2009 WI App 19
court of appeals of
published opinion
Case No.: |
2008AP1324 |
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Complete Title of Case: |
†Petition for Review filed. |
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Kevin Blum, Jr., by his Guardian ad Litem, Jason Studinski, Plaintiff-Appellant,† WEA Insurance Corporation, Involuntary-Plaintiff,
v. 1st Auto & Casualty Insurance Company, Defendant-Respondent. |
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Opinion Filed: |
December 4, 2008 |
Submitted on Briefs: |
October 8, 2008 |
Oral Argument: |
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JUDGES: |
Dykman, Vergeront and Bridge, JJ. |
Concurred: |
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Dissented: |
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Appellant |
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ATTORNEYS: |
On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Timothy M. Barber, J. Michael Riley, and Jason Knutson of Axley Brynelson, LLP, Madison. |
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Respondent |
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ATTORNEYS: |
On behalf of the defendant-respondent, the cause was submitted on the brief of Rick J. Mundt and Chet Holzbauer of Winner, Wixson & Pernitz, Madison. |
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2009 WI App 19
COURT OF APPEALS DECISION DATED AND FILED December 4, 2008 David R. Schanker Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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Appeal No. |
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STATE OF |
IN COURT OF APPEALS |
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Kevin Blum, Jr., by his Guardian ad Litem, Jason Studinski, Plaintiff-Appellant, WEA Insurance Corporation, Involuntary-Plaintiff, v. 1st Auto & Casualty Insurance Company, Defendant-Respondent. |
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APPEAL
from a judgment of the circuit court for
Before Dykman, Vergeront and Bridge, JJ.
¶1 VERGERONT, J. The issue on this appeal is
the proper construction of the uninsured motorist (UM) provision in an
insurance policy as applied to the situation in which the alleged tortfeasor
who operated the motor vehicle was insured but the vehicle was not insured. We conclude that the policy provision is
ambiguous because the title of the UM section is “Uninsured Motorist” while the
insuring clause defines coverage in terms of an “uninsured motor vehicle.” We also conclude that we should resolve the
ambiguity consistent with the way in which the court in
BACKGROUND
¶2 The facts relevant to this appeal are undisputed. Blum was seriously injured when, after he jumped on the hood of the vehicle driven by Nicholas Burch in the high school parking lot, Burch accelerated and then applied the brakes, causing Blum to fall off and strike his head on the curb. Burch’s father owned the vehicle and it was uninsured. However, Burch carried liability insurance under a policy issued by American Standard Insurance Company. Blum entered into an agreement releasing both Burch and American Standard in exchange for the policy’s liability limits of $250,000.
¶3 1st Auto & Casualty Insurance Company had issued Blum’s parents an automobile insurance policy which was in effect at the time of the accident. The policy contained a section on UM coverage that stated:
PART
C—UNINSURED MOTORIST
INSURING AGEEMENT
A. We will pay compensatory damages which an insured is legally entitled to recover from the owner or operator of an uninsured motor vehicle because of bodily injury:
1. Sustained by any insured; and
2. Caused by an accident.
The owner’s or operator’s liability for these damages must arise out of the ownership, maintenance or use of the uninsured motor vehicle.
Blum was included in the policy definition of an “insured” for this coverage because he was a family member.[2] The policy definition of an “uninsured motor vehicle” as relevant to this appeal is a vehicle “[t]o which no bodily injury … policy applies at the same time of the accident.”
¶4 Blum filed this action against 1st Auto seeking UM benefits, and 1st Auto moved for summary judgment. 1st Auto contended that the UM section did not provide coverage because, although the vehicle Burch drove was uninsured, Burch was insured. Blum argued that the plain language of the section provides coverage because the vehicle is an uninsured vehicle as defined in the policy.
¶5 The circuit court agreed with 1st Auto and granted summary judgment in its favor.
DISCUSSION
¶6 On appeal, Blum renews his argument that the plain language
of the policy provides UM coverage.
Relying primarily on
¶7 We review de novo the
grant and denial of summary judgment, employing the same methodology as the
circuit court. Green Spring Farms v. Kersten,
136
¶8 Generally,
we interpret insurance policies according to the rules of contract
construction.
¶9 We
begin with a discussion of Hemerley v. American Family Mutual Insurance
Co., 127
¶10 In
Hemerley
we first considered Wis. Stat. § 632.32(4)(a)
which provides:
(4) Required uninsured motorist and medical payments coverages. Every policy of insurance subject to this section that insures with respect to any motor vehicle registered or principally garaged in this state against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle shall contain therein or supplemental thereto provisions approved by the commissioner:
(a) Uninsured motorist.
1. For the protection of persons injured who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death resulting therefrom, in limits of at least $25,000 per person and $50,000 per accident.
2. In this paragraph “uninsured motor vehicle” also includes:
a. An insured motor vehicle if before or after the accident the liability insurer of the motor vehicle is declared insolvent by a court of competent jurisdiction.
b. An unidentified motor vehicle involved in a hit-and-run accident.
3. Insurers making payment under the uninsured motorists’ coverage shall, to the extent of the payment, be subrogated to the rights of their insureds.
We concluded that reasonable persons could read § 632.32(4)
“either to require coverage to protect persons injured by a motor vehicle which
is not insured, or to require coverage to protect persons injured when the
vehicle’s owner or operator has no insurance.”
¶11 In
Hemerley
we next took up the meaning of the policy provision and came to two
conclusions important to this appeal.
First, we decided that the title of “Uninsured Motorist Coverage”
followed by reference in the insuring clause to “uninsured motor vehicle”
created an ambiguity.[4] Second, we decided that, because this is the
type of coverage required by Wis. Stat. § 632.32(4),
“[a] reasonable person would understand the words in the policy to provide the
coverage contemplated by the statute” and we “ought therefore to resolve the
policy ambiguity as we do the statutory ambiguity.”
¶12 In
¶13 To
resolve the ambiguity in the statute, the
¶14
¶15 We
have held that ordinarily holdings in our opinions not specifically reversed by
the supreme court retain precedential value.
Sweeney v. Gen. Cas. Co., 220
¶16 We
note that the above cases involve situations in which the court of appeals
opinions were reversed on appeal. They
do not involve the situation here, in which the supreme court overruled a court
of appeals opinion in the context of reviewing another court of appeals
opinion. However, we see no basis for
distinguishing between these two situations as a general matter. The critical issue in both situations is the
same: whether there is anything in the
supreme court opinion reversing or overruling a court of appeals opinion on a
particular ground or grounds that suggests the supreme court does not agree
with other portions of the opinion.[8]
¶17 In
this case, we see no reason not to apply the general rule. The supreme court in
¶18 As
noted above, the use of “uninsured motorist” in the title of the UM section,
the relevant portion of the insuring clause, and the relevant definition of
“uninsured motor vehicle” are the same in 1st Auto’s policy as in the Hemerley
policy. Following Hemerley, we conclude the
reference to “uninsured motorist” in the title of the UM section of 1st Auto’s
policy and the reference to “uninsured motor vehicle” in the insuring clause
create an ambiguity. Reasonable persons
could differ on whether there is UM coverage when the alleged tortfeasor
operating the motor vehicle has liability coverage but the vehicle is not
covered by a liability policy.
¶19 Following
Hemerley,
we resolve this ambiguity in the same way the ambiguity of the same terms in Wis. Stat. § 632.32(4)(a) is
resolved, looking to
¶20 Blum’s
arguments that there is UM coverage under 1st Auto’s policy do not persuade
us. Blum contends that the meaning of
the insuring clause and the definition of “uninsured motor vehicle” in 1st
Auto’s policy is plain and we must apply it.
However, this argument does not take into account the title of the
section, which we must also consider. See Hemerley,
127
¶21 Blum
also argues that an insurer may, through policy language, expand UM coverage
beyond the minimum required by Wis. Stat.
§ 632.32(4). Blum relies on Fletcher
v. Aetna Casualty & Surety Co., 165
¶22 We
do not find our reasoning in Fletcher applicable in this
case. The policy language creating the
ambiguity in Fletcher was not the same language used in the statute. In this case the terms “uninsured motorist”
and “uninsured motor vehicle” that create the ambiguity in the policy are the
same terms that the
CONCLUSION
¶23 We
conclude that Blum was not entitled to UM coverage under the policy because the
allegedly negligent operator of the vehicle was covered by liability
insurance. Accordingly, we affirm the
circuit court’s grant of summary judgment in favor of 1st Auto.
By the Court.—Judgment affirmed.
[1] All references to the Wisconsin Statutes are to the 2005-06 version unless otherwise noted.
[2] Section B of the policy on uninsured motorist coverage provides:
B. Insured as used in this Part means:
1. You or any family member.
2. Any other person occupying your covered auto.
3. Any person for damages that person is entitled to recover because of bodily injury to which this coverage applies, sustained by a person described in 1. or 2.
[3] As
we explain in paragraphs 14-17, infra,
the supreme court in Hull v. State Farm Mutual Automobile Insurance
Co., 222 Wis. 2d 627, 586 N.W.2d 863 (1998), overruled the construction
of Wis. Stat. § 632.32(4)(a)
in Hemerley
v. American Family Mutual Insurance Co., 127
[4] In
Hemerley, we did not consider the title of Wis. Stat. § 632.32(4), “Required Uninsured Motorist and Medical Payments Coverages,” in construing the statute
because of the principle that titles to subsections of statutes are not part of
the statute and cannot be considered when determining whether a statute is
ambiguous. 127
[5] The
court in Hull also construed the definition of “uninsured motor vehicle”
in that insurance policy, but on a point not relevant to this appeal. The disputed language in that policy
definition was “a vehicle, the ownership, maintenance or use of which is not
insured.”
[6] In
[7] As
we noted in State v. Byrge, 225
[8] In
State
v. Harris, 2004 WI 64, ¶11 n.6, 272 Wis. 2d 80, 680 N.W.2d 737, the
supreme court stated that it has not decided “whether a portion of a court of
appeals decision that is not discussed when the opinion is overruled on other
grounds is still precedential.