IN THE SUPREME = COURT OF TEXAS

IN THE SUPREME COURT OF TEXAS

════════&#= 9552;═══

No. 05-0791

════════λ= 2;═══

Fortis Benefits,=20 Petitioner,

Vanessa Cantu and = Ford Motor=20 Company, Respondents

════════λ= 2;══════════&= #9552;═════════_= 52;══════════= ══════════ = 552;═

On Petition for Review from = the

Court of Appeals for the Tenth = District of=20 Texas

════════&#= 9552;═════════λ= 2;══════════&= #9552;═════════_= 52;══════════= ══

Argued November=20 16, 2006

Justice Willett delivered the = opinion of=20 the Court.

The = issue in=20 this insurance subrogation case is whether the equitable =93made = whole=94=20 doctrine=97the rule that an insurer is not entitled to subrogation of = medical=20 benefits unless the insured has been =93made whole=94=97trumps an = insurer=92s=20 contract-based subrogation right.

=20 After respondent Vanessa Cantu sued multiple parties for severe = injuries=20 she sustained in an auto accident, her medical insurer, petitioner Fortis Benefits, intervened, claiming a = subrogation right=20 under the policy. The various defendants settled with Cantu, and Fortis looked only to Cantu for its recovery. A = divided=20 court of appeals upheld a trial court finding that because Cantu=92s = medical=20 expenses exceeded the settlement amount plus the benefits Fortis had paid, Fortis=92s=20 subrogation claim was barred by the equitable =93made whole=94 doctrine. = We hold=20 that the =93made whole=94 doctrine must yield to Fortis=92s=20 right to contractual subrogation under the plain terms of the insurance=20 policy.

I. Background

=20 Cantu suffered severe injuries in a car wreck and later sued the = driver=20 of the vehicle in which she was riding, his employer, the vehicle = seller, and=20 the vehicle manufacturer (Ford). Fortis = intervened and=20 asserted contractual subrogation and reimbursement rights to recoup from = Cantu=92s=20 tort recovery the amount of medical benefits it had paid under the = policy. At a=20 pretrial conference, Fortis agreed with all = parties on=20 the record that Fortis was excused from = participating=20 in the pretrial and trial proceedings and that Fortis=20 at the post-verdict phase would look only to Cantu to resolve its = subrogation=20 and reimbursement claims.

=20 Cantu settled her claims with the defendants before trial for = $1.445=20 million. Cantu and Fortis disputed what = portion of the=20 settlement proceeds, if any, should go to Fortis, and=20 Cantu moved for summary judgment, arguing she had not been =93made = whole=94 by the=20 settlement. Cantu=92s past medical expenses totaled $378,500 (of which = Fortis had paid $247,534.14), and her summary = judgment=20 evidence included two =93life care plans=94 estimating her future = medical expenses=20 at roughly $1.7 million and $5.3 million. She argued that her past and = future=20 medical expenses, exclusive of other amounts like pain and suffering, = exceeded=20 the amount of the settlement plus what Fortis had=20 already paid. Cantu argued that the =93made whole=94 doctrine precluded = Fortis=92s contractual claims of subrogation and=20 reimbursement. The trial court granted summary judgment in favor of = Cantu, and a=20 divided court of appeals affirmed.[1]

II. Subrogation and the =93Made Whole=94 = Doctrine

=20 This Court recognized the =93made whole=94 doctrine twenty-seven = years ago in=20 Ortiz v. Great Southern Fire & Casualty = Insurance=20 Co.[2] The Ortiz family had a fire = insurance=20 policy from Great Southern on their home, but not the contents.[3] A fire caused damages of $4,000 = to the=20 home and $11,614 to personal property, and Great Southern paid $4,000 = for home=20 repairs.[4] The Ortizes=20 then sued Stacy-Mason, Inc., alleging that one of its employees = negligently=20 started the fire. Great Southern intervened, claiming a right of = equitable=20 subrogation.[5] After the Ortizes settled with Stacy-Mason for $10,000, the = trial=20 court awarded, and the court of appeals affirmed, $4,000 of that = settlement to=20 Great Southern.[6]

=20 We reversed, holding, =93An insurer is not entitled to = subrogation if the=20 insured=92s loss is in excess of the amounts recovered from the insurer = and the=20 third party causing the loss.=94 [7] We reasoned that one = justification for=20 equitable subrogation is to prevent the insured from receiving a double=20 recovery, first from the insurer, then from the third party.[8] We also recognized, however, = that if the=20 insured=92s total recovery is less than his or her losses, equity cuts = the other=20 way: =93when =91either the insurer or the insured must to some extent go = unpaid, the=20 loss should be borne by the insurer for that is a risk the insured has = paid it=20 to assume.=92=94 [9] Because the settlement in = Ortiz=20 encompassed both covered and noncovered = items, we=20 remanded for a determination of how much of the $10,000 related to house = damage.[10]

=20 Ortiz would govern if Fortis = were merely=20 asserting a claim for equitable subrogation. But Fortis is not citing principles of equity to = recover its=20 money; its policy with Cantu conferred on Fortis two=20 separate contractual rights of recovery, one styled = =93subrogation=94 and one=20 styled =93reimbursement.=94 [11] Fortis argues=20 that these provisions authorize recovery from Cantu=92s $1.445 million = settlement=20 with the defendants, and that neither provision is displaced by the = =93made whole=94=20 doctrine. We agree.

A. Equitable Subrogation v. Contractual = Subrogation

=20 Our Ortiz decision addressed the =93made whole=94 doctrine = in the=20 context of equitable subrogation, but it did not discuss how the = doctrine=20 applies, if at all, to contractual subrogation. Other courts, however, = have=20 discussed whether the doctrine applies in the face of a contract that = grants the=20 insurer greater subrogation rights. For example, in Oss v. United Services Automobile Ass=92n,[12] the Fifth Circuit, applying = Texas law in = a diversity=20 case, was confronted with facts similar to those in this case. The = insured was=20 not made whole by the settlement following a car wreck, yet insurer USAA = sought=20 enforcement of its contractual subrogation rights under the policy.[13] Like Fortis,=20 USAA urged the Fifth Circuit to reject the =93made whole=94 doctrine by=20 distinguishing Ortiz as involving equitable rather than = contractual=20 subrogation.[14] The Fifth Circuit, relying on = the El=20 Paso Court of Appeals=92 decision in Means v. United Fidelity Life = Insurance=20 Co., refused because it believed that, in Texas, =93the same principles govern = both=20 equitable and contractual subrogation.=94 [15]

=20 In Means, the insureds had = challenged=20 the validity of United Fidelity=92s contractual subrogation right to = foreclose on=20 their 200-acre property.[16] The court noted, =93Whether we = have a=20 purely equitable subrogation or, as here, a purely contractual one where = both=20 Mr. and Mrs. Means agreed to the subrogation, the principles are the = same, and=20 the rights of United Fidelity Life Insurance Company after the payment = were=20 superior to the homestead rights of Mr. and Mrs. Means.=94[17] Read in context, the court=92s = discussion=20 in Means does little more than affirm a subrogee=92s basic rights, whether they arise via = contract or=20 equity. Moreover, Means nowhere addressed the =93made whole=94 = doctrine that=20 we first articulated in Ortiz, nor could it have, since Ortiz = was=20 decided three years later. When the El Paso Court of Appeals declared in = Means that =93the principles are the same=94 in contractual and = equitable=20 subrogation, it did so against a legal landscape that did not yet = include the=20 =93made whole=94 doctrine.[18] For this reason, Means = is not=20 particularly instructive, nor is Oss, which relies=20 predominantly on Means.

=20 Other Texas courts of appeals have = addressed the=20 difference between equitable and contractual subrogation. For example, = the=20 Austin Court of Appeals in Lexington Insurance Co. v. Gray = recognized the=20 distinction between =93legal=94 and =93conventional=94 subrogation.[19] The former is governed by = equity; the=20 latter by contract.[20] The court (1) observed that = Texas courts=20 have given =93substance to the distinction,=94 (2) noted the = =93unusually =91hospitable=92=20 treatment that the right of subrogation has historically received in = Texas,=94=20 especially express subrogation agreements, which are given = =93considerable weight=94=20 and are governed by general contract law principles,[21] and (3) cited several cases = holding that=20 a subrogee invoking contractual subrogation = can=20 =93recover without regard to the relative equities of the parties.=94[22] Lexington did not = specifically=20 involve the =93made whole=94 doctrine we had adopted a decade earlier in = Ortiz, but it suggested that this equitable defense would not = apply in=20 the face of an express agreement whereby the parties agree in advance = that the=20 matter will be governed by contract principles rather than equitable = principles.=20 Where the policy=92s terms govern subrogation, the court added, =93there is no reason for the equitable principles = usually found=20 in subrogation cases to come into play.=94 [23]

=20 A few years later, however, in Esparza v. Scott & White = Health=20 Plan,[24] the Austin Court of Appeals = backed away=20 from this interpretation. The Esparzas = settled for an=20 amount that did not make them whole, and Scott and White sought = subrogation=20 under an express provision in the parties=92 insurance contract, citing = Lexington as=20 holding that the =93made whole=94 docrine = should apply=20 only to equitable subrogation and not to contractual subrogation.[25] The court of appeals = disagreed,=20 stating:

=20 The distinction we drew between legal and conventional = subrogation in=20 Lexington simply means = that under=20 conventional subrogation no balancing of equities is necessary to = determine=20 whether the subrogee has a right to recover = at all.=20 While an insurance contract providing expressly for subrogation may = remove from=20 the realm of equity the question of whether the insurer has a = right to=20 subrogation, it cannot answer the question of when the insurer is = actually entitled to subrogation or how much it should receive. . = . .

=20 . . . To avoid injustice, the equities must still be balanced in = deciding=20 what amount, if any, the subrogee is entitled to receive in a given case.[26]

The court adopted the = reasoning=20 from Oss that a = boiler-plate=20 subrogation provision does not automatically negate an insurance = policy=92s=20 fundamental purpose, which is to protect the insured by shifting the = risk of=20 loss to the insurer.[27] If anyone is to go unpaid, the = court=20 reasoned, it should be the insurance company. The court concluded that = contracts=20 =93=91confirm, but [do] not expand, the equitable subrogation rights of = insurers,=92=94=20 and the equities must still be balanced to achieve justice.[28]

=20 We do not disagree that equitable and=20 contractual subrogation rest upon common principles, but contract rights = generally arise from contract language; they do not derive their = validity from=20 principles of equity but directly from the parties=92 agreement. The = policy=20 declares the parties=92 rights and obligations, which are not generally = supplanted=20 by court-fashioned equitable rules that might apply, as a default = gap-filler, in=20 the absence of a valid contract. If subrogation arises independent of = any=20 contract, then an express subrogation agreement would be superfluous and = serve=20 only to acknowledge this preexisting right, a position we reject.[29]

=20 Contractual subrogation clauses express the parties=92 intent = that=20 reimbursement should be controlled by agreed contract terms rather than = external=20 rules imposed by the courts. The United States Supreme Court addressed = this very=20 point in a subrogation case decided shortly after we granted the instant = case.=20 In Sereboff v. Mid Atlantic = Medical=20 Services, Inc.,[30] insurer Mid Atlantic was an = ERISA plan=20 fiduciary for the Sereboffs. When the Sereboffs were injured in an auto accident, Mid = Atlantic=20 paid the couple=92s expenses pursuant to the plan.[31] When the Sereboffs settled the tort claims that arose from = the=20 accident, Mid Atlantic filed suit under ERISA to collect the medical = expenses it=20 had paid.[32] Mid Atlantic sought reimbursement under an =93Acts = of Third=20 Parties=94 provision in the plan.[33] The Sereboffs=20 argued that the equitable defense of the =93made whole=94 doctrine = should apply,=20 even though language in the plan document was to the contrary.[34] The Court disagreed, comparing = an action=20 under the =93Acts of Third Parties=94 provision to an action to enforce = an equitable=20 lien established by agreement.[35] The Court refused to apply the = =93made=20 whole=94 doctrine, deeming the Sereboffs=92 = equitable=20 defenses =93beside the point=94 because Mid Atlantic=92s subrogation = claims arose by=20 written agreement.[36]

=20 This position was earlier adopted by the Fifth Circuit in another = ERISA=20 case, Walker v. Wal-Mart Stores, Inc.[37] That case, like today=92s = case, concerned=20 a subrogation clause that granted a right of recovery against =93any and = all=94=20 third-party settlements. Walker brought a malpractice action = against her=20 dentist, alleging he propped open her mouth excessively, resulting in = three jaw=20 surgeries and medical expenses of over $41,000.[38] Walker settled for $12,500, and the = trial court=20 awarded the insurer the entire settlement amount as first-money = reimbursement=20 for the medical benefits it paid.[39] The Fifth Circuit held that = =93the Plan=92s=20 language is unambiguous . . . . We agree with the district court in = holding that=20 the =91any and all=92 language plainly means the first dollar of = recovery (any) and=20 100% recovery (all) of the funds received by the plaintiff in the = settlement, up=20 to the full amount of the benefits paid.=94 [40]

=20 The three varieties of subrogation=97equitable, contractual, and=20 statutory=97represent three separate and distinct rights that, while = related, are=20 independent of each other. Independent, however, does not mean co-equal. = We=20 generally adhere to the maxim that =93equity follows the law,=94 which = requires=20 equitable doctrines to conform to contractual and statutory mandates, = not the=20 other way around. Where a valid contract prescribes particular remedies = or=20 imposes particular obligations, equity generally must yield unless the = contract=20 violates positive law or offends public policy. This Court has =93long = recognized=20 a strong public policy in favor of preserving the freedom of = contract.=94[41] And in Texas Ass=92n of Counties County Government Risk = Management Pool v.=20 Matagorda County, we emphasized that insurers are well equipped to = evaluate=20 and reduce risk by, for example, =93drafting policies to specifically = provide for=20 reimbursement.=94 [42] Fortis did=20 exactly that, drafting two separate recovery provisions that replaced = equitable=20 rights with specific contractual rights. Neither subrogation nor = reimbursement=20 clauses violate Texas public policy.[43] As we have stated, =93=91the = State=92s public=20 policy is reflected in its statutes,=92=94 [44] and Texas workers=92 compensation law = specifically=20 embraces an insurer=92s first-money right of subrogation, thus = indicating no=20 blanket legislative disfavor of such provisions.[45] It is indeed difficult to = declare=20 something contrary to public policy when state law, both statutory and=20 regulatory, actually suggests approval.[46] In a subrogation case arising = under the=20 Labor Code, the Amarillo Court of Appeals distinguished statutory = subrogation=20 from equitable and contractual subrogation.[47] The court looked only at the = statute=92s=20 plain language in affirming the trial court=92s refusal to invoke its = equitable=20 powers to deny subrogation.[48] We agree with this modest, = text-based=20 approach.

=20 Given this insurance policy=92s plain language, we are loathe to judicially rewrite the parties=92 = contract by=20 engrafting extra-contractual standards that neither the Legislature nor = the=20 Texas Department of Insurance has thus far decided to promulgate. As we = have=20 said before, balancing dueling policy concerns is generally for = non-judicial=20 bodies, and it remains the =93better policy for the contracts of = insurance to be=20 changed by the public body charged with their supervision, the State = Board of=20 Insurance, or by the Legislature, rather than for this Court=94 to = contravene the=20 express language of insurance contracts with equitable arguments.[49] The contrary, = however=97replacing=20 equitable protections with specific contract language=97is not unknown = in=20 Texas law.[50] Parties are thus free to = negate the=20 =93made whole=94 doctrine contractually, and to do so before an event = occurs that=20 triggers medical benefits under the policy.[51]

Leading=20 insurance law treatises likewise recognize that specific policy terms = can=20 override equitable principles and that many jurisdictions, though not = all, apply=20 the =93made whole=94 doctrine only in the absence of contrary = reimbursement language=20 in the contract.[52] We agree with those courts = holding that=20 contract-based subrogation rights should be governed by the parties=92 = express=20 agreement and not invalidated by equitable considerations that might = control by=20 default in the absence of an agreement.[53]

B. Subrogation Under Cantu=92s = Insurance=20 Contract With Fortis

=20 We turn now to the specific language of the policy in issue, = which=20 defines the parties=92 rights and obligations. It contains a section = called=20 =93Recovery,=94 which includes a =93Subrogation Right=94 provision and a = separate (and=20 broader) =93Right of Reimbursement=94 provision. The former establishes = a right of=20 subrogation: =93Upon payment of benefits, We = [Fortis] will be subrogated to all rights of = recovery=20 a Covered Person [Cantu] may have against any person or = organization.=94[54] The provision continues: = =93Such right=20 extends to the proceeds of any settlement or judgment; but is = limited to=20 the amount of benefits We have paid.=94[55] Fortis thus=20 retained an unfettered right to recover the proceeds from the settlement = of the=20 underlying suit, the only limitation being the amount of = recovery=97what=20 Fortis had paid under the contract. Nowhere = does this=20 provision suggest that Cantu must first be =93made whole=94 for Fortis to recover. This provision does not use the = modifier=20 =93first money,=94 but its meaning is not imprecise or ambiguous. The = contract=92s=20 specific language controls Fortis=92s right = to=20 subrogation, and the equitable defense of the =93made whole=94 doctrine = must give=20 way.

=20 Accordingly, we hold that Fortis is=20 contractually entitled to recover from the $1.445 million settlement the = $247,534.14 in benefits it paid to Cantu.[56]

III. Fortis=92s Claims = Against Ford

=20 Fortis also asserts that the court of = appeals=20 erred in not considering the validity of a pretrial agreement regarding = its=20 claims against defendant Ford. At a pretrial conference convened under = Texas=20 Rule of Civil Procedure 11, Fortis agreed to = divide=20 the proceeding into two phases: first Cantu would litigate the case with = the=20 defendants completely independent from Fortis, and=20 then Fortis would look only to Cantu to = resolve its=20 claim for subrogation. The Rule 11 agreement and stipulations in the = record,=20 which narrowed the issues presented to the trial court, make clear that = Fortis has unequivocally relinquished any claims = against=20 Ford. Just as Cantu entered into and is bound by the specific language = in the=20 insurance agreement, Fortis entered into and = is bound=20 by the specific language in the Rule 11 agreement. Rule 11 aims to = remove=20 misunderstandings and controversies that accompany verbal assurances, and the written agreements =93speak for = themselves.=94 [57] As this is a valid pretrial = agreement=20 under Rule 11, the trial court had a duty to enforce its terms.[58] Hence, the trial court did not = err in=20 dismissing Fortis=92s claims against Ford, = and the court=20 of appeals did not err in affirming that portion of the judgment.

IV. Conclusion

=20 The equitable =93made whole=94 doctrine is inapplicable when the = parties=92=20 agreed contract provides a clear and specific right of subrogation. = Accordingly,=20 while we affirm that part of the court of appeals=92 judgment regarding = respondent=20 Ford, we reverse and remand to the trial court for further proceedings=20 consistent with this decision.

_____________________________

Don R. Willett

Justice

Opinion = Delivered: June 29,=20 2007

^[1] 170 S.W.3d=20 755.

^[2]=20 597 S.W.2d 342 (Tex. 1980).

^[3]=20 Id. at=20 343.

^[4]=20 Id.

^[5]=20 Id.

^[6]=20 Id.

^[7]=20 Id.

^[8]=20 Id.

^[9]=20 Id. at=20 344 (quoting Garrity v. Rural = Mut. Ins. Co., 253 N.W.2d 512, 514 (Wis.=20 1977)).

^[10] Id.

^[11] The policy states:

Subrogation = Right. Upon=20 payment of benefits, We will be = subrogated to=20 all rights of recovery a Covered Person may have against any person or=20 organization. This includes but is not limited to recoveries against = such=20 third party, against any liability coverage for such third party or = against=20 automobile insurance in the event a claim is made under the uninsured or = underinsured motorist coverages. Such right = extends to=20 the proceeds of any settlement or judgment; but is limited to the amount = of=20 benefits We have paid. You must 1) do nothing = to=20 prejudice any right of recovery; 2) execute and deliver any required = instruments=20 or papers; and 3) do whatever else is necessary to secure such=20 rights.

If We are precluded = from=20 exercising Our Subrogation Right, We may exercise Our Right of=20 Reimbursement.

&nbs= p; =20 Right of Reimbursement. If benefits are paid under this = plan, and=20 any Covered Person recovers against any person or organization by = settlement,=20 judgment or otherwise, We have a right to recover from that Covered = Person an=20 amount equal to the amount We have paid. This includes but is = not=20 limited to recoveries against such third party, against any liability = coverage=20 for such third party or against automobile insurance in the event a = claim is=20 made under the uninsured or underinsured motorist coverages. (emphases=20 added).

^[12] 807 F.2d 457 (5th Cir. = 1987).

^[13] Id. at 458=9659.

^[14] Id. at 460.

^[15] Id. (citing 550 S.W.2d 302, = 309 (Tex.=20 Civ. App.=97El Paso 1977, writ ref=92d n.r.e.)).

^[16] 550 S.W.2d at = 308.

^[17] Id. at 309.

^[18] Id.

^[19] 775 S.W.2d 679, 683 (Tex. = App.=97Austin 1989,=20 writ denied).

^[20] Id.

^[21] Id. at = 683=9684.

^[22] Id.=20 (citing Girard Fire & Marine Ins. Co. v. Farmer, 53 S.W.2d = 1016 (Tex.=20 Comm=92n App. 1932, judgm=92t=20 adopted); Duval County Ranch Co. v. Alamo Lumber Co., 663 S.W.2d = 627=20 (Tex. App.=97Amarillo 1983, writ ref=92d = n.r.e.); Quincy Mut. Fire Ins. Co. v. Jones, = 486 S.W.2d=20 126 (Tex. Civ. App.=97Dallas 1972, no writ); = F.=20 H. Vahlsing, Inc. v. Hartford Fire Ins. = Co., 108 S.W.2d 947 (Tex. Civ.=20 App.=97San Antonio 1937, writ dism=92d w.o.j.)).

^[23] Id. at 684.

^[24] 909 S.W.2d 548 (Tex. = App.=97Austin 1995, writ=20 denied).

^[25] Id. at 551 (citing 775 S.W.2d = 679).

^[26] Id. at 552=9652(emphasis in=20 original).

^[27] Id.

^[28] Id.=20 at 552 (quoting Oss, 807 F.2d at=20 460).

^[29] Even if the =93Subrogation = Right=94 provision=20 merely confirmed the preexisting right of equitable subrogation and = nothing=20 more, the policy=92s separate and broader =93Right of Reimbursement=94 = provision=20 affords Fortis an alternative basis to = recover from=20 Cantu the medical benefits it paid.

^[30] 126 S. = Ct.=20 1869 (2006).

^[31] Id. at 1872.

^[32] Id. at 1873.

^[33] Id. at = 1872=9673.

^[34] Id. at 1877.

^[35] Id.

^[36] Id. Cantu would have us = distinguish=20 Sereboff because it arises under the = ERISA=20 statute and =93has no application to this non-ERISA case.=94 However, = =93ERISA neither=20 requires a welfare plan to contain a subrogation clause nor does it bar = such=20 clauses or otherwise regulate their content.=94 Ryan v.=20 Fed. Express Corp., 78 F.3d 123, 127 (3d Cir. = 1996).=20 Accordingly, a contractual subrogation provision, whether in an ERISA = plan or in=20 a private insurance policy, must be enforced as written. See id. = at 128.

^[37] 159 F.3d 938 (5th Cir. 1998) (per = curiam).

^[38] Id. at 939.

^[39] Id.

^[40] Id. at 940.

^[41] Lawrence v. CDB Servs.,=20 Inc., 44 S.W.3d 544, 553 (Tex. = 2001)=20 (citing Wood Motor Co. v. Nebel, 238 = S.W.2d=20 181, 185 (Tex.=20 1951)). As a rule, a court should not by judicial fiat insert = non-existent=20 language into statutes or into parties=92 agreed-to contracts, or delete = existent=20 language from them either. Our confined duty is to construe the contract = as is,=20 and holding that equitable considerations trump contrary contract terms = would=20 render contractual subrogation a nullity.

^[42] 52 S.W.3d 128, 136 (Tex. 2000). = As we noted,=20 =93the presence of absence of a reimbursement clause in the insurance = contract=20 could affect the premium charged,=94 so such provisions cannot be deemed = illusory.=20 Id.=20 at 131 n.4.

^[43] See id.; Ortiz, = 597 S.W.2d at 343.

^[44] Town of Flower Mound v. = Stafford Estates=20 Ltd. P=92ship, 135 S.W.3d 620, 628 = (Tex. 2004) (quoting Texas Commerce Bank, N.A. = v.=20 Grizzle, 96 S.W.3d 240, 250 (Tex. 2002)).

^[45] See Tex. Labor Code =A7=A7 = 417.001=96.004=20 (authorizing subrogation in Texas workers=92 compensation = law).

^[46] See Lawrence, 44 S.W.3d at = 553=20 (=93Public policy, some courts have said, is a term of vague and = uncertain=20 meaning, which it pertains to the law-making power to define, and courts = are apt=20 to encroach upon the domain of that branch of the government if they=20 characterize a transaction as invalid because it is contrary to public = policy,=20 unless the transaction contravenes some positive statute or some=20 well-established rule of law.=94).

^[47] Tex. Workers=92 Comp. Ins. Fund v. = Knight, 61=20 S.W.3d 91, 93 (Tex. App.=97Amarillo 2001, no = pet.).

^[48] Id.

^[49] Members Mut.=20 Ins. Co. v. Cutaia, 476 S.W.2d 278, 281 (Tex.=20 1972).

^[50] See, e.g., Zapata v. = Torres,=20 464 S.W.2d 926, 930 (Tex. Civ. App.=97Dallas = 1971, no=20 writ) (stating it is =93reasonable to suppose=94 that the parties=92 = express agreement=20 was intended to replace implied equitable rights) (citations = omitted).

^[51] Of course, if the Legislature = and/or TDI=20 believes that the contract=92s terms, though = clear, work=20 an unfair result, they can take action to prescribe or proscribe = whatever=20 principles they believe strike the best balance. The Insurance Code = requires=20 insurers to submit their insurance forms to TDI for approval, Tex. Ins. Code =A7=A7 = 1701.051, 1701.054,=20 and while TDI can disapprove forms it deems unjust, id. =A7 = 1701.055(a)(2), it did not do so here.

^[52] 16 Couch on Insurance 3d =A7=A7 = 223:134,=20 223:147; 22 Holmes Appleman on = Insurance=20 2d =A7 141.2[B][1]; 3 Appleman Insurance Law & = Practice =A7=20 1675.

^[53] Cantu attempts to avoid the = policy=92s=20 express language by arguing that insurance contracts =93are contracts of = adhesion=20 in which the insured has little, if any, negotiating room,=94 and that = contractual=20 abrogation of the =93made whole=94 doctrine is thus unconscionable and=20 unenforceable. Even taking as true the contention = that=20 insurance contracts are contracts of adhesion that reflect unequal = bargaining=20 power, =93adhesion contracts are not automatically unconscionable or = void.=94=20 In re Oakwood Mobile Homes, Inc., 987 S.W.2d = 571, 574=20 (Tex.=20 1999). Nor is it per se unconscionable that an insurer would seek = to=20 reduce its risk and boost its solvency by including a subrogation and/or = reimbursement clause. In any event, Cantu has produced no evidence of = duress or=20 unconscionability.

^[54] Emphasis added. Although Cantu = argues that=20 this language is so open-ended it allows for subrogation of claims = unrelated to=20 the policy, we must construe this provision in relation to the entire=20 instrument, Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983), to = avoid an=20 interpretation that renders the contract =93unreasonable, inequitable, = and=20 oppressive,=94 Reilly v. Rangers Mgmt., Inc., 727 S.W.2d 527, 530 = (Tex.=20 1987). This contract is a =93Major Medical Policy=94 that =93describes = the benefits=20 available to You and covered Family Members = from Fortis Insurance Company.=94 The provision = therefore gives=20 Fortis a subrogation right only on = recoveries for=20 claims that relate to benefits available under the contract.

^[55] Emphasis added.

^[56] Because we enforce the = contract=92s =93all=20 rights of recovery=94 subrogation provision, we need not reach the = separate =93Right=20 of Reimbursement=94 provision, which by its terms only applies if Fortis is denied subrogation. Nor need we consider = whether=20 the trial court erred in computing past and future medical expenses in = relation=20 to Cantu=92s total damages.

^[57] Padilla v. LaFrance, 907 S.W.2d 454, 460 (Tex. 1995) (citing Birdwell v. Cox, 18 = Tex. 535, 537 = (1857)).

^[58] See EZ Pawn Corp. v. Mancias, 934 S.W.2d 87, 91 (Tex. 1996) = (orig.=20 proceeding) (noting that trial courts cannot consider evidence outside = the=20 bounds of the Rule 11 agreement); Scott-Richter v. Taffarello, 186 S.W.3d 182, 189 (Tex. = App.=97Fort Worth=20 2006, pet. denied) (=93A trial = court has a=20 ministerial duty to enforce a valid Rule 11=20 agreement.=94).