The Made Whole Doctrine: How to Win Subrogation Fights When Multiple Insurers Claim the Same Recovery

Donald Henderson | Matthiesen, Wickert & Lehrer, S.C

Donald Henderson is an associate attorney with the national subrogation law firm of Matthiesen, Wickert & Lehrer, S.C. (MWL), working out of the firm’s Hartford, Wisconsin office. Donald earned his J.D. from Marquette University Law School, where he gained significant experience through his clerkships with the United States Attorney’s Office for the Eastern District of Wisconsin, Addison-Clifton, LLC, and Moertl, Wilkins & Campbell. He is licensed to practice law in Wisconsin. Donald’s practice focuses on insurance litigation with an emphasis on workers’ compensation, automobile insurance, and property and casualty subrogation. He represents insurers, self-insured entities, and third-party administrators in recovering losses and navigating complex liability issues.

Rebecca Wright | Rathbone Group

Rebecca W. Wright has focused on insurance subrogation for over a decade, litigating many types of cases in several jurisdictions, from basic auto accidents to house explosions. A founding partner and invaluable part of the Rathbone Group team, Rebecca was elected Managing Partner in 2023.

While attending law school, Rebecca was a litigating member of the Jonathan M. Ault Mock Trial Team, where she obtained awards for Best Litigator. She also served as President of the Ranney Inn of the Phi Delta Phi legal fraternity.

Rebecca’s speaking engagements have included several presentations for the National Association of Subrogation Professionals, including the Litigation Skills Conferences and Annual Conventions, as well as on-site educational seminars for insurance clients. You can also hear her on Rathbone Group’s in-house podcast, “On Subrogation,” dedicated to providing well-researched information on subrogation-related topics. You can find and subscribe to “On Subrogation” on all major podcast platforms as well as in our online library of episodes.

Outside of the office, Rebecca volunteers as head coach for Summit Country Day School’s High School Mock Trial Team, whom she led to the Ohio Center for Law Related Education’s State Competition. She also remains active in community theater, recognizing that acting and litigating are similar arts.

Session I – Made Whole vs. Everyone Else: Winning When Multiple Insurers Want the Same Dollar | 1:00pm – 2:40pm

• What is the Made Whole Doctrine?
  • Definition and equitable origins of the Made Whole Doctrine (what does it mean to be “Made Whole”)
  • Policy rationale and purpose
  • Relationship between Made Whole, subrogation, and reimbursement
  • Common misconceptions about when Made Whole applies
  • When Made Whole is triggered versus when it is irrelevant
• Coverage-by-coverage application of the Made Whole Doctrine
  • Medical payments/PIP coverage
    1. Statutory versus common-law treatment
    2. No-fault claims
    3. Common enforcement/reimbursement issues
  • Property damage coverage
    1. How/when Made Whole applies to property losses
    2. Common enforcement/reimbursement issues
  • Workers’ compensation
    1. Exclusive remedy provisions
• State-by-state variants and jurisdictional differences
  • State-law distinctions
    1. Whether parties can contract/negotiate out of the Made Whole Doctrine
    2. Whether Made Whole applies to all damages or only bodily injury
    3. Whether Made Whole applies across damage categories
  • Selected state case studies
    1. California
    2. Wisconsin
    3. Texas
    4. Louisiana
    5. Florida

Break | 2:00pm – 2:10pm

• Procedural handling and litigation strategy
  • Procedural framework for handling Made Whole disputes
    1. Early identification of Made Whole relevance
    2. Documenting damage analysis
    3. Intervention timing
  • Key case law examples
    1. Wisconsin – Rimes
    2. Minnesota – Henning
  • Litigation and claims-handling best practices
    1. Intervention
    2. Settlement participation and allocation strategies
    3. Looking to resolve early and efficiently
• Overcoming the Made Whole Doctrine
  • ERISA plans can contractually disclaim the doctrine
  • Some states allow non-ERISA insurers to disclaim the doctrine
  • Intervention is half the battle
  • Does the Whole Made apply where the plaintiff settles within policy limits?
  • How does the Made Whole Doctrine address contributory negligence?
  • When all else fails an evidentiary made whole hearing may be required
• Practical takeaways and best practices
  • Made Whole is jurisdiction-specific and coverage-dependent
  • Early procedural decisions often determine outcomes
  • Coverage type matters as much as state law
  • Active participation is the strongest defense to Made Whole claims

Session II – Flies and Honey: Negotiating Settlements in Subrogation Claims | 2:40pm – 3:10pm

• Identify the opposing party’s opportunities
• The importance of de-escalation
• Precedence does not always prevail
• Firm but friendly