DeHart v. Wisconsin Mutual Insurance

Gаry Wendy DeHart, S. DeHart C. Plaintiffs-Appellants,

v. Mutual Insurance Company, Wisconsin Defendant-Respondent-Petitioner, Administrators, Medical Benefits Subrogated Defendant.

Supreme Court argument March No. 2005AP2962-FT Oral July Decided 2007 WI 91 (Also 394.) reported in 734 N.W.2d For the defendant-respondent-petitioner there were briefs by Randall Skiles and Skiles Law Office, Madison, and oral argument by Randall M. Skiles.

For the there plaintiffs-appellants was a brief Lance and. Trollop S.C., Bremer & Law Trollop Offices, Wausau, and oral argument by Lance Trollop. 1. PATIENCE DRAKE ROGGENSACK, J. This

is a review of a decision of the court of appeals reversed and remanded the circuit court's summary judgment1 concluding the motor vehicle insurance (the policy provided to Wendy Gary DeHart De- Harts) (Wis- Wisconsin by Mutual Insurance Company

1 Judgment Langlade of the Circuit for County, Judge Court Kennedy, presided. Robert Jr. Mutual) provide motorist uninsured did not

consin (UM) Wendy's coverage The automobile accident. for appeals contact decidеd court of accident" under Wis. a "hit-and-run element of 632.32(4)(a)2.b. (2005-06)2 the statute was met and ve- if the unidentified motor UM mandates Wendy's forcing before another vehicle hicle struck Co., Mut. Ins. road. DeHart v. Wis. off the vehicle App 518. ¶¶ 719 N.W.2d 1, 16, 294 Wis. WI appeals there was a also concluded the court of Since genuine uni- as to of material fact whether issue actually made dentified vehicle to the circuit vehicle, it remanded the cause the other proceedings. Id., 17. further court for physical contact ele- 2. We conclude under Wis. Stat. a "hit-and-run accident" ment for (1) by requires: the uniden- a "hit" (2) part a "hit" to thereof, and vehicle, motor or tified part thereof, another vehicle the insured's vehicle necessarily by vehicle. Since the unidentified but Wendy's does "hit," was not Accordingly, coverage in case. UM this not mandate appeals. the court of reverse

I. BACKGROUND Wendy in an automobile acci- was involved County, highway Langlade Wis- a two-lane dent on Wendy's 6, vehicle was consin, December on following Char- Donna Brewer and vehicles driven trav- which was An unidentified lotte Ellwitz. Wendy eling vehicles, crossed the and the other toward proceeded toward Brewer's vehicle. line and center are to references to the Wisconsin Statutes subsequent All otherwise noted. version unless the 2005-06 vehicle DeHarts contend unidentified hit striking vehicle, Brewer's off driver's side mirror. disagrees argues However, Wisconsin Mutual and positive Brewer is not that the mirror was struck off any In event, the unidentified vehicle. the unidentified oncoming vehicle continued to in the travel lane of forcing pull vehicle, traffic toward Ellwitz's Ellwitz nearly stop, over and then and continued toward Wendy's Wendy forcing vehicle, to lose of her control vehicle and off the road. The travel unidentified vehicle Wendy's not any did make contact with nor did other vehicle. The then unidentified vehicle left positive scene and identification of the vehicle or its driver has been never made.

¶ 4. Since identification of the of the uni- driver made, dentified vehicle could not be the DeHarts filed a County Langlade against insurer, lawsuit their Wis- seeking Mutual, UM their consin benefits under own policy3 damages for caused unidentified vehicle.4 summary judgment, Wisconsin Mutual moved for con- tending that there was no no because Wendy's granted struck vehicle. circuit court sum- mary judgment, denying coverage Wendy's UM for dismissing complaint. accident and the DeHarts' appealed, arguing ¶ 5. The DeHarts that because the unidentified motor vehicle struck Brewer's vehicle

3 The uninsured policy Wisconsin Mutual defines an motor operator including "[a] vehicle as hit-and-run vehicle whose or (i) relative, you and which a owner unknown strikes: or (ii) (iii) you occupying, your vehicle which or a relative are (2)(c). part C, policy, insured car." Wisconsin Mutual section alleged included, Damages Complaint part, in the money Wendy damages expenses for medical for DeHart's services, injuries society, companion and for the loss of her ship. Wendy's road, it is an vehicle off

and then forced in a hit-and-run involved unidentified motor vehicle Therefore, under accident Wis. appeals coverage. of The court the statute mandates recognized consistently courts have that "Wisconsin unambiguous and is the term 'hit-and-run' concluded DeHart, 294 contact element." includes a appeals of inter- 387, Therefore, court Wis. coverage preted to mandate this actually made if unidentified motor vehicle case Id., 14. Since with Brewer's vehicle. genuine appeals concluded that a issue of the court of the unidentified fact remained as to whether material appeals further so, of remanded for vehicle did proceedings. the court ¶¶ Id., 6, 17. petition granted Mutual's 6. We Wisconsin appeals. the decision of the court of

review II. DISCUSSION A. Standard of Review grant summary judgment

¶ 7. review a of We methodology indepеndently, applying as the the same Spring Kersten, circuit court. Green Farms v. (1987). In 304, 315, 401 N.W.2d816 determin Wis. 2d summary judgment granted, ing should be we whether light to the non- the facts most favorable view moving party. Bros., Inc. v. United States Fire Kraemer (1979) 555, Co., 567, Ins. 89 Wis. 2d 278 N.W.2d (citing Co., 144, U.S. 157-58 Adickes v. Kress & (1970)). summary judgment

¶ 8. To determine whether interpret appropriate case, in this Wis. Stat. interpretation of a statute is a independently, question of that we review "but law ‍‌‌​​​‌​​‌​‌​​‌​‌‌‌​​‌​​​‌‌‌‌‌​‌‌​​‌‌‌‌​​‌​‌‌​​‌‌‍benefiting analyses appeals from the of the court of Regents the circuit court." Marder v. Bd. Univ. of Sys., 2005 WI 286 Wis. 2d N.W.2d 110. Coverage

B. Uninsured Motorist Wendy's may accident be the Wis- covered policy language requires policy if the consin Mutual coverage. requires or if Wis. Stat. 632.32 may Coverage in an be not included insurance contract though "compelled part and enforced as thereof where coverage required by properly the inclusion of such is Progressive Romanshek, N. Ins. Co. v. enacted statute." ¶67, 300, 697 13, 2005 WI 281 Wis. 2d N.W.2d (quoting Co., 44 v. Charter Oak Fire Ins. Amidzich (1969)); Wegner also 45, 53, 170 N.W.2d813 see Heritage Co., 124, 118, Mut. Ins. 173 Wis. 2d v. (Ct. 1992) ("Every App. policy of auto N.W.2d 140 provide as must at least insurance issued Wisconsin although may protection statute, much as the insurers coverage."). broaden concede that case, 10. In this the DeHarts language,

Wendy's policy is not accident covered requires to strike the the unidentified vehicle which insured, vehicle, or a vehicle which the insured's occupant. question we Therefore, is an insured policy proper of the decide is not the construction must language, requires. such, "the As but what the statute regarding expectation the insured reasonable of analysis." policy not relevant to our Romanshek, Smith v. 281 Wis. 2d (quoting Co., Gen. Cas. Ins. WI 127, 239 Wis. 2d 882). 619 N.W.2d 632.32(1) § requires every Wisconsin of insurance issued or delivered in Wisconsin to

policy contain certain provisions.5 mandatory One of the pro- 632.32(4)(a), § visions is UM under coverage which provides: protection persons injured

1. For the who are legally damages entitled to recover from owners operators bodily of uninsured motor vehicles because injury, disease, including resulting sickness or death therefrom, $25,000 per person in limits of at least $50,000 per accident. paragraph

2. In this "uninsured motor vehicle" also includes: b. An motor vehicle involved in a unidentified

hit-and-run accident. 632.32(4)(a) added). Wis. Stat. (emphasis C. Wisconsin Stat. case, In this Wis. Stat. interpret to determine whether for

Wendy's accident is mandated. purpose "[T]he of statu- tory is to determine interpretation what the statute

5 632.32(1) § "Except Wisconsin Stat. states: as otherwise provided, applies every policy this section to of insurance issued against liability or delivered in this state the insured's for loss or damage resulting by any from accident caused motor damage property whether the loss or is person." or to a

572 may given proper, full, and it be its means so that ex rel. Kalal v. Cir. Ct. Dane intended effect." State for County, ¶ 633, 58, 44, 271 Wis. 2d 681 N.W.2d 2004 WI 'begins "[Statutory interpretation the lan 110. (quoting guage Id., ¶ v. the statute.'" 45 Seider of ¶ O'Connell, 76, 43, 211, 236 2d 612 2000 WI Wis. 659). plain If of a statute have a the words N.W.2d ordinarily stop inquiry apply meaning, our and legislature. statutory Id. The chosen words ordinary mеaning given its common and is specially-defined words or unless there are technical capable ambiguous "[A] phrases. if statute is it is Id. by reasonably persons being understood well-informed ¶ Id., If a is senses." statute or more two may ambiguous, sources, examine extrinsic the court history. may legislative Id., ¶ 48. The court also as such verify history plain- legislative "to confirm or consult interpretation." meaning Id. interpreted have Wis. Stat. 13. We recently prior and reaffirmed cases establishing years precedent 20-plus

our unambiguous phrase in "hit-and-run accident" Romanshek, 281 contact element. cludes a (citing ¶¶ Smith, 646, 20, 239 Wis. 2d 300, 2d Wis. Progressive Hayne Co., 68, 2d N. Ins. 115 Wis. 11; v. (1983)).6 quoted Hayne, our first We 74, 339 N.W.2d588 632.32(4)(a)2.b., interpreting as follows: case requires also an uniden Wisconsin unidentified motor vehicle vehicle and that tified motor Progressive v. N. Ins. Co. accident. runs from the scene of the Romanshek, 300, 31, 2d 697 N.W.2d 2005 WI Wis. Co., 10, 239 Cas. Ins. Smith v. Gen. 2000 WI (citing 882). us, these In the case before 619 N.W.2d elements are not at issue. statutory language 632.32(4)(a)2.b.,

[T]he of sec. Stats., unambiguous. We therefore arrive at legislature's intent according language its com- accepted mon and meaning. previously noted, As accepted meaning common and of the term "hit-and- run" includes an of element contact. Section 632.32(4)(a)2.b. for "hit-and- coverage only mandates run" accidents involving an unidentified motor ve- statutory hicle. clear of sec. 632.32(4)(a)2.b. legislative reflects a intent apply only statute to in accidents which there has been physical contact.

Id., 74). 20 (quoting Hayne, Wis. 2d at 14. The issue in this case is not whether Wis. 632.32(4)(a)2.b. § Stat. requires physical contact, but rather, what entails. requirement Summary judg- ment may be granted facts, Wisconsin Mutual if the viewed in the light most favorable DeHarts, to the do not meet the physical contact requirement for a "hit- 632.32(4)(a)2.b. § and-run accident" under The facts viewed most light favorable to the DeHarts are that an unidentified vehicle crossed the line, center hit Brewer's vehicle and then continued to travel traffic, lane of onсoming forcing Wendy to lose control of her vehicle and travel off the road. Under this factual scenario the unidentified vehicle; vehicle "hit" another therefore, the issue we face is whether the phrase 632.32(4)(a)2.b. "hit-and-run accident" in a requires "hit" to the insured vehicle.7 7 The DeHarts contend that plain language based on the Wis. Stat. requires term "hit-and-run" only "hit" the unidentified vehicle and not a "hit" to the insured vehicle. The statute refers to "[a]n unidentified motor involved in a hit-and-run accident." We do phrase not believe the "hit-and-run accident" is so limited Although the term established that we have unambiguously includes an element "hit-and-run" recognize that Wis. contact, we 632.32(4)(a)2.b. specifically § "hit-and- define does § Legislative 632.32, ch. Note in Council run." The explains adopted by legislature, the of Laws legislative including for a definition intent for not stating: precise hit- of "A definition "hit-and-run" necessary a in the rare case where for is not and-run question line." Accord- can draw the arises the court ingly, has been construed on "hit-and-run" the term case-by-case Smith, 13. Prior 239 Wis. basis. interpreting physical explaining con- and decisions requirement to our determination are instructive tact case. in this interpreted Wis. The first case which we § that the statute and established Hayne,

requires physical 2d at 69. 115 Wis. contact was [was] appeal "[t]he Hayne, sec. whether sole issue on In 632.32(4)(a)2.b., requires motorist Stats., uninsured involving coverage vehicle an insured's an accident for no there was vehicle when unidentified motor and an physical Id. two vehicles." between the contact oncoming vehicle, lost an swerved to avoid insured Id. vehicle, and the vehicle overturned. of his control the insured's contact between no There was held that Id. We vehicle. and the unidentified under covered was not insured's accident dictionary examining because, after "hit-and-run," we concluded of definitions statutory meaning accepted lan- and common guage unambiguously included an element did not met where vehicles that was not interpretation of the our context based on in this opinion. in this discussed later our cases Id. at 73-74. We further make physical contact. ex- what plained physical contact means by stating "the plain meaning phrase 'physical contact' apparent requires a hit or between touching vehicles." Id. at 78. 17. While we did not need to resort to legislative

history because we concluded the statute was unam- on biguous face, its we noted that the statutory history our supported conclusion that the statute did not provide when there was no physical contact between the vehicles. Id. at 76. Prior to the enactment of Wis. Stat. 632.32(4)(a)2.b., UM coverage was pro- 204.30(5) vided under Wis. Stat. 1965), (Supp. but did not include a provision for uninsured motor vehicles Id. at 77-78.8 In involved in hit-and-run accidents. Amidzich, a case decided to the prior enactment of 204.30(5)(a) (b) 1965) Wisconsin Stat. (Supp. stated, and part: in relevаnt (5) (a) coverage, Uninsured liability motorists No automobile liability policy or motor insuring against of insurance loss resulting liability imposed by bodily from injury law for or death by any person arising ownership, suffered out of the maintenance or use of a delivery motor vehicle shall be delivered or issued for respect any registered this state with princi- to motor vehicle pally garaged coverage provided in this state unless therein or supplemental bodily injury thereto in limits for or death in the $10,000 per person $20,000 per amount of accident under provisions approved by insurance, the commissioner of for the protection persons of legally insured thereunder who are entitled damages operators to recover from owners or of uninsured motor bodily injury, disease, vehicles because of including sickness or resulting death right therefrom. The named insured has the to

reject coverage.... such (b) purposes coverage, For of this 'uninsured motor vehicle1 includes an insured motor vehicle if before or after the accident the liability insurer of the motor vehicle is declared insolvent competent jurisdiction. court of an similar to that involved accident striking Hayne collision, there no or actual where was policy coverage under the UM terms we denied required physi- "hit-and-run" the definition of because Amidzich, 44 2d at concluded cal contact. 50.9 We "physical plainly phrase "there meant that contact" striking automo- an actual between 'hit-and-run be vehicle, at least in a situation bile1 and the insured's only at 51. How- two vehicles are involved." Id. where arguments "[p]ersuasive be noted could ever, we that statutory requirements to to that afford made provided. present plaintiff statute should be 204.30(5)], [sec. require however, such cover- does age." at 54. Id. Subsequent Amidzich, to our decision in

legislature in to created Wis. Stat. "[a]n in a motor vehicle involved clude unidentified vehiclе. accident" as an uninsured motor hit-and-run (citing Hayne, ch. Laws 115 Wis. at 82 sec. 1979). pre explained legislature that was We knowledge inter have full of our sumed to acted with required pretation Amidzich, which of "hit-and-run" (citing Sheldon, v. contact. at 84 Glinski Id. (1979)). Therefore, 509, 519-20, 276 N.W.2d815 Wis. 2d legislature most that the was aware we concluded required policies the term "hit-and-run" insurance legislature if had and the an element change provision so, it have done could wanted 9 Amidzich, liability interpreting we the automobile In were automobile" as policy language, which defined a "hit-and-run arising injury bodily an insured which causes "an automobile insured or automobile with the physical contact of such out the time occupying insured is at automobile which the with an Co., Oak Fire Ins. accident." Amidzich v. Charter (1969). 45, 50, 170 N.W.2d 813 legislature but it did not. Id. We stated that ‍‌‌​​​‌​​‌​‌​​‌​‌‌‌​​‌​​​‌‌‌‌‌​‌‌​​‌‌‌‌​​‌​‌‌​​‌‌‍the had a (1) policies: choice between two "define uninsured motor vehicle to include an unidentified motor vehicle regardless physical involved in accident, аn of whether (2) contact occurred;" or "define uninsured motor ve- hicle to include an unidentified motor vehicle involved legislature in a 'hit-and-run' accident." Id. Since the physical required by latter, chose the 632.32(4)(a)2.b. § Id. Hayne, rejected argu- In the insured's

ment that the term "hit-and-run" should include "miss- jurisdictions and-run" accidents because other had con- cluded that their UM statutes did not "connote contact." Id. at 75. We noted that states, other impose duty statutes "a on a driver involved in an stop, provide accident to certain information, and ren- der aid." However, Id. Wisconsin's version of these "Duty upon striking person statutes is entitled or at- occupied (quoting tended or vehicle." Id. Wis. Stat. (1981-82)). 346.67(l)(a) quoted 346.67 We (1981-82), part: give which stated, in "he shall his registration name, address and the number of the driving person vehicle he is to the struck . ..." Id. "[t]he Therefore, we concluded reference to 'strik- ing' supports in sec. 346.67 our conclusion that plain meaning of 'hit-and-run' in sec.

includes a contaсt element." Id. Hayne argued 20. The dissent in that several policy arguments supported including miss-and-run ac- cidents within the term "hit-and-run accidents" under (Abrahamson, Wis. Stat. Id. at 93-95 dissenting). majority recognized policy J., ar- guments favoring coverage, UM but concluded it could "change wording of a statute liberal construc- something legislature tion to mean did not plain the of the statute will intend, or that legislature support. desires, can, if it so amend the argu policy motorist statute to reflect those uninsured omitted). (citation ments." Id. at 85 n.11 Hayne, in the court of 21. After our decision Wegner, appeals where three vehicles were decided traveling highway that had three on a southbound traveling in a different lane. and each vehicle was lanes Wegner, in left lane 2d at 121. The car the far 173 Wis. traveling suddenly path in of the van swerved into the causing into the far lane, middle the van to swerve the right traveling. Wegners Id. The the lane where were highway Wegners and struck forced off were crossing motor Id. The unidentified railroad tower. any physical contact with other did not make dispute re- However, there was a factual vehicle. Id. garding identified, van, whose driver was whether Wegners' car. struck the Id. relying appeals, on our decision 22. The court of provided Hayne, was not

in concluded the unidentified the UM insurance laws because under actually "hit" another vehicle. Id. did not motor vehicle only reason- that "the 120, 125-27. The court stated at reading unidentified statute is that able physical contact. This with the vehicle must be involved justification reading preserve for the would requirement, prevention i.e., of fraudulent contact claims." Id. at 127. again interpreted We once Smith, was the insured where right

driving the interstate. in the lane of his vehicle trailer, ¶ A Smith, tractor-double 239 Wis. 2d driver, was identified in the middle lane an driven vehicle, side an unidentified on the left struck right forcing and into to the the tractor-trailer insured's vehicle. Id. Weconcluded that when an uniden- vehicle, tified vehicle strikes a second which turn is propelled into the insured's

requirement Id., ¶ of "hit-and-run" is satisfied. 2. We 632.32(4)(a)2.b. § plain language examined the and following: noted the Stat.

Wisconsin defines an unin- sured motor vehicle as "an unidentified" vehicle "in- volved in and a hit run accident." The use of the word "involved" does not strike us as a word that should be narrowly applied only to a hit-and-run accident involv- ing Here, a direct hit to the insured vehicle. clearly unidentified vehicle was "involved": precipi- it through tated the accident contact with the intermedi- ate vehicle.

Id., Hayne, Wegner, Amidzich, 24. We relied on which we classified as the cases in the "miss-and-run explain requirement. series," Id., to distinguished ¶¶ However, 15-21. we those cases be- Smith, cause "the unidentified vehicle had contact intermediate which in turn had con- (emphasis Id., ¶ tact with the insured vehicle." 21 added). Therefore, we concluded that the miss-and-run interpretation cases did not foreclose an of Wis. Stat. 632.32(4) coverage bеcause, that mandated unlike accidents, miss-and-run the insured's vehicle was actu- ally by hit another vehicle involved a chain-reaction type of collision. Id.

¶ 25. We also relied on another series of cases involving flying objects parts or auto to consider Id., whether contact element was satisfied. (citing ¶¶ Co., 22-27 Theis v. Midwest Sec. Ins. 2000 749, WI 232 Wis. 2d 606 N.W.2d and Dehnel v. Co., State Farm Mut. Auto. Ins. 231 Wis. 2d 1999)). (Ct. App. Dehnel, In of ice a chunk N.W.2d and broke the an unidentified semi-trailer fell off injury windshield, caused to the driver. insured's which appeals Dehnel, The court of inter- 231 Wis. 2d at 15. requirement preted physical contact under Wis. " 'touching mean a between (quoting Hayne, 2d at Id. at the vehicles.'" 78). touch, did not the court con- Since the vehicles coverage was not mandated cluded insurance statute. Id. distinguished in an- However, Dehnel object flying case, an was

other where insured's vehicle spring, part semi-tractor, leaf a of a which struck a propelled by passing unidentified semi-tractor was injuring plaintiff. through windshield, the insured's ¶¶ Theis, not clear 749, 232 2d 4-5. It was passing spring off of the semi-tractor whether the came was off of another unidentified vehicle and or came by passing propelled the unidentified semi-tractor. then distinguished Theis, in Dehnel on the basis that Id. We piece motor from an unidentified vehicle "a detached plaintiffs propelled motor an into the vehicle was Id., ¶ ex- 25. We further unidentified motor vehicle." interpreted plained cases have that "Wisconsin 632.32(4) provision to re- hit-and-run of Wis. Stat. physical quire insured's motor contact between an they vehicle, have not and an unidentified negate 'physical interpreted to contact' the statute part an and a of the insured's motor vehicle between ultimately ¶ Id., 26. We unidentified motor vehicle." type mandating this for concluded purposes 632.32, accident was consistent with compensating preventing an include fraud which injured person uninsured of an who is victim

581 negligence motorist's if to the same extent as Id., ¶¶ uninsured motorist were insured. 28-31. analyzing ¶ In whether the chain-reaction type physical of collision in Smith met contact requirement, recognized we in that our decision Theis public policy a "consideration was of the issues under- girding [uninsured] coverage." Smith, motorist 239 646, Wis. 2d 24. We decided the same method of analysis applicable was as had Smith used policy Id., ¶ Theis. thenWe concluded that underlying concern element, contact prevent being brought by fraudulent claims from in- sured drivers who are involved in an accident of their making, own was satisfied where the unidentified mo- tor vehicle hit an intermediate which in turn (citing Theis, hit the insured's vehicle. Id. 232 2dWis. n.10). policy 749, Likewise, concern, the second " compensate injured person 'to an is the who victim of negligence an uninsured motorist's to the same extent as if the uninsured insured,'" motorist were also was type Id., satisfied a chain-reaction of collision. 28).10 (quoting Theis, 749, Therefore, Wis. 2d public based on the and the statute policy concerns, we concluded the chain-reaction colli- requirement sion met the for a "hit- public policy The final issue we "honoring discussed was coverage expectations the reasonable of the insured." Smith v. Co., Gen. Cas. Ins. 2000 WI 239 Wis. However, already noted,

N.W.2d 882. as we the reasonable expectation only applied insured is when the of policy interpreted the insurance and is not relevant to an 632.32(4) (a)2.b. analysis § of Stat. (citing Wis. Id. Kremers Ins., Employers 722, 735, -Urban v. Am. Co. 2dWis. (1984)). N.W.2d 156 coverage mandated under Stat. and-run" and was 632.32(4)(a)2.b. § ¶ Id., 28. recently

¶ above, As stated we most reaf- 28. physical contact element firmed and discussed 632.32(4)(a)2.b. § Romanshek, in under Wis. an unidentified ve- which involved an accident where motorcycle causing in front the insured's hicle turned motorcycle, fall to the the insured to lose control of ground injuries. Romanshek, and suffer 281 Wis. 2d ¶ There contact 3. was no between any part thereof, and the vehicle, unidentified or motorcycle. argued However, Id. the insured insured's Hayne requiring physiсal that our decision 632.32(4)(a)2.b. point "has eroded to the under been meaning," therefore, it that it has no should be reviewing ¶¶ Id., 5, 11. After Wisconsin abandoned. rejected argument because we have law, case we this consistently interpretation adhered to the requires physical Id., contact. that "[t]he recognized that cases in Furthermore, we that UM was mandated which we found all circumstances where an involved part thereof, made contact with unidentified an unidentified vehicle the insured's vehicle or where physi- in an accident in which there was was 'involved' Id., cal contact." argued that we should 29. The insured also holding Hayne requiring con-

abandon our majority physi- hold that tact of other states because impermissible limitation on uninsured "is an cal contact against public motorist statutes and is or unknown omitted). (citation rejected policy." Id., We emphasizing argument, are bound our own explained precedent. Id., that "stare 41. We also lеgal controlling particularly rule where decisis is impacts relationships contractual and has been relied upon by industry" a court "where has authorita- tively interpreted legislature a statute because the construction," remains free to alter its such as in this (citations omitted). recog- Id., ¶¶ case. 44-45 We also rejected physical nized that other had states contact requirement requirement when we established that Hayne. Id., ¶ such, 49. As we concluded that provide did insured not meet his burden to "sufficient justification years jurisprudence to overturn 20 con- struing Id., a statute." leg-

¶ 30. We also concluded that the doctrine of acquiescence applicable islative was because had we explained legislature to the how alter the statute to mandate for if miss-and-run accidents it chose legislature However, to do so. has not amended the rejected Id., ¶¶ statute. In addition, 56-57. argument requiring physical insured's that legislative contact was сontrary to the intent of Wis. Stat. Id., ¶ 59. We stated that "the requirement plain meaning contact from derives 632.32(4)(a)2.b., the term 'hit-and-run' it cannot legislative legislative intent; contravene it is the intent." Id. argument

¶ 31. The insured's final was that be- cause the insurer conceded that the insured was attempting fraud, the sole reason for the requirement, apply. Id., the rule should not rejected argument ¶ 61. We this because: may While court develop this mold and common- law doctrines to purpose best effectuate ‍‌‌​​​‌​​‌​‌​​‌​‌‌‌​​‌​​​‌‌‌‌‌​‌‌​​‌‌‌‌​​‌​‌‌​​‌‌‍the for which they designed, applying were when statutes we do not clear, exceptions unambiguous carve out to a provision anytime party argues particular that a result does not subjective they to be the what assert comport with enacting overall legislators in intentions statutory scheme. phrase ¶ Therefore, reaffirmed that

Id., we 63. 632.32(4)(a)2.b. requires in Stat. "hit-and-run" Wis. coverage physical for not mandate and does contact Id., 66. accidents. miss-and-run law, of Wisconsin case Based on our reviеw physical accident to meet conclude that for an we under of a "hit-and-run" contact element (1) by 632.32(4)(a)2.b., a "hit" there must be both (2) part thereof, a "hit" to or unidentified by part thereof, hut not another vehicle or the insured necessarily by There is no unidentified vehicle.11 632.32(4)(a)2.b. coverage precedent without for under part by thereof, vehicle, or "hit" an unidentified both a in As discussed insured vehicle.12 we and a "hit" to the precedent. by Id., Romanshek, our own we are bound ¶ 41. interpreted contact 33. We have "touching require the vehicles." between

element Dehnel, Hayne, also, 231 2dWis. 78; 2d at see 115 Wis. by requirement a "hit" there be at 15. by emphasized of the court vehicle was unidentified hit a culvert Accordingly, if the insured's vehicle vehicle or contact with another object, but did not make another by § thereof, coverage required part in cases which "[t]he in recognized Romanshek We §by mandated coverage was found that UM vehicle, or where an unidеntified circumstances all involved or where thereof, contact with the insured's part made in which 'involved' in an accident vehicle was an unidentified Romanshek, 281 Wis. physical contact." there was appeals Wegner, purposes and is an assumed fact for summary judgment in the case before us. We have requirement also focused on the that there be a "hit" to prior although cases, the insured's vehicle in that "hit" Smith, need not be the unidentified vehicle. (distinguishing Wis. 2d its conclusion from miss-and-run cases because the insured's vehicle was vehicle). actually hit an intermediate ¶ 34. Similar to the facts of the chain-reaction purposes summary Smith, case, collision in in this for judgment, we assume the unidentified vehicle "hit" a argue third vehicle. The DeHarts that since we held that contact between an unidentified vehicle and a third vehicle satisfies the element Smith, we should also mandate in this case. disagree However, we DeHarts' contention Smith, because we focused on the fact that there was Smith, a "hit" to the insured's vehicle. 646, 239 Wis. 2d distinguished ¶ 8. As we above, discussed Smith was coverage from cases, "miss-and-run" where is not man- dated, on the basis that "the unidentified vehicle had contact with the vehicle, intermediate which in turn ¶ had contact with the insured vehicle." Id. at added). (emphasis Therefore, the facts in this case do physical not meet the contact element of a "hit-and-run" as discussed in Smith because there "hit" was no to Wendy's vehicle. Wendy's

¶ 35. vehicle was not in a involved hit- type and-run accident, but rather a of miss-and-run accident, which we have established does not mandate 632.32(4)(a)2.b. coverage Hayne, under Wis. Stat. See Romanshek, 75; ¶ Wis. 2d at 300, 281 Wis. 2d recognize assuming We that in this case we are that the physical unidentified vehicle made contact with an- unidentified vehicle did therefore, the vehicle, and other altogether. hitting However, another vehicle not "miss" cases, in the miss-and-run the insureds' vehicles like by Wendy's the road the unidenti- wаs forced off vehicle, "hit" the unidentified fied but was not any part Therefore, vehicle. like thereof, another Hayne of a Romanshek, the contact element is not under "hit-and-run accident" UM is not mandated. met and policy public con- that the also conclude 36. We interpretation supported prevent our fraud is cern to purpose of Wis. prevent to fraudulent element is being brought by drivers are insured who from

claims making. Smith, 239 own in an accident their involved ("[T]he Theis, 2d 25; 232 Wis. 2dWis. interpreting purpose accident' as a 'hit-and-run for requiring physical the insured and contact between prevent a is to fraudulent unidentified motor vehicle phantom vehicle when the a. motor claim about accident.") control causes the loss of insured's argue since Wisconsin 37. The DeHarts Wendy guilty allege fraud, not Mutual does requiring purpose is satisfied without of the statute argument Wendy's vehicle. We faced a similar "hit" to In Romanshek, 281 Wis. Romanshek. Romanshek, insurer con- that thе the insured stated perpetrate attempting a fraud ceded that he was for the the sole reason and since requirement claims, rule fraudulent to avoid was argument rejected apply. that because Id. We should 'case, justified simply change a "no in the law is omitted). (citations egregious Accord- facts.'" Id. more 587 632.32(4)(a)2.b. ingly, interpretation § our of Wis. Stat. purpose prevent furthers to fraud because even though may fraud not be an issue in case, this fraudu- prevented lent claims insureds will not be in other required. cases if a to "hit" the insured vehicle is not way There would be no to confirm that the accident in which the insured vehicle was involved was due to an unidentified vehicle and not the insured's own fault. argue coverage

¶ 38. The DeHarts also that supported by public policy compensating concern of injured person "an who is the victim of an uninsured negligence motorist's to the same extent as if the [was] Theis, uninsured motorist insured." 232 2dWis. ¶ 749, 28; Smith, see also 646, Wis. 2d 26. The appeals court of in this case that stated its "conclusion coverage applies if there was contact between the unidentified vehicle and the Brewer vehicle allows the damages DeHarts to recover their to the same extent as negligence if the driver whose started the chain of events was DeHart, identified and insured." 294 Wis. 2d 387, past we 39. As decisions, have done our

again recognize "[i]t may very good public well be policy to mandate UM an for insured Romanshek, miss-and-run accident." 300, 281 Wis. 2d again legislature ¶ 65. We once invite the to amend § disagrees Wis. Stat. if it with our interpretation of the statute. Romanshek, See legislature Wis. has amended another provision mandatory of the law, UM but "has not seen any change fit to make and over- interpretation phrase turn this court's 'hit-and- " (citing Id., run.' Act which 632.32(4)(a)l.). Accordingly, amended we will con- require tinue to contact element of a 632.32(4)(a)2.b., § which under "hit-and-run accident" by requiring interpreted "hit" as both a the we have part thereof, a "hit" to the vehicle, or unidentified part by thereof, or another vehicle vehicle insured's necessarily by although vehicle. the unidentified not

III. CONCLUSION ele- the conclude that 40. We accident" under Wis. Stat. ment for a "hit-and-run (1) requires: "hit" the uniden- a (2) part a "hit" thereof, and to tified motor part thereof, another vehicle or the insured's necessarily by Since the unidentified vehicle. but not Wendy's does "hit," not vehicle was Accordingly, case. not UM this mandate appeals. reverse court appeals

By decision of court Court.—The is reversed. (dissen- ABRAHAMSON, C.J. 41. SHIRLEY S. policyholder,

ting). is asked whether court motorist insurance DeHart, is entitled to uninsured interpreta- statutory coverage, question requires proper majority opinion engage in fails to tion. The provide statutory interpretation DeHart to and fails protection is statuto- which she the insurance rily forth, I For the reasons set dissent. entitled. holdings of the first on the I comment majority oрinion text of Wis. and then the 632.32(4)(a). why prior case I After that discuss Finally, govern I case. discuss instant law does my supporting interpretation policy reasons statute.

I—I 43. The majority opinion's holding stated two different In ways: 2, 32, and 40 the majority ¶¶ opinion that there be a requires "hit to" the policyholder's contrast, vehicle. In the implication of note in 32 is ¶ if the policyholder's vehicle makes contact thereof, another vehicle or the part policyholder may be covered under the uninsured motorist policy. 44. for if Suppose, example, swerving after to

¶ miss the unidentified motor vehicle that had struck a different side vehicle's view mirror, DeHart's vehicle had then struck another vehicle. There would be a "hit by" the unidentified motor vehicle and a "hit by" DeHart's vehicle, "hit but no to" DeHart's vehicle. A 45. hit to the policyholder's vehicle is

¶ different from a hit policyholder's A vehicle. hit to the vehicle is policyholder's different from the policyholder's vehicle making contact with another majоr- vehicle. The ity not opinion significant does address this distinction. Furthermore, 46. v. although Smith General Co., Insurance Casualty WI 239 Wis. 2d upon N.W.2d which majority relies, opinion involved a "hit to" policyholder's the text of Smith also of an speaks intermediate vehicle having "contact with" the policyholder's vehicle. Majority op., 47. The minimum a expectation for decision of this court is that the holding be clear. Unfortunately, decision court in the instant case does meet that expectation.

1—I HH I turn to the text of the statute. The text 632.32(4)(a) Wis. Stat. does not require either a hit to policyholder's vehicle or contact between vehicle. vehicle and another Wisconsin policyholder's 632.32(4)(a) insurance to a coverage mandates Stat. from an owner damages entitled to recover policyholder motor of an uninsured vehicle. Subdivision or operator (4)(a)2.b. of an uninsured includes the definition involved unidentified motor vehicle "[a]n motor vehiclе added). Conse- in a hit-and-run (emphasis accident" insurance a the statute mandates quently, op- from the damages entitled to recover policyholder motor involved an unidentified erator of hit-and-run accident. 632.32(4)(a)2. as fol- reads 49. Wisconsin

lows:

(4) Payments Motorist and Medical Required Uninsured insures Coverage. Every policy of insurance... against motor ... loss result- respect any with to vehicle bodily injury or ing liability imposed by law for from arising of person of the ... use by any out death suffered : therein ... a motor vehicle shall contain (a) Uninsured motorist. injured legally persons of who are protection

1. For the operators from or damages owners entitled recover bodily injury, of of motor vehicles because uninsured disease, including ‍‌‌​​​‌​​‌​‌​​‌​‌‌‌​​‌​​​‌‌‌‌‌​‌‌​​‌‌‌‌​​‌​‌‌​​‌‌‍resulting there- or death sickness $25,000 per person and from, of at in limits least $50,000 per accident. vehicle" also motor paragraph

2. In this "uninsured includes:

(cid:127) or the if before after insured motor vehicle a. An motor vehicle is liability

aсcident insurer jurisdiction. competent a of insolvent court declared in a hit-and- motor vehicle involved b. An unidentified run accident. term 50. The in "hit-and-run" Wis. Stat. qualifying phrase requiring a acts as

the unidentified vehicle to come into (4)(a)2.b. Nothing with another vehicle. in subdivision suggests statute the unidentified motor policyholder's vehicle's contact has to with the ve- be (4)(a)2.b. nothing requires Indeed, hicle. in subdivision policyholder's by any a "hit" to the at all, vehicle part policyholder's thereof, or or contact between the according Thus, vehicle and another vehicle. to the policyholder statute, need not have a hit-and-run accident with the unidentified motor or be hit part thereof, another vehicle or have contact protected another To vehicle. be under Wis. Stat. 632.32(4)(a), policyholder only legally need be damages operator entitled to recover from the of an unidentified motor vehicle involved a hit-and-run accident. Should the unidentified motor vehicle be ever legally identified, DeHart would be entitled to recover damages operator proved from if this vehicle she the facts she now asserts. legislature require If wanted to policyholder's

unidentified vehicle to hit the vehicle, it legislature could so stated. The have could have used policy, like that found DeHart's insurance including which defines an uninsured motor vehicle as "[a] operator hit-and-run vehicle whose or owner is (i) (ii) you unknown and which relative, strikes: or a you occupying, vehicle which or a are relative (iii) your policy, insured car." C, Wisconsin Mutual Part (2)(c) added).1 (emphasis Although legisla- section the 1 parties, majority agree The the opinion, and I the specific policy provide of DeHart's insurance does not coverage Coverage under the facts of this case. not included in

592 require required it did accident, a hit-and-run ture policyholder the or the hit or strike to a direct by policyholder's vehicle the unidentified an- any part thereof, vehicle, or or contact between other any policyholder's and other vehicle. the vehicle alleges her DeHart vehicle was forced 52. motor vehicle that had the road an unidentified off fleeing just accident another vehicle and was struck damages because of DeHart asserts she suffered scene.2 motor that was involved in a this unidentified hit-and-run accident. alleged simple, as Plain if the facts are 53. and operator damages

true, DeHart suffered caused in a motor vehicle involved hit-and- unidentified recovery accident; her to under run the statute entitles coverage. motorist uninsured

HH H—Í I—1 narrowly majority opinion The focuses on statutory interpreting prior "hit- law words case majority opinion Consequently, the and-run accident." however, "compelled enforced may, be and insurance contract an of such where the inclusion though рart as a thereof Progressive N. Ins. Co. by properly enacted statute." required Romanshek, N.W.2d 281 2d 697 v. 2005 WI omitted); majority op., (quoted source (and opinion its reliance majority at ¶ effect Hayne Progressive v. N. history legislative set forth on (1983)) Co., 68, 76-85, is to Ins. 339 N.W.2d 115 Wis. large part the insurance statute to conform amend the policy. process of "run vehicle was still in The unidentified hit DeHart's proximity between the ning," given alleged had occur if DeHart's vehicle might result vehicle. A different away vehicle miles by the unidentified forced off the road been party a third vehicle. accident with from the hit-and-run disregards key statutory namely words, the "involved majority opinion sight The in." loses the fact policyholder damages by suffered caused "an unidenti- fied motor vehicle in a involved hit-and-run accident." prior

¶ 55. Our cases focused on whether hit- and-run accident had occurred.3 This case is different. prior question cases, Unlike our hit-and-run without present there was a hit-and-run accident in the case. The hit-and-run accident was between unidentified third-party motor vehicle and the vehicle whose side damaged. Majority op., ¶ mirror view was n.6, 13 ¶ 32.4 Similarly,

¶ 56. the instant case does fit into prior our "miss-and-run" cases. In those cases there was (or by any part no "hit" thereof) the unidentified motor vehicle any present In case, vehicle.5 third-party unidentified motor vehicle hit a damaged. whose side view mirror was majority opinion ¶ 57. The can be described as a missing legal pre- decision, miss-and-run issue 3 legislature The did not define purposes "hit-and-run" for §of Legislative The 632.32, Council Note in 102, 1979, ch. Laws of adopted legislature, explains that precise "A definition of necessary hit-and-run is not for in the question rare case where a arises the can court draw line." Accordingly, "hit-and-run" been case-by-case has construed on a Co., basis. Smith v. 127, 13, Gen. Cas. Ins. 2000 WI 239 646, 2d 882; majority Wis. 619 N.W.2d op., 4 majority opinion Both the accept and I for purposes of review the unidentified motor party vеhicle struck a third forcing vehicle before DeHart's vehicle off the road. DeHart's company, however, insurance dispute continues to this fact. 5See, Co., e.g., Hayne v. Progressive 68, N. Ins. (1983); Progressive N.W.2d N. Ins. Co. v. Romanshek, 35, 281 WI Wis. 2d 697 N.W.2d417. running with a of this case the facts sented majority opinion legal refuses issue. different give language, statutory meaning in effect ren- to the superfluous. disagree dering I in" "involved the words approach. this importance recognized the of the ¶ 58. This court Casualty Insur in v. General "involved in" Smith words Co., 127, 646, 2d 619 N.W.2d882. 239 Wis. ance 2000 WI "[t]he explained 'in the that use of word The court be as a word that should not strike us volved' does only narrowly applied accident to a hit-and-run involv ing Here, the vehicle. direct hit to the insured a clearly precipi it 'involved': vehicle was unidentified through with the intermedi tated the accident 646, Smith, 2d 12. The Smith 239 Wis. ate vehicle." statutory clearly recognized "in words that the court interpretation. expansive require Smith in" an volved equated motor vehiclе is "an unidentified the words "an with the words in a hit-and-run accident" involved precipitated the accident motor vehicle unidentified through intermediate vehicle." the contact with policy- that the The court concluded Smith indirectly by the unidentified motor hit holder had been go any further in its need to that it did not and analysis is informative "involvedin." Smith of the words providing guidance in" "involved but the words in about present provide because the case an answer to does not present case forces the facts are dissimilar. the open.6 left issue that Smith court to address the Insurance Co. Progressive Northern Notably, language Romanshek, 697 N.W.2d v. 2005 WI 281 Wis. interpretation of Wis. case, open the also leaves miss-and-run to recover allow DeHart that would Stat. coverage under the circumstances motorist uninsured explained "[t]he cases present case. The Romanshek court majority opinion ¶ 60. If were the the to examine statutory just entire text and not lan- hit-and-run guage, majority opinion would conclude that statutory language is clear: Uninsured motorist cover- age damage policyholder when mandated results from an unidentified in" a vehicle "involved majority opinion hit-and-run accident. The fur- would present statutory ther conclude that the fits case requirements. damage DeHart's resulted from an uni- dentified that was in" a "involved hit-and-run accident. join majority opinion,

¶ 61. I cannot which applied solely interpreted relies on cases have and only "hit-and-run" These hit-and-run miss-and-run unfortunately plain language

cases have encrusted the obstructing majority's ability of the statute, the see to majority opinion the The statute. following Majority op., ¶ claims it is stare decisis. 29. It majority opinion is not. Rather, the chokes the text of inapposite Only by returning the statute with case law. statutory engage to the text itself can this court in a in which we that UM [uninsured motorist] found was coverage by § mandated all involved circumstances thereof, where an unidentified or part made contact with the insured's vehicle where an was vehicle unidentified 'involved' in an physical accident in which was there contact." Romanshek, added). 300, Here, (emphasis 281 2dWis. ¶ unidentified was "involved" in an accident in there which contact, was subsequently damage which caused to majority opinion n.12, although DeHart. But the at ¶¶ Romanshek, quoting twice text of this is so fixated upon interpretation how, of "hit-and-run" recognize it fails to to, even under precedent it is bound claims it DeHart is coverage. entitled to

proper interpretation of Wis. gives meaning full effect and to all of the words of

the statute.

IV 632.32(4)(a) been, 62. Wisconsin Stat. has light public policy interpreted be, should underlying concerns the statute. underlying purpose

¶ 63. The of uninsured mo- coverage compensate injured person torist is to "an who negligence victim of an uninsured motorist's the same extent as if the uninsured motorist were operator If insured."7 of the unidentified motor good insured, vehicle werе DeHart would have a claim. By properly damage recognizing that the DeHart suf- directly fered stems from an unidentified motor vehicle accident, in a the court will accord involved hit-and-run legislature DeHart the mandated. Furthermore, the court has declared that a primary "public policy ... of relevance to concern our analysis" pre- in uninsured motorist cases is "that of venting majority op., fraud."8 See present in the case 65. Fraud is not a concern there was a hit-and-run accident.9 Witnesses because exist and genuineness evidence should be available. trial,

of DeHart's claim can be tested at Co, Security Midwest Ins. 2000 WI Theis v. Co., 162; 749, 2d 606 N.W.2d Smith v. Gen. Cas. Ins. 2000 Wis. 26, 646, 882; 127, ‍‌‌​​​‌​​‌​‌​​‌​‌‌‌​​‌​​​‌‌‌‌‌​‌‌​​‌‌‌‌​​‌​‌‌​​‌‌‍majority op., 2d WI 239 Wis. 619 N.W.2d 38. Co., Smith v. Ins. 2000 WI Gen. Cas. 619 N.W.2d 882. making DeHart is not Wisconsin Mutual concedes fraudulent claim.

during proof. which DeHart has the burden of Prevent- ing "phantom" fraudulent claims based on vehicles interpretation should not motivate the court's when an unidentified motor vehicle is in a "involved hit-and-run accident."

* * * * ¶ 66. On reviеw of the text of Wis. Stat. 632.32(4)(a)2.b., prior case, the facts of the instant public policies underlying law, case and the statute, I conclude that DeHart is entitled to uninsured motor- coverage. ist When an unidentified vehicle strikes a vehicle and flees the scene, hit-and-run accident damage DeHart's, another like suffers as a accident, result of the hit-and-run the owner of the (here DeHart) damaged vehicle is entitled to uninsured coverage pursuant motorist to the clear policyholder's Neither a "hit to" the by any any part vehicle or thereof nor contact policyholder's between the vehicle and another vehicle statutorily required. grant summary judg- not, however, I would party agree ment to either on the record I before us. appeals court of that material facts are in dispute, including whether the unidentified motor ve- hicle struck the side view mirror of the other vehicle and whether the hit-and-run accident caused DeHart's damage. I would therefore remand the cause to the circuit court for trial.

¶ 68. forth, For reasons set I dissent. I am authorized to state that Justices ANN join WALSH BRADLEY and BUTLER, LOUIS B. JR. opinion. this

Case Details

Case Name: DeHart v. Wisconsin Mutual Insurance

Court Name: Wisconsin Supreme Court

Date Published: Jul 10, 2007

Citation: 734 N.W.2d 394

Docket Number: 2005AP2962-FT

Court Abbreviation: Wis.