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Click here for the full text of this decision FACTS:Vanessa Cantu suffered severe injuries in a car wreck and later sued the driver of the vehicle in which she was riding, his employer, the vehicle seller and the vehicle manufacturer. Fortis intervened and asserted contractual subrogation and reimbursement rights to recoup from Cantu’s tort recovery the amount of medical benefits it had paid under the policy. At a pretrial conference, Fortis agreed with all parties on the record that Fortis was excused from participating in the pretrial and trial proceedings and that Fortis at the post-verdict phase would look only to Cantu to resolve its subrogation and reimbursement claims. Cantu settled her claims with the defendants before trial for $1.445 million. Cantu and Fortis disputed what portion of the settlement proceeds, if any, should go to Fortis, and Cantu moved for summary judgment, arguing she had not been “made whole” by the settlement. Cantu’s past medical expenses totaled $378,500 (of which Fortis had paid $247,534.14), and her summary judgment evidence included two “life care plans” estimating her future medical expenses at roughly $1.7 million and $5.3 million. She argued that her past and future medical expenses, exclusive of other amounts such as pain and suffering, exceeded the amount of the settlement plus what Fortis had already paid. Cantu argued that the made-whole doctrine precluded Fortis’ contractual claims of subrogation and reimbursement. The trial court granted summary judgment in favor of Cantu, and a divided 10th Court of Appeals affirmed. HOLDING:Reversed and remanded. In its 1980 opinion Ortiz v. Great Southern Fire & Casualty Insurance Co., the court held that “[a]n insurer is not entitled to subrogation if the insured’s loss is in excess of the amounts recovered from the insurer and the third party causing the loss.” The court stated that Ortiz would govern if Fortis were merely asserting a claim for equitable subrogation. But Fortis is not citing principles of equity to recover its money; its policy with Cantu conferred on Fortis two separate contractual rights of recovery. Thus, the court held that the “”made whole’ doctrine must yield to Fortis’ right to contractual subrogation under the plain terms of the insurance policy.” Accordingly, the court held that Fortis was contractually entitled to recover from the $1.445 million settlement the $247,534.14 in benefits it paid to Cantu. OPINION:Willett, J., delivered the opinion of the court.

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