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Click here for the full text of this decision FACTS:Vanessa Cantu, a minor, was severely injured and rendered a paraplegic in a motor vehicle accident. She filed suit against the vehicle’s manufacturer, its driver, and the driver’s employer Sundance Resources Inc. Fortis Benefits, which provided health insurance benefits to Vanessa through a health insurance policy issued to her father, intervened to recover through subrogation or reimbursement the benefits that it had paid for Vanessa’s health care as a result of the accident. Fortis agreed on the record with all other parties that Fortis would be excused from attending the pretrial and trial until the post-verdict phase and that Fortis would look only to Vanessa to resolve its subrogation or reimbursement claim. Before trial began, Vanessa settled her claims with the defendants for $1.445 million and agreed with Sundance that she would be wholly responsible for Fortis’ intervention claims and would secure a dismissal with prejudice of Fortis’ subrogation claim against Sundance. Fortis was not involved in the settlement. After being unable to reach an agreement with Fortis, Vanessa filed a motion for summary judgment, and asserted that, because she had not been “made whole” in the settlement, Fortis was not entitled to recover anything on its subrogation or reimbursement claim, which at that time totaled $247,534.14. The trial court had before it uncontroverted evidence that Vanessa’s past ($378,500) and future ($1.7 million and $5.3 million life care plans) medical expenses alone exceeded either $2 million or $5.6 million. Vanessa argued that this evidence conclusively established that the $1.445 million settlement and the benefits paid by Fortis had not made her whole. After a hearing, the trial court granted Vanessa’s summary judgment motion but granted more relief than was requested by ordering that Fortis “take nothing in its intervention in this lawsuit.” Sundance then filed an amended motion for judgment, arguing that any claim by Fortis against Sundance was additionally barred by the pretrial agreement that Fortis would look only to Vanessa to satisfy its subrogation claims against the defendants. The trial court granted Sundance’s amended motion for judgment. This appeal followed. HOLDING:Affirmed. In its first issue, Fortis complains that the “made-whole doctrine” does not apply to its contractual right of reimbursement from Vanessa. The court holds that the principal purpose of an insurance contract is to protect the insured from loss, thereby placing the risk of loss on the insurer. The court holds that this basic principle cannot be summarily overcome by a boiler-plate provision in an insurance contract that purports to entitle the insurer to subrogation out of the first monies received by the insured. To find otherwise would be to defeat the fundamental contractual expectations of the average insured. Therefore, the court holds that Fortis’ contractual subrogation and reimbursement rights are subject to the made-whole doctrine and that the subrogation and reimbursement clause is not an assignment, which the made-whole doctrine might not apply to. In its second issue, Fortis complains that the trial court erred in granting summary judgment by ignoring other alleged equitable issues, like settling without the consent of Fortis, relating to Fortis’ subrogation rights. But based on the evidence and circumstances in this case, the court finds no inequitable conduct on Vanessa’s part that would constitute grounds for finding that she was “made whole” by the settlement or that she should otherwise share any of the settlement proceeds with Fortis. In its third issue, Fortis asserts that the summary judgment is error because Vanessa did not demonstrate as a matter of law that she was not made whole. The court holds that Vanessa’s summary judgment evidence that her past and future medical expenses exceed $2 million is competent and sufficient to establish as a matter of law that she was not made whole by the $1.445 million received in settlement and the $247,534.14 in health insurance benefits paid by Fortis. The court finds that the summary judgment evidence established that she would not be made whole by the $1.445 million received in settlement and the $2 million in health insurance benefits paid by Fortis. The court therefore concludes that Vanessa established that under both life care plans, her insured interest medical expenses sustained an injury in excess of the total compensation (settlement plus health insurance benefits) that she had received or might receive. In its fourth issue, Fortis complains about the trial court’s granting of Sundance’s amended motion for partial judgment on the ground that the trial court had already granted Vanessa’s summary judgment motion and had completely disposed of all of Fortis’ claims. The court agrees that the trial court granted excess relief as to the defendants, including Sundance. However, the court finds that the trial court corrected its error during its plenary power period, apparently finding that Fortis’ pretrial agreement precluded a recovery from the defendants. Furthermore, Fortis was required to bring an issue on appeal concerning the summary judgment order’s excess relief. Having so found, the court states that it need not consider the remainder of Fortis’ issues involving whether it had released its claims against the defendants. OPINION:Vance, J.; Gray, C.J., Vance, and Reyna, JJ. DISSENT:Gray, C.J. Chief Justice Gray notes that the court’s opinion and judgment dated May 25, 2005 are being withdrawn in a separate order and replaced with this opinion and a judgment of this same date.

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