(concurring specially).
I concur, but only under the compulsion of Milbrandt v. American Legion Post of Mora, 372 N.W.2d 702 (Minn.1985), and its progeny.1 I view those cases as inconsist*343ent with the fundamental thrust of Minnesota subrogation law. Because Milbrandt is supreme court authority, however, it must be followed.
I.
Under the no-fault statute:
A reparation obligor paying or obligated to pay basic or optional economic loss benefits is subrogated to the claim for the recovery of damages for economic loss that the person to whom the basic or optional economic loss benefits were paid or payable has against another person whose negligence in another state was the direct and proximate cause of the injury for which the basic economic loss benefits were paid or payable. This right of subrogation exists only to the extent that basic economic loss benefits are paid or payable and only to the extent that recovery on the claim absent subrogation would produce a duplication of benefits or reimbursement of the same loss.
Minn.Stat. § 65B.53, subd. 2 (1984) (emphasis added). Similarly:
A reparation obligor paying or obligated to pay basic economic loss benefits is subrogated to a claim based on an intentional tort, strict or statutory liability, or negligence other than negligence in the maintenance, use, or operation of a motor vehicle. This right of subrogation exists only to the extent that basic economic loss benefits are paid or payable and only to the extent that recovery on the claim absent subrogation would produce a duplication of benefits or reimbursement of the same loss.
Minn.Stat. § 65B.53, subd. 3 (1984) (emphasis added). The emphasized language in the statute makes clear, contrary to Mil-brandt, that a right of subrogation is given to the reparation obligor directly; that is, the insurer has a right to be subrogated to the victim’s claim against the tortfeasor, not to the victim’s recovery from the tort-feasor. The subrogation right, however, is limited in amount and the statute’s next sentence serves to define that limitation:
This [insurer’s] right of subrogation [against the tortfeasor] exists only to the extent that basic economic loss benefits are paid or payable and only to the extent that recovery on the claim absent subrogation would produce a duplication of benefits or reimbursement of the same loss.
Minn.Stat. § 65B.53, subds. 2 & 3.
Understandably, but also unfortunately, Milbrandt read this sentence to limit the right of subrogation itself, not just the amount. Interpreting this language, Mil-brandt stated:
The statute * * * means exactly what it says: a reparation obligor may assert a subrogation claim to recover basic economic loss benefits paid only when the insured has received a double recovery. Because the insurer’s right to recover benefits paid its insured exists only when the insured obtains double recovery, the right of recovery recognized in subdivision 3 may be asserted only against the insured. When seeking to recover under subdivision 3, the burden is on the insurer to show that the insured has been overcompensated.2
Milbrandt, 372 N.W.2d at 705 (footnotes omitted) (emphasis added).
I believe Milbrandt misconstrues the Minnesota no-fault statute, and to the extent of that misconstruction, should be abandoned.3 The problem with reading the *344final sentence of section 65B.53, subdivisions 2 and 3, as a limitation on the right of subrogation, rather than on the amount of subrogation, is that it sets up a conflict between insured and insurer. Specifically, the insured is permitted to “sell out” its insurer’s right of subrogation, even though doing so violates the obligation of loyalty owed by the insured to its insurer. See Schmidt v. Clothier, 338 N.W.2d 256, 261-63 (Minn.1983); Miller v. Shugart, 316 N.W.2d 729, 734 (Minn.1982). Indeed, Mil-brandt, as applied in this case, permits the victim and a third-party tortfeasor to strike a deal that deprives the victim’s insurer of its right to subrogation for payment of basic no-fault benefits. The Milbrandt reading of the statute gives rise to serious mischief in the relationship of insureds and insurers by inviting acts by insureds that violate their good faith obligation to their insurers. Arguably, in the future, a settlement like the one here should give the insurer a claim against its own insured for disloyalty.
II.
I believe Milbrandt’s reading of the sub-rogation statute also overlooked the possibilities of using Naig settlements in the no-fault context. See Naig v. Bloomington Sanitation, 258 N.W.2d 891 (Minn.1977). One of the policies enacted in the no-fault statute was to avoid forcing no-fault recipients into litigation:
No reparation obligor shall include in its contract any provision which would require a person to commence a negligence action as a condition precedent to the payment of basic economic loss benefits or which permits the reparation obli-gor to determine whether such an action will be commenced. No reparation obli-gor shall contract for a right of reimbursement or subrogation greater than or in addition to those permitted by this chapter.
Minn.Stat. § 65B.53, subd. 6 (1984). Because a Naig settlement permits a tort claim to be divided into two parts, the insured’s own claim and the insurer’s sub-rogation claim, the insured’s claim under Naig can be limited to that which is not duplicative of no-fault benefits, while the insurer’s claim can be limited to that part of the tort claim which is duplicative of no-fault benefits. Thus, consistent with the statute, Naig permits the insured to control the tort action to the extent of his or her interest, and permits the insurer to press a suit in its own interest. Because Naig postdated the 1974 passage of the no-fault act, the legislature was unaware, at enactment, of soon-to-come developments that would validate splitting causes of action. Had Naig come earlier, the above provision (section 65B.53, subdivision 6) might well have provided explicitly for the accommodation of the interests of both insured and insurer that Naig allows and which I suggest for this case.
III.
Finally, I believe a good argument can be made that the supreme court implicitly overruled Milbrandt (at least it substantially rejected its rationale) in Liberty Mut. Ins. Co. v. American Family Mut. Ins. Co., 463 N.W.2d 750 (Minn.1990), involving auto insurance, and in Folstad v. Eder, 467 N.W.2d 608 (Minn.1991), involving workers compensation. In those two recent cases, the supreme court makes clear that its policy is to protect the right of an insurance company to subrogation for benefits paid under first-party insurance.4
In Liberty Mutual the injured plaintiff obtained a jury verdict of $215,154 against a tortfeasor with $100,000 of liability coverage. 463 N.W.2d at 752. Apparently, the judgment was fully collectible, however, either because a bad faith claim existed against the liability insurer or because the insured had assets independent of insurance. The tortfeasor’s insurer, American *345Family, understandably paid the $100,000 liability coverage obligation and, surprisingly, paid an additional $130,000 to the plaintiff. Id. In exchange for the $130,-000, American Family received from the plaintiff a full release of the tortfeasor and a loan receipt indicating that the plaintiff would repay American Family the $130,000 only out of uninsured or underinsured benefits received from his insurer, Liberty Mutual. Id. at 756. Liberty Mutual responded that the full release of the tortfeasor terminated its obligation to provide uninsured/underinsured coverage. Id. at 753. The supreme court agreed that since an attempt had been made to destroy the insurer’s subrogation rights,
[t]o the extent that Liberty Mutual’s sub-rogation interest has been compromised, [its insured’s] uninsured/underinsured motorist coverage claim must fail. * * * In other words, it is for the trial court to determine the extent to which the satisfaction of the judgment against [the tort-feasor] has prejudiced Liberty Mutual’s ability to secure reimbursement of sums for which it is obligated pursuant to its uninsured/underinsured motorist coverage.
Id. at 757. The court continued:
Although Liberty Mutual’s subrogation claim would have had to yield to [its insured’s] right to full compensation, Liberty Mutual would have been subrogated to the unsatisfied balance of the judgment.
Id. at 758.
More recently, the supreme court expressed a similar commitment to subrogation in Folstad. There the supreme court laid out how the competing claims of the injured worker and the workers compensation carrier may be determined. 467 N.W.2d at 611. The court said either claimant may proceed without the other, or their claims may be prosecuted together. See id. Neither claim may be settled, however, in a way that defeats the other claimant. See id. The specific holding in the Folstad case was that the employer’s workers compensation carrier was free to settle its subrogation claim with the third-party tortfeasor prior to trial and, when the carrier has done so, the employee may pursue the remaining tort claim alone, independent of the now-satisfied right to subrogation. Id. at 612. The court said of employee and carrier rights:
[In this situation] the employee waives her right to the “one-third” outright share she would otherwise receive under the [statutory] formula. Likewise, when the compensation carrier independently settles its subrogation claim, it waives any rights it might have to the employee’s subsequent recovery, specifically, the right to claim a portion of the employee’s recovery as a credit against future compensation payable.
Id. The court continued:
In other words, when either the employee or the compensation carrier settles their own claim, the employee’s third party tort action has been effectively separated into one claim for damages recoverable under workers’ compensation and another claim for those damages not recoverable under workers’ compensation.
Id.
In the instant case, however, the tort victim’s settlement with the tortfeasor destroys his insurer’s right to subrogation. The tortfeasor’s insurer is allowed to approach the injured person with a proposal that the tort claim be released for an amount that excludes any sum for a subro-gation reimbursement of the victim’s insurer. This is allowed here, with little protest from the majority, even though the victim’s insurer had paid substantial no-fault benefits to its insured. This settlement deprived the victim’s insurer of the opportunity to demonstrate that the tort claim had sufficient value to duplicate some of the no-fault benefits.
Milbrandt forces this result on us even though the victim’s insurer here had given the tortfeasor’s insurer notice of its intent to claim subrogation.
To permit this destruction of subrogation rights is inconsistent, not just with Liberty Mutual and Folstad, but with another long line of Minnesota Supreme Court cases including Schmidt v. Clothier, 338 N.W.2d *346256, 261-63 (Minn.1983), and its progeny. See, e.g., American Family Mut. Ins. Co. v. Baumann, 459 N.W.2d 923, 925 (Minn. 1990); O’Donnell v. Brodehl, 435 N.W.2d 68, 70 (Minn.App.1989), pet. for rev. denied (Minn. Mar. 30, 1989); Traver v. Farm Bureau Mut. Ins. Co., 418 N.W.2d 727, 730-31 (Minn.App.1988), pet. for rev. denied (Minn. Apr. 15, 1988).
I submit that the destruction of subrogation rights we see here should be avoided. I suggest a subrogation policy, based on Naig settlements, that would treat no-fault subrogation like all other insurer subroga-tions. In order to make the state’s subro-gation policy internally consistent within the no-fault context, and also consistent across the various other insurance contexts, Milbrandt’s anomalous misconstruction of the no-fault act should be set aside.
. See, e.g., American Family Mut. Ins. Co. v. Vanman, 453 N.W.2d 48, 49-50 (Minn.1990); Mohs v. Parrish's Bar, 418 N.W.2d 494, 496-97 (Minn.1988); Gruman v. Hendrickson, 416 N.W.2d 497, 500-01 (Minn.App.1987); Peters v. B.P. & E., Inc., 397 N.W.2d 449, 451 (Minn.App. *3431986); Miller v. Astleford Equip. Co., 378 N.W.2d 820, 821-22 (Minn.App.1985), pet. for rev. denied (Minn. Feb. 14, 1986).
. The Milbrandt holding that subrogation lies only "against the insured" conflicts with the language of the statute in a significant way not developed in this concurrence. Note the statutory words "paid or payable.” If subrogation lay only against the insured, and after duplicate recovery, the words "or payable" have no meaning. This is a misreading because "[t]he legislature intends the entire statute to be effective.” Minn.Stat. § 645.17(2) (1990).
. I also note, alternatively, that on its facts Mil-brandt applies only to circumstances where the tort recovery is not large enough to give a right of subrogation. Therefore, the holding of Mil-brandt can be limited on its facts to cases where there never was a right to subrogation because the tort claim was too small ever to create a *344duplicate recovery. Milbrandt, so read, is not inconsistent with the result I suggest.
. The legislature, for independent reasons, has barred subrogation against liquor vendors re-suiting from "subrogation clauses of the uninsured, underinsured, collision, or other first party coverages of a motor vehicle insurance policy.” Minn.Stat. § 340A.801, subd. 4 (1990).