*1 and John Sukala, Dawn Plaintiffs- Sukala

Appellants, Heritage Company and Western Mutual Insurance Company,

National Mutual Insurance Defendants-Respondents. † Appeals

Court of argument January No. 03-0173. Oral 2004. Decided June 2004 WI App (Also 809.) reported 685 N.W.2d granted 9-1-04. † Petitions review *3 On behalf of the the cause was plaintiffs-appellants, submitted on the briefs of D. James Weis Habush Virginia Rottier, Rhinelander, and M. S.C.,

Habush & Rottier, S.C., Milwaukee. oí Habush Habush & Antoine argument by D. There oral James Weis. was defendant-respondent, Heritage On behalf of the Company, Mutual the cause was submitted Insurance of Mark A. Klinner and Michael J. Roman on the brief Zalewski, Kramer, LLP, There Klinner & Wausau. argument J. Roman. was oral Michael defendant-respondent, behalf of the Western On Company, the cause was National Mutual Insurance Davy Anderson, on the brief of Nadine I. submitted O'Brien, Bertz, Golla, & Stevens Point. There Skrenes argument by Davy. I. was oral Nadine Dykman Higginbotham, Deininger, RJ., Before JJ. (the DYKMAN, and John Sukala 1. J. Dawn

Sukalas) denying appeal an them relief order 806.07(l)(h) (2001-02).1 They assert under Wis. Stat. erroneously discretion that the trial court exercised its justify change it that a in case law did not when found judgment. agree opening and reverse. We

FACTS ¶ our review is limited to the trial Because § 806.07(l)(h), court's denial of relief under Wis. underlying we need not consider the merits of the only *4 forth those insurance claims this case. We set 806.07(l)(h) motion, facts relevant to the which fo- primarily procedural history cuses on the of this case supreme rendered after trial court decisions 1All to the are to the references Wisconsin Statutes noted. 2001-02 version unless otherwise judgment. explanation court entered For an of the facts underlying insurance claims see Sukala v. Heri tage App Co., Mutual Insurance WI 240 Wis. (Sukala I). 2d 65, 622 N.W.2d457 ¶ respondents 3. The Sukalas sued to recover policies under automobile insurance with underinsured (UIM) coverage. coverage motorist reducing The UIM contained April

clauses. On 14, 1999, the trial court judgment entered an order and in favor of the insurers. (1) appealed, raising The Sukalas two issues: whether Heritage Company (Heritage) Mutual Insurance com plied requirements -with the notification in Wis. Stat. (2) § 631.36(5); permitting whether the statute reducing § 632.32(5)(i), clauses, Wis. was consti parties supreme tutional. After the filed briefs, their court decided Dowhower v. West Bend Mutual Insur ance Co., 2000 73,WI 613 N.W.2d557. 632.32(5)(i) There, the court held that was constitutional and that:

an may insurer payments reduce pursuant made to a policy by UIM amounts received from legally other responsible persons organizations, or provided that the policy clearly sets forth that purchasing the insured is recovery fixed level of UIM will be arrived at combining payments made from all sources. parties

Id., 33. We allowed the in Sukala I to address policy ambiguity argument. the issue of at oral We disposed concluded that Dowhower of the Sukalas' constitutionality policy claims. We held that the was unambiguous. Accordingly, we affirmed the trial court's peti- decision. The court denied the Sukalas' April tion for review on considering Badger 4. While were I, we Sukala being

Mutual Insurance Co. v. Schmitz was also liti- *5 Badger gated. 98, Schmitz, Ins. Co. v. 2002 WI Mut. the 2d 223. Schmitz raised issue Wis. reducing clause a UIM was unenforceable whether coverage ambiguous or illu it rendered UIM because reducing sory. The held that the clauses were trial court language policy did not because the unenforceable right liability. clearly forth insurer's to reduce set the appeal, I in Sukala and we relied on our decision On policy the the was enforceable because reduc held that unambiguous. Accordingly, ing was we reversed clause trial court's order. the granted petition supreme

¶ The court 5. reversed in Schmitz on October 2001. It on review July reviewing concluding that a court 10, 2002, must unambiguous reducing "an in the examine clause con- policy of the entire to determine whether the text coverage provided If and clear. is understandable the coverage provided misleading policy unclear, the is reducing ambiguous, the worse, or clause UIM is coverage Schmitz, not 2d 61, is enforceable." 255 Wis. reaching In conclusion, this the court I, addressed Sukala where we concluded: policy under public

[T]hat Dowhower and declared 632.32(5)(i), legislature UIM in Wis. 632.32(5) (i) reducing cannot complying clauses with "illusory." con- coverage render UIM Once we have provisions cluded that are unam- policy UIM here, biguous, as we then our is at an end. inquiry have I, 20. The Sukala ambiguous reasoning this considered because terms, moving the Sukala court from the reduc- shifted provisions" policy, clause to al- "the UIM ing though easily and the two could be read as one A are policy provisions" same. all "the UIM which unambiguous a policy only is different from in which reducing unambiguous. any event, is In clause concluding implies reducing *6 sentence that once the clause is found be unambiguous, inquiry to the an is at end. That is incorrect contemplates because Dowhower policy. consideration the entire (citations omitted). ¶ 255 Schmitz, 42 In case, 6. this Sukala the trial court held a hearing developments concerning the in case since law judgment validating reducing it a entered clauses policies. the Sukalas' In oral decision, its the court compared Coolong, the facts here to those in Mullen v. (Mullen (1990) II) 153 2d 401, Wis. inequity and reasoned that in Mullen II derived contrary policy. constructions same It also recognized signed that the had a Sukalas for release (West Company Western National Mutual Insurance ern) stipulated Heritage. and a dismissal It noted passed that seven months between the time the su preme granted I court denied review Sukala and Finally, review in Schmitz. the trial that court reasoned explicitly court would have overruled explained, Sukala I if its result was incorrect. The court [I]t very say becomes difficult for me that to judgment ought reopened be find some extraor- circumstance, dinary other than the that a fact there's precedent Appeals. new in the Court of I think And that to reopen simply ground for me on the that a there's precedent... new language interpreting or new precedent inappropriate. is extraordinary

The trial court concluded no circum- justified stances relief and denied the Sukalas' Wis. 806.07(l)(h) appeal, motion. The Sukalas Stat. OF

STANDARD REVIEW judgment grant relief from Whether to 806.07(l)(h) lies within the discre under Wis. Mullen, 2d court. 153 Wis. at 406. We tion the trial only erroneously if exercised reverse the trial court will contemplates a Id. "The term 'discretion' its discretion. process depends reasoning on facts that are which reasonably derived inference from the record or logic yields on record and a conclusion based proper legal AId. trial court founded on standards." erroneously exercises its discretion when it bases Brunton, error State decision on an of law. (Ct. 1996). App.

195, 202, 552 N.W.2d452

DISCUSSION § ¶ the court 8. Wisconsin 806.07 authorizes Stat. judgment, stipulation party order, or to relieve a a 806.07(1)(h) Paragraph is a certain circumstances. any provision permits relief for "reasons catch-all that justifying operation judgment." It relief from the of discretionary authority "gives the trial court broad equity power pure II, of the court." Mullen invokes the at this "to 153 Wis. 2d 407. Courts construe statute competing of achieve a balance between the values finality disputes." fairness in the Id. resolution guide simple 9. "There is no rule to the court deciding or how whether not to sunburst or to sunburst Hadley, 371, 379, a decision."2Harmann v. "technique as "Sunbursting" prospective is the known overruling... impact newly soften or limit of a an- to (1986). start, 382 N.W.2d 673 To we turn to Mullen II guidance for on relief some when under Wis. 806.07(l)(h) appropriate. In is Mullen petition court denied Mullen's for review and then [Nicholson "accepted Co.] certification of v. Home Ins. posed question by which the identical of law raised petition Mullen in her II for review."Mullin at 404. In specifically Nicholson, the court overruled Mullen I. Id. apparently pend Mullen, unaware that Nicholson was ing, stipulated dismissing settled her claim and to action. Id. After released, Nicholson was Mullen moved stipulated for relief from the order dismissal and reen try judgment pursuant to 806.07. Id. The grant affirmed the trial court's decision to relief because Mullen was "a victim of circumstance." Id. at precise [in 408. It reasoned it "reached the result that] petition Nicholson Mullen in her advocated "[u]nder review in unique I." Mullen Id. It concluded that these [was] facts, the result reached the trial court not an abuse of discretion." Id. ruling then, 10. Since the court has clarified its

in Mullen II: promulgate two-part

[T]his court did not test under plaintiff which must show that this court denied review of an issue at the same time an identical issue was merely before this court another case. Mullen II set example appropriate forth one of an exercise discre- not, in any way, tion and did limit the circuit court's authority grant 806.07, relief pursuant to sec. Stats. *8 Picotte, 42, 43, 249, rule. nounced State v. 2003 WI 261 Wis. 2d 661 N.W.2d381. The term Railway derives from Great Northern Co., (1932), Refining Co. v. Sunburst Oil & 287 U.S. 358 where the court limited its decision to future conduct. Family Co., Mut. Ins. 172 Wis. v. American

Schwochert (citations omitted). (1993) 628, 634, 2d 494 N.W.2d correctly respondents assert that the 11. The in II. are the same as those Mullen facts of this case They distinguish not petitions II the Mullen because contemporane in Mullen I and Nicholson were review ously pending posed supreme the court before They passed months identical issues. note seven supreme denial of the Sukalas' the court's between granted petition it review for review and the time present They argue not that Schmitz did Schmitz. They arguments contend that as Sukala I. also same pending before the knew that Schmitz was the Sukalas they supreme The when executed their releases. court urge respondents of this case to us to consider fact Family analogous more to Schwochert v. American be Co., 97, 2d 479 N.W.2d 190 Mutual Insurance 166 Wis. (Ct. 1991), App. 628, 2d 494 N.W.2d201 aff'd, 172 Wis. (1993), Co., Brown v. Mosser Lee 164 Wis. (Ct. 1991), App. we denied relief 476 N.W.2d294 where 806.07(l)(h). under Stat. Wis. exactly

¶ 12. the facts here are not While court has same as those Mullen necessary for relief clarified that such similitude is not 806.07(1)(h). Wis. to be warranted under Mullen, Schwochert, 2d at 634. Like inequity victims of circumstance. The Sukalas were in Mullen II occurred here: The su that occurred granted preme review Schmitz seven months denying issue in Sukala I. Such after review the same enough to the in Mullen a time frame is close scenario I in Moreover, II. court overruled Sukala Marquez, implicitly. Schmitz, albeit See Dowhower App ¶3, 674 N.W.2d906 2004 WI *9 (Sukala Schmitz). by Regardless, I overruled relief 806.07(l)(h) § contingent under is not on the overruling judgment court the case which movant's inquiry was rendered. The crux of our is whether opening judgment, despite fairness mandates justifications compelling protecting finality judgment. present bring here, Those facts are exception the Sukalas within the II Mullen to the finality judgments. Accordingly, we conclude that the erroneously by deny- trial court exercised its discretion ing the Sukalas' motion. Finally, ¶ 13. Western contends that Stat. 806.07(1)(h)

§ opening does not authorize the release regarding against the Sukalas executed their claims 806.07(1) permits them. It asserts that a court to party "judgment, stipulation," relieve a from a order or argues but not from a release of It claims. that a release parties, citing is an enforceable contract between the Casualty Compen Continental Co. v. Wisconsin Patients (Ct. Fund, 117, 110, sation App. 164 Wis. 2d 473 N.W.2d584 1991). argues It also that the Sukalas must return paid the consideration, $75,999.82, that Western agreement them before the would be voided. The Sukalas assert that Western waived this issue not raising init the trial court. reviewing transcript

¶ 14. After of the trial hearing, we conclude that Western has not waived 806.07(1)(h) argument its Wis. does not provide However, for relief from a release. we are not persuaded by argument. this We treat releases and stipulations give as contracts construe them to parties' Compare effect to the intentions. Gielow Napiorkowski, App 249, 673, 673 WI denied, WI 20, 200, review 2dWis. 03-0050) 2004) (No. (Wis. with Feb.

675 N.W.2d806 App Peppertree Villas, Inc., 2002 WI State v. Resort *10 345. Section ¶ 806.07(1) 421, 2d 651 N.W.2d 13, 257 Wis. party a "from a the court to relieve authorizes judgment, stipulation." no can ascertain order or We being justification protecting a from release valid subject equitable opened stipulations relief. are to while commonly litiga- to terminate methods are used Both purposes of a motion under Therefore, for the tion. 806.07(1), stipulation § and a consider a release we need not consider a claim one and the same. We dismiss nearly paid $76,000 Western has the the effect of the they amount from recover less than that Mullins until Western.

By reversed. the Court.—Order join (dissenting). DEININGER, I cannot EJ. majority majority's reasoning or I believe the the pays result. only lip review of to the standard for our service instead, and, exercise of the trial court's discretion directing the Sukalas' Wis. exercises its own that (2001-02)1 granted. In addi 806.07 motion be Stat. majority misapplies hold court's tion, ings Coolong, 401, in Mullen v. 153 Wis. 2d 451 N.W.2d (Mullen (1990) II), 412 and Schwochert v. American Family 628, 2d 494 Co., Mutual Insurance 172 Wis. (1993), impact 201 and it overstates N.W.2d Badger Schmitz, 98, 2002 WI Mutual Insurance Co. v. 223, 2d on our decision 255 Wis. App Heritage Co., Insurance 2000 WI Sukala v. Mutual (Sukala I). Finally, 622 N.W.2d457 seriously majority's disposition appeal un- of this All to the Wisconsin Statutes are to references noted. 2001-02 version unless otherwise judgments finality in Wisconsin courts dermines arguably grounds losing parties will now have because judgments a subse- final whenever relief from to seek prior quent appellate on a outcome. decision casts doubt majority heavily II in relies on Mullen 16. The support it reaches. The of the result appellate explained II the standard for in Mullen denying granting relief order or of a trial court's review judgment 806.07 is as follows: under Wis. sec. granting An a motion for relief under order 806.07, Stats., unless there has will not be reversed Lauer, 109 Shuput of discretion. been a clear abuse (1982). 164, 177, The term 325 N.W.2d reasoning contemplates process which "discretion" reasonably or that are the record depends on facts yields a from the record and *11 derived inference proper legal logic on and founded on conclusion based Id. at 177-78. standards. majority tell The does not II, 153 at 406.

Mullen Wis. discretionary deci- in manner the trial court's us what deny is, deficient. That the Sukalas relief was sion to majority in the trial error of law or fact identifies no ruling, it assert that the trial and neither does court's reasoning logical process employ in court failed to reaching its decision. majority I, too, in this. The is not alone 17. reasoning. The court's find fault with the trial

cannot legal applied proper It that it standard. stated court it must deter- II and concluded that read Mullen had injustice done" to the Sukalas "if was an mine there petition arising supreme court's denial of their from the subsequent in of decision issuance its for review and (noting that relief under Wis. id. at 407 Schmitz. See " 806.07(1)(h) ac- 'whenever such is warranted (citation appropriate accomplish justice'" tion is to omitted)). point ruling, At another in its oral the court "unique referred to the need for there to be and extraor dinary" justify granting in order circumstances relief 806.07(1)(h). under This also a correct is statement applicable Co., law. See Brown v.Mosser Lee 164Wis. 2d (Ct. 1991). App. 612, 616, 618-19, 476 N.W.2d 294 Finally, expressed the trial court also its awareness that required any it was to balance unfairness toward the against competing "finality Sukalas value in ... disputes." II, resolution of Mullen 2d at 407; Brown, 164 Wis. 2d at 616.

¶ 18. The trial court also considered the relevant facts in The this case. court took note of the fact that litigation the Sukalas' with the UIM two insurers had petition ended with the court's denial of their granted some review seven months the court before my in review Schmitz. The trial court in concluded, correctly, present estimation, that this fact removed the type "unique extraordinary" case from the cir- in cumstances that existed Mullen II. The trial court correctly, observed, further also Ias further discuss below, that unlike what had occurred Mullen expressly Schmitz neither overruled suggested I Sukala nor I that Sukala had been incor- rectly decided. Finally, synthesizing court, the trial

applicable legal standard with the it, facts before em- ployed logical reasoning process readily to reach a *12 conclusion, affirmable which the court summarized as follows: just imagine

I can't actually [the that if court] [Sukala felt that that decision 7] was erroneous when doing [Schmitz], they they were that wouldn't have language say of the than that one sentence done more incorrect; that and it's absence used in Sukala was extraordinary in something to this as their reference was; and they didn't believe that it that tells me error specifically over- making finding that them without the decision this specifically or stated ruled that case decision, it light subsequent was in error case say judgment that the very difficult for me to becomes extraordinary and find some ought reopened to be a new circumstance, than the fact that there's other precedent.... criticism of the In of any legitimate place discretion, majority simply exercise of

trial court's facts, of the present own assessment substitutes its II" in Mullen to the scenario enough them "close finding from the final relief the Sukalas justify granting to majority virtually 12. The at Majority judgment. weighed it has independently that acknowledges it explains case when values at stake this competing man fairness the "crux of our inquiry is whether that added). Id. (emphasis the judgment." dates opening are judges what But, course, appellate is not discre a trial court's reviewing do when supposed ruling: tionary are reviewed under 806.07

Motions Stats., Taff, 175 Nelson v. exercise of discretion. erroneous 1993). (Ct. 178, 187, App. 499 N.W.2d would have Therefore, deciding whether we we are not motion, the trial court's but whether granted Kovalic's that a of decisions within the wide band decision was could have made. reasonable trial court rulings discretionary of our review of scope The limited Generally, will not reverse "[w]e is well settled. if the by the trial court discretionary determination in fact exercised that discretion was record shows *13 perceive we can a reasonable basis for the court's Brosamle, Prahl 658, 667, 142 decision." 420 (Ct. 1987). "[bjecause 372, Indeed, 376 App. the exercise of discretion is so essential to trial court's functioning, generally we look for reasons to sustain determinations." Schneller v. St. Mary's discretionary (Ct. Hosp., 365, 374, 155 Wis. 2d 455 N.W.2d 254 aff'd, 1990), App. 162 Wis. 2d 470 N.W.2d 873 (1991). Int'l, Kovalic v. DEC 186 2d 162, 166, 519 N.W.2d (Ct. 1994).2 App. In addition failing to to employ proper review, standard of misstates majority facts of Mullen II and its misapplies holding. The majority asserts that in Mullen "the supreme court denied petition Mullen's for review and then certifi- 'accepted cation of Majority [Nicholson].'" at 9. That sequence of events would II concededly bring Mullen facts closer to in case, those this but that is not what Rather, happened Mullen II. as the supreme court it had explained, "already accepted certification of case [Nicholson] which the identical posed question law raised by Mullen her for petition review" some nine months denying Mullen's Mullen petition. before II, 153 Wis. 2d at 404. It is that sequence events that International, In Kovalic v. DEC (Ct. 1994), App. N.W.2d 351 we affirmed the trial denial court's judgment. of a motion for relief explained We "[d]e- that spite extraordinary circumstances, Kovalic's assertions of we conclude that Kovalic's motion nothing was more than an attempt relitigate previous appeal. Despite his arguments his Kovalic has shown at best contrary, to the the law has changed, and that he now wants to advantage take of those Id. changes." at 167. Under the espoused standard of review we Kovalic, and for there, much the same reason we cited I would affirm the denial of the Sukalas' motion. II court in Mullen deemed the "determi- petition i.e., in this "we denied a case," fact

native very I in Mullen at the same time when the same review *14 us Id. at 408. issue was before in Nicholson." majority propo ¶ 22. The cites Schwochert for the supreme denial of review of an sition that the court's pending is it in issue, the identical issue before when prerequisite for case, not a relief under Wis. another is 806.07(1)(h). Majority (citing § ¶¶ 10, at Stat. 634). agree I Schwochert, 172 at that other extraordinary" may "unique permit facts a trial 806.07(l)(h), grant properly hut relief under court to development given law after a case is further of the anything, frequent occur is, if and routine concluded (noting Brown, 2d at 623 that it is rence. See 164 Wis. extraordinary" unique be nor for a case to "neither precedent overruled," is "based on that later decided grounds reopen which "has never been considered judgments"). ing preexisting case, unlike Moreover, 23. the trial in this Schwochert, in did not labor under

the trial court misimpression only in those that facts identical Schwochert, II could be for relief. See Mullen the basis con- Rather, 2d at the trial court here 172 Wis. 633. litigation had ended that, because the Sukalas' cluded chose to months court even several before merely grant and because Schmitz, review Schmitz language I neither certain Sukala hut criticized disputed outcome, of its it nor the correctness overruled simply present too far removed facts were unique II and extraor- in Mullen deemed those to be outweigh dinary value in would circumstance that judgment. finality present it Although relies on the unremarkable ex planation in Schwochert relief under Wis. 806.07(1)(h) is not conditioned on presenting facts identical to those in Mullen II, the majority neglects to relate that the supreme court in Schwochert actually upheld trial relief, court's denial of notwithstanding the trial court's misconception the applicable law. The court explained that although it had subsequently withdrawn "dictum" contained in its earlier Schwochert decision, it had not overruled the earlier decision, a contention it concluded was "an essential component" the Schwocherts' claim for relief. Schwochert, 172 Wis. 2d at 634.3 As the trial court here correctly concluded, the Sukalas' claim suffers from a similar infirmity. The court set out the standard for its review *15 the second paragraph of Schwochert v. Family American Mutual " Co., 628, (1993): Insurance 172 Wis. 2d 494 N.W.2d201 'On appeal from an order denying a motion for relief from a judgment, the circuit court's decision will not be reversed unless there (citation has been a clear abuse of discretion.'" Id. at 630 omitted). In each precedents discussion, under the end result of appellate action was the affirmance of the trial court's exercise of granting discretion in or denying relief under Wis. 806.07(1): Schwochert, (af 628, 172 Wis. 2d 636-37 firming trial relief); court's denial of Mullen v. Coolong, 153Wis. 401, (1990) (Mullen 411, II) 2d 451 N.W.2d412 (reversing our of, reversal and affirming, thus the trial court's granting of relief); Kovalic, 162, 171 (affirming trial court's relief); denial of Brown (Ct. Co., v. Mosser 612, Lee 164 623, 1991) (same). 476 N.W.2d294 App. This mean, does not of course, that trial may courts do anything they please when acting on motions for relief under 806.07, regardless of the facts, law or but it does show that reversals of discretionary decisions are more exception rule, than the owing large in very measure to a deferential appellate standard of review. See McConnohie, State v. 362, 370, 113 Wis. 2d 334 N.W.2d 903 (1983) (" '[T]o be invested with discretion means that the trial majority supreme

¶ that 25. The "implicitly" maintains citing Schmitz, I in overruled Sukala court Marquez, support opinion our in in Dowhower App ¶ 823, 674 906. 20, 268 Wis. 2d WI Majority ¶at The citation to Dowhower is some 12. disingenuous, in that we neither ex however, what pressly I in Dowhower that Sukala had been concluded any provide conclud overruled, nor did we basis so ing. for the fact, on Sukala I in Dowhower In we relied page "[a] proposition is intended declarations summary coverage provide provide and a of cannot policy," complete picture coverage under a while noting appositive I, in an in our citation to Sukala history, providing subsequent other case "overruled on by grounds ¶ 823, 20. Dowhower, 268 Wis. 2d Schmitz." majority respect to the and that all due current With by appositive I feel the cited Dowhower, do not bound supreme analysis what find the trial court's respect to I much did in with Sukala court Schmitz to the mark. closer passage Schmitz sure, To in the be majority

quoted ¶ at court being opinion I as in our Sukala criticized sentence "ambiguous misleading." Schmitz, "[i]n only agree however, after essence" so, 42. It did analysis ing I. our in Sukala Id. Nowhere with earlier suggest beyond our that, did Schmitz [in] "shift[] unfortunate in the last terms" sentence analyzed improperly paragraph I, had in Sukala we *16 right wrong in termed limited to be judge might has what be court, incurring reversal.'" appellate without the view (citation omitted)).

487 policies at the issue or reached an erroneous result.4 simply, supreme Quite the court not has overruled I, Sukala power either in Schmitz or we since, and have no " 'Only supreme highest court, to do so. the the power modify in state, overrule, court the has the to or language published opinion withdraw from a of the court appeals.'" (citing I, ¶ Sukala Wis. 2d 65, 240 20 Cook (1997)). Cook, 2d 166, 189-90, 208 Wis. 560 246 N.W.2d supreme The contrast the between court's subsequent litigated action on "the identical issue" in supreme I, Mullen and what the in court said Schmitz major I, about Sukala was a in consideration the trial deny court's decision the Sukalas' for motion relief. clearly The result in Mullen I would have been different supreme granted had the court review and decided that together case with Nicholson. See Mullen ("[W]e [in Nicholson] precise at 408 reached result petition Mullen in advocated her for in review Mullen I."). The same cannot said in be this case: Had the supreme granted court I, review Sukala and decided it together might or Schmitz, with after the result have (see 4). changed, might it but also not have footnote present very Thus, the are for a facts second reason 4 language The court's criticism of para graph incorrectly 20 of Sukala I that it suggested was that if a reducing unambiguous, clause itself required is no is inquiry regarding ambiguity whether is created policy," the "entire Schmitz, taken as a whole. I, 255 42. In Sukala however, we examined policies various features of at issue concluding before unambiguous both were with respect to coverage reduction UIM payments limits certain Co., other See Heritage sources. Sukala v. Mut. Ins. 2000 WI (Sukala App 266, 9-14, I). ¶¶ perhaps explains This why Schmitz imprecise criticized language one of our opinion sentence rejecting analysis rather than our overall or result. *17 present II, in Mullen from the circumstances different they Schwochert, to those in 172 and are much closer (affirming denial of motion for relief at 636-37 Wis. 2d overruled) prior appellate decision had not been where (same, rejecting at 164-67 Kovalic, 186 Wis. 2d changes, all cases under "that if the law decided notion may relitigated" prior a rule the law be because "such destroy many judgments"). finality the of would supreme I not that the court's call do doubt clarity" policies "crystal in for in insurance Schmitz strength containing reducing clauses would have UIM arguments invalidating for the reduc ened the Sukalas1 ambiguity grounds. ing policies in two on clauses these ¶61, 46. But this fact alone Schmitz, See 255 Wis. 2d justify judgment only reopening final in not fails to the slipperiness the case, it demonstrates the this also majority's disposition places slope the us. on which Suppose, example, the had obtained that Sukalas majority grants Schmitz, them because relief obtaining judgment they prevailed that then reducing here clauses at issue their favor because "crystal Suppose further clear" test. failed the Schmitz present insurers' that court denied the accepted petitions it review our for review before App 237, 2002 WI 257 Quamme, decision in Folkman (Folkman I), rev'd, 2003 864, 406, (Folkman II). 665 N.W.2d WI majority's rationale, not would court be Under the grant obliged the final relief from to insurers judgment after the adverse them II, in which the court its Folkman issued decision "crystal language explained in Schmitz clear" that its analyti "alter[ing] effect of had had the unintended clarifying decisions, cal of lower court focus" policy perfection in drafts "not demand Schmitz did manship"? ¶¶ Folkman In 30-31. regardless words, end, other will this ever case judgments oppor *18 number of final that are entered or appellate long exhausted, tunities for review that are so regarding as the law UIM clauses continues to evolve? foregoing hypothetical ¶ 29. The is far not as might appear. recently fetched as it first We concluded App ¶¶ Co., in 1, Gohde MSI Insurance 2004 WI 69, policy 272 4-7, containing 313, 835, N.W.2d 679 that a reducing ambiguous a UIM clause not was having previously on II, based Folkman concluded it ambiguous was under Schmitz, after still con earlier cluding it Gohde, was valid under Sukala I. In however, here, unlike our two earlier conclusions never termi litigation supreme nated the because twice court granted review remanded to us for further consid light in eration first Schmitz and then Folkman II. majority's disposition, Id. Under the the Sukalas and policies their UIM insurers will now also have the at issue examined under II, Schmitz and Folkman not withstanding judgment the fact that the court circuit April this case 14, 1999, was entered on and became April 2001, final on 5, when the court denied petition the Sukalas1 for review. litigation

¶ 30. This was thus concluded more than three months before this court decided Schmitz in July 2001, and almost seven months before the su preme agreed court to review our Schmitz decision on 23, October 2001. It 2004, is now and unless the accepts court review and reverses the majority's disposition, parties go will back to the argue judg circuit court to whether that court's 1999 light ment favor of insurers was correct in of a appellate years appellate series decisions issued after judgment only review of the 1999 had concluded. Not

490 parties argue, required to circuit be will the effect of the Schmitz decision consider, II, in Folkman but also the clarification and its 2003 published appellate possible of several decisions effect follow). (and may yet See, have more that that e.g., followed App 313, 2d 272 Wis. Gohde, 2004 WI App 40, 2004 WI 835; Sobczak, Erden v. N.W.2d Van (VanErden ¶¶ 21-32, 271 Wis. II) reducing (concluding policy was that a with a clause having previously ambiguous II, not under Folkman Schmitz); Dowhower, result under reached the same (concluding ¶¶ 1-3, 19-29 coverage ambiguous regarding policy reduc was UIM just as court had earlier tions under Folkman Schmitz). concluded under varying Gohde, outcomes Van 31. As the *19 demonstrate, it is far II and Dowhower

Erden this will be reached in that a different result certain judgment present has been aside now that the set case in Schmitz of court's comments because explained, regarding that makes I. I have Sukala As very if one than Mullen even different case this majority does, that conclude, as the could petition seven months for review court's denial of enough" accepting to the a similar case is "close before an identical issue is review while denial simultaneous as pending same relief to the entitle Sukalas Shirley granted to Mullen. pub Regardless is of whether this decision majority recommends, result

lished, as the go majority in will not unnoticed those reaches much-litigated issue on both sides volved surprising, ambiguity. reducing It will not be clause reopen filed, are therefore, motions to if numerous litigant per- disappointed seeking for a to obtain ceived benefit of newly decided case Thus, law. I believe that many judgments in Wisconsin that were once thought to be final will be much less so after today. For this reason, and because I cannot conclude that the trial court erred in determining that "unique and extraordi- nary" circumstances are not present that outweigh the value in the finality judgments, I respectfully dissent.