COURT OF APPEALS DECISION DATED AND FILED April 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
from a judgment of the circuit court for
Before Wedemeyer, Fine and Kessler, JJ.
¶1 WEDEMEYER, J. Elias Zarate appeals
from the judgment of the circuit court granting the summary judgment motion of
defendant Continental Casualty Company.
Zarate claims that Continental is a proper party to this case under
BACKGROUND
¶2 On August 20, 2002, Elias Zarate was injured in a motor
vehicle accident that occurred in
¶3 Zarate filed suit against Gardner, Jack B. Kelley, Inc. and Continental. Continental insured Gardner and Jack B.
Kelley, Inc. for liability purposes at the time of the accident. Continental issued the policy of insurance in
¶4 Zarate’s claims against Gardner and Jack B. Kelley, Inc. were
subsequently dismissed due to Zarate’s failure to serve them with the Summons
and Complaint. The litigation continued
with Continental as the sole defendant.
¶5 Continental filed a motion for summary judgment which
requested dismissal of Zarate’s claims on the grounds that Continental was not
a proper party under Wisconsin’s direct action statute. The trial court granted summary judgment in
favor of Continental because it found that Wis.
Stat. § 631.01(1)(b) excludes application of
DISCUSSION
¶6 Zarate claims that Continental is a proper party to this case
pursuant to Wis. Stat. § 803.04(2)[2]
because although the insurance policy was issued and delivered outside of the
state, the accident and injury occurred within the state. Zarate claims Continental is a proper party
under Wis. Stat. § 632.24[3]
because the insurance policy includes language indicating an agreement to pay
damages caused by the insured’s negligence.
Zarate also contends Wis. Stat.
§ 631.01(1),[4]
which governs the applicability of Wis.
Stat. § 632.24, makes Continental a property party because there is
no dispute that Continental’s insured was “doing business” in the state. We disagree.
¶7 We review a denial of a summary judgment motion based on
statutory interpretation de novo, using
the same methodology as the trial court, but without deference to that
court. Green Spring Farms v. Kersten,
136
¶8 To bring a direct action against an insurer, a plaintiff must
comply with
¶9 In addition to these two statutes, Wis. Stat. § 631.01(1) affects direct action suits by
limiting the application of Wis. Stat.
§ 632.24 to insurance policies delivered or issued for delivery in this
state. Kenison, 218
¶10 Zarate contends that the “incidental or subordinate” exception
is ambiguous and should be read in his favor—that is, the fact that Continental
concedes the insured was doing some business
in Wisconsin automatically defeats the limitation set forth in Wis. Stat. § 631.01(1)(b). However, a statute is not ambiguous simply
because the parties disagree as to its meaning.
State v. Setagord, 211
¶11 The purpose of statutory interpretation is to discern the
legislative intent. Kenison, 218
¶12 The record shows that Continental put forth evidence that Jack
B. Kelley, Inc. owns no property in
By the Court.—Judgment affirmed.
Not recommended for publication in the official reports.
[1] All references to the Wisconsin Statutes are to the 2005-06 version unless otherwise noted.
[2]
(2) Negligence actions: insurers. (a) In any action for damages caused by negligence, any insurer which has an interest in the outcome of such controversy adverse to the plaintiff or any of the parties to such controversy, or which by its policy of insurance assumes or reserves the right to control the prosecution, defense or settlement of the claim or action, or which by its policy agrees to prosecute or defend the action brought by plaintiff or any of the parties to such action, or agrees to engage counsel to prosecute or defend said action or agrees to pay the costs of such litigation, is by this section made a proper party defendant in any action brought by plaintiff in this state on account of any claim against the insured. If the policy of insurance was issued or delivered outside this state, the insurer is by this paragraph made a proper party defendant only if the accident, injury or negligence occurred in this state.
[3]
Direct action against insurer. Any bond or policy of insurance covering liability to others for negligence makes the insurer liable, up to the amounts stated in the bond or policy, to the persons entitled to recover against the insured for the death of any person or for injury to persons or property, irrespective of whether the liability is presently established or is contingent and to become fixed or certain by final judgment against the insured.
[4]
Application of statutes (1) General. This chapter and ch. 632 apply to all insurance policies and group certificates delivered or issued for delivery in this state, on property ordinarily located in this state, on persons residing in this state when the policy or group certificate is issued, or on business operations in this state, except:
….
(b) On business operations in this state if the contract is negotiated outside this state and if the operations in this state are incidental or subordinate to operations outside this state...