*1 Progressive Company, Insurance Northern
Plaintiff-Respondent,
v. P. Richard Romanshek, Defendant-Appellant, Wisconsin, Shield United Blue Blue Cross Defendant.
Supreme Court argument February Oral No. 2004AP740. Decided June 2005 WI 417.) (Also reported 697 N.W.2d *6 (in defendant-appellant there was a brief For the by appeals) Bohl, Michael R. Charles H. the court of Whyte, S.C., Milwaukee, Hirschboeck Dudek Sarner and by Hayes argument O'Brien. oral Tamara and (in plaintiff-respondent there was brief For the by appeals) Kurth, Lauer, J. Patti J. and court of Robert S.C., Swietlik, Milwaukee, and oral Lewis & Kasdorf, argument by Robert J. Lauer. Riley by was filed Michael
An amicus curiae brief Axley Brynelson, LLP, Madison, on behalf of Wis- Academy Lawyers. of Trial consin was filed Noreen J. An amicus curiae brief Godfrey Parrett, and LaFollette & James A. Friedman Kahn, Madison, on behalf of the Wisconsin Insurance Alliance. WILCOX, J. This case is before the 1. JON P bypass, pursuant to Wis. Stat.
court on a motion to (2001-02)1 (Rule) § § 808.05 and Wis. Stat. 809.60. We again upon are once called to determine whether the phrase "hit-and-run" within the definition of "uninsured requires motor vehicle" in Wis. Stat. (UM) provide an insurer to uninsured motorist cover- age when its insured is victim of a "miss-and-run" long prece- accident. We decline to overrule our line of requiring physical involving dent contact in an accident an unknown vehicle in order for there to abe "hit-and- meaning run" within the There- fore, we affirm the order of the circuit court.
HH May Progressive 28, 2003, 2. On In- Northern Company (Progressive) complaint surance filed a *7 declaratory judgment against insured, its Richard P (Romanshek), seeking Romanshek rights a declaration of the parties policy. of the under its insurance The following alleged Progressive's complaint facts were and admitted in Romanshek's answer. Progressive company
¶ 3. is a domestic insurance licensed to do business Wisconsin. Romanshek is an Progres- adult resident of Wisconsin. Romanshek had motorcycle liability policy sive insurance in full force and effect at all relevant times. The contained a provision prоviding coverage. UM On December driving Harley-Davidson 2002, Romanshek was his motorcycle Naples, Florida, and was involved in a motor vehicle accident.2 The accident involved uni- subsequent All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise indicated. 2 Progressive's policy requiring contained a clause all dis putes according to be settled to the law of state in which the insured resides. turned in front of Romanshek's
dentified vehicle that motorcycle, causing control of his Romanshek to lose injuries. ground, and suffer machine, fall to the motorcycle came into con- never Romanshek's any part or of said the unidentified vehicle tact with away and never drove has vehicle. The unknown vehicle identified.3 been subsequently made a claim with 4. Romanshek portion policy.
Progressive Pro- the UM of his under February gressive claim in a letter dated denied his ground vehicle was not 2003, on the that the unknown policy. defined in the an "uninsured motor vehicle" as pertinent part: Progressive's policy provides, in AGREEMENT-UNINSURED MOTOR- INSURING IST COVERAGE DEFINITIONS
ADDITIONAL "Uninsured motor vehicle" a land mo- means any type tor or a trailer while used vehicle a land motor vehicle: with operator or c. that is a hit-and-run vehicle whose and which strikes owner cannot be identified *8 relative; you i. or a you or a relative are occu-
ii. a vehicle that pying; or Romanshek's Progressive apparently does not contest
version of events. vehicle;
iii. a covered that the provided person, insured or someone behalf, reports on his or her the accident to the police authority practi- or civil as soon as cable after the accident. added.)
(Underscoring Progressive subsequently com- present seeking action, menced the a declaration that coverage provided policy no UM under the for a miss-and-run accident. Progressive 22, 2003, 5. On October filed a mo declaratory/summary judgment, arguing
tion for
that its
provide
coverage
did not
UM
because the un
motorcycle
known vehicle did not strike Romanshek's
and thus was not an "uninsured motor vehicle" as de
policy.
opposition
fined in its
In its brief in
Progressive's
summary judgment,
motion for
Roman-
Progressive's policy requires
shek did not contest that
physical contact in order for an unidentified vehicle to
qualify as an "uninsured motor vehicle" under the "hit-
argued
and-run" definition. Rather, Romanshek
requiring physical
Progressive's policy imper-
contact,
missibly attempts
scope
to narrow the
of UM
632.32(4)(a)2.b.,
§by
according
mandated
which,
to Ro-
containing
manshek, should not be read as
requirement. Specifically,
argued
Romanshek
Progressive
Co.,
v.
Northern Insurance
(1983),
interpreted
Wis. 2d
Theis
162(citations omitted).
606 N.W.2d
granting
summary judg
9. The
standards
*10
ment are well known and need not be set forth in full.
§
undisputed,
See Wis. Stat. 802.08. When the
are
facts
interpretation
application
and
of a statute to these
present question
appropriate
summary
facts
of law
judgment.
Corp.
Americomp
See Tri-Tech
Am. v.
Servs., Inc.,
¶88,
2002 WI
254 Wis. 2d
WayExpress,
822;
Bast,
N.W.2d
Fore
Inc. v.
178 Wis. 2d
(Ct.
1993);
App.
693, 701,
I—I h—< HH 632.32(1) provides 10. Wisconsin Stat. every policy of insurance issued in Wisconsin must provisions. Among mandatory contain certain these provisions § 632.32(4), requires is Wis. Stat. which policies provide coverage insurance UM and medical 632.32(4)(a) payments coverage. gov- Wisconsin Stat. provides policies erns UM and that insurance provision: must contain a
1. For protection injured of persons who are legally damages entitled to recover from or owners operators of uninsured motor bodily vehicles because of injury, disease, including sickness or resulting death therefrom, $25,000 of at per person limits least $50,000 per accident.
2. In paragraph this "uninsured motor vehicle" also includes:
a. An insured motor vehicle if before or after the accident liability insurer of the motor vehicle is declared competent jurisdiction. insolvent court of in a vehicle involved motor An b. unidentified accident. hit-and-run under the uninsured making payments 3. Insurers be shall, payment, extent of to the motorists' rights of their insureds. subrogated to the added.) (Emphasis argues courts that Wisconsin 11. Romanshek requirement forth set contact eroded
have should therefore abandon and that this court requiring physical argues con- contact He also it. Finally coverage. he asserts UM the intent of travenes requiring majority have held that of other states that a a hit-and-run is for there to be order against public policy. *11 argues Progressive that case
¶ contrast, In consistently § interpreting re- has law coverage quired physical UM to be contact in order for argues required. court has that because the It also any change consistently interpreted statute, in the the legislature. statutory requirements the come from must policy Progressive its that because Moreover, states clearly physical requires to in order for there be contact reasonably expect could not hit-and-run, a Romanshek Progres- physical coverage contact. there was no where by parties their contrac- are bound that the sive states agreement, insur- cannot rewrite the and the court tual eliminate the contract to ance requirement. by begin emphasizing
¶
that the sole issue
13. We
proper
appeal
the
construction
on
is
question
"[t]he
§
to
de-
Therefore,
be
policy,
of the
but
...
not the construction
cided hеre
is
expecta-
requires. Thus, the reasonable
the law
what
regarding
language
tion of the
policy
insured
the
of the
analysis
is not
relevant
to our
of Wis. Stat.
632.32(4)(a)2.b."
Smith
Co.,
v. Gen. Cas. Ins.
2000 WI
"[Clover-
27, 239
Wis. 2d
"physical interpreted provide contact" should be so as coverage where a vehicle forces insured off the road actually striking without the insured's vehicle. Id. at 49. argued justification only The insured also that "the 'physical requirement prevention contact' fraudulent claims" and that because there was no requirement inapplicable. fraud, evidence of was Id. rejected argument, 16. The court the insured's ruling:
We are satisfied that the phrase in the policy, contact," "physical is intended to express no other meaning than that plainly which apparent on its face. Despite the arguments forceful appellants, of the we conclude that there is no reasonable construction to this phrase that supports other than the requirement "hit-and- striking actual between an
that there be vehicle, in a at least insured's and the run automobile" very The only vehicles are involved. two situation where "hit-and-run," policy sup- term, in the contained itself term we to the meaning that attribute plain ports word, "hit," is defined The "physical contact" Dictionary as: International Third New Webster's at— object aimed striking "la: a blow thing оf one impact ... b: an with miss contrasted collision .. . ." against another: added). (first emphasis Id. at 51 "[p]ersuasive closing, court noted that In 17. statutory requirements arguments made that could be provided. plaintiff should be to the to afford require present such however, not statute, does The provide coverage, for it." as written nor does the 54. Id. at legislature Subsequently, enacted
§ of uninsured in the definition 632.32, included which "[a]n motor vehicle involved vehicle, unidentified motor ch. Laws accident." in a hit-and-run Legislative stated, in to this section Council Note The precise pertinent part: hit-and-run is definition of "A question necessary rare case where Legislative Council the line." can draw arises the court 1979, 632.32, Stats. Note, Following of this new stat- the enactment appeal" Hayne. on "The sole issue court decided
ute, this 632.32(4)(a)2.b., Hayne Stats., "whether sec. was requires accident for-an uninsured motorist involving mo- an unidentified vehicle and an insured's physical contact between no when there was tor vehicle Hayne, The 2d at 69. 115 Wis. vehicles." the two to the almost identical were facts of relevant *13 presented facts in the present case. Id. The precise Hayne was "whether the term 'hit-and-ruii' question includes 'miss-and-run' or whether it requires an actual Id. physical striking." at 73. 20. We examined a variety dictionary defini-
tions of "hit-and-run" and concluded "[t]hese definitions clearly indicate that the plain meaning 'hit-and-run' consists of two elements: 'hit' or 'run', and a striking, or from the scene of an accident." Id. at 73-74. fleeing Thus, we concluded: statutory
[ T]he language 632.32(4)(a)2.b., of sec. Stats., unambiguous. We therefore legislature's arrive at the intent according language its common and accepted meaning. previously noted, As the common and accepted meaning of the term "hit-and-run" in cludes an element physical contact. Section 632.32(4)(a)2.b. coverage only mandates for "hit-and- run" involving accidents an unidentified motor vehicle. 632.32(4)(a)2.b. The statutory clear language of sec. legislative reflects a intent that the apply only statute to accidents in which there has been contact. Because there was no contact under the cir case, cumstances of this sec. does not support Hayne's coverage. claim for (citation omitted). Id. at 74 21. Further, we reasoned: legislature
If the had intended its mandated uninsured motorist apply any to involving accident motorist, unidentified Hayne asserts, as that result could have heen merely by reached deleting the term "hit-and-run" from language statute], in [the having provision read: "an unidentified motor vehicle not, involved in an legislature accident." The did however, omit the term Therefore, "hit-and-run". define "hit-and-run" in sec. to include any in or other involved was type of accident where motor vehicle involving an unidentified
accident *14 the term to render contact be no would physical there is (cid:127) That we surplusage. mere in statute "hit-and-run" do. cannot
Id. at 76. thаt we argument rejected Hayne's 22. We also include a to "hit-and-run" interpret phrase
should had reached other jurisdictions because "miss-and-run" conclusion: a similar have in other states note that courts
alsoWe in their unin- "hit-and-run" the term concluded that con- not connote does motorist statutes sured based, statutes part, in on other tact. This conclusion to in an accident a involved duty on driver imposing . information, render aid.. . certain stop, provide statutes, however, is en- these version of Wisconsin's or occu- or attended "Duty striking person upon titled added.) 346.67, (Emphasis Stats. pied vehicle." Section 346.67(l)(a) "... he shall part: in provides, Section number of name, registration address and give his The struck ...." driving person to the he is the vehicle our supports 346.67 "striking" in sec. reference in meaning of "hit-and-run" plain that the conclusion 632.32(4)(a)2.b. ele- includes sec. ment. omitted). (footnote
Id. at 75 Hayne's argument rejected 23. We also we reached the result intended to overturn legislature Id. at in Amidzich when it enacted Amidzich, we specifically As noted previously, 76-79. UM could mandate the legislature stated Amidzich, statute. accidents for miss-and-run Hayne, In we concluded: 2d at 54. If, fact, legislature had that statement from Amidzich in 632.32(4)(a)2.b., mind when it enacted sec. it then also aware was of the discussion in Amidzich of term "hit and run". the legislature Had intended assertion, Hayne's way the clearest to effectuate that intent was simply "hit-and-run", not include the term thereby mandating "miss-and-run acci- legislature dents" as The that, well. did not do but deliberately instead included sec. the term "hit-and-run". unambiguous The meaning of the term a physical includes contact element. legislature
The presumably aware of was the discussion in Amidzich concerning meaning the literal of "hit-and- run", and certain arguments favoring inclusion statutory within the provision uninsured motorists *15 coverage for "miss-and-run" accidents.
Hayne, 115 2d Wis. at 84. 24. Furthermore, we concluded the that legisla-
tive history the supported conclu- sion that the term hit-and-run included contact rеquirement: "[The] Legislative Council re- the port legislature to indicate that those [sic] respon- sible the for revision adding 'hit-and-run' as a accidents to be category included in required uninsured motorist were coverage simply incorporating of cov- category into erage the statute that most standard insurance Id. policies already contained." at 83. We also stated that miss-and-run accidents were not "rare" among the cases referred in to the Council Legislative Note § 632.32. Id. at sum, 82-83 n.8. In we concluded: legislature
[ T]he was confronted two with distinct One, policy choices: it could define uninsured motor vehicle to include unidentified vehicle motor in accident, in an regardless volved whether occurred; two, it define uninsured or could motor vehicle to include an unidentified motor vehicle legislature The in a "hit-and-run" accident. involved alternative. chose second Id. at Shirley dis- S. 25. Then Justice Abrahamson arguing majority opinion, that from several
sented including arguments supported policy ac- miss-and-run accidents. for hit-and-run within UM cidents majority response, In noted: Id. at 85-99. Many arguments favoring uninsured of the involv- "miss-and-run" accidents motorist are ing motor vehicles addressed unidentified cannot, however, wording change the of a dissent. We something mean construction to statute liberal intend, plain lan- legislature did not or legislature The guage support. of the statute will desires, can, motorist it amend the uninsured so if policy arguments. those statute reflect added). (citation omitted) (emphasis n.11 Id. at 85 Following Hayne, the court our decision Heritage Wegner appeals decided v. Mutual Insurance (Ct. 1992), App. Co., 496 N.W.2d Dehnel Farm Automobile Insurance v. State Mutual (Ct. 1999). App. The Co., 231 Wis. 2d 604 N.W.2d Wegner man- issue was whether involving coverage in an three dated UM accident *16 lane of the vehicles where the first car swerved into the causing the car, second car swerve into second the resulting car, in the insured's lane of the insured's Wegner, being 173 2d at vehicle forced off the road. Hayne, appeals, relying on concluded 121. The court of not "the uninsured motorist insurance laws do that 318 provide coverage a for hit-and-run driver that not does vehicle[.]" 'hit' another Id. at 120. Dehnel, In the insured's vehicle was dam-
aged piece passing aas result of a iceof fell off a that of Dehnel, semitrailer. 2dWis. at 15. The of court appeals by held that UM not was mandated 632.32(4)(a)2.b. § piece under these facts because a falling ice from an unidentified vehicle was not a hit-and-run accident. Id. The court reasoned:
The type contact which required under 632.32(4)(a)2.b. § has by been supreme described "touching court as a Hayne, between vehicles." See However, Wis. 2d at contact that occurred here any was not part between of the semi and Rather, Dehnel's vehicle. it touching, was indirect that the ice integral was even an part of the vehicle, unidentified such aаs tire that had become unattached.
We enlarging statutory also note that interpre- by tation established the supreme court to cover extra- objects may neous by be carried vehicles would have no ending coverage. reasonable point Id. at 21-22. interpret 28. The next occasion this court had Theis, in was Theis. In the insured's by spring, part
vehicle was struck a leaf of a semi- although object tractor, it was unclear whether the fell passing off a semi-tractor came or from another vehicle merely propelled passing and was semi-tractor. Theis, ¶¶ Wis. 2d 4-5. analyzing
¶ 29. In whether type mandated for this we accident, noted "[o]ur appeals court court of have 'drawn line' on Id., ¶ uninsured motorist claims ...." 19. How- ever, we stated: *17 the interpreted have
Although the Wisconsin cases 632.32(4) to re- of Wis. Stat. provision hit-and-run an motor between insured's quire physical vehicle, they have and unidentified motor vehicle negate contact" "physical the statute interpreted part a of an motor vehicle and between the insured's motor vehicle. unidentified noting distinguished Dehnel, ¶ Id., addition, In 26. we piece present "[i]n Dehnel, in a de- case, the unlike pro- was an unidentified motor vehicle tached from pelled by plaintiffs an unidenti- the motor vehicle into Finally, ¶ Id., 25. concluded that vehicle." we fied motor mandating type this of accident would be purposes Id., the of the UM statute. consistent with 632.32(4) ¶¶ Thus, concluded: "Wis.Stat. 28-31. we requires of an that uninsured motorist clauses the policy provide a detached when insurance propelled piece into motor vehicle is an unidentified vehicle an unidentified motor the insured's motor ¶ Id., 11. vehicle." Finally, presented Smith, in was this court 30. ^Wegner. a the in Smith involved variation of facts
with began an unidentified a accident that when three-car a left of the interstate struck tractor- car lane turn, lane, which, in the center struck double trailer right Smith, in the lane. 239 Wis. insured's vehicle presented question 646, ¶ was "whether this 2d 3. The meaning within the reaction collision is 'hit' chain Id., the statute." analysis "[a] began by noting We our are occurs when three elements satis-
hit-and-run (2) (1) vehicle; there is an unidentified motor fied: (3) hit; involved unidentified vehicle is vehicle 'runs' from the scene unidentified motor (citing Theis, Id., ¶ 232 Wis. accident." 14-16). ¶¶ "[w]e In addition, we reiterated that have previously phrase held hit-and-run in Wis. *18 § unambiguously Stat. physical 'includes (quoting Hayne, ¶ Id.,
contact element.'" 79). 2dWis. at We stated that the issue involved was physical requirement whether the contact was satisfied presented. under the facts Id. Examining plain language
¶ 32. of the stat- ute, we reasoned: §
Wisconsin Stat. an defines unin- sured motor vehicle as "in- "an unidentified" vehicle in a volved hit and run The use accident." of the word "involved" does not strike us as word that be should narrowly only applied to a hit-and-run accident involv- ing a Here, direct hit to the insured vehicle. clearly
unidentified vehicle was precipi- "involved": it tated the through accident contact with the intermedi- ate vehicle.
Id., 12. jurisprudеnce Next, 33. we examined our UM prior catego- and stated that our fell cases within two involving ries: cases and miss-and-runs cases involv- ing objects. flying Id., ¶ 14. We stated that both lines physical requirement: of cases involved contact "While the miss-and-run cases establish the requirement, presents contact second line cases examples required of where the court was consider requirement Id., ¶ whether that was satisfied." 22. We distinguished the miss-and-run because "in the cases contact; instant case there was a the unidentified vehicle vehicle, had contact with the intermediate which in turn had contact with the insured vehicle. The interpreting' miss-and-run cases do not foreclose Wis. 632.32(4) § mandating coverage Stat. as in this case." Id., ¶ 21. underlying policies Finally, examined the we public policy concern of "the and 632.32 concluded
preventing claims" would be satisfied fraudulent coverage type mandating and that of accident this mandating would further such compensаtion injured providing as the same motorist Id., ¶ Thus, insured. if motorist were the uninsured in- an unidentified driver that "when we concluded collision, the reaction in a chain volved requirement a 'hit-and-run' is satisfied 632.32(4)(a)2.b." Id. under Stat. is mandated argument principal on this ¶ 35. Romanshek's appeal our should overrule because is that we subsequent have eroded the to that decision cases *19 point physical requirement it to the where has contact reject meaning. argument because, the this as no We demonstrates, our cases and the both above discussion consistently appeals' have adhered to decisions court interpretation forth in set physical requires Hayne, contact in accidents which involving for there to be unidentified vehicle order Smith, 239 2d Wis. a hit-and-run under statute. ("We previously phrase ¶ have held that the 646, 11 632.32(4)(a)2.b. unambigu- Stat. hit-and-run Wis. element.'")(quoting ously physical contact a 'includes 79); ¶ Hayne, Theis, 232 2d 26 115 Wis. 2d at Wis. (accord); Wegner, (accord); Dehnel, 2d at 21 231 Wis. ("[T]he 121 uninsured motоrist insur- 2d at 173 Wis. provide coverage a hit-and-run ance laws do not vehicle[.]"). 'hit1another that does not driver ¶ Further, in these cases have not 36. the results requirement. physical The contact undermined "flying objects" Dehnel, reaf- as Theis and cases, such simply physical requirement and firmed contact applied that rule to unusual factual scenarios. See ("While Smith, ¶ the miss-and-run physical requirement, cases establish the contact objects] [flying presents examples cases of where the required require- court was to consider whether that satisfied."). ment was 37. found Dehnel that UM was not foreign object, piece
mandated when a
ice,
fell from
an unidentified vehicle onto the insured's vehicle. Deh
nel,
between
vehicles."
115 Wis. 2d at
subsequent
involving
38. Cases
not
objects
flying
consistently
have
adhered to the
requirement. Wegner,
appeals
contact
In
the court of
concluded
UM
was not mandated because
a car that was forced off the road as another swerved
into its lane
was
in a
involved
hit-and-run accident
due to the fact that
there was no
Wegner,
"[T]he
between the vehicles.
implicated "involved." the additional pеrfectly Wegner were consis- and Smith such, both As Hayne, 2d at which concluded 115 Wis. tent with statutory language "[t]he of sec. clear that 632.32(4)(a)2.b. legislative intent reflects only apply has been in which there to accidents statute physical contact." years court has con- Thus, for over 20 this meaning plain, unambiguous
sistently
to the
adhered
632.32(4)(a)2.b.,
Hayne.
§
have con-
as
forth in
We
set
sistently
not mandated
UM
was
ruled that
632.32(4)(a)2.b.
accidents. The
in miss-and-run
under
coverage was man-
that UM
in which we found
cases
§by
all involved circumstances
dated
part
vehicle,
thereof,
or
made
where an unidentified
or
an uniden-
vehicle where
contact with the insured's
in which
in an accident
tified
was "involved"
vehicle
recognized
physical
in
short, we
contact. In
as
there was
"[o]ur
Theis,
court
the court
2dWis.
appeals
motorist
a line' on uninsured
have 'drawn
by requiring
to fall
order
claims!,]"
coverage within the mandated UM
simply
line
it
not
from that
when
have
deviated
We
to miss-and-run cases.
comes
argues
we should
next
40. Romanshek
majority
holding Hayne
because a
our
abandon
(27)
contact "is
have held that
other states
impermissible
unknown
limitation on uninsured or
policy."
against public
Pet'r Br.
motorist statutes and
requiring physical
addition,
at 5. In
he asserts that
coverage.
of UM
We are
contact contravenes the intent
persuaded by
arguments for several reasons.
these
*21
Any
¶ 41.
time this court is asked to
overturn
prior
thoroughly
case, we must
consider the doctrine of
stare decisis. "This court follows the doctrine of stare
scrupulously
abiding respect
decisis
because of our
Employers
of
rule
law."Johnson
v.
Controls
Ins. of
Wausau,
108,
2003
94,
60,
WI
264
2dWis.
665 N.W.2d
"longstanding
is a
It
rule
this
court
bound
'is
by
precedent.'"
Hansen,
its own
State v.
53,
2001 WI
(Wilcox,
¶ 52, 243
328,
Wis.
J.,
2d
¶ 42.
ensures that
lightly.
existing
law will not be abandoned
law
When
'is
open
every
"deciding
to revision in
case,
cases becomes
judicial
arbitrary
a mere
will,
exercise of
with
and
unprediсtable
Natwick,
results."'" Schultz v.
2002 WI
(footnotes
37,
19,
2d
257 Wis.
[ 0]ne predictable is a consistent rule provide stare decisis to sоciety may properly [its] of which ... order upon law affairs, i.e., engage in rational business decision- [,] ominous threat of making, without the continuous being changed. legal bases for those decisions (Wilcox, Controls, 60, ¶ J., 264 Wis. 2d 149 Johnson particularly dissenting). control Thus, stare decisis legal ling impacts rule contractual relation where ships, Reszcynski, 869, 2d 836, v. 70 Wis. Antoniewicz (1975), upon 1 has been relied 236 and N.W.2d industry, Corp. Dakota, 298, U.S. 317 Quill v.North 504 (1992). proper respect such, As the doctrine stare prior rarely overturn decisis means that this court will only criteria are met. decisions when certain ¶¶ Controls, 2d "The Johnson 264 Wis. 98-99. prior a case not be under decision to overturn must merely composition of the court has taken because changed." (citing Id., ¶ Stevens, v. 181 95 State (1994)(Abrahamson, con 410, 442, 511 591 J. N.W.2d curring)). para- Moreover, are 45. stare decisis concerns authoritatively interpreted a a court has
mount where legislature free to remains alter its statute because party Hilton, 502 at 202. asks cоnstruction. U.S. When prior interpretation this to of a stat- court overturn only [the ute, his show it is "burden... 326 decision] objectively was mistaken but also that it was wrong, compelling so that court has a reason to Co., overrule it." v. WI 103, Wenke Gehl 2004 Wis. 2d N.W.2d405. today Thus, function this court is not interpret de It novo. is not a
sufficient basis to overrule that this court dis- agrees its Controls, with rationale. Johnson Wis. 2d ¶60, Rather, we must determine whether Roman- provided justi- shek has met his burden and sufficient years jurisprudence fication to overturn constru- ing a statute. We he conclude has not done so. 632.32(4) interpretation *23 Hayne
¶ 47. Our of in clearly implicates involves contracts and reliance inter- 632.32(4) governs ests. Section insurance contracts and policies provide types mandates that insurance certain coverage. consistently of coverage This court has ruled that UM not mandated under physical where there is no Insurers, contact. like Pro- gressive, have no relied doubt on these cases and physical requirement retained a policy provisions. contact in their UM likely
"It is more than some of companies utilizing [a clause] the premium such have established upon validity
rates in reliance the of such a being upheld by clause the decisions of this court." Gilbertson, Bauman 467, 469, v. 7 96 Wis. N.W.2d (1959). Moreover, the reliance interests other parties Progressive very aside, was insurer whose implicated Hayne. was in foreign jurispru-
¶ 48. Romanshek's reliance on depart dence is not a also sufficient reason to from our ruling Hayne. in "It is not sufficient for this reason precedent large majority court to overrule its that a authority binding jurisdictions, on this other with no opposing Johnson court, have reached conclusions." Controls, noted, As Wis. 2d meaning requirement plain from contact derives phrase as in found "hit-and-run" merely Hayne. cites to broad statements in Romanshek foreign concerning purpose of UM stat- from cases any textually-based generally; has not offеred utes he Hayne arguments not that undercut the considered fact states rationale of that decision. The that some involving their have a different conclusion reached legitimacy germane not to of our inter- statutes is pretation UM of Wisconsin's statute. cognizant addition, In itself was rejected require-
other states had UM in hit-and-run accidents. As ment for supra, Hayne noted that these states have discussed stop requiring render motorists to aid' statutes an accident and that courts these when involved in apply all states have construed these statutes to to involving physical simply those contact. accidents, Hayne, declining follow 2d at 75. In these jurisdictions, Hayne version of reasoned: "Wisconsin's striking 'Duty upon however, statutes, is entitled these person occupied attended or vehicle.' Section 346.67 or 'striking' The reference sec. 346.67 Stats. ... *24 plain supports meaning our that of conclusion 632.32(4)(a)2.b. physical in 'hit-and-run' includes sec. contact element." Id.4
4 346.67(l)(a) in Hayne provides, also that "[s]ection noted name, registration give . he shall his address and the part: '. . driving person he to the struck . . . '." number of the vehicle Co., Hayne Ins. 115 Wis. 2d 339 Progressive v. N. N.W.2d (1983). many general Further, of the state- upon ments from the cases which Romanshek relies Hayne rejected were articulated in the in dissent and ("[I]t by majority. Compare id. at 95 is inconsistent purpose with the remedial of the uninsured motorist permit company statute to the insurance to evade coverage by using argument erecting the fraud and arbitrary distinction between accidents with without.") (Abrahamson, contact and those J., dissent- ing) (rejecting policy argu- with id. at 85 n.ll these ments). per- Moreover, even if this court were now policy arguments rejected Hayne, suaded those in that is not a sufficient reason to overturn the decision.
¶ 51. Romanshek has not demonstrated that our 632.32(4)(a)2.b. § interpretation Hayne of has failed provide consistency "to suitable direction and to this аrea of the Controls, law." Johnson Wis. 2d presented string foreign 106. All he has is a of cases generalized underlying pur- statements about the poses coverage. of statutes that mandate UM He has presented any Hayne's new facts undermine 632.32(4)(a)2.b. analysis § id., ¶ of See 98. As discussed supra, Romanshek has not demonstrated that our cases subsequent Hayne have undermined the rationale behind decision, which rationale was based on the 632.32(4)(a)2.b. plain § language of See id. He has not interpretation shown that our practice. id., ¶ is unworkable in See 99. As regularly applied noted, our courts have requirement to miss-and-run accidents and types other cases short, consistent manner. In presented compelling Romanshek has not us with a Hayne's application plain reason to overrule of the language simply Romanshek dis- *25 interpretation agrees our with Hayne. Controls, Ro- Furthermore, unlike Johnson simply a not ask us to reconsider recent
manshek does
provision.
interpretation of
He does not
a contractual
merely
doctrine;
us
a common-law
ask
to abandon
change
interpretation
our
rather, he asks
to
a
us
phrase
particular
that
for over 20
in a statute
has stood
long
years.
to
"This
has
been committed
court
given
principle
a
a
construction
to statute
legislature
part thereof,
a
court becomes
subsequently
unless
change."
the statute to effect
amends
City
PSC,
96, 100,
37
154
Sun Prairie v.
Wis. 2d
(1967).5
ju
following
"Legislative
360
inaction
N.W.2d
statute,
conclusive,
of a
while not
dicial construction
legislative
interpretation."
approval of the
State
evinces
Eichman,
552, 566,
155
2d
N.W.2d legislature changes particular specifically unless the stand Ct., holding."); County State ex rel. LaFollette v. Brown Cir. (1967)(accord). 155 N.W.2d *26 legislature explicitly up Note, cil the it left to the court 632.32(4)(a)2.b. § disagree. Legis- to construe We The provides, lative Council Note to which he refers in pertinent part: precise "A definition of hit-and-run is necessary question not for in the rare case where a Legislative arises the court can draw the line." Council § Note, 1979, 632.32, Stats.
¶ 54. However, this case is not one of the "rare" objects flying cases which the Note refers. Unlike our cases or the Smith, chain-reaction in collision this ais run-of-the-mill miss-and-run case. Unlike the aforemen- arguments tioned difficult cases where reаsonable can be may made as to whether there have been a "hit" involv- ing clearly an unidentified vehicle, a miss-and-run case obviously falls within the core of what is not a hit-aaaá- rejected argument run. Indeed, we the that miss-and-run type Hayne: cases are of the to which the in Note refers The argues dissent ... that "miss-and-run" cases are the kind of "rare" in cases referred to the above note. Given the voluminous number of reported cases involving dissent, "miss-and-run" accidents cited it is difficult to see how "miss-and-run" cases can be considered rare.
Hayne,
ture to the courts the to con- any they strue manner saw fit. clearly While the aforementioned Note indicates that legislature up left it to the courts to decide the involving application difficult "rare" cases of the phrase "hit-and-run," the existence of said Note does provide completely the courts with carte blanche to phrase rewrite the "hit-and-run" to include that which very is its antithesis. that the doctrine Therefore, we conclude applicable
legislative acquiescence here. While is particularly rule, immutable it is not an doctrine majority opinion and the here both the relevant because legislature amend invited the dissent disagreed interpretation our if it with ("The Hayne, n.11 2d at 85 See of the statute. [UM] legislature desires, amend the statute can, if it so arguments."); [the dissent's] Id. at to reflect legislature ("Fortunately can amend sec. the Wisconsin 632.32(4)(a) interpretation set forth and disavow dissenting). majority opinion.")(Abrahamson, J., *27 legislature majority even instructed Moreover, the coverage for miss- to mandate to alter the statute how accidents: and-run mandated uninsured legislature
If the had intended its involving an any accident apply to to motorist been that result could have unidentified motorist... from merely by deleting the term "hit-and-run" reached Stats., 632.32(4)(a)2.b., having in languagе sec. an unidentified motor vehicle provision that read: in an accident." involved
Id. at 76. Although legislature an- amended has Hayne, mandatory provision of the UM law since
other 632.32(4)(a)l.), § (amending § it 2 has 1995 ActWis. 632.32(4)(a)2.b. § any change to not fit to make seen interpretation phrase of the and overturn this court's legislature made The "hit-and-run." fact statutory changes here, at issue the same subdivision phrase "hit-and-run" is a not amend the but chose interpretation strong our indication it intended Hayne phrase law. to remain legislative acquiescence ¶ 58. As the doctrine of is particularly applicable here, Romanshek demon- must holding Hayne objectively wrong, strate that our was merely Wenke, not mistaken. Wis. argues
This he has not done. While Romanshek
at
length
supposed policies underlying
about the
manda-
tory
coverage,
presented
compelling
UM
he has not
argument
interpretation
textual
that indicates our
phrase
objectively
the
wrong.
"hit-and-run" in
was
reject
argu
¶ 59. Furthermore, we
Romanshek's
requiring physical
ment that
contact to meet the defi
nition of hit-and-run
the intent
contravenes
of 632.32.
ruling Hayne
unambigu
The
clear,
was based on the
statutory language
ous
contained in
Hayne,
statutory
2d at
"The
74-76.
clear
language
legislative
of sec.
reflects a
apply only
intent that the statute
to accidents in which
there has
contact." Id. at 74. This court
been
legislature's
[s]
expressed
"assume
that the
intent
statutory language....
It is the
law,
enacted
binding
public."
intent,
unenacted
that is
on the
State ex
County
Ct.,
rel. Kalal
58, 44,
v.Dane
Cir.
2004 WI
2dWis.
333
legislature
ing
limitations,
within constitutional
public policy
state,
of a
and not
and declares the
settles
Borgnis
Co.,
327, 351, 133
v. Falk
147 Wis.
the court."
(1911).6
legislature
Thus,
acted,
has
209
when
N.W.
applying
policy
judiciary
"the
is limited
may
impose
legislature
not
its
enact,
has chosen to
Fandrey
Family
Mut. Ins.
choices."
v. Am.
own
¶
46,
Co.,
62,
16, 272
2d
680 N.W.2d345.7
2004 WI
Wis.
Hayne
physical con
Therefore,
concluded that the
as
part
requirement
statute,
of the UM
it cannot
tact
public policy;
public policy.
it is
contravene
argument
final
is that we
61. Romanshek's
Progressive,
he
should refuse to follow
because
attempting
asserts, has conceded that he is not
argues
perpetrate
the sole
a fraud. Romanshek
requirement
reason for the
is to avoid
apply
rule
here
fraudulent claims and the
should
Progressive does not contend his claim is
because
reject
change
argument
fraudulent.
this
because "no
We
justified simply by
in the law is
a 'case with more
egregious
(quoting
Schultz,
19,
facts.'"
257 Wis. 2d
38
(Abrahamson,
Stevens,
ring)).
J.,
2d at 442
concur-
181 Wis.
addition,
for
admittеd
In
counsel
Romanshek
during
argument
many
prior
oral
of our
hit-and-
veracity
allegations
run cases involved factual
whose
appeal.
was not contested on
6
DOA,
521, 539,
Flynn v.
216
See also
576 N.W.2d
(1998) ("This
long
province
court has
held that it is the
courts,
legislature,
public policy.").
not the
to determine
Madison,
City
also
v.
2003 WI
See
Wood
("The
argue that
Wis. 2d
¶ 63. While this court mold and purpose common-law doctrines to best effectuate the they designed, applying for which were when statutes exceptions unambiguous not carve a clear, we do provision anytime out party argues particular that comport they result does not with what assert to be the subjective legislators enacting intentions of the statutory Park overall scheme. See Columbus Hous. City Corp. Kenosha, ¶¶ 33-34, v. 2003 WI 267 (refusing 2d 671 to carve out an Wis. N.W.2d 633 governing exception exemption chari- to a tax statute organizations organization for a benevolent that table statutory requirements despite did not meet the its activities). undisputed purpose Having charitable authoritatively meaning plain of the determined the Hayne, simply apply plain statute in we must 8 Co., note that Amidzich v. Oak Fire Ins. We also Charter 45, 49-51, (1969), rejected N.W.2d argument plain language policy- of a hit-and-run provision govern simply should not because the insured con that there no evidence of fraud. tended was *30 may policy meaning impose our choices. and own Id. Smith,
¶ and which involved the 64. Unlike Theis application phrase hit-and-run to difficult facts of the "purposes" required consideration of the and very § of the 632.32,9 this involves the essence case plain meaning cannot, however, of "hit-and-run." "We change wording by of a statute liberal construction something legislature intend, that the did not to mean language plain of the statute will not or that support." Hayne, 2d at 85 n.11. 115 Wis. Hayne, legislature is free 65. As we stated 632.32(4)(a)2.b. § change interpretation of if it our may very interpretation our to be incorrect. It
deems good public policy for well be to mandate UM injured in a miss-and-run accident. How- an insured arguments ever, are best addressed Romanshek's body charged developing public this state's to the policy. with
IV conclusion, In decline to overrule our we long precedent requiring physical in an line of contact involving accident unknown vehicle order 9Moreover, that the of the UM statute "purposes" we note textually Romanshek refers are not manifest in the which Ct., County rel. Kalal v. Dane Cir. statute itself. See State ex n.8, 2004 WI 49 & 271 Wis. 2d N.W.2d Rather, "purposes" these were first constructed the dissent in relied on from other courts and Hayne, which statements addressing underlying commentators the rationale UM statutes (Abrahamson, J., generally. Hayne, 115 2d at 93-94 dis senting). meaning
there to be a "hit-and-run" within the 632.32(4)(a)2.b. § consistently Our cases have affirmed requirement and held that miss- qualify do not and-runs as hit-and-runs. Romanshek compelling depart offered no' has reason to from Hayne's interpretation plain language of the He has not demonstrated that Hayne's interpretation objectively of the statute was wrong. depart such, As we refuse to from the doctrine of particularly ruling decisis, stare since the provisions implicates concerns contractual reliance legislature Further, interests. fact that has not years Hayne, amended in the 20 since despite our invitation to do so and its amendment of *31 § 632.32(4)(a)l., strong is reason to adhere to stare phrase Therefore, reaffirm decisis. we that the "hit-and- requires physical run" in contact in involving an accident an unidentified vehicle and does apply such, to miss-and-run accidents. As we affirm the order of the circuit court.
By the Court.—The order of the circuit court is affirmed. (dissent
¶ ABRAHAMSON, 67. C.J. SHIRLEY S. ing). carefully majority lengthy opin I have read the majority ion in the and have reread the instant case dissenting opinions Hayne Progressive in v. Northern (1983). Co., I 68, Insurance 115 Wis. 339 N.W.2d588 my Hayne continue to believe that dissent in is correct. intervening years Indeed in the I more have become persuaded of its correctness. Many adopted either or 68. states have reaf- Hayne position
firmed the set forth dissent. Hayne majority opinion ¶ 69. The has been has taken eroded since was decided. This erosion Hayne majority opinion place is not in because the objectives keeping In an effort with the of the statute. objectives, statutory court has to conform with pinned this of uninsured motorist cases in the outcome on such artificial distinctions as whether Wisconsin plaintiff a third can show that with object flying that a from one indirect,1 vehicle was or vehicle touches the other.2 legislature not amended the 70. That the has "Legislative acquiescence
statute does not dissuade me. argument statutory construction is a familiar [But it] . .. is often vulnerable to rebuttal. . .. cases. variables, unrelated to endorse- Numerous conscious statutory interpretation, may explain ment of a or legislative legislative inaction.... The doctrine of cause acquiescence merely presumption to aid in statu- tory construction."3 explained fully my Hayne For the reasons 71. subsequent have
dissent and because our
away
cases
backed
Hayne majority
opinion, I
from the
dissent.
Co.,
Smith v. Gen. Cas. Ins.
646,
2000 WI
239 Wis. 2d
N.W.2d
Co.,
Theis v. Midwest Sec. Ins.
2000 WI
232 Wis. 2d
606 N.W.2d
*32
Co.,
Wenke v.
Gehl
103,
32, 33, 35,
WI
¶¶
Hansen,