2009 WI App 34
court of appeals of
published opinion
Opinion Filed: |
February 18, 2009 |
Submitted on Briefs: |
December 11, 2008 |
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JUDGES: |
Brown, C.J., |
Concurred: |
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Dissented: |
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Appellant |
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ATTORNEYS: |
On behalf of the defendant-appellant, the cause was
submitted on the briefs of Lance S. Grady and Daniel K. Miller of Grady, Hayes & Neary, LLC of
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Respondent |
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ATTORNEYS: |
On behalf of the plaintiffs-respondents, the cause was
submitted on the brief of Luke M. Wagner of Wagner Law Firm, S.C. of Menomonie and
Robert Menard of |
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2009 WI App 34
COURT OF APPEALS DECISION DATED AND FILED February 18, 2009 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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James Zarder, Glory Zarder and Zachary Zarder, by Robert C. Menard, Guardian ad Litem,
Plaintiffs-Respondents, v. Humana Insurance Company, Defendant, Acuity, A Mutual Insurance Company,
Defendant-Appellant. |
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APPEAL
from an order of the circuit court for
Before Brown, C.J.,
¶1 BROWN, C.J. What does run mean when an insurance policy covers “hit-and-run” accidents as part of an uninsured motorist provision and the policy does not define the term? Does run mean to flee without stopping, or does it mean leaving the scene without providing identifying information even if the driver stopped to see if there was any injury? We hold that the latter definition controls and affirm the circuit court.
¶2 The facts relevant to this appeal are brief and
undisputed. On December 9, 2005,
twelve-year-old Zachary Zarder was riding his bicycle on the street. An unidentified motor vehicle cut the corner
short, causing it to enter the wrong lane and strike Zarder. The vehicle stopped about one hundred feet
away. Three males got out of the car and
walked back towards Zarder. One asked
Zarder if he was ok. Zarder said
yes. So they walked back to their car
and drove away. They never provided
Zarder with identifying information or asked Zarder if he wanted it.
¶3 Witnesses also heard the accident and spoke to Zarder. They asked Zarder if he was hurt, and Zarder said he was ok. Zarder said he was just scared and wanted to remain where he was for a moment. So, the witnesses left. The witnesses did not attempt to identify the motor vehicle or the occupants.
¶4 A short while later, Zarder’s family contacted the
police. A police officer then questioned
neighboring residents who had vehicles similar to the one involved in the
accident, as so described by Zarder and the witnesses. The officer also contacted the nearest high
school, thinking that the occupants might be students there. No information turned up, and the police did
not thereafter continue the investigation of the accident as a
“hit-and-run.” This is most likely
because, at that point, no one thought Zarder’s injuries were serious.
¶5 Later, though, the Zarders realized that Zachary’s injuries were serious. He suffered two fractures for which he had two surgeries and a lengthy recovery. The medical bills were more than Zarder’s health insurance would cover. The Zarder family then sought coverage under their Acuity policy’s uninsured motorist coverage. The Zarders asserted that the accident was a “hit-and-run” accident with an unidentified motor vehicle.
¶6 Acuity denied coverage and sought a declaratory judgment on coverage. It argued that the following provisions of the insurance policy issued to Zarder precluded Zarder’s claim:
We will pay damages for bodily injury which an insured
person is legally entitled to recover from the owner or operator of an
uninsured motor vehicle. Bodily injury
must be sustained by an insured person and must be caused by accident and
result from the ownership, maintenance or use of the uninsured motor
vehicle. (Emphasis omitted.)
The Acuity policy defined an “uninsured motor vehicle” as
2. … a land motor vehicle or trailer which is
….
c. A hit-and-run vehicle whose operator or owner
is unknown and which strikes….
Acuity’s position was that because the vehicle stopped and the operator inquired into Zarder’s well-being, the accident was not a “hit-and-run.”
¶7 The circuit court denied Acuity’s claim based on public policy grounds. We granted leave to appeal because the issue is novel and because deciding it would further the administration of justice by definitively deciding the meaning of run in “hit-and-run.”
¶8 The grant or denial of a declaratory judgment is addressed to
the circuit court’s discretion. Jones
v. Secura Ins. Co., 2002 WI 11, ¶19, 249
¶9 Acuity’s main argument is that this issue has been previously
decided. It cites Hayne v. Progressive Northern
Insurance Co., 115
The sole issue on appeal is whether sec. 632.32(4)(a)2.b., Stats., requires uninsured motorist coverage for an accident involving an insured’s vehicle and an unidentified motor vehicle when there was no physical contact between the two vehicles.
Hayne, 115
¶10 In deciding the question before it, the court cited recognized
dictionaries to discover whether the term “hit-and-run” includes “miss-and-run”
or whether it requires actual physical striking.
We find his argument unpersuasive. The dictionary definitions we previously cited uniformly indicate that “hit-and-run” includes two elements: a “hit” or striking, and a “run,” or fleeing from the accident scene.
¶11 But, not so fast. First
of all, the issue in that case, as cogently stated by the supreme court, was
whether there was “physical contact” such that there was a “hit.” When an appellate court intentionally takes
up, discusses and decides a question germane to a controversy, such a decision
is not dicta but is a judicial act of the court which it will thereafter
recognize as a binding decision. State
v. Sanders, 2007 WI App 174, ¶25, 304
¶12 The Hayne court did not intentionally take up and decide the “run” part of “hit-and-run.” And the passages Acuity quoted were not germane to the outcome of Hayne. Moreover, the statements Acuity relied on were obviously off-the-cuff statements, made without any careful thought or analysis, another indication of dicta. For example, while the court seemingly equated “run” with “flee,” it did not define or discuss the circumstances that determine when a “flee” has occurred.
¶13 This is borne out by the supreme court’s statement that the
“dictionary definitions [it had] previously cited uniformly indicate that
‘hit-and-run’ includes two elements: a
‘hit’ or striking, and a ‘run,’ or fleeing from the accident scene.” Hayne, 115
¶14 We conclude that Hayne’s definition of “run” as a
“fleeing from the scene of an accident” is dicta that begged the question. The facts in Hayne did not present an
issue as to whether the unidentified vehicle “ran” from the scene. Instead, the issue presented was whether the
term “hit” in “hit-and-run” includes accidents without any physical
contact.
¶15 Without Hayne as the anchor, we are back to square one with regard to defining “run” in “hit-and-run.” We will hereafter analyze the case the way the law says we must interpret insurance policy language. So, we will start with the Acuity policy language.
THE ACUITY INSURANCE POLICY
¶16 Acuity’s position, at bottom, is that its “hit-and-run” coverage requires a “run,” or a fleeing from the accident scene. In its opinion, the meaning of “run” in “hit-and-run” is to flee without stopping. Acuity contends that no run occurred here because the unidentified vehicle stopped and left only after young Zarder assured the three occupants that he was unhurt. Therefore, Acuity argues that it properly denied coverage because its insurance policy covers only “hit-and-run” accidents.
¶17 We construe insurance policies to give effect to the intent of
the parties as expressed in the language of the policy. Folkman, 264
¶18 Acuity did not define “hit-and-run” in its uninsured motorist
policy. It simply states that coverage
extends to accidents with “[a] hit-and-run vehicle whose operator or owner is
unknown and which strikes [an insured].”
Therefore, we must find and give effect to the common and ordinary
meaning of “hit-and-run.” See id.,
¶17. In construing an insurance policy,
we may look to dictionary definitions to find the common meaning and usage of
words. Ennis v. Western Nat’l Mut. Ins.
Co., 225
¶19 Our review of recognized dictionaries reveals two different groups of definitions for the phrase “hit-and-run.” One group of definitions includes only vehicles that continue driving away from the accident scene. The second group is broader and includes vehicles that stop but do not complete their legal requirements before leaving the accident scene. This is not surprising since the dictionary definitions in the Hayne decision presented the same dichotomy, as we earlier pointed out.
¶20 In the first group, The
Random House Dictionary of the English Language 907 (2d ed. unabridged
1987) defines “hit-and-run” as “guilty of fleeing the scene of an accident …
esp. a vehicular accident, thereby attempting to evade being identified and
held responsible: a hit-and-run driver.” “The
American Heritage Dictionary 625 (1979) defines ‘hit-and-run’ as ‘designating
or involving the driver of a motor vehicle who drives on after striking a pedestrian
or another vehicle.’” Hayne,
115
¶21 In the second group, Webster’s
Third New International Dictionary 1074 (unabridged 1993), defines the
driver of a “hit-and-run” vehicle as one who is “guilty of leaving the scene of
an accident without stopping to render assistance or to comply with legal
requirements.” Black’s Law Dictionary 730 (6th ed. 1990) defines a “hit and
run accident” as a “[c]ollision generally between motor vehicle and pedestrian
or with another vehicle in which the operator of the vehicle leaves scene
without identifying himself.” And, “Funk
and Wagnall’s Standard College Dictionary 636 (1968) provides the following
definition of ‘hit-and-run’:
‘designating, characteristic of, or caused by the driver of a vehicle
who illegally continues on his way after hitting a pedestrian or another
vehicle.’” Hayne, 115
¶22 We conclude that both groups of definitions are reasonable, so the policy language is ambiguous. “Run” has no one universal meaning in the context of a “hit-and-run.” An ordinary insured could reasonably interpret the policy here such that “hit-and-run” limits coverage to accidents where (1) the operator flees or drives on without stopping or (2) the operator stops but drives on without providing identification or complying with his or her other legal duties.
¶23 Since either interpretation is reasonable, we must adopt the
interpretation favorable to the insured.
See Folkman, 264
THE OMNIBUS STATUTE, WIS. STAT. §
632.32(4)(a)2.b.
¶24 The Omnibus statute provides an alternative rationale for
deciding this issue in favor of affirming the circuit court. Assuming, only for the sake of argument, that
Zarder’s accident falls outside of his Acuity coverage, Wis. Stat. § 632.32(4)(a)2.b. still compels
coverage. It is well-settled law that
courts may compel and enforce coverage omitted from an insurance contract where
the inclusion of such coverage is statutorily required. Hayne, 115
¶25 Wisconsin Stat. § 632.32(4) states in relevant part as follows:
(4) Required uninsured motorist and medical payments coverages. Every policy of insurance subject to this section that insures with respect to any motor vehicle … in this state against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the … use of a motor vehicle shall contain … [the following provisions]:
(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:
….
b. An unidentified motor vehicle involved in a hit-and-run accident.
The legislature has defined
neither the phrase “hit-and-run,” see Theis, 232
¶26 In construing a statute, we must first look to the statutory
language itself. State v. Derenne, 102
¶27 Trying to isolate the word “run” to resolve any ambiguity in
the colloquialism “hit-and-run” would be fruitless. The
Random House Dictionary of the English Language 1681-82 (1987) provides
over 178 definitions for “run.” Many are
obviously irrelevant, but those that are relevant provide little clarity. For example, “run” means “to convey or
transport, as in a vessel or vehicle,” or “to leave, flee, or escape from: He ran
town before the robbery was discovered.”
¶28 And here, oddly enough, Hayne is helpful after all. Aside from dictionaries, our supreme court
relied on three additional sources to decide the case: (1) the legislative history of Wis. Stat. § 632.32(4)(a)2.b., (2) the
“hit-and-run” statute, Wis. Stat.
§ 346.67, and (3) the principle of construing statutes to avoid surplusage.
Hayne, 115
¶29 We begin with the legislative history of Wis. Stat. § 632.32(4)(a)2.b. The legislature adopted the following Legislative
Council Note in ch. 102, Laws of 1979:
“A precise definition of hit-and-run is not necessary for in the rare
case where a question arises, the court can draw the line.” This note evidences that the legislature
recognized the vast variety of unpredictable scenarios that lead to claims for
uninsured motorist coverage. Theis,
232
¶30 The hit-and-run statute, Wis.
Stat. § 346.67, provides the clearer guidance we seek as to what
the legislature meant by the term “run” in “hit-and-run.” The legislature is presumed to enact
statutory provisions with full knowledge of existing laws. Hayne, 115
¶31 The hit-and-run statute states, in pertinent part:
The operator of any vehicle involved in an accident … shall immediately stop such vehicle at the scene of the accident or as close thereto as possible but shall then forthwith return to and in every event shall remain at the scene of the accident until the operator has fulfilled the following requirements:
(a) The operator shall give his or her name, address and the registration number of the vehicle he or she is driving to the person struck or to the operator or occupant of or person attending any vehicle collided with; and
(b) The operator shall, upon request and if
available, exhibit his or her operator’s license to the person struck or to
the operator or occupant of or person attending any vehicle collided with; and
(c) The operator shall render to any person injured in such accident reasonable assistance, including the carrying, or the making of arrangements for the carrying, of such person to a physician, surgeon or hospital for medical or surgical treatment if it is apparent that such treatment is necessary or if such carrying is requested by the injured person.
Wis. Stat. § 346.67(1) (emphasis added).
¶32 The requirements in Wis.
Stat. § 346.67 inform us that the definition of “hit-and-run” in Wis. Stat. § 632.32(4)(a)2.b.
includes accidents, such as the one in this case, where the operator stopped to
see if there was any injury, but left the scene without providing identifying
information. Section 346.67 requires the
operator to complete three legal requirements before he or she may leave the
accident scene: (1) provide identifying
information regardless of whether the insured requests it, (2) provide his or
her driver’s license if requested, and (3) provide reasonable medical
assistance.
¶33 This definition also complies with the principle that “statutes
must be construed, if possible, so that no word or clause is rendered
surplusage.” Hayne, 115
¶34 This is best shown by example: Say all the facts in this case are the same except that the witnesses to the accident were able to get the license plate number of the vehicle that hit Zarder. And say that the police were able to track the vehicle down and identify the driver. And say that the driver had insurance. If those were the facts, we would have a “hit,” or striking, and a “run,” or departure from the scene without providing identification, but we would not have an “unidentified motor vehicle.” The Omnibus statute would be irrelevant under such facts because this would not be an uninsured motorist case.
¶35 The Omnibus statute was designed to protect insureds against
situations where an insured is injured and there is no tortfeasor insurance
available to pay for the physical injuries.
See Theis, 232
¶36 We are mindful that the key to the legislative intent as to ‘hit-and-run’ may be found in considering the problems that the legislature anticipated in the uninsured motorist statute and the goals the legislature sought to achieve. See id., ¶31 (considering the problems the legislature anticipated). We must consider not only the legislative purpose, but also any countervailing legislative policies or purposes that would dissuade us from adopting one interpretation of the statute over another. See id.
¶37 Our supreme court has pointed out that we must read the Omnibus
statute so as to foster the countervailing legislative policy of limiting
fraudulent claims. See id., ¶30. So, in performance of this duty, we consider
a treatise comment that, with regard to the “run” requirement, the fear may be
that claimants will allege the motor vehicle or its operator could not be
identified when, in fact, the insured could have ascertained the identity. See Allen
I. Widiss & Jeffrey E. Thomas,
Uninsured and Underinsured Motorist Coverage 691 & 691-95 n.3
(2005).
¶38 Different
courts have guarded against this fear of fraudulent claims in three main
ways. See id. at 690-97. On one end of the spectrum are courts that
believe this fear is best resolved by a bright-line rule that run should be
restricted to fleeing. See, e.g., Lhotka v. Illinois Farmers Ins. Co., 572 N.W.2d 772, 774 (Minn.
Ct. App. 1998). In the middle are courts that place a duty on
the insured to make all reasonable attempts to ascertain the identity of the
unidentified motor vehicle or its driver.
See, e.g., Jones v. Unsatisfied Claim & Judgment Fund Bd., 273 A.2d
418, 421-22 (
¶39 Our review of case law, as supported by the Widiss and Thomas treatise, leads us to conclude that the vast majority of courts favor resolving any issue over the validity of a case based on findings of fact. See Widiss, supra ¶37, at 691 (most courts that place a duty on the insured have concluded based on the facts that the insured’s failure to ascertain the identity did not preclude recovery). Some of these courts then rely on the fact finder to determine if the insured should have identified the vehicle or driver. See, e.g., Scheckel v. State Farm Mut. Auto. Ins. Co., 720 A.2d 396, 400 (N.J. Super. Ct. App. Div. 1998). At least one state does not focus in on any duty, but instead concludes that “[i]f fraudulent actions do arise they may be ferreted out in the same manner in which courts and juries handle such situations in other cases.” See Mangus, 125 S.E.2d at 168.
¶40 We are convinced that reliance on the fact finder is proper
because allegations of fraud require a careful examination of the underlying
facts and an evaluation of the credibility of the parties and witnesses. See Stevens v. Berger, 255
¶41 Therefore, as an alternative means of affirming the circuit court’s decision denying judgment for Acuity, we hold that under Wis. Stat. § 632.32(4)(a), a “hit-and-run” occurs when the claimant can sustain the burden of proof to show that an unidentified motor vehicle left the accident scene without providing identifying information. We affirm the circuit court’s order and remand with directions that the circuit court continue the proceedings on Zarder’s uninsured motorist claim.
By the Court—Order affirmed and cause remanded with directions.
No. |
2008AP919(D) |
¶42 SNYDER, J. (dissenting). The majority concludes that the word “run” in Wis. Stat. § 632.32(4)(a)2. (omnibus clause), as used in the phrase “hit-and-run,” is ambiguous when applied to an accident where a vehicle driver stops at the scene of an accident, is advised by the other party that no injury has occurred, and then leaves the scene of the accident without providing identification becoming an unknown operator or owner. Resolving the ambiguity in favor of the insured, the majority concludes that the Acuity policy provided coverage to the insured under the mandated omnibus clause uninsured motorist (UM) provision.[4]
¶43 Acuity contends that the phrase “hit-and-run,” including both
components “hit” and “run,” has already been defined by our supreme court in Hayne
v. Progressive Northern Insurance Co., 115 Wis. 2d 68, 339 N.W.2d 588
(1983). The Hayne court concluded
that “the plain meaning of ‘hit and run’ consists of two elements: a ‘hit’ or striking, and a ‘run,’ or fleeing
from the scene of an accident.”
¶44 The majority seizes upon Hayne’s specific focus on the “hit” portion of the phrase “hit and run” to conclude that the “run” part of the definition is dictum. Majority, ¶14. Having done so, the majority then opines that the application of the ambiguous term “run” to UM omnibus clause coverage is “novel” and that this court should decide what “run” means in “hit-and-run” in order to further the administration of justice by definitively deciding the meaning of “run” in “hit-and-run.” Majority, ¶7. Because I disagree that this court can declare the Hayne definition of “run” dictum, and because the definition is controlling to our analysis, I must dissent.
¶45 The supreme court is the only state court with the power to overrule,
modify or withdraw language from a previous supreme court case. Cook v. Cook, 208
While the statement in [an earlier supreme court
opinion] was not decisive to the primary issue presented, it was plainly
germane to that issue and is therefore not dictum.
“It is
deemed the doctrine of the cases is that when a court of last resort
intentionally takes up, discusses, and decides a question germane to, though
not necessarily decisive of, the controversy, such decision is not a dictum but is a judicial act of the
court which it will thereafter recognize as a binding decision.”
State v. Kruse, 101
¶46 Because the supreme court defined the term “run” as used in the
omnibus clause phrase “hit and run,” and because only the supreme court can
withdraw language from or otherwise modify its own holding, see Cook, 208
Wis. 2d at 189, I respectfully dissent.
[1] In
a concurring opinion to Noffke v. Bakke, 2009 WI 10, ¶60,
___ Wis. 2d ___, 760 N.W.2d 156, Chief Justice Abrahamson commented on the risk
of relying on dictionary definitions which furnish more than one meaning and
warned that “a court has to be careful not to select a friendly definition it
likes from the many offered without explaining its choice.” Otherwise, she wrote: “resort to a dictionary
can be, as Justice Scalia has written of the use of legislative history, ‘the
equivalent of entering a crowded cocktail party and looking over the heads of
the guests for one’s friends.’”
[2] All references to the Wisconsin Statutes are to the 2005-06 version unless otherwise noted.
[3] “[T]o convey or transport …” is the sixty-fourth definition of run and “to leave, flee or escape …” is the sixty-second. The Random House Dictionary of the English Language 1682 (2d ed. unabridged 1987).
[4] The circuit court decided the coverage issue in favor of the insured on a public policy basis. The majority opinion abandons that approach and affirms the existence of coverage based upon a statutory interpretation and construction analysis.