*1 Bobbie Gohde Gohde, Rick Plaintiffs-
Appellants,†
v. Defendant-Respondent. MSI Insurance Company, Court Appeals No. 01-2121. Submitted on November 2003. Decided briefs March (Also 835.) reported in 679 N.W.2d † Petition to review denied 6-8-04.
HooveR, EJ., concurs. plaintiffs-appellant, the cause was of the On behalf Giebel, Mark E. of on the briefs of Gilbert submitted Gilbert, Kohl, P.L.L.P.,Roseville, Minnesota. & Williams defendant-respondent, the cause behalf of the On Thrasher, oí Joe Thrasher of was submitted on the brief Doyle, Franti, Lake. Ltd., & Rice Pelish by Englund
Nonparty Eric of were filed briefs Alliance; and Robert Madison, for Insurance Wisconsin Goisman, Domnitz, & S.C. for Mawicke L. Jaskulski Academy Lawyers. Trial The Wisconsin PJ., Peterson, J. Cane, C.J., Hoover, Before appeal PETERSON, This comes to us on J. supreme court. Bobbie and Rick remand from our summary judgment granted appealed in favor a Gohde Company. The circuit court deter of MSI Insurance underinsured mined the Gohdes' (UIM) unambigu by policy, MSI, was motorist issued summarily Co., affirmed. v.MSI Ins. No. ous. We Gohde 2002) (WI unpublished slip op. 26, March 01-2121, I). (Gohde summarily reversed and ordered court light parties its to rebrief decision Schmitz, 98, 61,
Mut. Ins. Co. v.
2002 WI
255 Wis. 2d
policy language
647 N.W.2d223. We then concluded the
and reversed.
Co.,
Gohde v. MSI Ins.
App 69,
BACKGROUND injured November Gohdes were in an automobile accident Chetek when Jamie Lemke *3 lost control of her vehicle and struck the Gohdes' passengers automobile. Several in Lemke's vehicle were injured. parties Lemke, also and the Gohdes sued agreed causally negligent. Lemke was 100% Lemke's liability policies $50,000 two State Farm per person had limits of per paid $100,000 and accident. State Farm injured varying parties. these limits amounts to the $100,000 Rick, $35,000. received Bobbie Bobbie's stipulated damages, however, $200,000 were and Rick's $135,000. were sought
¶ 3. The Gohdes to recover the difference recovery their between from Lemke and their actual damages policy. policy pro- under their UIM The UIM per person per $100,000 $300,000 vides limits of summary judgment, paid accident. Prior to MSI Rick $65,000. MSI claimed it owed no more to Rick and nothing reducing to Bobbie because of clause the
1 Following Quamme, the release of Folkman v. 116, 617, 857, parties supplied 665 N.W.2d the us addressing letter with briefs the decision.
315 policy. parties for sum- filed cross-motions UIM mary judgment. reducing the
The Gohdes maintained and, there- and unenforceable pay $100,000 and Rick an Bobbie fore, MSI should argued reducing clause was $35,000. MSI additional unambiguous paid all it was obli- and claimed it had gated to under the agreed and the The trial court with MSI appealed. on our decision in affirmed based
Gohdes
Heritage
Co.,
Ins.
Sukala v.
Mut.
WI
Sukala,
we held a
2d
guage "crystal clear" because "MSI's was liability language . .. clause conflicts with the limit of II, 2d the declarations." Gohde with ambiguous. policy ¶ Thus, 21. we concluded the subsequently ¶ The court decided 7. "crystal clear" Folkman, where it clarified the standard. to alter The stated that it did not intend Schmitz automobile review for whether of the standard prede- policy and its "Schmitz is insurance perfection policy draftsman- not demand do cessors ship. policies in to draft advise insurers These decisions 617, ambiguity. 2d 31. Folkman, 264 Wis. manner .. . ." a clear "crystal for not the standard Thus, clear" is in Gohde our decision court then reversed The light of Folk- for reconsideration and remanded II man.
DISCUSSION determining whether an insurance 8. ambiguous, a read the as we must is complementary principle to contex- "There is a whole: necessary ambiguity. to look be- it is Sometimes tual yond capture single the essence or sentence to a clause agreement." Folkman, 264 Wis. anof insurance language should "The of Furthermore, part by isolating from a small not made be Id. of the whole." the context pages. nineteen Gohdes' page eight. coverage begins The UIM limits on
UIM page liability nine: are on and the for in the Declarations liability shown The limit of maximum for all limit of is our person" "each The limit any person. bodily injury to one damages for is our maximum for "each accident" shown in the persons or more damages all two limit for accident. same the number of regardless we will
This is most made, shown insureds, premiums or claims vehicles accident. Declarations, involved or vehicles by: reduced liability shall be The limit of *5 paid 1. all bodily injury sums because of the by or on persons organizations behalf of or may legally who be responsible. This includes all paid sums under Liability Coverage policy, of this paid 2. all payable sums or because of bodily injury any under compensation, disability workers' benefits or any similar law.
Any payment coverage under this to or for an insured any will reduce amount person that is entitled to Liability recover under the Coverage of this In no event will insured be entitled to recover duplicate payment for the same element of loss. argued II, Gohde the Gohdes the lan- guage policy's in the limit of conflicted with the language They clause. contended that liability, pay," the limit of described as "the most we will gave impression that the maximum amount is they argued, attainable. However, impossible made that maximum amount to attain. We agreed. Following Schmitz we concluded the "crystal limit was not clear" because of the conflicting language. II, Gohde 261 Wis. 2d Accordingly, we held the 11. As noted, we have court clari- "crystal language
fied the clear" from Schmitz when it decided Folkman. Folkman warns that we cannot con- policy ambiguous "by isolating part clude a a small from the context of the Folkman, whole." recently 21. In Folkman, we determined unambiguous that a similar in Van (WI 2004). Erden v. Sobczak, No. 02-1595 Feb. specifically However, that case we did not discuss the pay" language appears "most we will that in the MSI interpre- our and Folkman affect or how *6 policy. and between The tension tation of the decision here and thus we critical to our Folkman is the MSI determine whether it now. We must address it is conclude that as a whole. We is not. organization and struc-
¶ 12. first look at the pages long policy. policy nineteen and The is of the ture page, declarations, and index, the of a title an consists page coverage. of the title The bottom terms of This POLICY CAREFULLY. "READ YOUR states: you legal It is and us. contract between is language." 'easy The understand' to read and written page. index the Unin- title The lists follows the index coverage C of the in Part Motorist and UIM sured appear page policy, beginning The declarations on six. covérage page are the UIM three and state limits on person $300,000 for each acci- and for each $100,000 through pages ten. six of the is on dent. Part C are clause The UIM limits page nine. on organi- nothing conclude there 13. We ambigu- produces contextual that and structure
zation through orderly ity. takes the insured page sequence. are logical and index The declarations Nothing beginning on the roadmaps of the at the policy. page it is the entire that states declarations subcategory Liability" aas "Limits of index lists Coverage." The declarations Motorists "Underinsured they ambiguous simply page because are not and index every As the and exclusion. limit of to fail list Folkman, 264 Wis. court stated declara- an informative ask for cannot 56, "Courts failing to page for the insurer and then fault tions every speculative interpretation address nuance and coverage might that an insured raise."
¶ 14. A reasonable insured would review the dec- page, by larations and then be directed the index to the coverage. of UIM Here, reducing limits the insured would find clause. The clause states what is paid policy, the most that will be under the and then immediately informs the insured that those amounts "shall be reduced" in certain circumstances. argue
¶ 15. The Gohdes the conflict between "the pay" language most we will and the ambiguity. causes degree if Even we were assume that some ambiguity engen-
of objectively exists, it is not "sufficient to meaning der an reasonable and, alternative thereby, disrupt *7 policy an insurer's otherwise clear language[.]" Folkman, ¶ 617, 30. The regarding pay statement the most it will cannot provisions be read to the exclusion of all other relevant "Ferreting through ¶ Id., of the Further, 21. a policy dig up ambiguity judicially to should not be ambiguity rewarded because this sort of is insufficient." ¶ Id., 32. recently policy 16. a reviewed similar UIM
in Commercial Union Midwest Ins. Vorbeck, Co. v. policy 11, WI There, N.W.2d665. the referred liability." to "our maximum limit of A followed. Vorbeck contended the unenforceable because it contradicted the insurer's ob- ligation pay to the ¶¶ maximum Id., amount. regarding 36-38. We concluded the statement the liability insurer's maximum of its limit of did not represent unequivocal pay "an commitment to the maximum limits of to the exclusion other provisions policy." relevant the Id., Instead, we determined that the insurer "will the maximum appropriate the case and under limits of appropriate subject the terms the to circumstances policy Id. read as whole." insurance here. The the same conclusion reach 17. We susceptible policy more than one reasonable not contextually language interpretation, is not Judgment By affirmed. the Court.— (concurring). I think the HOOVER, EJ. organization presenting not case, in our while contradictory" exactly "plainly ally complex in "maze,"is Co. Mut. Ins. manner as the the same 223. The 2d 647 N.W.2d Schmitz, v. 255 Wis. signals," enough? question Are the "false is, is this ¶ 55, 264 Quamme, Folkman v. suffi 857, the sends to Gohde
617, 665 N.W.2d of Folk- clause, or in to avoid the cient Folkman, I tenor of more needed? Given the man, is post-Folkman majority agree and our other with driving partially inconsistencies cases that explicated now, Folkman, would decision, as Schmitz only by supreme court as our context, be seen benignly ambiguous. Thus, the court would engender conclude, these inconsistencies would meanings. objectively reasonable alternative carefully compared be- ¶ 19. Folkman lengthy with a that in Schmitz. Schmitz dealt fore it to *8 according complex to Folk- But, insurance and upon which the exclusive basis man, this was not the reducing clause was the court held that Schmitz inoperative. that "a further teaches Rather, Folkman provisions provisions, policy inconsistent avoid should expectation, provisions up that false that build produce meanings." Folkman, alternative reasonable ¶ However, 31. "inconsistencies the context of a must be material to the issue in dispute and be of such a nature that a reasonable meaning." ¶ insured would find an Id., alternative 32. comparing 20. the Folkman circumstances to in Schmitz, those court noted the latter likely case that "a reasonable insured would believe that purchase say, of, $200,00 in underinsured motorist coverage payment $200,000 would lead to a from the depending damages" insurer on the insured's level of because this was the limit stated the declarations. Folkman, 264 But, Wis. 2d as Folkman noted, court "because the contained a pay clause, the insurer would never $200,000 to the insured ... ."Id. The Folkman court went on to observe only that the effect of the made explanation. clear in the itself, with no appears Id., 53. This to be material because the goes page Folkman court on to note that the UIM "typical provision contained limits of followed immediately after the schedule for underinsured motor- coverage. among things, stated, ist It other 'This is the pay,' implying most we will that it would although limits, it never Thus, would." Id. the Folkman observed, Schmitz concluded that the there organizationally complex at issue was "a maze that is plainly contradictory." Id., implied, ¶ 21. As I think at the core of Folkman very court's tacit retreat from some of the considerations that led to the result in Schmitz, its painstaking notwithstanding. references to that case though presents Thus, even our case some features *9 agree majority case, I with the to the Schmitz similar policy at issue under Folk- that the man.