*1 CO., Plaintiff- MERCURY INSURANCE PAUL ST. Respondent, v. ZASTROW, Defendant-Appellant. C.
Louis ZASTROW, Plaintiff-Appellant, Louis C.
v. CO., Defendant- MERCURY INSURANCE ST. PAUL Respondent.
Supreme Court 30, argument 90-2370, October 90-2371. Oral Nos. 13, February 1992. 1991. Decided 8.) (Also reported N.W.2d *2 defendant-plaintiff-appellant, C. Louis Zas- For the (in by appeals) Wil- trow, the court there were briefs Maeder, S.C., A. D. Jerome Wausau liam Mansell and argument Mr. Mansell. oral plaintiff-defendant-respondent, St. Paul For the (in Mercury Company, there was a brief Klingberg, Douglas appeals) by Steven J. M. court of Michler, S.C., Ruder, Ware & Wausau Anderson and argument Mr. Anderson. and oral ABRAHAMSON, This is S. J. SHIRLEY judgment appeal of the circuit court for Marathon from a County, Judge, declaring Howard, K. Circuit Vincent *3 to Zastrow is not entitled that Louis protection Antique an Mercury Insurance Pol- under Automobile Company icy Insurance issued to that St. Paul antique and collector automobiles. The cover Zastrow's prejudice.1 with This dismissed the actions circuit court Mercury granted Com- the St. Paul Insurance court Mercury Co. v. Zas- St. Paul Insurance action, 1 In the first trow, claiming brought declaratory for relief an action by Louis C. and Robert Zastrow were covered that Caroline policy. antique The circuit and collector car insurance Zastrow's summary declaring was not enti granted judgment Zastrow court coverage. tled to uninsured motorist brought personally
Louis a second action C. special Robert Zas- administrator of the estates of Caroline and against claiming its Paul that it failed to arbitrate liabil- trow St. ity policy. the action with under The circuit court dismissed prejudice.
The two actions were consolidated consideration summary declaratory judgment and for relief and motions by brought parties. dismissal both petition bypass appeals.
party's the court of Section (Rule) 809.60, 808.05 and sec. Stats. 1989-90. The issue this court must address is whether the St. Policy, Antique covering Paul specified antique Automobile Insurance limiting and collector vehicles and its liability coverage specified vehicles, to users of the can coverage only persons limit uninsured motorist occupy who an insured or collector vehicle at the injury. time of their We conclude that the limitation of uninsured motorist violates the protection coverage by mandated 632.32(4)(a), legislature under sec. Stats. 1989-90. We judgments declaring reverse the of the circuit court Louis Zastrow is not entitled to uninsured motorist pursuant to the issued St. Mercury Company Insurance the cause remand to the circuit court. dispute. April 2,
The relevant facts are not On 1989,an uninsured motorist struck and killed Louis Zas- along trow's wife and son as the two walked a road near Zastrow home. walk did not relate to the use of motor vehicle owned Louis Zastrow or the decedents. purchased
Zastrow had two automobile insurance policies. policy, Co., One from MSI Insurance is a stan- comprehensive dard automobile insurance cover- ing regularly high- motor vehicles that Zastrow used for way transportation. The second from St. Paul Mercury Antique Insurance is entitled Automobile Policy, specifically tailored for *4 vehicles, collector and insured Louis Zastrow's 29 antique and collector vehicles. policies coverage.
Both contain uninsured motorist payment Louis Zastrow received under the uninsured coverage from the MSI Insurance Co. for the disagreement between his wife and son. deaths of payment parties for claim under concerns Zastrow's the policy. the St. Paxil the uninsured policy to it was able to offer its St. Paul asserts premium substantially lower than at a Louis Zastrow comprehensive charged for standard the antique policy and collector vehicles because frequency highways on with are not driven regular the St. Paul automobiles and because antique for and collector vehi- different affords comprehensive automobile insur- a standard cles than premi- policy.2 advantage To take of these reduced ance Antique policyholder ums, Automobile of the requirements. Policy meet had to several Insurance covering First, needed to have insurance ordinary transportation. highway he used for vehicle damage Second, St. does not cover loss or Paul mileage per year. 2,500 if exceeds miles the annual Third, not be used or collector vehicles could transportation, regular work, or such for advertising shopping, enter- for or commercial school or racing prise, events, rallies, events. or other timed way, Finally be such the vehicles could not altered like rod or show cars.3 as to look hot customized Radford, 6, 1990, July Mary regional 2 In an affidavit dated manager personal Fire division of St. Paul marketing for the lines $100,000 sought if Zastrow stated that & Marine coverage under Paul's standard automo St. of uninsured cars, pay he have to for his 29 would bile insurance $1,160 special Antique premiums. Automo Under the in annual pay however, that Zastrow woxdd Radford calculated bile $100,000 coverage. only premiums in annual $15 legislature restrictions are similar restrictions 3 These antique or automo placed registered collector on owners of has legislature recognized special has classifica- Wisconsin biles. The *5 comprehen- policy, unlike a standard The St. Paul liability cov- limits the sive family inju- member to policyholder of the erage maintenance, ownership, or use from the resulting ries limits uninsured motorist vehicle and a covered words, In other insured vehicle. occupants of an or his or policyholder not insure the Paul does St. indemnify liability and does against her relatives loss inflicted against his or her relatives policyholder or policyholder or the motorist unless the by an uninsured cov- with an automobile are somehow involved relatives policy. The by antique automobile ered this reads as follows: AGREEMENT INSURING pay damages an "insured" is A. We will which from the owner or legally entitled to recover motor vehicle" operator of an "uninsured "bodily injury": because of "insured"; 1. Sustained 2. Caused an accident. part
B. "Insured" as used means: "your Any person "occupying" covered auto." 1. person Any person damages 2. is entitled to "bodily injury" to which this recover because of coverage applies by person sustained described in 1. above. 341.266,
tions for and collector cars secs. 341.265 1989-90, provided registration reduced fees for Stats. and has collector vehicles if the owner meets certain condi- tions, including use restrictions. limited policy)4
(pp. of 7 of 3-4 with a St. should be contrasted *6 comprehensive automobile standard liability for classes of insureds both covers three which (1) insured, purposes: the named uninsured motorist and insureds, specified and relatives of named designated maintenance, use, (not or ownership, limited to insureds (2) vehicle); occupancy occupancy the insured vehicle; insureds, is, an insured persons occupying that insureds, is, (3) persons enti- legally derivative that and bodily suf- damages injury recover because of the tled to The St. one of other two classes of insureds.5 fered Policy pro- Antique Automobile Insurance does liability or uninsured motorist vide either policy provides first class of insureds. The St. Paul coverage only to the second class of uninsured motorist insureds. pedes- case injured persons
Because the were occupying of the covered and were not one trians injury, collector vehicles at time of or it uninsured motorist is not liable under the asserts liability coverage provides of the St. Paul as follows: 4 The pay damages "bodily injury" ... for A. We will which responsible legally of an accident "insured" because auto becomes B. used in this Part means: "Insured" as any "family policyholder] 1. You or member" for the own- [the "your ership, maintenance or use of covered auto." Any using "your person 2. other covered auto.” auto," "your organization any person or but 3. For covered respect only legal responsibility or of a with for acts omissions person Part. for whom is afforded under this policy. Page 1 of 7 of No Fault Uninsured Motorist Automobile and
5 2 1 Unin (M. Bender, 1991); Widiss, I. ed. Alan sec. 24.10 at 24-5 (1990). Motorist Insurance sec. sured Underinsured 4.1 at 59 however, that St. argues, policy. coverage coverage uninsured motorist restrict its Paul cannot relatives to those circumstances or his policyholder collector covered they occupy the in which on St. Paul's limitations asserts that vehicles. Zastrow protection policyholder for the uninsured they violate the are void because his relatives sec. legislature under coverage mandated 1989-90, 632.32(4)(a), contravene the "stack Stats. 631.43(1), 1989-90.6 of sec. Stats. ing" provisions 632.32(4)(a), 1989-90, every requires Stats. Section in this state to issued coverage. Section include 1989-90, 632.32(4)(a), provides: Stats.
(4) Required and Medical Uninsured Motorist *7 Every Coverages. policy of insurance sub- Payments respect to that insures with ject to this section principally garaged registered or motor vehicle liability imposed by resulting against loss from state any person by bodily injury or death suffered law for ownership, maintenance or use of a arising out of the supplemental shall contain therein or motor vehicle by provisions approved the commissioner. thereto (a) protection motorist. 1. For the Uninsured legally recover persons injured who are entitled to of policy argues violates sec. 6 Zastrowalso that the 1989-90, 632.32(6)(b), prohibits which an insurance com Stats. by excluding coverage persons blood or pany from related from policy marriage Because we conclude that the to the insured. apply coverage to Zas- uninsured motorist do not limitations on trow, policy apply limitations do not to his conclude that the we Family Hulsey Mutual Insurance See v. American wife and son. 1987) (Ct. 639, 648-49, App. 288 2d 419 N.W.2d Wis. (insurance family protection against policy denying members resulting negligence of an uninsured motorist is injuries from the impermissible). operators
damages of uninsured from owners bodily injury, sickness or motor vehicles because disease, resulting . including death therefrom . .. require- this statute establishes minimal Although ments, many like state uninsured motorist statutes its not, very example, It language general. does state persons mandatory what class of uninsured 632.32(4) coverage protect. must Section does not prohibit company limiting expressly coverage occupants of the motor uninsured motorist was vehicle for which the written. interpret courts have had to the statute to determine the coverage extent of mandated country per- In many injured
statute. cases across the situations, have, in variety protested of fact sons coverage limitations on uninsured motorist as contra- vening public policy of the state established uninsured statute. argues policy linking the St. Paul occupancy to the of an interpretation contravenes this court's
insured vehicle granting uninsured motorist statute as the insured personal portable and relatives of the insured cover- Zastrow further asserts that the limitations age. prevent serve of unin- stacking the St. Paul contrary pur- sured motorist benefits to the intent 631.43(1) 631.43(1), 1989-90. Section pose of sec. Stats. stacking as follows: allows
(1)
policies promise
2 more
General. When
loss,
indemnify
against
the same
no
an insured
policy may
provisions
of the
"other
insurance"
aggregate protection
the insured below
reduce the
the lesser of the actual insured loss suffered
the
promised by
indemnification
insured or the total
431
provisions
policies if there were no "other insurance”
correctly asserts that this court has charac-
coverage in the standard
terized
comprehensive
"personal
automobile insurance
protects
portable coverage
from
which
insured
and
in all
Welch v. State
uninsured motorists
instances."
Co., 122
2d
Farm
Automobile Insurance
Wis.
Mutual
(1985).7
172, 179,
680
The Welch case
361 N.W.2d
vehicles,
had two
both insured
involved an insured who
comprehensive
by separate State Farm
policies.
family
Welch and other
members
traveling
injured
while
of the vehicles. The
were
one
family
issue in Welch was whether the insured and his
were
to collect uninsured motorist benefits
entitled
in the
a
insured the vehicle not involved
accident. The court concluded that the uninsured motor-
require
uninsured
ist statute does not
occupy
motorist
insured
at
vehicle
the time
an accident.
Moreover,
coverage protects
concluded
the court
that uninsured
insured
his or
her relatives
pol-
injured "in
named in
whether
an owned vehicle
icy,
motorcycle,
bicycle,
vehicle,
on
on
an unowned
pogo
or on horseback or
on a
stick."
whether afoot
even
Bradley
(quoting
Welch,
v. Mid-
122 Wis.
at 181
2d
(Mich. 1980)).
Century
Co.,
141,
Ins.
147
294 N.W.2d
pur-
We wrote that "once
chased,
insured,
his or
her relatives insured
protection
liability, have uninsured
under all
recognized
"personal
portable"
first
7 The court
coverage in Vidmar v. American
nature of uninsured motorist
360,
n.4,
Family Mutual Insurance
2d
368 &
312
Wis.
(1981),
Welch,
grounds,
on
122 Wis.
N.W.2d 129
overruled
other
2d at 178-79.
*9
Welch,
circumstances."
in Welch that the "drive other car" exclusions
cluded
legislative policy
express legis-
contrary
to
were
in the state's uninsured motorist
intent embodied
lative
stacking
Welch,
will be negligence injury to the of the uninsured attributable injured if as the insured would be he or she were motorist carrying liability through negligence of a motorist Nicholson v. Home Insurance 137 Wis. insurance. (1987). stacking 591, 581, stat- 2d 405 N.W.2d avoiding liability prevents unin- under ute insurers multiple coverage when the insured has sured motorist coverages more than one motorist uninsured required indemnify the loss. Adher- the insured for is ing legislative under the uninsured
to the grant pro- stacking statute to maximum statute and the negligent motorist, the victim of an uninsured tection to interpreted uninsured court and other courts have person oriented, rather than vehicle permitted generally oriented, limitations and have not coverage. and exclusions
Relying progeny, on the Welch case and its provide argues must that the St. him and to his wife and son for occupancy of a covered vehi- unrelated to their
accidents require the insurer to asserts that our cases cle. Zastrow against negli- the insured and his or her relatives cover gent "under all circumstances" and uninsured motorist coverage personal, porta- therefore ble, *10 stackable. and appeals subsequent Welch, of
In to the court cases principles applied in Welch differ- the established to has holding situations, that uninsured motorist cov- ent fact erage portable personal striking down exclu- is Family Hulsey instance, in v. American sions. For 639, 288 142 Wis. 2d 419 N.W.2d Mutual (Ct. 1987), plaintiff Hulsey sought App. to the Jill her motorist benefits from father's recover uninsured policy. She her father's house and resided policy expressly own father's owned her car. Her coverage occupying his her from unless she was excluded appeals of concluded that this car. The court insured applied liability coverage but invalid to was Hulsey, exclusion coverage. respect 142 to uninsured with 177). (citing Welch, 122 Wis. 2d at Wis. 2d at 645-46 70, v. 2d 690 Waffle, In Parks 138 Wis. N.W.2d (Ct. 1987), appeals applied App. Welch to the court recovery from an two automobile insur- allow insured's though operating policies was an ance even the insured injured by he uninsured vehicle when was uninsured appeals persuasive The court of found motorist. company's argument that Welch should apply allowing of Parks insured to the facts because purpose to would defeat the behind the unin- recover namely statute, sured motorist to uninsured condition protection upon liability pro- procuring of people purchase encourage liability tection to to cover- appeals age. Nevertheless the court of concluded that governed required Welch the case and the court to hold policies. injured party that recover under his could support These cases that Zastrow's contention in this liability policy personal portable must be pur- to the relatives, of the insurance and his or her chaser that St. limiting pol- Paul's in this of an insured icy occupants vehicle makes the nonstackable, nonportable, nonpersonal, and and that limitation thus void because it violates the stacking uninsured motorist and statutes. contends, however, this case differs prior cases policies because the insurance at Welch, Hulsey, and Parks prior
issue in cases such as policies pertaining were standard automobile insurance family-owned regularly transporta- vehicles used for contrast, tion on In highway. this case Zastrow purchased unique type policy. automobile insurance family-owned The St. Paul does not cover a vehi- *11 regularly transportation highway. cle used for on the The policy occasionally St. Paul is confined to vehicles which regularly not take to the highway but and which are used show, primarily transportation. for not policy designed problem St. Paul is to solve a face, that automobile collectors as the circuit If recognized. court all of Zastrow's vehicles were covered by a standard automobile insurance policy, Zastrow paying would be premiums substantial insurance for rarely vehicles that he uses on highway. On the other hand, vehicles, if he no had insurance on these he could possibility face the if of enormous losses one of these in attempted vehicles were involved an accident. St. Paul require- to accommodate Zastrow's needs as well as the ments of the uninsured motorist statutes. To accommo- Zastrow, provided liability date St. Paul limited and coverage at reduced rates for the numerous vehicles consistent with the limited statutory use of the vehicles. To accommodate requirements, St. Paul included uninsured motorist cov- to have a required and also policy in its
erage policy comprehensive standard portable uninsured personal and provides that coverage. for provides insurance the St.
Because in this vehicles, that its argues St. Paul special automobile liabil- case, comprehensive a standard unlike oriented. vehicle appropriately is ity insurance portabil- exception to the in that an effect urges St. Paul lim- be made for the ity of uninsured in case. St. Paul involved this antique vehicles ited use on the limitations asserting that apparently limited special in provided use vehicles and limited special underlying legislative subvert the significantly would not person will be injured ensuring that purpose of negli- injury by caused in the event of position same insured would be motorist as the an uninsured gence of of an negligence injury caused the event insured motorist. argument its attempts to bolster special given should be collector vehicles
antique and statute the uninsured motorist under considerations antique and recognized legislature has noting that provided of vehicles and special as a class collector cars See secs. 341.265 plates. special registration how- explain, 341.266, St. Paul does Stats. 1989-90. special registration ever, explain, how the we cannot *12 to treat these vehi- legislative intent laws demonstrate motorist statute. the uninsured specially under cles by argument. Paul's Sec- persuaded St. We are not 632.32(4) (a) requires uninsured motorist expressly tion . . . insures "every policy in of coverage ... any registered motor vehicle respect with 632.32(4)(a) as interpreted sec. The cases have state." 436 personal portable requiring uninsured motorist cov- policy erage. overcome the fact that its Paul cannot St. registered in this state and motor vehicle insures a yet highway offers restricted uninsured driven on policyholder, ordinarily coverage for the who is motorist specified insured, his relatives. The St. the named portable personal. policy and not The St. Paul prevent policy's limitations Zastrow and his wife Paul stacking coverages the uninsured motorist and son from compensate by policies his two for the entire afforded stacking by loss caused an uninsured envisions.8 statute policy
Declaring valid contravene the St. Paul would purposes underly- previous legislative our cases and ing If uninsured motorist statute. limited uninsured permissible is to be or special vehicles, other or limited use collector cars provide legislature must it. We hold that the St. Paul purposes cannot, of uninsured coverage, coverage Zastrow and his limit the of occupants of vehi- to the accorded wife and son holding of sec. This is mandated the text cles. 632.32(4)(a), requires every policy to include which coverage, public and the uninsured motorist underlying 632.32(4)(a), puts injured which sec. provi previously, 8 As we have said his and son like treats Zastrow and wife sion the St. occupants named insured or relatives of vehicles who are not the v. Milwaukee Mutual Insurance of the insured. Martin In 759, 433 (1988), a non-relative 146 Wis. 2d N.W.2d we held that occupant an insured car could not "stack" a second policy covering insured a different car owned the same named involved the accident. whose car was *13 position party as if uninsured tortfeasor the the same been insured. had judgment of reverse set forth we the
For reasons pro- for and remand the cause further circuit court opinion. ceedings inconsistent with this not By judgment is of the circuit court the Court.—The the cause remanded. reversed and (dissenting). respectfully STEINMETZ, I dis- J. opinion by concluding majority has that it sent from the misinterpreted very applied to facts. The the law as Mercury policy special purpose insurance of the provide antique collector automobiles is to for charged premium substantially for a lower than that comprehensive automobile insurance standard not driven on and collector vehicles are because highways regular frequency of
with the automobiles. Mercury special policy from To obtain a St. Company antique and collector automo- for required specific require- biles, meet is an individual pol- First, have an individual must an ments. icy ordinary highway covering is used for a vehicle that requirement transportation.1 assures for This they family policyholder the holder's should involving damages incur result an incident Second, the does not cover uninsured motorist. mileage damage if the or collector loss or per year. 2,500 Third, the vehicle exceeds miles covered traveling work, be for or from vehicle must not used shopping, advertising or enter- school or commercial prises, racing, rallies, or other timed events. any Finally, not altered in the covered vehicle must be may be 1 The standard obtained from required company. is to obtain a standard The insured purchased. company special policy the same change the vehicle to example, an owner cannot way. For *14 or customized show car. look like a hot rod pol- Mercury Company's special Insurance St. Paul automobiles, unlike a stan- icy antique for or collector policy, insurance limits comprehensive automobile dard coverage uninsured motorist to liability coverage and only an insured vehicle. The individuals occupants of policy damages under the for inflicted protected who are are uninsured motorist are those individuals who by an policy- policy policyholder in as the identified holder's relatives. and limitations out- requirements
Because of the above, premium special policy cost for a lined Zastrow, If policy. lower than the cost of a standard case, purchased coverage in for his policy owner had under a standard the uninsured cars $1,160 in premiums. cost annual coverage would have provided by Mercury special policy Under the Company, coverage the same for 29 cars was $435. majority
The statute relies on is sec. 632.32(4)(a), Stats., applies "[e]very policy which to majority . . .." The cor- subject to this section 632.32(4) not indicate what rectly states that sec. does mandatory uninsured motorist cov- persons class of opines "Section protect. majority The that: erage must 632.32(4) com- expressly prohibit not an insurance does coverage to occu- pany limiting for which the insurance pants of the motor vehicle However, op. 431. then the Majority written." at was pronounce- applies all of its recent unjustifiably court legisla- as if the ments on 632.32(4) applied sec. be to Zastrow's ture had intended special policy. recognized special classifications for
Wisconsin has 341.266, cars in secs. 341.265 and antique and collector Stats., provided registration and has reduced fees if collector vehicles the owner meets certain antique and conditions, including limited use restrictions.2 The 29 qualify. sec. majority ignores cars this case so The legislature registration treats 341.226 which the differently. majority this class of automobiles fails subject recognize before us is applies sec. 632.32. Section 632.32 to standard insurance policies special policies. —not
The court has found uninsured motorist person-oriented rather than vehicle-oriented. The purchased special policy designed is a very and collector automobiles. The limited *15 subject use of these automobiles does not them to the exposure danger normal from uninsured motorists. frequently highways These cars are never driven on fact, fear of wear and tear or breakdown. In owners often transported on have automobiles to and shows flatbed trucks. provides special
The fact registra- that the state recognizes tion and different classes of automobiles disposi- use on highways because of their Wisconsin special poli- tive to this case. It illustrates that cies, case, recognized by such as the one are legislature being different from the standard differently. and should therefore be treated Stats, 341.265, vehicles, 2Section discusses motor (1) plates registration, part: and use. Subsection states only special display The vehicle shall be used for occasions such as parade purposes necessary testing, or for maintenance and stor- age purposes. 341.266(1) vehicles, special regis- Section discusses interest tration, plates and use. county circuit court. Marathon
I affirm the would to state that JUSTICES ROLAND I am authorized join this dissent- G. CALLOW DAY and WILLIAM B. ing opinion.