District II
April 29, 2015
To:
Hon. Gerald P. Ptacek
Circuit Court Judge
Racine County Courthouse
730 Wisconsin Ave.
Racine, WI 53403
Rose Lee
Clerk of Circuit Court
Racine County Courthouse
730 Wisconsin Ave.
Racine, WI 53403
Thomas M. Devine
Hostak, Henzl & Bichler, S.C.
840 Lake Ave., Ste. 300
Racine, WI 53403-1566
Erik L. Fuehrer
Gabert, Williams, Konz & Lawrynk, LLC
2711 N. Mason St., Ste. B
Appleton, WI 54914
You are hereby notified that the Court has entered the following opinion and order:
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Artisan and Truckers Casualty Co. v. State Farm Mutual Ins. Co. (L.C. #2013CV2096) |
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Before Brown, C.J., Reilly and Gundrum, JJ.
In this subrogation
case, Artisan and Truckers Casualty Company and Perry Simonis, its insured,
appeal a judgment denying Artisan’s motion for summary judgment and granting
summary judgment in favor of State Farm Mutual Insurance Company. Based upon our review of the briefs and record,
we conclude at conference that this case is appropriate for summary
disposition. Wis. Stat. Rule 809.21 (2013-14).[1] As we agree that Artisan’s subrogation claim
is barred by the statute of limitations, we affirm.
The facts are
undisputed. Kari Burns collided with a
semi-truck operated by Simonis. State
Farm insured Burns for liability with a $250,000 policy limit. Simonis’s policy of truckers insurance from
Artisan included underinsured motorist (UIM) coverage. State Farm offered to settle Simonis’s claims
against it and Burns in exchange for the $250,000 policy limit. Pursuant to Vogt v. Schroeder, 129
Wis. 2d 3, 383 N.W.2d 876 (1986), Artisan opted to substitute its own funds for
the $250,000 State Farm liability policy.
Artisan thus potentially obtained a subrogated interest in the case,
which would carry all the rights and limitations in Simonis’s claim.
Artisan filed suit
against State Farm three years and nine months after the accident, demanding
that State Farm pay its $250,000 policy limit in exchange for a release of it
and Burns. State Farm refused on grounds
that the three-year statute of limitations had run. Looking to
Wis. Stat. § 893.12, Artisan contended its payment to Simonis was “a
payment … made as described in [Wis.
Stat. §] 885.285(1),” and thus extended the statute of limitations.
Both parties moved for
summary judgment. The circuit court
ruled that the action was time-barred because Wis.
Stat. § 893.12 did not apply, and granted judgment in favor of
State Farm. Artisan and Simonis appeal.
We independently review
a circuit court’s grant or denial of summary judgment, applying the same
methodology as the circuit court. AKG
Real Estate, LLC v. Kosterman, 2006 WI 106, ¶14, 296 Wis. 2d 1, 717
N.W.2d 835. Summary judgment is
appropriate if there are no genuine issues of material fact and the moving
party is entitled to judgment as a matter of law. Wis.
Stat. § 802.08(2).
Artisan tries mightily,
but unsuccessfully, to cast this case as an assignment. It is a subrogation case. A subrogated UIM carrier steps into the shoes
of its insured. Patients Comp. Fund v. Lutheran
Hosp.-LaCrosse, Inc., 223 Wis. 2d 439, 451, 588 N.W.2d 35 (1999). Simonis’s original rights measure the extent
of subrogee Artisan’s rights. See American Standard Ins. Co. v. Cleveland,
124 Wis. 2d 258, 262, 369 N.W.2d 168 (Ct. App. 1985). Simonis’s claim expired when he allowed the
statute of limitations to lapse. The
running of a statute of limitations in Wisconsin “absolutely extinguishes the
cause of action.” Heifetz v. Johnson, 61
Wis. 2d 111, 115, 211 N.W.2d 834 (1973) (citation omitted). There no longer was a cause of action to
give, assign to, or hold for Artisan.
We could end there, but
for the sake of completeness, we also will examine Wis. Stat.
§§ 893.12 and 885.285(1). “Statutory
interpretation is a question of law that we review de novo.” Rocker v. USAA Cas. Ins. Co., 2006
WI 26, ¶23, 289 Wis. 2d 294, 711 N.W.2d 634 (citation omitted).
Wisconsin
Stat. § 893.12 provides:
The period fixed for the limitation for the commencement of actions, if
a payment is made as described in [Wis.
Stat. §] 885.285(1), shall be either the period of time remaining under
the original statute of limitations or 3 years from the date of the last
payment made under [§] 885.285(1), whichever is greater.
Section
885.285(1) provides in relevant part:
(1) No admission of liability shall be inferred
from the following:
(a) A settlement with or any payment made to an injured person, or to
another on behalf of any injured person, or any person entitled to recover
damages on account of injury or death of such person.
Artisan argues that “a
payment” and “any payment” mean just that.
We reject so literal an interpretation.
Wisconsin Stat. §§ 893.12
and 885.285(1) “are in pari materia
and must be construed together.” Riley
v. Doe, 152 Wis. 2d 766, 770-71, 449 N.W.2d 83 (Ct. App. 1989). “The legislature intended that sec. 885.285
apply to a settlement or advance payment between
parties.” Riley, 152 Wis. 2d at 771
(emphasis added). It would make no sense
to allow a UIM insurer’s payments to its insured, perhaps stretched out over
time, to extend the statute of limitations for filing a suit against the other
party, a stranger to the payments.
Statutes of limitation exist to insure prompt litigation of claims and
to protect defendants against fraudulent or stale claims. Id. at 770.
State Farm’s mere offer
to settle does not change our conclusion.
“‘[P]ayment’ requires an acceptance of a tendered check in order to
extend the three-year statute [of limitations].” Parr v. Milwaukee Bldg. & Constr. Trades,
177 Wis. 2d 140, 148, 501 N.W.2d 858 (Ct. App. 1993). There was no tendered check, let alone an
acceptance.
Further, “to toll or
extend the statute of limitations, the ‘payment’ specified in [Wis. Stat.] § 885.285(1) … must be
related to considerations of fault or liability. If it is not fault- or liability-related, it
does not extend the limitation period.” Gurney
v. Heritage Mut. Ins. Co., 188 Wis. 2d 68, 73, 523 N.W.2d 193 (Ct. App.
1994). UIM coverage is indemnity, not
liability, coverage. See Progressive N. Ins. Co. v. Hall,
2006 WI 13, ¶22, 288 Wis. 2d 282, 709 N.W.2d 46. The payment to Simonis from his UIM carrier
was unrelated to fault or liability.
In addition, “the
reference to ‘liability’ in [Wis. Stat.] §
885.285(1) indicates that ‘this statute may not apply to a first-party coverage
payment.’” Gurney, 188 Wis. 2d at 72
(quoting Arnold P. Anderson, Wisconsin
Insurance Law § 10.10, at 298 (3d ed. 1990)). A UIM claim is a first-party contract
claim. Anderson v. MSI Preferred Ins.
Co., 2005 WI 62, ¶44, 281 Wis. 2d 66, 697 N.W.2d 73.
Upon the foregoing
reasons,
IT IS ORDERED that the judgment
of the circuit court is summarily affirmed pursuant to Wis. Stat. Rule 809.21.
Diane M. Fremgen
Clerk of Court of Appeals