*1 Jonathan Lisowski, Plaintiff-Appellant-Petitioner, Company, Mutual Insurance
Defendant-Respondent.
Supreme Court 13, 2008. argument No. Oral October 2006AP2662. January Decided 11WI (Also 754.) reported 759 N.W.2d *3 plaintiff-appellant-petitioner For the there were by Firm, L.L.C., briefs Joel W.Brodd and Brodd Law argument by Hudson, and oral Joel W.Brodd. by defendant-respondent
For the there was a brief Onalaska, Lee J. Fehr and Fehr Law and oral Office, argument by Lee J. Fehr. by
An amicus curiae brief filed James A. Fried- Godfrey man, Schmidt, Kahn, S.C., Linda & S. Madison, Alliance, on behalf of the Wisconsin Insurance argument by and oral James Á. Friedman. by Timothy
An amicus curiae brief was filed A. AxleyBrynelson, LLP,Madison, Barber and on behalf of Association for Justice. Wisconsin CROOKS, J. This is a review of an N. PATRICK unpublished appeals per opinion1 court curiam dismissing affirmed a circuit court decision a claim against Hastings Jonathan Lisowski Mutual Insurance Company for underinsured motorists under Lisowski's father's business auto *4 language ¶ 2. The a "for covered auto" on which language appears this case turns in is substantive places policy,including in several the the endorsement 1 Co., slip op. Lisowski v. Mut. Ins. unpublished 2008). (Wis. App. Jan. Ct.
391 read to are the provisions When page. with We ambiguous. agree is not gether, Insurance, Society of Crandall WI reasoning 174, and we believe 34, 269 2d 676 N.W.2d Wis. App Crandall, an this case concerns here. Like it controls (UIM) to a busi endorsement underinsured motorist Crandall, it involves an also, like auto policy; ness insured, a driver is not the named who injured party and a insured under the vehicle policy, is not an who auto Even if the covered listed in the policy. endorsement, in the UIM as an exclusion characterized Stat. when conditions Wis. it is valid (2005-06)2 here. satisfied, are are they § 632.32(5)(j) decision of the court of appeals. therefore affirm the We
I. BACKGROUND multiple case involves a with 3. This insured under policies and business vehicles personal Lisowski, a three Dennis companies. from purchased Lumina, a farmer, Chevy pickup, Chevy owned tractor. He bought and a Mack semi Avenger, Dodge Lumina and the from pickup for the policies insurance but allowed Community Company First Insurance for his Avenger He had purchased policies lapse. for the Lisowski,3 who insurance son, bought Jonathan Insurance but Progressive Company car from Northern The Mack no UIM with that bought Dennis used tractor, exclusively which Lisowski semi auto policy was covered a business farming, fully below, Stat. more Wisconsin explained As to exclude under cer- 632.32(5)(j) permits insurers subsequent All references Wisconsin tain circumstances. version unless otherwise indicated. Statutes are to the 2005-06 Dennis Lisowski testified that he considered Jonathan had intended to transfer the title to Avenger owner of the gotten doing around to so before accident. him but had not *5 (Hast- Company Hastings by Mutual Insurance issued ings Mutual), UIM endorsement. included a which against ¶ auto is the business 4. That involving made. The car accident was the claim which giving Avenger, claim, this occurred and rise to the January passenger, was a Jonathan Lisowski 18, 2004. driving the time of the accident. his at a friend of was and Hastings Mutual, Lisowski sued 5. Jonathan claiming coverage endorsement to under the UIM tractor. He father's semi on his business auto grounds mem- that, as a on claimed coverage for entitled to insured, he was of the named ber Hastings injury motorist. an underinsured caused grounds UIM on that the Mutual denied only. policy applied autos to covered County hearing, Following Cir- the Buffalo 6. presiding, dis- James Duvall Court, the Honorable cuit complaint. found that: The circuit court missed the (1) Avenger; of the the owner Lisowski was Dennis (2) Avenger passenger in the awas Jonathan Lisowski (3) injured; was an Jonathan Lisowski he was when Hastings endorsement the UIM insured under (4) Avenger policy; was an underinsured Mutual endorsement; the UIM the terms of motor vehicle under (5) Avenger in the a covered auto was not Relying policy. Crandall, Hastings the circuit on Mutual introductory language 'for a "the court concluded required endorsement in the UIM auto' covered occupant of a covered auto be an Lisowski to Jonathan coverage" trigger under order Avenger not a covered Because the Mutual dis- policy, the case the court ordered under auto missed. August appealed. On Lisowski Jonathan appeal appeals this certified the
2007, the court grant In an the certification. court, but we did unpublished per opinion, appeals curiam the court of *6 decision, affirmed the circuit court's on the same then grounds: required that Crandall the "for a covered given Hastings effect, auto" to be and the policy provide coverage. Mutual therefore did not Hastings unpublished slip op., Co., Lisowski v. Mut. Ins. (Wis. 2008). App. ¶ 31, 9 Ct. Jan. petition
¶ review, 8. Jonathan Lisowski filed a May granted. 13, 2008, and on review was
II. STANDARDOF REVIEW
Interpretation
policy presents
¶ 9.
of an insurance
question
independently.
a
of law that we review
Smith v.
Co.,
810,
Atlantic Mut. Ins.
155
2d 808,
Wis.
456 N.W.2d
(1990).
phrases
policy
susceptible
If
597
words or
are
they
to more than one
construction,
reasonable
are
ambiguous.
case,
Id. at 811. In such a
we construe the
policy
interpreted by
as it would be
a reasonable insured.
Co.,
Holsum Foods v.Home Ins.
162
2d 563, 568-69,
Wis.
(Ct.
1991).
App.
III. ANALYSIS dispute ¶ 10. There is no that the vehicle involved in the accident was not a covered vehicle under the Hastings Mutual business auto Nor is there dispute that Jonathan Lisowski was an insured as a member of the named Dennis Lisowski. parties dispute What the is whether Jonathan Lisowski regardless was entitled to as an insured injured by where he was at the he time was underinsured motorist. Jonathan Lisowski contends that even if Mutual could have excluded coverage for him under these circumstances without running law, afoul of Wisconsin *7 way actually unambigu- written in such a ously that it and points describing did so. He to a statement UIM coverage legally as "all sums the 'insured' is entitled to compensatory damages recover as from the owner or driver of an 'underinsured motor vehicle.'" Jonathan points Lisowski also to the UIM endorsement's lan- guage identifying insureds. Where the named insured is an individual, the endorsement states, insureds are "[t]he 'family Named Insured and members'" and "[a’lnyone 'occupying' else a covered 'auto'. . .". Because family provision member contains no mention of a requirement auto, contends, covered he there is no that member of the named insured be in a covered coverage apply. in auto order for He to also notes that applies. none of the endorsement's exclusions Hastings points ¶ Mutual sentence at top begins, of the UIM endorsement "For a language covered . ." 'auto'. . It contends that this mir- body rors the "covered auto" in the main coverage accordingly. and limits UIM As for the argues they operate exclusions, Mutual coverage, only it, create and that to limit coverage only is estab- relevant after exclusions are lished. key language
A. The is on this case turns 12. The which page policy's in declarations found coverage. On the declarations for UIM endorsement page, Lisowski as the named lists Dennis Item One Coverages and Two, the Schedule of Item insured. coverages apply says, Autos, "Each of these will Covered only 'autos'. 'Autos' are those 'autos' shown as covered coverage by particular 'autos' for a shown as covered symbols entry more of the from covered of one or coverage form next to the business auto auto section of symbol coverage."4 The from the the name of the coverage appears next to the auto form that business coverages under Item Two on the list coverage form indicates that The business auto is "07." "Specifically "any means De used, is auto" where "07" "[o]nly 'Autos'." That is further described scribed in Item Three of the Declara 'autos' described those charge premium In shown . . . ." tions which Autos You Own" Three, Item the "Schedule Covered tractor. The the 1985 Mack semi lists one vehicle: premium for that for underinsured motorist vehicle $30. *8 Turning page, to the endorsement one finds 13. principally 'auto' licensed or words,
the garaged "For a covered in[] modifies Wisconsin, . . . this endorsement (liability, pay- auto medical type For each motorists, motorist, ments, physical underinsured uninsured Coverages and damage, comprehensive), and the Schedule policy premium. limits and the Autos also lists Covered following: provided under Business insurance page, Coverage in section Form." On the same Auto pay will all sums the 'insured' A.I., reads, "We damages compensatory legally as entitled to recover is or of the 'underinsured motor from the owner driver B.I., the states that In section endorsement vehicle.'" individual, is an which the named insured where "[l]a. are The Named Insured and here, insureds case any 'family Anyone 'occupy- "[l]b. else members'" and ing' . ." a 'auto'. . covered dispute Lisowski, There is no that Jonathan 14. an under his father's member, a insured and under the endorsement. auto
business designates page Dennis Lisowski as The Declarations in Endorsement, B.l.a., and section individual, an says "family members" are insured and named designated in the the named insured is insureds when as an individual. Declarations
B. Discussion a half-dozen Jonathan Lisowski advances held on the auto his father reasons the business provide for the semi tractor should 1985 Mack Avenger, injuries passenger in he sustained as though it is not a covered vehicle: even (1) language auto" in the UIM the "for covered nothing part policy; is not it is
endorsement introductory and should more than effect; given be
(2) changed the auto" the UIM endorsement "covered trumps page
requirement in the declarations policy; any conflicting elsewhere *9 (3) Hastings Mutual is wrongly seeking to have the
court either add words to or write into policy permissible exclusion under Wis. Stat. § 632.32(5)(j) omitted; that Mutual itself (4) the "for a covered auto" language should be treated
as an exclusion and narrowly construed against insurer; (5) introductory contextually ambigu-
ous and thus must be construed in Jonathan favor; and, finally, Lisowski's (6) Crandall should apply here because it is
factually distinguishable and its holding is over- broad. 16. Hastings Mutual that responds the "for a
covered auto" language is part the policy, and, if characterized as an exclusion, is a proper one; there is no ambiguity; and that Crandall is both rightly decided and applicable. Jonathan Lisowski first contends that
"for a covered auto" language is not actually part of the policy because it is merely "introductory language." He contends this court's Mau, decision in Wis. 2d rests on the premise that head prefatory do ings not determine coverage.5 18. Mau concerned a German tourist, Wolfgang Mau, who had purchased an underinsured motorist insurance for a rental car. While he traveling, involved in a minor accident on an icy road, and a
5Jonathan Lisowski also proffered an affidavit from an editor of industry an insurance publication trade in support of his position that the introductory modify cannot herein, terms. For the reasons stated we do not find persuasive. editor's affidavit *10 deputy's deputy stopped request, to assist him. At the squad towing arrangements Mau sat in the car while made for the Mau waited, were passing disabled vehicle. As squad into
driver lost control and crashed injury. car; Mau sustained serious ¶ 19. To determine whether there was policy purchased car, under the Mau had for the rental [was] first we determined that "Mau a named insured policy." [UIM] determined under the thenWe that the occupancy requirement in the UIM endorsement was (1995-96) not valid under Wis. Stat. 632.32 because prohibits the statute an exclusion for a named insured. Mau, 248 Wis. 2d inapposite here; 20. Mau is the footnote to says merely, "[R]ather
which Jonathan Lisowski cites relying heading than on the to determine who is a insured, named we look to the substance of Endorse #1, ment define the definitions, to named insured." added). (emphasis question ¶ 14 Id., n.4 The first in person seeking coverage Mau was whether the awas presented named and we were with a ambiguous defining that a named insured. page There, where the declarations referred to the ("Named endorsement for the named insured Insured: (Id., 10)), nothing See Endorsement #1" we did more than read all of "Endorsement #1" to find the answer. Nothing approach requires ignore in that us to lan guage policy. Mau, in the Mutual Unlike in language, we look to here is substantive not a heading.6 argument
¶ 21. Jonathan Lisowski's that the en- changes trumps any language dorsement case, In heading this page— on the endorsement "Wisconsin Coverage" Underinsured Motorists not relevant —is easily page contrary dis in the declarations
to the says, top posed the endorsement at of. It's true that changes page, "This endorsement of the carefully." also true that an endorse read it It is Please provision contract "a added to an insurance ment is precedence altering scope application that takes its or printed portions there of the in conflict over Co., v. West Bend Mut. Ins. with." Muehlenbein (Ct. 1993). App. The 259, 265, 499 2d N.W.2d Wis. similarly respect page notes, endorsement coverage provided by "With provisions endorsement, the
this apply form unless modified endorsement." *11 the the endorsement itself contains 22. Because requirement, auto" there is no conflict
"for a covered and the rest of the For between the endorsement way no to read the endorse- reason, the there is same Coverage modifying provisions of the Form ment as the requirement. expunge As noted the "covered auto" to that because the above, Jonathan Lisowski contends B.l.a., in which defines an insured as definition "[t]he section any 'family members,'" con- Named Insured and requirement auto, a tains no mention of covered apply auto does not to a member covered B.l.b., that section which named insured. He notes "anyone 'occupying' applies 'auto,1" else a covered provisions, impose requirement. These two does merely parrot statute, dictates what however, which 632.32(6)(b)l. ("No § policy must cover. Stat. See Wis. coverage policy may afforded or ben- exclude from marriage [p]ersons by [] provided blood, or related efits 632.32(3)(a) insured."); § adoption and Stat. to the Wis. policy provides this business cover- question to the of whether neither a named insured nor an age injured person when the occupant of a covered vehicle. provide
("[E]very policy. to an owner shall . . issued applies overage provided [] [c] named insured to the that provisions to the same and under manner in the same using any person described motor vehicle pur- provisions, included policy which are These . . . creating read as statute, cannot be suant coverage policy, read Lisowski where the for Jonathan explicitly denies it. whole, aas that for this Lisowski contends Jonathan deny must rewrite here we
court to
(1)
adding
ways,
by
in words such
either
in one of two
occupying
of an
to the definition
a covered auto"
"who is
(2)
permitted
by inserting
exclusion
an
insured; or
put
failed to
that the insurer
statutes
under Wisconsin
enough.7
disagree.
explicitly
As we
We
into the
requires denying
explained
above, the
page
already
in the declarations
found
begins
page
First, the endorsement
in the endorsement.
632.32(5)(j) permits insurers to exclude
Wisconsin Stat.
circumstances:
coverage under certain
any coverage
does not
policy may provide
under the
A
resulting
that meets
apply
from the use of a motor vehicle
to a loss
following
conditions:
all of
by
the named
named
or is owned
1. Is owned
*12
spouse
spouse
insured if the
or
or a relative of the named
insured's
as the named insured.
resides in the same household
relative
policy
the claim is made.
in the
under which
not described
Is
newly acquired
policy
as a
under the terms of
3. Is not covered
replacement motor vehicle.
or
authority,
to
argues, without citation
Lisowski
Jonathan
had
only
[the insurer]
"if
permissible
is
such an exclusion
that
in
632.32(5)(j)
§
of Wis. Stat.
requirements
the three
specified
of the UIM endorsement."
exclusion clauses
express
written
in the statute.
is, however,
requirement
such
There
no
401
'auto,'"
the words "For a covered
so there is no need
with
Second,
to add the words to the endorsement.
the policy,
written,
any
as
excludes
vehicle owned
the named
by
neither described in the
insured
nor cov
vehicle. In the
newly acquired
ered as
one finds
policy,
on the Declarations
the "Schedule of
page
Coverages
(with
Covered Autos"
"07"
the column titled "Covered
Autos")
Own,"
and the "Schedule of Covered Autos You
neither of which include the
The business auto
Avenger.
form is the cross-reference for the
coverage
designation
"07,"
which
limits the
explicitly
"Specifi
Described 'Autos.'" That was a decision made
cally
by
Dennis Lisowski when he
there are
bought
policy;
other levels of
available which
provide coverage
autos
by
owned
even those the
policyholder,
policyholder "acquire[s]
of after the
ownership
Jonathan
begins."
Lisowski
us to characterize the
urges
covered auto
as an exclusion.
with
language
agree
We
exclusion,
him that such an
sometimes called a "drive
exclusion,"
other car
can be valid
where it
only
complies
with the three
specific requirements
Wis. Stat.
Milwaukee,
See Blazekovic
§
City of
632.32(5)(j).
2d
WI
Wis.
an broad to reach the applies construing conclusion that it here. Even requirement ap exclusion, as an consistent with our proach Mau, we reach the same result.9 9Jonathan Lisowski does not claim that the violates 632.32(6)(b)2. § Wis. Stat. Mau v. North Dakota Insurance Re Fund, 134, serve 1031, 45, 2001 WI 248 Wis. 2d 637 N.W.2d Soodsma, Ruenger 79, App 2005 WI 281 Wis. 2d N.W.2d occupancy addressed whether an requirement for a 632.32(6)(b)2., named insured violated Wis. Stat. which states: (b) may No exclude from the afforded or benefits provided: Any person passenger 2.a. who is a named insured or in or on the vehicle, respect disease, bodily injury, insured with sickness or including therefrom, resulting person. death to that cases, In both occupancy require- answer was that an ment violated the injured statute because both cases involved parties who case, were named insureds. In this that statute is *14 discrepancy a
¶
asserts that
25. Jonathan Lisowski
creates
statements
endorsement's
between
introductory language
ambiguity
mentions covered
—the
coverage
or
do not. If words
definitions
autos and the
susceptible
phrases
more than one
to
in a
are
they
ambiguous. Mau, 248
construction,
are
reasonable
policyterms
¶
However,
not read
we do
1031,
2d
13.
Wis.
give
"[W]e
Mau,
must
in
As we noted
in isolation.
policy."Id.,
meaning
provisions
insurance
in the
to all
Segalla,
(citing
¶
Russ & Thomas F.
2 Lee R.
20 n.7
("All
(Dec. 1995)
its
3d
21:19
Couch on Insurance
together
parts,
provisions must be construed
words,
light
part interpreted in the
contract, each
entire
as one
parts,
risk or
with the
in connection
of all the other
matter.")).
subject
in the endorsement
The
with the
"covered auto" is consistent
refers to
which
language
page,10
refers to
which also
in the declarations
language links the endorsement
The
"covered autos."
Having
page.
page
considered
the declarations
persua
position
it more
dissent,
we find
taken
key
language as a
"for a covered auto"
sive to read the
coverage.
question
points
out,
true,
It
as Jonathan Lisowski
applies.11 But
exclusions
that none of the endorsement's
"named
Lisowski is neither a
implicated
because Jonathan
in
on the insured vehicle."
passenger
nor
or
"[a]
insured"
Co.,
73,
2000 WI
Bend Mut. Ins.
Dowhower West
See
(Bradley, J., concurring)
113,
40,
2d
¶ 27. Jonathan Lisowski and Mutual dif- applicability fer as to the of Crandall to this case. policyholder purchased Crandall involved a who had a policy garage operations. policy business for his The policyholder's contained a UIM endorsement. When the daughter injured in accident, an in a vehicle driven by daughter sought coverage a friend, the under her coverage. language, father's UIM The endorsement here, included the words, "For a covered 'auto' licensed or principally garaged, 'garage operations' or in conducted Wisconsin, this endorsement modifies insurance ... ." Crandall, ¶ 269 Wis. 2d 2.
¶ 28. This case mirrors Crandall's facts in relevant ways. garage opera- Crandall a involved businessowner's policy; policy tions here, involved is a business auto policy. policy large The cover of the here notes in bold type Policy." that it is a "Business Auto In cases, both an occupying member is by a vehicle owned the named insured has UIM policy. under another Jonathan Lisowski fit none of descriptions. those He was not the named insured. (the family He was a member occupying a car Avenger) owned (Dennis Lisowski). the named insured The car had no UIM under policy. other injured while insured, was a not the named but in
passenger listed an underinsured vehicle not in policies' language endorse- in the relevant The ments is identical. appeals' agree reason- with court of 29. We
ing that: in Crandall business, him as not for policy a Crandall's
[T]his is The is described in various policy an individual. ... policy and as a businessowner's places within kind of unexpected It would be for this garage policy. his under circum- cover Crandall and wholly unrelated to business. stances Crandall's Id.,
IV CONCLUSION language which auto" on 30. The "for covered appears case turns is substantive this including places policy, in the the endorsement several together, page. provisions of the are read When the agree ambiguous. We with the reasoning Crandall, 2d and we believe it 269 Wis. Crandall, this an here. Like case concerns controls (UIM) motorist endorsement to a business underinsured injured policy; *16 Crandall, it an also, like involves auto party the a driver who is not who is not named policy, and a vehicle not listed in an insured under if the auto is charac- Even covered endorsement, it exclusion in the UIM terized as an § 632.32(5)(j) conditions in Stat. are valid when the Wis. they satisfied, are here. We therefore affirm the as appeals. court of decision of the appeals By of Court.—The decision court is affirmed.
406 (dissenting). ¶ BRADLEY,J. I 31. ANN WALSH majority dispute agree with the that here is coverage Lisowski was entitled to as "whether Jonathan regardless where he was at the time he was an insured injured Majority op., motorist." the underinsured added). (emphasis upon I refer to 10 Based what (UIM), coverage Rule 101 of underinsured motorist undoubtedly: yes. answer is By 101,1 Rule mean that basic to the nature coverage "personal is that it is
of underinsured motorist family portable" the named and for resident members of insured. As a learned treatise on Wisconsin insurance explains: "Keep in mind that UIM as well as UM law coverage portable personal I and and follows Class [resident members of the named in- insureds sured]." Anderson, 1 R WisconsinInsurance Law Arnold (5th 2004). § 4.14 ed. por- "personal
¶ 33. does it mean to be and What table"? "Personal" means person follows "portable" it vehicle, and not the means that person regardless where he is at the time of follows general liability policies Unlike automobile the accident. specific policies auto, insure the which insure a person. explained previously 34. We have I he
for Class insureds follows the insured "wherever may go, motorcycle, vehicle, be it 'in an unowned on a on bicycle, whether afoot or on horseback or even on pogo Co., stick.'" Farm Ins. 2006 WI State Teschendorf (quoting ¶89, 25, 2d 258 Welch 293Wis. 717 N.W.2d Co., 172, 181, Ins. 122 2d v. State Farm Mut. Auto Wis. (1985)).1 N.W.2d (UM) dealt with an uninsured motorist While Teschendorf analysis policies to UIM as well. See 1 Arnold policy, applies its (5th 2004). Anderson, R Wisconsin Insurance Law 4.14 ed. *17 majority correctly acknowledges The 35. dispute a member of that, there is no as resident is a I insured. the named Jonathan Class Majority op., ¶ I Rule 101 Thus, 10. conclude based on (UIM "personal portable") coverage is and policy regardless UIM Jonathan is covered under his injured. at the time he where he was majority opinion problem The with the is (1) by ignoring this tenet of UIM cover- twofold: basic age, collapses I and it the distinction between Class occupants requiring II all to be insureds, Class insureds (2) by concluding autos; that the lan- of covered and guage unambiguous, it is clear and contra- parade dicts a of cases from other courts and avoids ambiguity cannon of construction that is decided favor of the insured.
I majority occupancy 37. The concludes that requirement coverage covered auto is a for UIM under reaching majority In this this conclusion the determines that UIM I is Class insureds "personal" "portable." neither nor traditionally policies ¶ 38. UIM cover three dis Law, tinct classes of insureds. Wisconsin su Insurance § pra, The 4.11. named insured and relatives who reside in the named insured's household are Class I "occupant insureds, insureds," Id. II or insureds. Class anyone occupying include else while a covered auto. Id. Finally, anyone who is entitled claim a to derivative nationally, III Id. In as Class insured. Wisconsin well portable personal ins for Class I ureds.2 Law, supra, Wisconsin Insurance see also Alan I. 4.14; Uninsured and Underinsured Jeffrey Thomas, & E.
Widiss *18 provisions ¶ 39. The of Jonathan's father's UIM policy correspond understanding with this of UIM insur- grant coverage ance. The initial of states that "pay legally will all sums the 'insured' is entitled to compensatory damages recover as from the owner or policy driver of an 'underinsured motor vehicle.'" The further defines three distinct classes of insureds:
I. The Named "family Insured and [resident]
members." Anyone "occupying" II. else a covered "auto" or tem-
porary substitute for a "covered auto”.... Anyone III. damages he or she is entitled to recover "bodily injury"
because of by sustained another "insured."
¶ 40. The of definition Class I insureds contains occupancy requirement. only no The insureds who occupy coverage must a covered auto to be afforded are majority's analysis, II Class insureds. Under the how- ever, there is no distinction between Class I and II Class occupants insureds —both must be of a covered vehicle coverage. in order to receive principle policy interpre
¶ 41. An established give tation is that courts should read a to meaning every provision, avoiding to constructions that portions policy meaningless. render of the Isermann v. Corp., MBL Assur. Wis. 2d Life (Ct. 1999). App. given N.W.2d If the is majority, effect advanced the definition of Class meaningless Why I insureds is rendered here. would policy differentiate between I Class insureds and Class II insureds if there is no distinction? (3d 2005) ("Most
Motorist Insurance 33.2 significantly, ed. (1) insureds do not occupant have to be an of an clause/class covered."). injury insured vehicle when an occurs order to be meaning every give Reading to this between provision, is a distinction I that there conclude need not I insureds II insureds —Class I and Class Class occupy covered under in order to be a covered auto I Jonathan's As a Class UIM endorsement. portable personal en- and he is may go. he wherever titled II principle eschewing of UIM this basic ¶ 43. After upon majority coverage, a determination embarks ambiguous or *19 the whether analysis majority's lynchpin unambiguous. the The of unambiguous. language is clear and that the language majority the concluded that however, the If, ambiguous, the case in favor have to decide it would was Ambiguity in an insurance Jonathan. of coverage. v. Folkman in favor must be construed ¶ 13, 617, 2d 665 116, 264 Wis. 2003 WI Quamme, N.W.2d857. majority opinion problem
¶ with the 44. The the conclusion that steadfast to its that it remains unambiguous, disregarding language the is clear and examining same of court after court conclusions parade language. of courts has examined Indeed, opposite language to a conclusion and reached identical majority. the court of ¶ court and 45. Both the circuit language argument appeals that found Jonathan's ambiguous persuasive. Nonetheless, both to be holding of Crandall ex to bound follow courts were Society Insurance,3 the court of in which Johnson v. rel. unambigu appeals determined that similar occupants ously to of covered restricted 3 34, 765, 2d N.W.2d 174. App 2004 WI 269 Wis. struggled to reconcile the obvious autos. Both courts ambiguity unequivo- with the in this UIM endorsement unambiguous. holding in that it was cal Crandall begin, 46. To the circuit court stated legal arguments secondary Jonathan's authorities sympathetic persuasive: tempted "I were would be be finding that it does create ambi- —to guity." Nonetheless, the court concluded—as it must— that it was constrained to follow Crandall. Initially, appeals
¶ 47.
the court of
certified the
introductory
"[t]he
question
noting
court,
to this
provision
plainly
Crandall relied on is
inconsistent with
provisions
modify,
it"
that follow and asked us to
accept
limit, or overrule Crandall.
did not
certifica
We
ultimately
appeals
tion, and the court of
determined
4Cook, it
that under Cook v.
must follow conclusion
though
disagreed
court,
the Crandall
even
it
with it.
Co.,
2006AP2662,
Lisowski v.
Mut. Ins.
No.
(Ct.
2008).
unpublished slip op.,
App.
31,
Jan.
appeals Ruenger
Likewise,
the court of
App
Soodsma,
228,
281 Wis. 2d
695 N.W.2d
WI
struggled
unequivocal
to reconcile Crandall's
hold
ing
plainly
policy language. Ruenger,
with
inconsistent
argued
introductory language
that identical
*20
conjunction
ambiguity
read in
with
as here created
when
coverage
¶
Id.,
the UIM
34.
the
section of
endorsement.
acknowledged
coverage
The court
that the
section of the
provided coverage
endorsement,
alone,
read
for the
occupying
I insured while
an uncovered vehicle.
Class
Noting
Ruenger's
¶
Id.,
31.
that
there was merit to
argument,
ambiguity
the court concluded that nonethe
holding
Id.,
in Crandall.
34.
less, it was bound
the
4
(1997)
166, 189,
(stating
208 Wis. 2d
411 country ¶ 49. Courts around the have examined language uniformly identical and have determined that ambiguous. Reisig Allstate, it is v. See N.W.2d (Neb. 2002) ambiguity (finding 550-51 because the terms of the UIM endorsement conflicted introductory language with auto"); Bushey
"for a covered (Md. 2001) App. Co., N. Assurance 766 A.2d Ct. (same); Co., see also Stoddard v. Citizens Ins. (Mich. 2002) App. (determining 265, 269 N.W.2d Ct. unambiguously pro that a similar UIM endorsement though vided to a I insured even Class auto). occupy insured did not a covered give majority pause It should that in all cases, of these the courts have determined that identi- language very contextually was, cal at least, am- biguous. majority unhesitatingly Nonetheless, eye overwhelming weight turns a blind to this of authority, clings Crandall, and concludes language unambiguous. is clear and Wis- interpretation. stands alone in consin this majority ¶ 51. The determines that there is no ambiguity because the covered auto in the UIM page endorsement is consistent with the declarations of liability policy.Majority op., ignores, 25. It how- ever, the obvious conflict between the covered auto grant and the in the UIM endorse- focusing symmetry ment. In on the between the decla- page language, rations the "for a covered auto" majority principle skirts the established of insurance ambiguity construction that must be construed in coverage. favor of Finally, requested by appeals
¶ 52. the court in its certification court, memorandum to this I would opportunity modify take this Crandall. The court of appeals correctly explained introductory "[t]he *21 plainly provision relied on is inconsistent with Crandall interpretation provisions it." Our should that follow the reality comport other that observed courts with language language the same have examined —the ambiguous. is majority proclaims Although 53. unambiguous, it does is clear and not neces sarily Instead, it all too often this finds make so. court unambiguous policy language then which obviates meaningful analysis. I am further reminded need for poem by "I have of nonsense Lewis Carroll: words you I tell three times is true."5 said it thrice: What pro- courts thrice 54. Just because Wisconsin unambiguous, this it claim that clear proclamation in it no true than makes more poem. reasons, I conclude For the above would Carroll's injuries are under his father's that Jonathan's covered interpretation es- is consistent with This principles and of of UIM insurance tablished respectfully policy interpretation. Accordingly, I dis- sent. I JUS- am authorized state CHIEF joins SHIRLEY S. ABRAHAMSON this dissent.
TICE cried, place a Snark!" the Bellman "Just care; with As he landed his crew top
Supporting each man on the the tide By finger in his hair. entwined place I have it twice: "Just the for a Snark! said encourage the That alone should crew. place I have it thrice:
Just the for a Snark! said you What I tell three times true." (1876). Carroll, Hunting of Lewis "The the Snark"