2009 WI App 51
court of appeals of
published opinion
Case No.: |
2008AP1036 |
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Complete Title of Case: |
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John A. Mittnacht and Theresa Mittnacht,
Plaintiffs-Appellants, v. St. Paul Fire and Casualty Insurance Company and Security Administrators, Inc.,
Defendants-Respondents. |
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Opinion Filed: |
March 4, 2009 |
Submitted on Briefs: |
November 25, 2008 |
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JUDGES: |
Brown, C.J., Snyder and Neubauer, JJ. |
Concurred: |
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Dissented: |
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Appellant |
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ATTORNEYS: |
On behalf of the plaintiffs-appellants, the cause was
submitted on the briefs of Timothy A. Hawley and Christina L. Peterson of |
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Respondent |
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ATTORNEYS: |
On behalf of the defendants-respondents, the cause was
submitted on the brief of Michael R. Vescio of SmithAmundsen LLC, |
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2009 WI App 51
COURT OF APPEALS DECISION DATED AND FILED March 4, 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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John A. Mittnacht and Theresa Mittnacht,
Plaintiffs-Appellants, v. St. Paul Fire and Casualty Insurance Company and Security Administrators, Inc.,
Defendants-Respondents. |
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APPEAL
from a judgment of the circuit court for
Before Brown, C.J., Snyder and Neubauer, JJ.
¶1 NEUBAUER, J. John A.
Mittnacht and Theresa Mittnacht appeal from a summary judgment granted in favor
of St. Paul Fire and Casualty Insurance Company. John was injured in an automobile accident
while operating his own auto during the course of his employment. He seeks uninsured motorist (UM) and medical
payments coverage under his employer’s commercial auto policy. It is undisputed that John’s car is not a
“covered auto” under the policy’s UM insuring agreement, but arguably would be
a “covered auto” under the separate liability insuring agreement. The trial court denied the Mittnachts’
contention that Wis. Stat. § 632.32(1),
(3) and (4) (2007-08)[1]
requires UM coverage for all motor vehicles eligible for liability
coverage. We hold that the statute does
not require
BACKGROUND
¶2 On February 12, 2003, John was traveling on a business trip
when he was struck on the driver’s side of his vehicle by an uninsured
motorist. At the time, John was employed
by Polar Ware Company and Stoelting, LLC (Polar Ware). Although John was driving his personal vehicle,
it is undisputed that he was operating his vehicle in the conduct of his
employer’s business. Polar Ware carried
a commercial auto insurance policy through
¶3 John received UM coverage under a policy he purchased on his
car from American Family Mutual Insurance Company. After unsuccessfully attempting to also
recover from
DISCUSSION
Standards of Review
¶4 The interpretation of an insurance contract presents a
question of law which is appropriate for summary judgment. Jessica M.F. v.
¶5 When we construe a statute, we begin with the language of the
statute and give it its common, ordinary, and accepted meaning, except that
technical or specially defined words are given their technical or special
definitions. State ex rel. Kalal v. Circuit
Court for Dane County, 2004 WI 58, ¶45, 271
Wis. 2d 633, 681 N.W.2d 110. “In
construing or interpreting a statute the court is not at liberty to disregard
the plain, clear words of the statute.”
Issue on Appeal
¶6 John concedes that he was not driving a “covered auto” as defined under the UM coverage agreement of his employer’s auto policy. The policy’s medical payments insuring agreement does not extend to employees in their own auto. However, John argues Wis. Stat. § 632.32 mandates UM and medical payments coverage because his personal “nonowned” auto used in the conduct of his employer’s business is a “covered auto” under the policy’s separate liability insuring agreement.[2]
The
Coverage for an Employee’s Personal
Nonowned Auto
¶7
¶8 The Uninsured Motorist Protection-Wisconsin insuring
agreement provides coverage to “the named insured and other persons protected
under this agreement.” “Protected
persons” include the named insured and, if the named insured is an
organization, “[a]nyone in a covered auto.”[3] If shown in the “Coverage Summary,” (1)
scheduled autos and (2) autos owned by the named insured are “covered autos,”
along with (3) autos the named insured
owns for which the state requires the named insured to provide UM coverage.[4] The Coverage Summary’s scheduled autos lists
thirteen cars. The list of scheduled
autos, which does not include John’s car, designates that liability, UM and
medical payments coverage is provided for each identified auto. Consistent with the third category of
“covered autos” owned by the named insured, the UM coverage summary states that
“owned autos subject to a compulsory uninsured motorist law” are covered
autos. As noted above, the Mittnachts
recognize that John’s personal non-owned auto is not a “covered auto” under the
terms of the UM protection agreement as it is neither an owned auto (by Polar
Ware) nor a scheduled auto.
Does Not Require Coverage
¶9 Wisconsin
Stat. § 632.32(1) provides that the statute applies to “every
policy of insurance issued or delivered in [
vehicle ….” Subsection (4)(a)1. mandates
that such policies include UM coverage.[5] While the statute requires that “every
policy” that provides motor vehicle liability insurance also provide UM
protection, neither provision mandates the scope
of that protection beyond the “insured.” Contrary to the Mittnachts’ argument,
nothing in § 632.32(4)(a)1. requires that an auto policy’s UM coverage
afforded to the insured shall apply to the same
extent—in terms of the drivers and vehicles covered—as that afforded by the
policy’s auto liability coverage.
¶10 Meyer
v. City of Amery, 185
¶11 We next considered whether the policy violated Wis. Stat. § 632.32(4) because it
did not provide UM coverage to the employee.
We noted that the coverage was not
restricted as to the purchaser of the policy or the policyholder, but only as to the employees of the
policyholder. Meyer, 185
While Wisconsin courts have concluded that the legislative purpose behind § 632.32(4)(a) … is to put the injured in the same position as if the uninsured tortfeasor had been insured, and in turn have concluded that UM coverage is personal and portable, there is nothing to indicate that the legislature intended this reasoning to be extended to require commercial fleet policies, where the named insured is a corporation or government entity, to include all of its employees as named insureds.
Meyer, 185
¶12 The Mittnachts’ attempt to distinguish Meyer from the facts of this case fails. Namely, the Mittnachts argue that in Meyer the employee was not entitled to UM coverage because he was not occupying a covered auto, while here, John was occupying his own vehicle. However, as noted above, John’s non-owned vehicle was not a “covered auto” under the UM insuring agreement—just as in Meyer, the employee was not occupying a covered auto.[7] Whether the absence of coverage arises from the fact that in Meyer the employee was not a named insured and was not occupying a covered auto or, as here, the employee was not a named insured and was not occupying a covered auto is immaterial—in both situations, there is no coverage under the UM policy terms. Here, as in Meyer, we see nothing to indicate that the legislature sought to require UM coverage for employees under commercial fleet policies—whether the absence of coverage arises from the definition of the named insured (which did not include employees/Meyer) or from the definition of “covered autos” (which did not include employees’ nonowned autos/Mittnacht).
¶13 Meyer
instructs that a limitation on UM coverage under a commercial policy does not
violate Wis. Stat. § 632.32(4)(a)
as long as the restriction does not apply to the purchaser or policyholder, but
only to its employees. Meyer,
185
¶14 The Mittnachts also look to Wis.
Stat. § 632.32(3), which addresses the scope of the required
coverage. Subject to exceptions not
relevant here, subsec. (3) requires that every policy of automobile liability
insurance issued in this state against the insured’s liability for loss or
damage resulting from an accident caused by any motor vehicle shall provide
that coverage (here, uninsured motorist insurance) provided to the named
insured (Polar Ware) shall apply “in the same manner and under the same
provisions to any person using any motor
vehicle described in the policy.”
Sec. 632.32(3) (emphasis added).[8] Section 632.32(3) applies to both liability
insurance and UM coverage. Progressive
N. Ins. Co. v. Hall, 2006 WI 13, ¶15, 288
¶15 Under Wis. Stat. § 632.32(3),
once liability or UM coverage is provided to a motor vehicle described in the
policy, it applies to any person using that motor vehicle “in the same manner”
(i.e., the same scope) and “under the
same provisions” as that afforded to the named insured when the use is for
purposes and in the manner described in the policy. (Emphasis added.) Thus, for example, the same auto liability
provisions apply to any person using a vehicle described under the auto
liability insuring agreement. Greene
v. General Cas. Co., 216
¶16 Here, the motor vehicles “described” in the UM insuring agreement and coverage summary are owned vehicles and the identified scheduled vehicles. These are the “described” vehicles to which Wis. Stat. § 632.32(3) applies. Thus, the UM insurance provided to the named insured (Polar Ware) applies “in the same manner and under the same provisions” to any person using any of these described autos. The UM protection required by § 632.32(3) to these described autos does not extend to John’s personal non-owned vehicle because it is not described in the UM insuring agreement.[9]
¶17 While the Mittnachts contend that the statutory motor vehicles
“described in the policy” should be read to include “any auto” insured under
the liability coverage, we do not read the statute to require the importation
of a separate and broader definition of “covered auto” from the liability
insuring agreement into the UM insuring agreement. Each of the auto insuring agreements has its own
definition of “covered auto,” thus describing which autos are included under
each type of coverage. Under Wis. Stat. § 632.32(3), the UM
insuring agreement’s “same provisions” shall apply to any person using the
identified motor vehicles in the same manner as that afforded the named
insured. That agreement does not
identify John’s car. We decline the
Mittnachts’ invitation to interpret the statute to require ignoring the separate
policy insuring agreements, separate definitions and separate coverages. This interpretation is not reasonable and
finds no support in the statute or
for Medical Payments
¶18 The Mittnachts’ argument with respect to medical payments under Wis. Stat. § 632.32(4)(b) also fails. Subsection (4)(b) provides:
(b) Medical payments. To indemnify for medical payments or chiropractic payments or both in the amount of at least $1,000 per person for protection of all persons using the insured motor vehicle from losses resulting from bodily injury or death. The named insured may reject the coverage. If the named insured rejects the coverage, it need not be provided in a subsequent renewal policy issued by the same insurer unless the insured requests it in writing. Under the medical or chiropractic payments coverage, the insurer shall be subrogated to the rights of its insured to the extent of its payments. Coverage written under this paragraph may be excess coverage over any other source of reimbursement to which the insured person has a legal right. (Emphasis added.)
Under “Auto Medical Payments
Protection,”
CONCLUSION
¶19 We conclude that the UM protection and medical payments
provisions in
By the Court.—Judgment affirmed.
[1] All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.
[2] Under
the Auto Liability Protection Agreement and the corresponding “Coverage Summary,”
“Any Auto” is a “Covered Auto[].” “Any
auto” includes “nonowned” autos. “Nonowned autos” are defined to include “any
auto” that “you [Polar Ware] don’t own … and … used in the conduct of your
business. It includes autos owned by
your employees ... [b]ut only while such autos are being used in the conduct of
your [Polar Ware’s] business.” Because
[3] The relevant language provides:
Who Is
Protected Under This Agreement
….
Partnership, limited liability company, organization.
If the named insured is shown in the Introduction as a partnership, limited liability company, organization, or any other form of organization, then the following are protected persons:
-Anyone in a covered auto or temporary substitute for a covered auto; and
-Anyone for damages he or she is entitled to recover because of bodily injury to another protected person.
Anyone else in a covered auto. Anyone else while in an auto that’s a covered auto or a temporary substitute auto is protected.
[4] The relevant language is as follows:
Which Autos Are Covered
The Coverage Summary shows which autos are covered under this agreement.
….
Scheduled autos. If this is shown in the Coverage Summary, the autos listed in the Schedule are the covered autos at the time the agreement goes into effect.
….
Any owned auto. If this is shown in the Coverage Summary, we’ll cover any auto that the named insured owns.
Autos required by law to be covered. We’ll cover autos the named insured owns for which the state requires the named insured to provide Uninsured Motorists Coverage will be considered covered autos.
For purposes of the policy, “[t]he words you, your and yours mean the insured named here, which is a CORPORATION[,] POLAR WARE CO & STOELTING, LLC.”
[5]
(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 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.
[6] The
relevant UM coverage provisions considered by the court in Meyer v. City of Amery,
185
B. WHO IS AN INSURED
1. You.
2. If you are an individual, any “family member.”
3. Anyone else “occupying” a covered “auto” or a temporary substitute for a covered “auto.”
[7] While John concedes that his car does not fall under the “covered auto” definitions of the UM insuring agreement, he repeatedly argues that his car should be covered because it is a “covered auto” under the policy. For example, he suggests that he is an “occupancy insured” in a covered auto. However, as his concession acknowledges, the definitions of “covered autos” are different in the liability and UM insuring provisions. And because his car is not a “covered auto” under the UM provisions, he is not an “occupancy insured” under that agreement either. We reject his several attempts to make insurance policy arguments by ignoring the clear distinctions between these two types of coverage and their separate definitions and provisions.
[8]
(3) Required provisions. Except as provided in sub. (5), every policy subject to this section issued to an owner shall provide that:
(a) Coverage provided to the named insured applies in the same manner and under the same provisions to any person using any motor vehicle described in the policy when the use is for purposes and in the manner described in the policy.
[9] As John acknowledges, his non-owned vehicle under the Polar Ware policy was an “owned” vehicle under his own auto policy. Thus, as Wis. Stat. § 632.32(1) and (4) mandates, that policy included UM insurance for him—the insured. As the trial court noted, John was not an owner of the Polar Ware policy and there is no suggestion that he paid any premiums for that policy.
[10] The
Mittnachts have not identified any