*1 (T.C. #89-CV-01834) J. Cameron f/k/a Carrington, Cotton, Litem, J. Cameron his Guardian ad Arthur , Plaintiff-Co-Appellant Nathan, B.
v. & Company, Fire Marine Insurance foreign corporation, Defendant-Respondent-Petitioner, Wesley Wollman, R. Jarrell and Jonathon A.
Defendants, Defendant-Appellant. Dorthea Evans, Plaintiff, Lori L. Jarrell, v. St. Company, Paul Fire & Marine Insurance Defendant-Respondent-Petitioner, State Farm Mutual Automobile Insurance Com foreign Wesley corporation, Jarrell, R. pany, Carrington, J. Cameron J. Cameron Cotton and f/k/a Wollman, Defendants, Jonathon A. Defendant-Appellant. Dorthea Evans, Supreme Court 24, argument May No. 90-0834. Oral 1992. Decided June 1992. (Also reported 267.) in 485 N.W.2d *3 defendant-respondent-petitioner there were For the Schimmel, O'Neill, Douglas J. Carroll by briefs S.C., by Quirk Carroll, argument oral & Milwaukee and Douglas J. Carroll. defendant-appellant there was
For brief Associates, & Bornstein and Robert Silverstein Ronald S.C., by Mr. Bornstein. argument and oral Milwaukee
HEFFERNAN, This CHIEF JUSTICE. appeals, published of a decision of the court of review Co., Paul Fire & Marine Ins. Carrington v. St. Wis. (Ct. 1991), reversing N.W.2d 591 summary court Milwaukee judgment the circuit Manían, county, Judge, Victor Circuit which concluded (the Carrington J. that Dorothea Evans and Cameron children) "occupancy insureds" rather than an insurance issued to "named insureds" under Homes, (Sunburst), by Inc. Sunburst Youth Paul), (St. & Marine Ins. and therefore were Fire Co. coverage. The to "stack" uninsured motorist unable appeals children were named court of held *4 they policy insureds under the because were "wards Sunburst, they children" of and that were entitled foster coverage to uninsured under the St. Paul stack motorist despite "single provision of a limit" policy the existence in affirm. policy. agree, We and
214 27, 1986, On April by a car owned Sunburst and operated by Jarrell, Wesley R. a Sunburst employee, col- lided operated by with car owned and Jonathan A. Wollman, an uninsured motorist. Carrington and Evans time, injured the accident. At the the children resided at Sunburst pursuant to orders of the children's division of the circuit previously court. The children had been determined to be children in protective need of 48.13(10), Stats., services under sec. and custody their placed Department was with the of Social Services of their respective counties of residence. children The sought recover compensation to for their injuries under the uninsured coverage compre- motorist St. Paul's policy hensive insurance issued to Sunburst. presented
The action the circuit court with two (1) questions: whether the children were "named "occupancy insureds" or policy; insureds" under the (2) insureds, if they were "single named whether 631.43(1), limit" violated sec. Stats., by illegally prohibiting stacking of uninsured coverage.1 motorist comprehensive
St. Paul issued a insurance Sunburst, which included automobile insurance. Under the heading "Who Agreement," Is Protected Under This policy provided in part: persons
Protected people organizations pro- are agreement. protected sepa- under tected this Each However, rately. limits of shown in the Coverage Summary protected are all shared persons. Co.,
1In Martin v. Milwaukee Mut. Ins. 146 Wis. (1988), insureds, N.W.2d we held that named and not insureds, occupancy coverages. stack motorist could uninsured *5 limi- persons" certain "protected and a list Here's protection. liability on their tations You. family. your
A member of family person is related your is who A member of your blood, adoption lives you by marriage or you is with who lives A or foster child home. ward your family. member of to be a also considered Anyone in a while auto. else Anyone else in covered temporary is substitute auto auto or a covered protected. as defined follows: "you"
The term your yours the insured you, mean words The named here: Inc. of Wisconsin
Sunburst Homes, Inc. Sunburst Youth Facilities, Ltd. Sunburst Care Foundation, Inc. Sunburst Neillsville, Wisconsin
Which is a: corporation
x _individual venture _partnership _joint other condominium Finally, "single contained a limit” provided: which shown, pay it single
If limit is is the most we'll bodily damages resulting injury all from caused any applies This no matter how one accident. limit protected many persons covered autos are involved many or how claims are made.
On page the declarations for and uninsured underinsured protection, under heading motorist the Lim- "Uninsured its of Coverage," policy provided coverage the for "$100,000 per accident."
On cross for summary judgment, motions the circuit ruled court the children occupancy were insureds, insureds, and if they that even were named the policy provided single limit uninsured coverage motorist $100,000. $100,000 of paid St. Paul the into court the parties stipulated and the to its distribution.2 July 30, 1991, appeals On the court of reversed the judgment of the circuit court. The court of appeals con- cluded that the children were named under insureds the they because both were ward or "a foster child" April 3, 1990,
2On
the circuit court entered both an "Order
Granting
Judgment"
Motions Order for
and a document entitled
Judgments."
Evans,
17,
April
1990,
"Final
Both
on
and Car
May 14,1990,
rington,
appeal
on
filed a
the
notice
from
order
granting
summary judgment
Paul's
St.
motion
than the
rather
pursuant
judgment.
appeal
actual
moved
St. Paul
to dismiss the
809.10(1), Stats.,
subject
jurisdiction
to sec.
for lack of
matter
specify
judgment appealed
because the notices
not
did
from.
16, 1990,
appeals
On October
the court of
denied St. Paul's
"inconsequential
motion because it found the defects to be
viola
appellate procedure,
tions" of the rules of
and ordered amended
appeal
agree
appeals
notices of
filed. We
with the court of
that the
appeal
co-appeal
defect
the notice of
and notice of
was inconse
quential.
807.07(1), Stats.;
Louis,
See sec.
v.
State
152 Wis. 2d
200,
n.1,
(Ct.
1989),
aff'd,
244
202-03
448 N.W.2d
156 Wis.
—
470, 457
denied,
(1990),
—,
2d
N.W.2d 484
cert.
U.S.
S. Ct.
(1991);
Northridge
Eye
Community
Bank v.
Care
Center, Inc.,
(1980)
202-03,
94 Wis. 2d
living St. Paul's Next, appeals determined that co.urt 631.43(1), provision violated sec. $100,000 limit single prohibited stacking of Stats., improperly because it separate policies. Judge coverage for uninsured motorist child, dissented, at one concluding that while least Fine Evans, as a ward of Milwaukee a named insured was (which under an named insured county was additional single limit did not policy), 631.43(1), it was not shown that sec. because violate separate premiums for uninsured motorist Carrington, 163 Wis. each covered vehicle. collected for 160-69. at summary judgment, on This case was decided *7 dispute. in The construction material facts there are no provisions ques- statutes are contract of insurance Martin, we review de novo. 146 Wis. tions of law which 2d 766. at must is the chil-
The first issue we
decide whether
(also
as
1
dren were named insureds
referred to
"Class
insureds")
("Class
insureds")
2
occupancy
or
insureds
can
policy.
argues
Paul
that there
under the St.
fleet
only
occupancy insureds under a commercial
be
corporation
is a
or
policy where the
named insured
person.
than
Paul cites a
government entity rather
St.
support
position.3
agree
this
authority
host of
to
We
Martin,
v.
3See Lumbermens Mut. Cas. Co.
clude that a cannot have a it is that an insurance contract also reasonable conclude *8 America, (1972); Thomp 72, 189 Co. North 213 Va. S.E.2d 832 of Ass'n, Grange 151, 660 (1983); v. App. son Ins. 34 P.2d 307 Wash. Darch, Cas. Continental Co. v. 27 Wash. 620 P.2d and (1980). also 2 No and Motorist See Fault Uninsured Auto 1005 24.10(2)(b) (M. ed., 1992); mobile Insurance Bender and Alan I. § Widiss, 1 Uninsured Underinsured Motorist Insurance 13.11(b) (1992). § "family
may an indi- member" such that the term define corporate family for a insurance a member of vidual is recognized purchase purposes. that the "This court has protects policyholder the motorist of uninsured (as policy)." Martin, and their relatives defined added). (emphasis Indeed, while it is 164 Wis. at person by corporation be related to a cannot true that a adoption, equally marriage blood, that a it is true or "person" contemplation corporation of the a in the 180.0302(4), may may home, Stats., law, appointed sec. be own a legal guardian, 880.35, Stats., sec. as a custody, placement legal responsi- may physical or have bility 48.61, case, wards, In 48.60 and Stats. this secs. providing of residen- Sunburst was the business where reasonably wards, facilities it tial and treatment to care interpret protecting policy language as such could wards. were Paul further contends that the children
St. they children, were, if or neither wards nor foster they that respective counties and did not were wards their argue under The children that live with those counties. they plain reading "ward," and the term living agree chil- with We with the were wards Sunburst. was ward of dren. The record establishes Evans county Carrington was a ward of Milwaukee and that county. living Both were with Sunburst Wood children dispositional pursuant divi- orders of children's is a sion of the circuit court. Sunburst residential treat- agency pursuant ment center licensed as child welfare authority 48.60, Stats., to "contract to sec. which has any parent person guardian or or for the with other any supervision care and maintenance child." Sec- 48¿61(2), Regardless of Stats. whether the children tion they legally Sunburst, the wards of were wards liv- *9 ing consequently with Sunburst and were named policy. insureds under the point, persuaded by
On this
we are also
the reason-
ing
Appeals Michigan
of the Court of
in Hartman v.
America,
Insurance
731,
Co. North
106 Mich.
(1981).
case,
Prince,
The court held that Prince should be
Baumgartens'
policy
under the
insurance
as a "relative"
Baumgartens.
The
defined "relative" as "a
person
by
marriage
blood,
related to the Named Insured
adoption (including
child)
or
a ward or foster
iswho
resident of the same household as the Named Insured."
Hartman,
liam Prince was *10 parlance. is in common word used case, of the examined the facts Id. at The court then 629. at to placed Prince the home noting state that the atmosphere in put "to him ah care and receive basic of experience of the attributes some where he would setting less restricted and living people other with family relationship to a as as close a experience could circumstances," and concluded possible under the was Id. Baumgartens. that Prince was a ward Additionally, the court stated: is fact that In this conclusion the accord with knowledge at although agent had actual INA's Baumgartens policy to the he sold the insurance time caring they engaged in of for were the business handicapped people, although knowledge this agency existing relation- imputable to INA via the clarify terminology ship, INA never undertook to policy including its term — exposure notwithstanding potential its risk "ward" — Any Baumgartens' due to the nature of the business. strictly ambiguity in the must therefore be against INA. construed situation, nearly presents
Id. case identical This Carrington the same conclusion. Evans and we draw supervision placed with Sunburst to receive or care and were thus wards of Sunburst and maintenance ordinary meaning of that according to the common and Moreover, power it St. was well within Paul's term. clarify term "ward" issued to a residential providing a home for wards and other treatment center children.
Having determined that the children were named
con-
policy,
1 insureds under St. Paul's
we must
Class
they
sider whether
can "stack" the uninsured motorist
coverage. Stacking refers to a situation where an insured
attempts
to collect reimbursement
for the same loss
Co.,
See Tahtinen v. MSI Ins.
multiple policies.
under
159 n.1,
(1985).
Wis. 2d
St. Paul argues that the children cannot stack single provision because its limit unambiguously pro- $100,000 vides for a total of any one accident. The children assert that because St. Paul col- separate premiums lected for each of the sixteen covered automobiles, it in separate effect issued sixteen policies, and thus the single limit is an "other insur- *11 provision 631.43(1), ance" which violates sec. Stats. We agree with the children. 631.43(1), Stats., provides
Section
in part:
policies
promise
indemnify
When
or more
an
loss,
against
insured
the same
no "other
insurance"
provisions
policy may
aggregate
reduce the
protection
of the insured below the lesser of the
by
actual insured loss suffered
the insured or the total
promised by
policies
indemnification
if there
provisions.
were no "other insurance"
single
St. Paul's
limit provision provides:
shown,
single
pay
If a
is
limit
it is the most we'll
damages
resulting
bodily injury
all
from
caused
any
applies
one accident. This limit
no matter how
appeals
eighteen
4The court of
stated that there were
vehicles
Carrington,
in Sunburst's fleet.
many autos or covered many are made. or how claims page the declarations is The limit shown on single it "$100,000 argues Paul that because per accident." St. 631.43(1), Stats., inapplica- is policy, sec. issued one ble, unambiguously man- provision limit single and the $100,000 damages for all coverage maximum dates accident, of the number single regardless resulting from The chil- protected persons involved. of covered autos separate premiums for that St. Paul collected argue dren actually issued on each vehicle and therefore coverage separate policies. sixteen separate premiums, he or she pays
Where an insured pro- uninsured motorist separate receives and stackable provided is in one or more tections whether the provision A limit in such a policy.5 single than one 631.43(1), Stats., prohibits because it stack- violates sec. An insurer cannot do indi- ing separate coverages. question is rectly directly. it cannot do Thus the what premiums for the unin- paid separate whether Sunburst If protection each listed automobile. it sured motorist on did, provision nothing limit more than an single pursuant insurance" and is void to sec. "other 631.43(1), Stats. majority appeals
The
of the court of
concluded
separately
policy lists each covered vehicle
"[t]he
*12
Co.,
574,
5See Burns v. Milwaukee Mutual Ins.
121
Wis. 2d
1984); Hulsey
Family
v. American
578,
(Ct.
App.
224 Carrington, premium declares the rate for each." 164 Fine, dissent, Judge Wis. 2d at 154 n.8. in concluded that us, "on the record before there is no evidence that Sun- paid premium burst more than one for the uninsured- Id. (Fine, J., coverage." motorist at 166 dissenting). We agree majority with the that the record indicates that separate premiums paid were for each automobile. policy
While the regarding silent whether Sun- expressly burst paid separate premium for uninsured vehicle, motorist on each there is evidence that policy it did. The lists each separately, automobile indi- each, cates the level of coverage for and indicates checked box that each liability has both and uninsured coverage. policy motorist Thus the itself indicates that the uninsured motorist coverage attaches to each vehicle separately. policy The also indicates that pre- additional vehicles, miums paid for additional insured premiums were returned for deleted vehicles.6 It is reasonable for the insured to conclude that the addi- premiums applied tional to uninsured motorist coverage, because in the schedule each additional car had a box marked "UM" for uninsured motorist coverage checked beside it. agree
We do not
Judge
with
Fine's conclusion that
respect
premiums
the silence of the
with
to the
paid
pre-
"indicates that
one uninsured-motorist
paid." Carrington,
(Fine,
mium was
6Specifically,
payment
following
indicates
premiums:
Spectrum;
$928 for a 1986 Chevrolet
for a
$836
Van;
(the
Dodge
Dodge
$682 for a 1986
Omni
automobile
accident);
Sedan;
Volkswagen
involved
for a
$425
Golf
$2,181
Bus;
400;
Dodge
$345
for a 1985 IHC
for a 1983
$364
Nova;
Caprice.
$91
1986 Chevrolet
for a 1985 Chevrolet
*13
uninsured
single premium charged
is
for
policy
the
that a
autos,
is
we
that it
for all covered
hold
coverage
motorist
expect
the cover
reasonable for a named insured to
that
Maglish,
Ins. Co. v.
stackable. See Allstate
586
age is
1978)
313,
(Nev.
alleged
if
("[E]ven Allstate had
P.2d
only
premium
paid,
UM
was
prove
could
that
one
determining
insured's
policy favors
an
judicial
sound
of
or documents which
rights from the face
the
not
. . .
to records
part
bargain.
form
[RJecourse
limit his
an insured cannot be allowed to
accessible to
In
the
favor
rights.")
light
strong
of
Wisconsin
protection as a
ensure
ing uninsured motorist
means to
uninsured
by
in the
persons injured
that
motorists are
if
position
they
be
the
were
same
that
would
motorist
Mercury
Zastrow,
v.
St. Paul
Ins. Co.
insured,
166 Wis.
423,
(1992),
433,
may
an
not
7The
indicates that
for the entire
1,
period
January
1,
policy covering
January
from
$40,894.00.
paid
was
not assert
does
that Sunburst
premium
coverage,
one
for uninsured motorist
but rather
separate
payment
premiums.
that
the record does not show
public policy
Paul also
considera-
argues
St.
*14
preclude stacking
coverages
tions
of uninsured motorist
policies.
in
this
commercial fleet
The rationale behind
will, in
circum-
argument
allowing stacking
is that
the
case, expose.St. Paul to a
risk
stances of this
total
$1,600,000
$100,000
upon
coverage
based
for sixteen
automobiles,
unreasonable,
is
and that such a result
Royal
unconscionable and absurd. See Linderer v.
Globe
Co.,
(Mo.
1980).
Ins.
Moreover, we note that numerous courts have allowed named to stack insureds uninsured motorist cov- Jones, policies. in erages fleet See Janet Boeth Annota- tion, Combining "Stacking" Uninsured Motorist Cov- erages Policy, Provided in Fleet 25 ALR4th (1983). agree 899-903 We with those courts that have policy may in held that a named insured a fleet stack coverage separate premiums uninsured motorist where paid are for on each auto.
By the Court. —Decision affirmed.
Abrahamson, J., concurs in the mandate. (dissenting). the STEINMETZ, disagree I with J. First, I disagree with for three reasons. opinion majority corporation inanimate conclusion that an majority's it. person have a live "with" family members or can have providing residential the business Sunburst was however, Wards, facilities to wards. care and treatment person family of a because a qualify as members do not family member even corporation as a cannot live with coverage. to establish as a means opinion opposing majority My second reason effect fails to consider the majority's is that the decision pol- policies. Although on fleet its decision will have multiple vehicles owned icy present case involves owner, does resemble a fleet by the same it may effect on decision have an majority's therefore the *15 policies. such majority I because it con-
Finally, disagree with separate premi- "because St. Paul collected cludes that automobiles, init ums each of the sixteen covered sin- separate policies, and thus the effect issued sixteen provision insurance' limit is an 'other gle 631.43(1), op. at 223. Majority sec. Stats." which violates by the insur- actually only one issued There was legislature I not believe that company. ance do 631.43(1) to this kind of apply intended to sec. present inapplicable statute is to the and therefore the case. reasons, I dissent.
For aforementioned