Stephanie Jaster, Plaintiff-Appellant, v. Selective Ins. Co. of S.C., Defendant-Respondent., 2025 WL 1379673 (Wis. App. May 13, 2025)
In a recently released Wisconsin Court of Appeals decision, Stephanie Jaster v. Selective Insurance Co. of South Carolina, the court reaffirmed a key principle in the Minnesota PIP subrogation landscape: an insurer’s failure to expressly assert subrogation rights in an insurance policy does not necessarily waive its statutory subrogation rights under the Minnesota No-Fault Automobile Insurance Act. This decision carries significant implications for subrogation professionals, particularly when dealing with cross-jurisdictional automobile claims.
Jaster was a Minnesota resident who received Personal Injury Protection (PIP) benefits from her insurer, Selective Insurance Company of South Carolina, under a Minnesota policy following a motor vehicle accident in Wisconsin. After she settled with the tortfeasor’s insurer, Selective sought reimbursement under Minnesota § 65B.53, subd. 2, arguing that Jaster had received a “double recovery” of the same damages previously paid as no-fault benefits. Jaster countered that Selective had waived any right to reimbursement by omitting a subrogation clause in the PIP endorsement of its policy.
The policy at issue in this case included several provisions that are relevant to Selective’s subrogation rights. First, “Part F—General Provisions” in the main policy includes a section entitled “Our Right to Recover Payment,” which provided:
A. If we make a payment under this policy and the person to or for whom payment was made has a right to recover damages from another we shall be subrogated to that right. That person shall do:
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- Whatever is necessary to enable us to exercise our rights; and
- Nothing after loss to prejudice them.
….
B. If we make a payment under this policy and the person to or for whom payment is made recovers damages from another, that person shall:
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- Hold in trust for us the proceeds of the recovery; and
- Reimburse us to the extent of our payment.
Second, the policy also includes an “Amendment of Policy Provisions—Minnesota” (hereinafter, “Minnesota amendment”), which adds language to the main policy’s “Our Right to Recover Payment” provision. None of the additional language in the Minnesota amendment appears to be relevant to the parties’ dispute in this case.
Third, the policy includes an endorsement entitled “Personal Injury Protection Coverage—Minnesota” (hereinafter, “PIP endorsement”). The PIP endorsement states, in relevant part:
We will pay, in accordance with the Minnesota No-Fault Automobile Insurance Act, personal injury protection benefits to or for an ‘insured’ who sustains ‘bodily injury.’ ” The PIP endorsement further provides: “The Our Right To Recover Payment Provision does not apply.
In response to Jaster’s argument that they had waived any right to reimbursement by omitting a subrogation clause in the PIP endorsement of its policy, the trial court initially ruled that Selective had waived any contractual rights to reimbursement, but it nonetheless allowed recovery under the statutory right of subrogation provided by Minnesota’s No-Fault Act. The appellate court agreed. It emphasized that waiver of a statutory right requires both knowledge of the right and a clear, affirmative expression of intent to relinquish it—a threshold Jaster failed to prove had been met.
Notably, Jaster did not dispute that the tort settlement duplicated her no-fault benefits, nor did she challenge the trial court’s finding that she had been “made whole” by the settlement. Therefore, even in the absence of a written policy clause reiterating Selective’s right of subrogation, its statutory right to reimbursement survived.
The court’s opinion clarifies that when dealing with out-of-state PIP benefits (in this case, Minnesota’s), Wisconsin courts will enforce subrogation rights so long as the underlying statute supports them and the insured has received a double recovery. This case also serves as a reminder that carriers should evaluate whether their policy language might inadvertently undermine rights clearly preserved by statute—and to take care not to infer waiver from silence.
Subrogation practitioners in Wisconsin should take note: statutory rights—particularly those tied to Minnesota’s comprehensive no-fault framework—deserve independent scrutiny, apart from policy language. In an era where cross-border claims are increasingly common, Jaster v. Selective reinforces that statutory subrogation remains a viable recovery tool—if preserved and asserted strategically.
For questions regarding auto subrogation in Wisconsin and throughout the Midwest, contact Douglas Lehrer at dlehrer@mwl-law.com.
