COURT OF APPEALS DECISION DATED AND FILED December 27, 2007 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
from a judgment of the circuit court for
Before
¶1 PER CURIAM. This is
our second opinion in this dispute over underinsured motorist (UIM)
coverage. In our first opinion, we affirmed
a declaratory judgment holding Shayna Gresens was entitled to $50,000 in
coverage under her State Farm UIM policy.
Gresens v. State Farm Mut.
Auto. Ins. Co., 2006 WI
App 233, ¶1, 297
¶2 In September 2007, the supreme court granted review, vacated our decision, and remanded for reconsideration in view of State Farm Mut. Auto. Ins. Co. v. Bailey, 2007 WI 90, 734 N.W.2d 386, and Marotz v. Hallman, 2007 WI 89, 734 N.W.2d 411. Under Bailey and Marotz, Gresens has no available UIM coverage. We therefore reverse and remand with directions to grant declaratory judgment to State Farm.
Background
¶3 Gresens was injured in an automobile accident caused by her
husband and a third party. The third
party had $50,000 of liability coverage, and her husband had $250,000. Gresens recovered the $50,000 policy limit
from the third party and $105,240 under her husband’s liability policy. Gresens I, 297
¶4 Gresens also had a State Farm UIM policy with a $100,000
limit. Gresens argued her UIM limit was
reduced only by the $50,000 she recovered from the third party, leaving $50,000
in available UIM coverage. State Farm
argued its UIM limit was also reduced by the $105,240 Gresens recovered from
her husband, leaving no available coverage.
¶5 Gresens argued she was entitled to the $50,000 because the
State Farm policy was contextually ambiguous.
Discussion
¶6 After we released Gresens I, the supreme court decided
Bailey
and Marotz. In Bailey, the operative State Farm
policy language in question was exactly the same as the language here. See Bailey,
734 N.W.2d 386, ¶¶8-9, Gresens I, 297
¶7 On the same day it released Bailey, the supreme court
released its opinion in Marotz. In Marotz, the supreme court held Wis. Stat. § 632.32(5)(i)
permits an insurer to write a policy that reduces its UIM limits by payments
from tortfeasors other than underinsured motorists.[4] Marotz, 734 N.W.2d 411, ¶2. The reducing clause in Gresens’ UIM policy
does just that: it reduces Gresens’ UIM
limit by “the amount paid to the insured
by or on behalf of any person or
organization that may be legally responsible for the bodily injury.” Gresens
I, 297
¶8 Under Bailey and Marotz, then, Gresens’ $100,000 UIM limits are reduced by the $105,240 she recovered from her husband as well as the $50,000 she recovered from the third party. Because the total amount received from those sources exceeds her $100,000 UIM limit, she is not entitled to any recovery under her UIM policy. On remand, the court shall enter declaratory judgment accordingly.
By the Court.—Judgment reversed and cause remanded with directions.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] All references to the Wisconsin Statutes are to the 2005-06 version unless otherwise noted.
[2] The
Bailey
opinion includes the full definition of “underinsured motorist” and the entire
reducing clause, while our opinion excerpts only the relevant language. See
State
Farm Mut. Auto. Ins. Co. v. Bailey, 2007 WI 90, ¶¶8-9, 734 N.W.2d 386; Gresens
v. State Farm Mut. Auto. Ins. Co., 2006 WI App 233, 297
[3] While
the way the policies are described varies somewhat between the two opinions, it
appears this is due to differences in the focus of the analysis rather than
differences in the policies themselves.
The only identifiable difference in the content of the two policies
apparent from the Bailey opinion is that Bailey’s policy included an additional
endorsement, while Gresens’s policy did not.
See Bailey, 734 N.W.2d 386,
¶¶30-31, Gresens I, 297
[4] Wisconsin Stat. § 632.32(5)(i) provides, as relevant here:
A policy may provide that the limits under the policy for uninsured or underinsured motorist coverage for bodily injury or death resulting from any one accident shall be reduced by….
… Amounts paid by or on behalf of any person or organization that may be legally responsible for the bodily injury or death for which the payment is made.