*1 Roe, Plaintiff-Appellant, Kevin L. Security Larson, Defendant,
Richard A. Cas- ualty Company, Defendant-Respondent-Petitioner. No. [Case 78-875.] Jr., Plaintiff-Appellant,†
John H. Bauer, Company, Defendant-Respondent-Petitioner. No. [Case 79-515.]
Supreme Court Argued 78-875, 28, 1980. Nos. 79-515. October 25, 1980. Decided November (Also reported 580.) in 298 N.W.2d denied, Motion costs, † reconsideration January 13, *2 petitioner Case No. For the 78-875. there a brief was by Weiby Maki, Daniel D. Davis, Within, Hannula and & argument S.C., Superior, by of and oral D. Han- Daniel nula. appellant argument
For the a there was brief and oral Bitney by Spooner. W. W. of petitioner Case No. 79-515. For there a was brief Fulton, Nehs, Ltd., Peter S. Nelson and Menn & of Appleton, argument by and oral Peter S. Nelson. appellant
For the there were Michael briefs S. Sid- doll Herrling, Clark, Siddall, Ltd., and Hartzheim & and argument by Joseph Troy, Appleton. oral all of STEINMETZ, J. These two cases have been consoli- appeal. They require- dated for in all the identical determining necessary ments the common issue law which is: exclusion, an in the
Whether uninsured motorist cover- age bodily provision liability policy, an injury vehicle, to an motor insured owned automobile, other than the insured at the time of ac- cident, protective purpose of the is inconsistent with the state uninsured motorist statute. this
The trial courts answered issue “No.” The a it “Yes” held that such answered against public policy of exclusion was the uninsured motorist statute. plaintiffs, Roe, on October
Kevin L. one of the riding motorcycle passenger a operated father, his Bernard Roe. Bernard Roe liability policy issued the named insured under Chicago, Casualty Company lili- An nois. occurred on that accident date between the plaintiff motorcycle defendant, and his father on the driving Richard who was uninsured and an un- seriously injured, Plaintiff automobile. right causing amputation leg of his above the knee. brings joining Security Plaintiff action Casualty Company, automobile, who insured his father’s coverage including providing liabili- ty $30,000. in the sum of motorcycle, upon plaintiff and his fa- riding accident,
ther were at the time of was not enumerated nor in the described brought summary company The insurance motion for judgment granted by which was the trial court and this appeals. decision was reversed the court of *3 The of the other case were that on facts consolidated Bauer, Jr., May plaintiff, John H. motorcycle operator aof when he was and serious- struck ly injured by motorcycle immediately prior a to being impact operated by Shirriff, who William uninsured. Bauer also owned vehicle described Mr. Security six-cylinder with Mutual as a 1969 operating motorcycle Ford. Mr. Bauer was policy. him but not listed on his contained provision uninsured motorist with same exclusion in the Roe as sought declaratory judgment his
John Bauer of rights of insurance. under the contract brought summary judgment which was a motion granted by and this was reversed the trail court appeals. of Company, petitioner, Security re- court of which is the decision of the Roe v. ported at 1979).
(Ct. App. coverage provision in effect The uninsured (a), occurred was sec. these accidents when following pro- Laws of which contained the visions : liability liability “No or automobile motor vehicle resulting against insuring insurance from loss liability imposed by bodily injury death law for or suf- by any person arising ownership, fered out of the main- tenance or use of a or motor vehicle shall be delivered delivery issued for vehicle in this state motor registered garaged principally or in this state provided supplemental
unless or there- therein to in bodily injury limits for of at or death the amount $15,000 per person $30,000 per least provisions accident under insurance, approved by the commissioner of protection injured for the persons thereunder who legally damages or entitled to recover owners from operators bodily of uninsured motor because of vehicles injury, including resulting disease, sickness death bodily injury .. . The uninsured motorist therefrom. coverage motor provided liability limits in an automobile liability policy required insurance this subsection shall not be reduced the terms thereof provide the insured with less than would be injured by afforded him if he were a motorist liability under an liability or motor vehicle policy subsection.” containing provided the limits in this designed The last sentence of the statute was commonly eliminate what are called “other insurance” policies. nonreducing This sentence is a provision nothing and has to do with an exclusion from coverage. provision up- The “other insurance” had been *4 Employers held in court Nelson v. Mut. Co., 63 (1974). (a),
The “other insurance” clause of sec. subsequently from removed the on statutes grounds the anything.” that “It does not seem to add (W.S.A. 632.32, p. 239, 1975.) Committee Comment — court decided the issue in the instant public rulings policy cases on juris- and case from other dictions. That held that the uninsured motorist provides protection persons statute and not for ve- policy hicles and invalid. therefore exclusion is exclusion is referred to as a “drive other cars” exclusion reads: apply:
“This does not Coverage, “Under the Uninsured Motorists “(o) bodily injury insured while highway (other automobile) than an insured by any person owned the named insured or resident in the same household who is related in- named by blood, marriage through being sured struck adoption, such vehicle The vehicles in each of the instant cases were respectively named insured and were not insured question. They nor listed on the therefore were within the exclusion and uninsured motorist cov- erage apply did not to those vehicles unless the exclu- meaning language sion is invalid due to the of sec. 204.30(5) (a), Stats., Laws greatly Lowery
The court of relied v. State Farm Mutual (Miss. Automobile Ins. So.2d 1974). That case ruled that an exclusion similar to given cases, one the instant could not be effect because it Mississippi violated the However, Uninsured Motorist Act. in the statute language” “critical defined the In Mis- word “insured.” sissippi insured, by statute, meant, the word named “the and, household, while resident of the same spouse insured, such named and relatives of either, a motor . vehicle or otherwise . .” Ob- viously, when the term “insured” is defined statute placed can there be no limit on it in ex- the form an policy. However, clusion in an individual the Wisconsin Statutes as existed at time instant cases did not have similar definition of insured and had none *5 Therefore, provisions.1 applying to uninsured motorist controlling.2 policy is Since definition term, then an exclusion defines the long as its placed in the same can be prohibited law. are not reducing clauses considering whether excess
When derogation 204.30 of sec. in an insurance were public held, question not (5), “The this court any issue, premiums other paid policy, who way 1967, requires 204.30(5), sec. Stats. but what coverage.” Employers Mut. Nelson motorist uninsured (1974). 568, 1973, required 204.30(5), Stats. clear It is every provided with to be motorist liability policy delivered or motor vehicle 1973, was 204.30(5), statute, see. Stats. motorist The uninsured published Laws eh. renumbered sec. renumbering made the uninsured This June provides: 600.03(26), subject to sec. statute any person for whose benefit “(26) to whom or means ‘Insured’ policy. term promise in an insurance makes an insurer subscribers, and beneficiaries. members policyholders, includes apply only not applies 649 and does to 600 to chs. definition This policies.” in insurance of the word to the use “insured” apply word the use not to does This definition and, therefore, not exclude policies, it does in insurance in this of “insured” definition INSURED “PERSONS following are Coverage, the Motorists Uninsured “Under the insureds: “ any relative, (a) insured and the named automobile, “(b) person other damages any person, he is entitled “(c) coverage applies bodily injury to which this recover because (a) (b) above. an insured under sustained Cov- Motorists under the Uninsured afforded “The insurance erage applies separately insured, inclusion herein each but the ap- operate shall not to increase one insured of more than liability.” company’s plicable limit of *6 coverage
and that protection such was “for the per- injured sons (Emphasis thereunder . added.) . .” ignored court of the word “thereunder” “ in the section. statutory t is a basic rule of [I] con- construing struction that statutes, effect is to be given, if possible, every word, each and clause and statute, sentence in a and a construction that would any portion result being superfluous a statute should possible.” County be avoided wherever Co- lumbia v. Bylewski, 153, 164, 94 Wis.2d 288 129 N.W.2d (1980). The surplusage; word “thereunder” is not it meaning must have a in the section. It refers back to liability the “automobile poli- liability motor vehicle cy.” (Emphasis added.) Therefore, uninsured motorist coverage required coverage in Wisconsin that must liability be related to a exclusion in the instant is a valid and one purpose recognition its previously has received by this Limpert Smith, court. In 632, 56 Wis.2d (1973) 29 page this court stated at 638: purpose defining “The limiting meaning coverage these terms with to these liability policies the automobile (which terms exclude arising liability out of the use of another automobile by by or regularly used a member of an insured’s household) owned is to avoid for several vehicles by family members of the who, same their relationship, might expected with close be to use each other’s cars without hindrance permission. without person Without this limitation a purchase just could one only thereby one automobile and secure cov- erage for all may the other vehicles he own or vehicles family members of his own while residents same household. National Farmers Property Union & Casualty Co. v. Maca (1965), 399, Wis.2d 517; N.W.2d Giese (1966), Karstedt 886; Casualty N.W.2d and McDonald v. Aetna Surety (1970), & Co. 47 There is no doubt that a car owner can insure all of owns, the automobiles he but he cannot do so under policy describing only omitting one such all others owned him or household Mc- relatives. Donald v. Surety supra.” Aetna & plaintiffs
What in the instant cases theorize is purchase need liability for a declared owned vehicle of the insured and require- receive ments of law (by paying premium vehicle) for that only for not the declared vehicle, all but vehicles owned the named insured and members of type his household. This of umbrella *7 coverage uninsured motorist that covers the insured wherever is required by he located is not the state. What required is coverage is uninsured motorist related to ownership, vehicles, maintenance or use of declared terms, by covered due to its an or motor automobile liability policy. To declare otherwise would be 204.30(5), Stats., by eliminating to amend sec. the word “thereunder.” judge
The trial in the Bauer case stated that even though the uninsured motorist statute affords an insured injured by an uninsured motorist he would injury have had for an caused liability policy, (Siegel a standard automobile Corp., American Interstate Ins. Wis.2d N.W. construing (1976)), justify 2d 178 “. . not does . [it] coverage uninsured dis- motorists be accidental ability policy.” and health insurance suggested argument
It at in oral that may, question face, on its extend uninsured motorist coverage they pedestrians, to insureds when are riding extending coverage they to insureds when are not Though may they in vehicles which own. given coverage incongruous, when seem to insureds coverage. pedestrians cov- is volunteered What erage might poli- competitively in their companies offer is is issue cies not these cases. What is issue required by 204.30(5) (a), Stats. what poli- of these insurance and whether the exclusion gave re- less the state cies the insureds than quired. issue, this rules exclusion did On this court coverage, required deprive the not insureds reasonably controlling muti- related the exclusion knowledge policies beyond ple coverage on exposure company of or the its actuarial coverage. under probabilities for uninsured motorist loss By the Court. —The decision reversed. ABRAHAMSON, (dissenting). J. I dis- S. SHIRLEY affirm of the court sent. I would the decision I judgments of the circuit courts. which reverses opinion appeals, see Roe of the court of find the 1979), (Ct. App. my persuasive, adopt I dis- it as well-reasoned senting opinion.