 1297-99 (7th Cir. 1993), cert. denied, 510 U.S. 916 (1993) ("It is true that rejecting 'make whole' would bring subrogation closer to assignment, but that would not necessarily be a bad thing. Assignment, by shifting the insured's tort rights to the insurance company, reduces the price of insurance and thus enables the insured to obtain more coverage, in effect trading an uncertain bundle of tort rights for a larger certain right, which is just the sort of trade that people seek through insurance."). Judge Posner also noted another drawback to perpetuating the make whole rule: "[it] simply shifts the disincentive to press hard (for a higher recovery from the tortfeasor) from the insurer to the insured." Cutting, 993 F.2d 1293, 1298.
Justice Geske's concurrence notes that the made whole ride of Rimes v. State Farm Mut. Ins. Co., 106 Wis. 2d 263, 316 *87N.W.2d 348 (1982), has become the default 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." Concurring op. at 70, note 8 (citations omitted). However, the concurrence neglects to note that another Seventh Circuit decision, Cutting v. Jerome Foods, Inc., 993 F.2d 1293 (7th Cir. 1993), cert. denied, 510 U.S. 916 (1993), pointed out that the make whole rule of Rimes is not "universal," and may not even be "predominant." Id., at 1297.
All that a person is ever legally entitled to receive is his or her total damages less a deduction for contributory negligence. A plaintiff is not legally entitled to receive an amount that does not consider his or her contributory negligence.
WATL's position was explained in Sorge as follows:
Amicus curiae, the Wisconsin Academy of Trial Lawyers (WATL), advances a position similar to Sorge's.
However, WATL avoids this incentive problem by acknowledging that a contributorily negligent party could be made whole, or even more than whole, if the combination of the settlement and her own insurers' payments is equal to or greater than the total amount of her losses. In this situation, WATL suggests that the subrogated insurers would be entitled to recover a pro rata share of that portion of the injured party's recovery that is beyond her total losses....
Sorge, 182 Wis. 2d at 60, n. 5. In the case at hand, Ives v. Coopertools, amicus curiae, the Wisconsin Health Insurers, also advocate a position similar to that of WATL in Sorge, also suggesting the use of a pro rata formula. Amicus curiae at 8.
This statement assumes that the trial court has not exercised its additur or remittitur power. Because this situation is not before this court, we decline to discuss this possibility.
It is important to note that the parties in Sorge stipulated to the plaintiffs contributory negligence in reaching a settlement.
The best way to demonstrate how this formula would work is through an example. A plaintiff has total damages of $100,000. The insurer has paid medical expenses of $20,000. The plaintiff settles with the defendants for $75,000. Under the formula advanced in this concurrence, because the plaintiff has settled for 75% of his or her total damages, the insurer is entitled to receive 75% of its subrogated amount, or $15,000.
Under the theory advanced by Justice Geske's concurring opinion, the court will first determine at what amount the plaintiff is made whole. That amount is $100,000. The plaintiff has received, in total, $95,000, including the $20,000 in medical expenses paid by the insurer and the $75,000 settlement. Under the theory of the concurrence, then, the plaintiff has not been made whole, so the subrogated insurer is not entitled to receive any of the reimbursement it has contracted for. This will be the case, under the concurring opinion, even if the plaintiff is 100% contributorily negligent. In that case, Justice Geske's concurrence would allow the plaintiff a $95,000 windfall.
The attorney for the Ives argued that Rhinelander's proposed rule is only fair if the subrogated insurer also shares in the attorney fees and costs. Respondent's brief at 23.