COURT OF APPEALS
DECISION
DATED AND FILED
January 8, 2008
David R. Schanker
Clerk of Court of Appeals
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NOTICE
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This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official
Reports.
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See Wis. Stat. § 808.10 and Rule 809.62.
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Appeal No.
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STATE OF WISCONSIN
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IN COURT OF
APPEALS
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DISTRICT III
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Kimberly Wambolt and Wade Wambolt,
Plaintiffs-Appellants,
v.
West Bend Mutual Insurance Co., Chong Ae Jones and
American Family Mutual Insurance Co.,
Defendants,
Illinois Farmers Insurance Co.,
Defendant-Respondent.
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APPEAL
from a judgment of the circuit court for Burnett County: michael
j. gableman, Judge. Reversed
and cause remanded.
Before Hoover,
P.J., Peterson and Brunner, JJ.
¶1 PER CURIAM. Kimberly and Wade Wambolt appeal
a summary judgment dismissing their action against Illinois Farmers Insurance
Company (Farmers) in which the Wambolts allege underinsured motorist (UIM)
coverage for injuries Kimberly suffered in a traffic accident. The trial court initially denied Farmers’
motion for summary judgment, concluding that the plain language of the policy
created primary coverage and UIM coverage on a pro rata basis. On reconsideration, the court concluded that
a portion of the Minnesota
no fault insurance law applies and mandates only excess UIM coverage. Because the amount of coverage available
under the Illinois Farmers’ policy was the same as the amount available from
primary insurers, the court concluded that the Wambolts have no viable claim against
Illinois Farmers. We reverse the
judgment and remand because we conclude Wisconsin
law should be applied and the plain language of the policy should be enforced.
¶2 The accident occurred in Wisconsin when a vehicle in which
Wambolt was a passenger was struck from behind by a vehicle driven by Chong Ae
Jones, a Wisconsin resident. The vehicle
Wambolt occupied was owned by Connie Hunt and operated by Denell Belle-Isle, a Minnesota resident
insured by Farmers. The Wambolts pursued
UIM coverage under policies issued to Hunt, Belle-Isle and Wambolt’s policy
with West Bend Mutual Insurance. Each of
the three policies provides $100,000 UIM coverage per person. The Wambolts settled their claims with the
other insurers.
¶3 Illinois Farmers does not challenge the trial court’s ruling
that the plain language of its policy creates primary coverage on a pro rata
basis. If Wisconsin
law applies, the Wambolts can recover because our goal is to give effect to the
intent of the parties as expressed in the language of the insurance
policy. See Folkman v. Quamme,
2003 WI 116, ¶12, 264 Wis. 2d 617,
665 N.W.2d 857.
¶4 Farmers argues Wambolt agreed Minnesota law would apply. That argument overstates the concession. The Wambolts’ attorney agreed Minnesota law would
apply “in regard to interpretation and construction of the Illinois Farmers’
policy.” The Wambolts’ concession was
only that Minnesota
law would be used to interpret the Farmers’ policy, an issue on which the
Wambolts prevailed. The Wambolts never
conceded that the Minnesota no fault insurance
law could be used to extinguish benefits unambiguously granted by the policy or
that Minnesota
law would determine the priority of coverage.
¶5 Applying the factors set out in Drinkwater v. American Family
Mut. Ins. Co., 2006 WI 56, ¶40, 290 Wis. 2d 642, 714 N.W.2d
568, we conclude Wisconsin law should
apply. The factors are:
(1)
Predictability of results;
(2)
Maintenance of interstate and international order;
(3)
Simplification of the judicial task;
(4)
Advancement of the forum’s governmental interests; and
(5)
Application of the better rule of law.
Predictability of results deals
with the parties’ expectations. Id., ¶46. While the Farmers policy was issued in Minnesota to a Minnesota
resident, the parties to the contract should have realized that Minnesota drivers would
be involved in traffic accidents in other states. When an accident occurs in Wisconsin
involving an underinsured Wisconsin driver, the victim of a tort could
reasonably expect Wisconsin law to determine
whether the plain language of an insurance policy is enforceable. Farmers is in a superior position to
calculate the risks associated with the possibility that another state’s law
will apply.
¶6 Maintenance of interstate order is not implicated by this
decision. This factor requires a
jurisdiction that is minimally concerned to defer to a jurisdiction that is
substantially concerned. Id.,
¶50. Wisconsin
is substantially concerned because the tort occurred in this state, the
underinsured driver was a Wisconsin resident, and two of three other insurance
policies were issued and delivered in Wisconsin. Application of Wisconsin law would not impede
state-to-state commerce and it is highly unlikely that travelers would change
their itinerary to avoid falling under Wisconsin
law. See
id., ¶¶51-52.
¶7 Simplification of the judicial task is accomplished by
application of Wisconsin law. A judicial task is rarely simplified when
lawyers and judges must apply foreign law.
Id.,
¶53.
¶8 Advancement of the forum’s governmental interest is also
accomplished by applying Wisconsin law. Wisconsin
has an interest in fully compensating tort victims for injuries that occurred
in this state.
¶9 Finally, we conclude that application of the better rule of
law supports this decision. Assuming,
without so holding, that the Minnesota
no fault law overrules coverage unambiguously provided to the insured, we
conclude the better rule of law is to enforce contracts that provide insurance
coverage and compensate tort victims.
By the Court.—Judgment reversed and
cause remanded.
This
opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5
(2005-06).