Jack Mani v. Selective Insurance Company of America

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
January 21, 2026
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2023AP905 Cir. Ct. No. 2017CV12323

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

JACK MANI AND ROSE MANI,

PLAINTIFFS-RESPONDENTS,

HUMANA INSURANCE COMPANY,

INVOLUNTARY-PLAINTIFF-APPELLANT,

V.

SELECTIVE INSURANCE COMPANY OF AMERICA,

DEFENDANT.

APPEAL from an order of the circuit court for Milwaukee County:
PEDRO A. COLÓN, Judge. Order affirmed in part, reversed in part, and cause
remanded for further proceedings.

Before White, C.J., Donald, and Geenen, JJ.
No. 2023AP905

¶1 GEENEN, J. Humana Insurance Company (“Humana”) appeals
from a circuit court order dismissing its crossclaims for declaratory judgment and
breach of contract against Jack Mani. On appeal, Humana argues that the circuit
court should have granted its motion for summary judgment and its subsequent
motion for reconsideration. See WIS. STAT. § 809.10(4) (2023-24).1 Humana
argues that the circuit court incorrectly concluded that the made whole doctrine
applied to the crossclaims it pursued after abandoning its original crossclaims
based on subrogation.

¶2 Although we agree with Humana that the made whole doctrine does
not apply to the crossclaims pleaded in Humana’s answer to Mani’s amended
complaint, we nevertheless conclude that Humana is not entitled to summary
judgment because there are genuine issues of material fact to be resolved at trial.
Accordingly, we reverse in part the circuit court’s final order dismissing
Humana’s crossclaims,2 affirm the circuit court’s nonfinal orders denying
Humana’s motion for summary judgment and reconsideration, and remand the
cause for further proceedings. Moreover, on remand, we instruct the circuit court
to address the applicability of judicial estoppel to Humana’s crossclaims.

BACKGROUND

¶3 In 2015, Mani suffered injuries in a car accident caused by an
underinsured motorist. Because he was working at the time of the accident, Mani

1
All references to the Wisconsin Statutes are to the 2023-24 version.
2
For clarity, we reverse only the part of the circuit court’s final order dismissing
Humana’s crossclaims. We do not disturb the circuit court’s finding that Mani was not made
whole by the proceeds of his settlement recoveries in this lawsuit.

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No. 2023AP905

submitted a claim to his employer’s worker’s compensation carrier, AmTrust
North America, Inc. (“AmTrust”). While AmTrust initially paid for Mani’s
accident-related treatment, it stopped providing him medical benefits after its
medical examiner opined that the injuries related to the accident were resolved,
and Mani’s ongoing care was related to a pre-existing condition. AmTrust
directed Mani to submit his medical bills to his personal health insurance carrier,
Humana. Mani did not appeal the medical examiner’s opinion and began
submitting his medical bills to Humana, and Humana paid them.

¶4 In 2017, Mani sued several parties, including: the underinsured
motorist who caused the accident (the “tortfeasor”); the tortfeasor’s liability
insurer, Allstate Property and Casualty Insurance Company (“Allstate”); and
Mani’s employer’s underinsured motorist (“UIM”) insurer, Selective Insurance
Company of America (“Selective”). Mani also named both AmTrust and Humana
as involuntary plaintiffs because they paid medical expenses on Mani’s behalf.
Humana filed a crossclaim in which it alleged that “it has become obligated to
pay, and has paid, medical benefits” on behalf of Mani, and that “[b]y virtue of
said payments and pursuant to the [insurance] policy, Humana is subrogated to the
rights of [Mani] to the extent of all benefits provided and hereafter provided.”

¶5 Prior to the final pretrial hearing, Allstate offered its $100,000 policy
limit in exchange for Mani’s dismissal of his claims against Allstate and the
tortfeasor. Mani accepted the offer, and the $100,000 was split between Mani and
his wife, as co-plaintiff, and their attorneys, along with AmTrust,3 and Humana.

3
AmTrust received the full amount of its subrogated lien and was dismissed from the
lawsuit.

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No. 2023AP905

Humana received $12,587.77 “for partial payment of their subrogated lien.” After
Mani’s claims against the tortfeasor and Allstate were dismissed, Mani filed an
amended complaint.4

¶6 The remaining parties stipulated that the tortfeasor was 100%
causally negligent for the accident, the accident occurred while Mani was acting
within the scope of his employment, and the sole issue to be addressed at trial was
damages. The parties also stipulated that, although Humana’s payments to
treatment providers were reasonable in amount and medically necessary, whether
the medical treatment was related to the accident remained in dispute.

¶7 After extensive pretrial litigation and just days before trial, Selective
tendered its policy limit of $900,000, resolving Mani’s UIM claim against
Selective.5 By agreement of the parties, the circuit court held in trust over
$392,000 from the UIM settlement on account of Humana’s remaining
subrogation lien, and it stated that it would resolve Humana’s claim by motion.
However, rather than file a motion to resolve its subrogation lien, Humana filed an
answer and crossclaim for declaratory judgment and breach of contract.

¶8 In this pleading, Humana abandoned its subrogation-based
crossclaim and instead alleged that Mani breached the insurance policy by
directing his health care providers to bill Humana instead of AmTrust and
allowing Humana to wrongfully pay excluded claims. Specifically, Humana

4
The amended complaint added a bad faith claim against Selective, but the circuit court
bifurcated and stayed the claim pending adjudication of the underlying UIM claim.
5
After the UIM claim was resolved, the circuit court lifted the stay on Mani’s bad faith
claim against Selective. Mani then filed an amended complaint adding factual allegations to the
bad faith claim.

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No. 2023AP905

asserted that the insurance policy excludes coverage for injuries where “Workers’
Compensation or similar coverage” is available, and that it is entitled to recover
any costs from Mani that had been paid out in relation to the accident-related
injury. This provision reads as follows:

Workers’ compensation

This master group contract excludes coverage for sickness
or bodily injury for which Workers’ Compensation or
similar coverage is available.

If benefits are paid by us and we determine that the benefits
were for treatment of bodily injury or sickness that arose
from or was sustained in the course of, any occupation or
employment for compensation, profit or gain, we have the
right to recover as described below.

….

As a condition to receiving benefits from us, you hereby
agree, in consideration for the coverage provided by the
master group contract, you will notify us of any Workers’
Compensation claim you make, and you agree to reimburse
us as described above. If we are precluded from exercising
our recovery rights to recover from funds that are paid by
Workers’ Compensation or similar coverage we will
exercise our right to recover against you.[6]

¶9 Humana alleged that because the accident occurred while Mani was
acting in the course and scope of his employment, Humana “did not have an
obligation to pay claims relating to health care treatment for Mani arising from the
January 9, 2015 accident and any such claims were paid mistakenly, in error or
were wrongfully paid by Humana.”

6
The enforceability of the policy’s Worker’s Compensation exclusion is not before us.
We are asked only to determine whether Humana’s crossclaims based on this provision are
subject to the made whole doctrine.

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No. 2023AP905

¶10 Two days after filing its new crossclaims, Humana moved for
summary judgment. Humana argued that it and Mani agreed in a stipulation that
the medical treatment Humana paid for was necessitated by the injuries Mani
sustained in the accident, and it is undisputed that the accident occurred while
Mani was at work. Therefore, according to Humana, the Workers’ Compensation
provision of the policy excluded those claims and allows Humana to sue Mani
directly to recover the mistakenly made payments on those claims. Humana
asserted that the made whole doctrine only applies to subrogation claims and that,
because its crossclaims against Mani are not grounded in subrogation, the made
whole doctrine7 does not apply and Humana may recover directly from Mani
regardless of whether Mani’s total recovery fully compensated him for his loss.

¶11 Mani filed an answer in response to Humana’s new crossclaims,
asserting, among other defenses, that Humana’s claims were barred by the
voluntary payment doctrine and judicial estoppel. In opposition to Humana’s
motion, Mani argued that the made whole doctrine applied to Humana’s new
crossclaims, and that in any event, Humana’s summary judgment motion did not
address any of Mani’s affirmative defenses. Mani also submitted an affidavit
stating that he never withheld any information about his workers’ compensation
claim from Humana, and he never received a demand for payment from Humana.
Mani also observed that he was denied discovery on Humana’s new crossclaims

7
The made whole doctrine embodies the principle that, “[o]rdinarily, subrogation does
not arise until the debt [to the injured party] has been fully paid.” Garrity v. Rural Mut. Ins. Co.,
77 Wis. 2d 537, 541, 253 N.W.2d 512 (1977). In other words, a subrogated insurer cannot recoup
its losses until the insured has fully recouped theirs. Id. at 544 (explaining that a subrogated
insurer “has no share in the recovery from the tort[]feasor if the total amount recovered by the
insured from the insurer does not cover his [or her] loss”).

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No. 2023AP905

because Humana filed its motion for summary judgment two days after filing the
claims.

¶12 The circuit court denied Humana’s motion for summary judgment.
It reasoned that the stipulation Humana relied on actually stated that the parties
agreed that the accident occurred while Mani was acting in the scope of his
employment, but did not reflect an agreement that all medical bills paid by
Humana related to injuries caused by the accident. Humana argued that Selective,
not Mani, was the party that disputed whether Mani’s injuries were related to the
accident, but the circuit court concluded that the stipulation was unclear and
denied Humana’s motion on that basis. Although the parties argued about the
application of the made whole doctrine, the circuit court did not rule on whether it
applied to Humana’s new crossclaims.

¶13 Humana moved for reconsideration, arguing again that Humana and
Mani both agreed that the medical treatment paid for by Humana were for injuries
caused by the accident. Humana also argued that, even if there is a genuine issue
of material fact about whether all of Mani’s injuries related to the accident, it is
still entitled to a declaratory judgment under the policy, and Humana can sue Mani
directly to recover the amount it paid for excluded claims. In opposition, among
other arguments, Mani urged the circuit court to conclude that even if the workers’
compensation provision of the policy was enforceable against him, Humana’s
claims were subject to the made whole doctrine.

¶14 The circuit court denied Humana’s reconsideration motion. In
denying the motion, it again highlighted ambiguities in the record regarding the
parties’ stipulations. Moreover, the circuit court observed that Selective had

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No. 2023AP905

previously taken the position that Mani stipulated only that whether certain
medical treatment was related to the accident was a jury question.

¶15 The circuit court also concluded that the made whole doctrine
applied to Humana’s crossclaims. It explained that “[t]o find otherwise would
allow Humana to make an impermissible ‘end run’ around Wisconsin’s made-
whole rule.” The court further concluded that a genuine issue of material fact
existed as to whether Mani was made whole.

¶16 Eventually, the circuit court scheduled a Rimes hearing,8 with the
sole purpose of determining whether Mani was made whole for his losses as a
result of the accident by the $1,000,000 he actually recovered from Allstate and
Selective. However, before the hearing, Humana filed a letter conceding that
Mani was not made whole by his recovery, and therefore, given the circuit court’s
conclusion that the made whole doctrine applied, Humana’s crossclaims should be
dismissed. Based on Humana’s concession and in consideration of its prior ruling
that the made whole doctrine applied to Humana’s crossclaims, the circuit court
canceled the hearing and entered an order dismissing Humana’s crossclaims with
prejudice.

8
Rimes v. State Farm Mut. Auto. Ins. Co., 106 Wis. 2d 263, 316 N.W.2d 348 (1982).
At a Rimes hearing,

a “trial” is conducted before the court solely to ascertain the
damages suffered by the plaintiff.… If the damages found
exceed those actually recovered by the plaintiff from all sources,
the plaintiff will be found to be less than whole and will not be
required to disgorge any of the amounts by which he has been
indemnified.

Muller v. Society Ins., 2008 WI 50, ¶38, 309 Wis. 2d 410, 750 N.W.2d 1 (citation omitted);
Rimes, 106 Wis. 2d at 275-79.

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No. 2023AP905

¶17 Humana appeals.

DISCUSSION

¶18 Humana appeals from the circuit court order dismissing its
crossclaims, a final order under WIS. STAT. § 808.03(1). Under WIS. STAT.
§ 809.10(4), the orders denying Humana’s motion for summary judgment and
reconsideration are also properly before this court.9 Humana’s appeal revolves
around the circuit court’s conclusion that the made whole doctrine applied to
Humana’s crossclaims.

I. Humana did not waive its right to appeal by requesting that the
circuit court dismiss its crossclaims.

¶19 As a threshold matter, Mani argues that Humana waived its appellate
rights because, rather than proceed with a Rimes hearing, it asked the circuit court
to dismiss its crossclaims, manufacturing an issue for appeal. Mani’s argument
challenges our jurisdiction over Humana’s appeal because “an order or judgment
must be appealable for an appellate court to exercise jurisdiction[.]” Lassa v.
Rongstad, 2006 WI 105, ¶34, 294 Wis. 2d 187, 718 N.W.2d 673.

¶20 “Parties may not manufacture artificial issues for appeal.” Id., ¶35.
However, “parties sometimes settle issues in a controversy ... such that the only
question or questions remaining are ripe for appeal.” Id., ¶34; see also Petta v.

9
To clarify a point of potential confusion, we expressly note that, under WIS. STAT.
§ 809.10(4), a party is not required to seek interlocutory review of a nonfinal judgment or order,
including nonfinal judgments or orders on dispositive motions, to preserve its right to appeal from
those nonfinal judgments or orders after a subsequent final judgement or order is entered. This
marks a change from the now-repealed procedural statutes that were in effect when cases such as
Richie v. Badger Mutual Casualty Co., 22 Wis. 2d 133, 125 N.W.2d 381 (1963) and Wittke v.
State ex rel. Smith, 80 Wis. 2d 332, 259 N.W.2d 515 (1977) were decided, prior to the enactment
of § 809.10(4).

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No. 2023AP905

ABC Ins. Co., 2005 WI 18, ¶32, 278 Wis. 2d 251, 692 N.W.2d 639 (relying on a
stipulation that the plaintiffs were not made whole in rendering decision about the
applicability of the made whole doctrine). Here, the issues Humana raises are not
“manufactured.” A single issue was to be decided at the Rimes hearing—whether
Mani’s damages exceeded his recovery—and Humana did not dispute that they
did. With that fact issue resolved, and given the circuit court’s prior ruling that the
made whole doctrine applied, Humana’s crossclaims could not succeed.

¶21 The cases Mani relies on are not analogous to the situation in this
case. For example, in Cascade Mountain, Inc. v. Capitol Indemnity Corp., 212
Wis. 2d 265, 266, 569 N.W.2d 45 (Ct. App. 1997), the appellant appealed from a
conditional judgment following the circuit court’s dismissal of two of the
appellant’s three claims on summary judgment. “To avoid the expense of trying
the remaining, more limited claim which had survived summary judgment, the
parties stipulated to the entry of final judgment, but reserved specific rights
conditioned upon the result on appeal.” Id. We concluded that the appellant could
not, “by stipulating to the entry of a conditional judgment, obtain a mandatory
appeal of an interlocutory order.” Id. at 269; see also Dyer v. Law, 2007 WI App
137, ¶¶3, 9, 302 Wis. 2d 207, 733 N.W.2d 328 (involving separate claims not
resolved by an earlier ruling which the claimants elected to forego so as to avoid
further litigation before an appeal of the dismissal of their primary claims).

¶22 This case does not involve a conditional judgment or manufactured
issues. Rather, as is often the case, the issues presented on appeal are “the product
of one or more stipulations in the circuit court.” Lassa, 294 Wis. 2d 187, ¶34.
Having settled the issue of whether Mani was made whole, “the only question or
questions remaining are ripe for appeal,” namely, whether the made whole
doctrine applies to Humana’s crossclaims. Id. Accordingly, under the

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No. 2023AP905

circumstances presented here, we conclude that Humana did not waive its right to
appeal by requesting that the circuit court dismiss its crossclaims.

II. The made whole doctrine does not apply to Humana’s crossclaims

¶23 Having briefly addressed why this court has jurisdiction over
Humana’s appeal, we turn to the merits of Humana’s arguments. Humana argues
that the workers’ compensation provision of the insurance policy excludes Mani’s
medical claims, and under this provision, Humana is entitled to sue Mani directly
to recover the payments it made for excluded claims. Humana asserts that its
claims under the workers’ compensation provision are not based on subrogation,
and consequently, they are not limited by the made whole doctrine. Whether the
made whole doctrine applies to Humana’s crossclaims is a question of law that we
review de novo. Ruckel v. Gassner, 2002 WI 67, ¶13, 253 Wis. 2d 280, 646
N.W.2d 11.

¶24 We agree with Humana that its new crossclaims are not limited by
the made whole doctrine because these claims are not grounded in subrogation.
Our review of the case law reveals that the made whole doctrine does not apply
when an insurer’s claim against the insured is not grounded in subrogation and is
instead based on a coverage exclusion.

¶25 “In the insurance context, subrogation is a derivative right that
permits an insurer to step into the shoes of the insured and to pursue recovery from
the tortfeasor to the extent of the insurer’s payments to the subrogor (the insured).”
Fischer v. Steffen, 2011 WI 34, ¶31, 333 Wis. 2d 503, 797 N.W.2d 501.
However, subrogation rights do not arise until the insured is fully compensated for
the loss. Ruckel, 253 Wis. 2d 280, ¶¶16-17. Once the insured has been fully
compensated, “any additional recovery by the insured would constitute unjust

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No. 2023AP905

enrichment,” and therefore, the insurer is “entitled to assert its subrogation claim
once the insured has been made whole.” Id., ¶17. . The made whole doctrine is so
intertwined with the concept of subrogation that the principle is sometimes
referred to as the “antisubrogation rule.” Id., ¶16.

¶26 Our supreme court explained that “[t]he made whole doctrine
prevents competition between the injured party and the subrogated party (the
insurer) when the injured party’s damages exceed a limited pool of funds from
which recovery may be had.” Fischer, 333 Wis. 2d 503, ¶32. “Under the made
whole doctrine, the injured party should be the first to tap into the limited pool of
funds and recover on any loss,” and “[w]hen someone can not be fully paid, the
loss should be borne by the subrogee (the insurer).” Id.

¶27 Along with the collateral source rule, these equitable doctrines
“work together to further the goals of ensuring that injured people recover for their
loss and that tortfeasors pay for the damages they inflict.” Id., ¶34. Subrogation
“ensure[s] that the loss ultimately falls on the tortfeasor and also prevent[s] an
injured party from receiving a double recovery,” while “the made whole doctrine
ensures that in a situation when there are not sufficient funds to make the injured
party whole, the injured party has priority over the subrogee (the insurer) in
recovering from the limited pool of funds.” Id., ¶33.

¶28 In this case, Humana’s original crossclaims were grounded in
subrogation. It alleged that “it has become obligated to pay, and has paid, medical
benefits” on behalf of Mani, and that “[b]y virtue of said payments and pursuant to
the [insurance] policy, Humana is subrogated to the rights of [Mani] to the extent
of all benefits provided and hereafter provided.” Humana’s original crossclaims,
however, are not the operative crossclaims in this case. Humana replaced these

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No. 2023AP905

crossclaims with claims for declaratory judgment and breach of contract based on
the workers’ compensation provision of the policy. The new crossclaims are not
grounded in subrogation; Humana asserts that it was never contractually obligated
to pay the claims that it paid because those claims were excluded under the
workers’ compensation provision. The new claims are not in any way derived
from Mani’s rights against the tortfeasor. See id., ¶31.

¶29 In prior cases, we have approved of an insurer bringing a direct
claim against its insured to recover payments made under workers’ compensation
exclusions. For example, in Employers Health Insurance Co. v. Tesmer, 161
Wis. 2d 733, 736, 469 N.W.2d 203 (Ct. App. 1991), the injured party’s health
insurer maintained that it had improperly paid for excluded claims. In particular,
the insurer argued that its policy contained an exclusion for medical expenses
covered by workers’ compensation insurance and petitioned for leave to intervene
in the insured’s workers’ compensation proceeding to recover the improperly
made payments. Id. However, the insurer was prohibited from intervening in the
workers’ compensation proceeding under WIS. STAT. § 102.30(7)(b).10 Tesmer,
161 Wis. 2d at 736-37. The insurer argued that § 102.30(7)(b) violated the
Wisconsin Constitution’s certain remedy clause11 because the “inability to
intervene in its insured’s compensation proceedings may preclude it from
recovering the medical expenses previously paid on the insured’s behalf.”

10
WISCONSIN STAT. § 102.30(7)(b) states: “An insurer who issues a nonindustrial
insurance policy described in par. (a) may not intervene as a party in any proceeding under this
chapter for reimbursement under par. (a).”
11
Article I, section 9 of the Wisconsin Constitution guarantees every person “a certain
remedy in the laws for all injuries, or wrongs which he [or she] may receive in his [or her] person,
property, or character[.]”

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No. 2023AP905

Tesmer, 161 Wis. 2d at 738. We disagreed, observing that the insurer had other
remedies. In particular, we explained that if the insurer “believes it has
improperly paid [the insured’s] expenses, it may proceed against [the insured]
directly for reimbursement.” Id.

¶30 In Brown v. Muskego Norway School District Health Plan,
No. 2018AP1799, unpublished slip op. (WI App Oct. 16, 2019), we determined
that the made whole doctrine did not apply to an insurer’s claim under a policy
exclusion similar to the one at issue in this case. In Brown, the policy excluded
claims “arising out of and in the course of employment if benefits are available
under any Workers’ Compensation Act or other similar law[.]” Id., ¶8.12 The
policy exclusion also stated that “[w]henever payment has been made in error, the
[insurer] will have the right to recover such payment from [the insured.]” Id. The
insured argued that the insurer’s claim was a “crafty maneuver” to avoid the made
whole doctrine, but we disagreed. Citing Tesmer, we concluded that the insurer
had the right to proceed directly against its insured for payments it made on
excluded claims, and those claims were not limited by the made whole doctrine.13
Id., ¶¶20-21.

12
Notably, in Brown v. Muskego Norway School District Health Plan,
No. 2018AP1799, unpublished slip op., ¶¶4-5 (WI App. Oct. 16, 2019), the workers’
compensation insurer determined that the accident arose out of and in the course of the insured’s
employment and was compensable, but the insured declined workers’ compensation benefits,
withdrew his claim, and misrepresented the circumstances of the accident to his insurer.
13
In Brown, No. 2018AP1799, we also cited favorably to the explanation of this
procedure in the Wisconsin Practice Series on Workers’ Compensation Law:

(continued)

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No. 2023AP905

¶31 Relying primarily on Ruckel, Mani argues that it does not matter
whether Humana’s crossclaims are grounded in subrogation because the made
whole doctrine cannot be circumvented “even when unambiguous language in an
insurance contract states otherwise.”14 In Ruckel, the insurance policy
unambiguously stated that the insurer’s subrogation rights were “prior and
superior to the rights of any other person or entity, including the [insured].” Id.,

Many employee claims for medical expenses will be
paid by health insurers, even if the injuries are work-related and
should be paid by the workers’ compensation insurance carrier.
In some instances, the health insurer pays because it does not
realize the accident or disease was work-related, and in other
cases, the claims will be paid by the health insurer because the
workers’ compensation carrier disputes that the injury was work-
related (or the employer directs the employee to file a claim
under the health insurance policy).

In either case, the health insurer generally has the right
to recoup the payments, because health insurance policies
exclude payments of medical expenses covered by the workers’
compensation carrier.

….

Despite being unable to intervene in a workers’
compensation proceeding directly, group health carriers can
bring a separate claim in circuit court to recover payments
against the employee through a contractual reimbursement
clause in the group health policy.

Id., ¶21 n.8 (citation omitted).
14
In his brief, Mani directs us to the right to reimbursement provision of the policy and
asserts that by seeking to recover directly from the UIM settlement, a portion of which the circuit
court ordered to be held in trust, Humana’s claims actually fall under that policy provision. The
propriety of holding a portion of the UIM settlement in trust now that Humana is no longer
exercising subrogation rights is not properly before this court, and we therefore do not address it.
However, we reject Mani’s argument that Humana’s claims are based on the right to
reimbursement provision rather than the workers’ compensation provision. Since filing its new
crossclaims, Humana has consistently maintained that the payments it made were for claims
excluded under the workers’ compensation provision, and its claims are not based on the right to
reimbursement provision.

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No. 2023AP905

253 Wis. 2d 280, ¶19. The insurer in Ruckel argued that this contractual provision
was specific and unambiguous, and it overrode the made whole doctrine. Id., ¶20.
Our supreme court agreed that the language was clear but refused to enforce that
language because it was inequitable. Id., ¶41. The court explained that
“[s]ubrogation in this circumstance would not avoid double recovery or prevent
unjust enrichment of the insured,” but rather, “[i]t would authorize incomplete
recovery for the insured and shift loss from the insurer, who was paid to assume
loss, to the insured, who paid to protect against loss.” Id. Thus, the court held
“that an insured must be made whole before the insurer may exercise subrogation
rights against its insured, even when unambiguous language in an insurance
contract states otherwise.” Id., ¶4.

¶32 Ruckel made clear that an insurer cannot circumvent the made
whole doctrine on its own say-so through policy language for that express
purpose. However, to the extent Mani contends that Ruckel applies to an insurer’s
non-subrogation claims, Mani reads Ruckel out of context. In every Wisconsin
case cited by Mani where the made whole doctrine was applied, the insurer was
exercising subrogation rights. See, e.g., id.; Rimes v. State Farm Mut. Auto. Ins.
Co., 106 Wis. 2d 263, 276, 316 N.W.2d 348 (1982) (“It is clear, in accordance
with the general principles of subrogation accepted by this court and stated in
Garrity, that the settlement in this case did not make the plaintiffs whole[.]”);
Garrity v. Rural Mut. Ins. Co., 77 Wis. 2d 537, 546-47, 253 N.W.2d 512 (1977)
(“[T]he [insurer] has no right to share in the fund recovered from the tort[]feasor

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No. 2023AP905

until the [insured] is made whole.”). Even the non-Wisconsin cases cited by Mani
deal exclusively with insurers exercising subrogation rights.15

¶33 A common thread runs through the cases applying the made whole
doctrine: the insurers are exercising subrogation rights to recover payments made
on claims for which the insurers do not dispute coverage. In subrogation, a third-
party tortfeasor causes a covered injury to the insured, triggering the insurer’s
obligation under the policy to pay medical benefits. Here, Humana’s crossclaims
assert that it was never obligated to pay Mani’s benefits at all because Mani’s
injuries fell within the scope of a policy exclusion, namely, the Workers’
Compensation provision.

¶34 Applying the made whole doctrine to Humana’s crossclaims in this
case, where these claims are based on a policy exclusion and are not grounded in

15
Hardware Dealers Mut. Fire Ins. Co. v. Ross, 262 N.E.2d 618, 621 (Ill. Ct. App.
1970); Maryland Cas. Co. of Baltimore v. Cincinnati, C., C. & St. L. Ry. Co., 124 N.E. 774, 775
(Ind. Ct. App. 1919); Wine v. Globe Am. Cas. Co., 917 S.W.2d 558, 562-63 (Ky. 1996);
Continentall W. Ins. Co. v. Swartzendruber, 570 N.W.2d 708, 712 (Neb. 1997); Providence
Wash. Ins. Co. v. Hogges, 171 A.2d 120, 124 (N.J. Super. Ct. App. Div. 1961); Lyon v. Hartford
Accident and Indem. Co., 480 P.2d 739, 744-45 (Utah 1971) overruled on other grounds by
Beck v. Farmers Ins. Exch., 701 P.2d 795 (Utah 1985).

One case cited by Mani mirrors Ruckel in that the insurer, exercising subrogation rights,
sought to circumvent the made whole doctrine by enforcing unambiguous contract language
evincing an intent to do so. York v. Sevier Cnty. Ambulance Auth., 8 S.W.3d 616, 618
(Tenn. 1999). The Supreme Court of Tennessee reached the same result as our supreme court did
in Ruckel, concluding that “an insurer is not entitled to subrogation unless and until the insured
has been made whole for his or her losses, regardless of what language is contained in the
contract.” York, 8 S.W.3d at 621.

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No. 2023AP905

subrogation, would be unprecedented. Accordingly, we conclude that the made
whole doctrine does not apply to Humana’s crossclaims.16

III. Humana is not entitled to summary judgment.

¶35 Having concluded that the made whole doctrine does not apply to
Humana’s crossclaims, we turn to Humana’s argument that it is entitled to
summary judgment. We review summary judgments decisions de novo, applying
the same methodology employed by the circuit court. American Fam. Mut. Ins.
Co. v. American Girl, Inc., 2004 WI 2, ¶22, 268 Wis. 2d 16, 673 N.W.2d 65.
“Summary judgment is properly granted if there is no genuine issue of material
fact in dispute and the moving party is entitled to judgment as a matter of law.”
Id.

¶36 Humana argues that it is entitled to summary judgment on its
declaratory judgment and breach of contract claims because it is undisputed that
Mani was acting in the scope of his employment when the accident happened, and
the treatment for which Humana paid was for injuries caused by the accident. We
disagree that these two facts entitle Humana to summary judgment. Even if the
facts relied on by Humana are undisputed (a conclusion we do not reach), the
record is still replete with genuine issues of material fact.

¶37 For example, as Mani points out, there is no evidence in the record
that Mani breached the insurance policy. In his affidavit, Mani denied any lack of
cooperation with Humana, denied breaching any contractual provision, denied

16
Although we question the effect of Humana’s Worker’s Compensation exclusion on
the public policies enshrined in Wisconsin’s Worker’s Compensation Law, Mani does not
challenge the exclusion as violative of public policy. We therefore do not address the issue.

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No. 2023AP905

receiving any demand for payment from Humana, never refused worker’s
compensation payments, and fully disclosed that AmTrust would not make further
payments on his claim before Humana began making payments for his treatment.
Humana never demanded payment directly from Mani, and instead, requested that
Mani’s attorneys maintain funds in trust, for which it claimed reimbursement
based on subrogation. On this record, we cannot identify what provision of the
policy Mani is alleged to have breached, let alone identify evidence of that breach.

¶38 Moreover, on appeal, Mani argues that Humana did not
“mistakenly” pay Mani’s claims. Mani asserts that there was no payment “in
error” by Humana in this case because Humana paid Mani’s medical bills knowing
from the outset, and Mani conceding, that his injuries occurred at work. Mani
asserts that “Humana undertook to pay Mani’s bills with full knowledge that Mani
was at work when injured by an underinsured motorist.” Mani’s affidavit in
opposition to Humana’s motion for summary judgment averred that he never
withheld any information about his workers’ compensation claim from Humana.
Mani pleaded as an affirmative defense that Humana’s crossclaims were barred by
the voluntary payment doctrine, and the record contains a genuine issue of
material fact with respect to that defense.17 Accordingly, we conclude that the

17
“The voluntary payment doctrine places upon a party who wishes to challenge the
validity or legality of a bill for payment the obligation to make the challenge either before
voluntarily making payment, or at the time of voluntarily making payment.” Putnam v. Time
Warner Cable of Se. Wis., Ltd. P’ship, 2002 WI 108, ¶13, 255 Wis. 2d 447, 649 N.W.2d 626.
One of the reasons this doctrine was adopted was to operate “as a means to settle disputes without
litigation by requiring the party contesting the payment to notify the payee of its concerns.” Id.,
¶16. “The doctrine has been applied in several diverse contexts to preclude actions to recover
payments that parties paid voluntarily, with full knowledge of the material facts, and absent fraud
or wrongful conduct inducing payment.” Id., ¶13. The record in this case contains no evidence
that Humana challenged its obligation to pay Mani’s claims either before or at the time it paid
them.

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No. 2023AP905

record in the instant case does not entitle Humana to summary judgment on its
crossclaims.18

CONCLUSION

¶39 We conclude that the made whole doctrine does not apply to
Humana’s crossclaims because those crossclaims are not grounded in subrogation.
However, Humana is not entitled to summary judgment on its crossclaims because
there are genuine issues of material fact to be resolved at trial. Accordingly, we
reverse in part the circuit court’s order dismissing Humana’s crossclaims, affirm
the circuit court’s nonfinal orders denying Humana’s motion for summary
judgment and reconsideration, and remand the cause for further proceedings.
Moreover, on remand, we instruct the circuit court to address the applicability of
judicial estoppel to Humana’s crossclaims.

18
Having identified genuine issues of material fact precluding summary judgment, we
need not reach Mani’s other arguments in support of the circuit court’s orders denying summary
judgment and reconsideration. Nonetheless, before concluding, we question whether Humana
should be judicially estopped from bringing its crossclaims. Judicial estoppel is intended to
protect against a litigant playing “‘fast and loose with the courts’” by asserting inconsistent
positions. State v. Petty, 201 Wis. 2d 337, 347, 548 N.W.2d 817 (1996) (citations omitted).
“Because the rule looks toward cold manipulation and not unthinking or confused blunder, it has
never been applied where [the estopped party’s] assertions were based on fraud, inadvertence, or
mistake.” State v. Fleming, 181 Wis. 2d 546, 558, 510 N.W.2d 837 (Ct. App. 1993) (citations
omitted). Humana’s original crossclaims alleged that it had become obligated to pay benefits
under the policy as a result of the tortfeasor’s negligence, while its new crossclaims specifically
disclaimed any obligation to pay benefits under the policy. Moreover, Humana switched
crossclaims only after it became clear that Mani was not made whole by the combined Allstate
and Selective settlements (and, therefore, Humana would not be entitled to further recovery
because of the application of the made whole doctrine). Although Mani did not raise this
argument on appeal, he did plead judicial estoppel as an affirmative defense. In our view,
because there may be facts in need of development on this issue, we choose not to address
judicial estoppel in this opinion, but we instruct the circuit court to consider the issue on remand.

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No. 2023AP905

By the Court.—Order affirmed in part, reversed in part, and cause
remanded for further proceedings.

Recommended for publication in the official reports.

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