2009 wi app 150
court of appeals of
published opinion
Case No.: |
2008AP2744 |
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Complete Title of Case: |
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Opinion Filed: |
September 1, 2009 |
Submitted on Briefs: |
August 4, 2009 |
Oral Argument: |
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JUDGES: |
Curley, P.J., Fine and Kessler, JJ. |
Concurred: |
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Dissented: |
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Appellant |
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ATTORNEYS: |
On behalf of the plaintiffs-appellants, the cause was
submitted on the briefs of Daniel R. McCormick and Lea K. Polczinski of McCormick Law Office, |
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Respondent |
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ATTORNEYS: |
On behalf of the defendant-respondent, the cause was
submitted on the briefs of Wayne M. Yankala and Jenny Yuan of A nonparty brief was filed by William C. Gleisner, III of Law
Offices of Wm. Gleisner, |
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2009 WI App 150
COURT OF APPEALS DECISION DATED AND FILED September 1, 2009 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 |
IN COURT OF APPEALS |
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Plaintiffs-Appellants, v. American Family Mutual Insurance Company, Defendant-Respondent, Carolina Casualty Insurance Company, Bulk Carriers, Inc., Reginald Gaskins, Humana Health Plan, Inc. Defendants. |
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APPEAL
from a judgment of the circuit court for
Before
¶1 FINE, J.
I.
¶2 Michael Tomson was injured when the semi-trailer he was
driving late at night northbound on Interstate 95 in
¶3 As material here, the Tomsons’ American Family policy, provided: “We will pay compensatory damages for bodily injury which an insured person is legally entitled to recover from the owner or operator of an uninsured motor vehicle.” (Bolding in original.) The policy defined “Uninsured motor vehicle” as, inter alia, “A hit-and-run vehicle whose operator or owner is unknown and which causes bodily injury to you or a relative. Physical contact with a hit-and-run vehicle is required.” (Bolding in original.)
¶4 As applicable here, Wis. Stat. § 632.32(4) (2007–08) provides:
Every policy of insurance subject to this section that insures with respect to any motor vehicle registered or principally garaged in this state against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance, or use of a motor vehicle shall contain therein or supplemental thereto the following provisions:
(a) Uninsured motorist. 1. For the protection of persons injured who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death resulting therefrom, in limits of at least $25,000 per person and $50,000 per accident.
2. In this paragraph “uninsured motor vehicle” also includes:
b. An unidentified motor vehicle involved in a hit-and-run accident.[[3]]
¶5 American Family sought a declaratory judgment that its policy did not give the Tomsons uninsured-motorist coverage, and also summary judgment dismissing the Tomsons’ claims against it. As noted, the circuit court agreed with American Family that there was no coverage. The circuit court interpreted Wis. Stat. § 632.32(4)(a)2.b to require that there be “a hit and followed by a run,” and further opined that there was no coverage because “there’s no evidence that the vehicle part was moving” before Gaskins hit it: “It didn’t hit Gaskins on its own momentum.” Thus, the circuit court concluded: “We do not have an unidentified motor vehicle that did the hitting and running.”
II.
¶6 A party is entitled to summary judgment if “there is no
genuine issue as to any material fact” and that party “is entitled to a
judgment as a matter of law.” Wis. Stat. Rule 802.08(2). We review de novo a circuit court’s
ruling on summary judgment, and apply the governing standards “just as the
trial court applied those standards.” Green Spring Farms v. Kersten, 136
¶7 Although this appeal presents a fact pattern of first
impression, our path is guided—indeed,
controlled—by Theis, which set out the factors governing the interpretation
and application of Wis. Stat. §
632.32(4)(a)2.b. As Theis points out, “[i]f
the statute requires coverage, we need not examine the insurance policy.” Theis, 2000 WI 15, ¶10, 232
¶8 We start with the following unambiguous statement by Theis:
We hold that Wis. Stat. § 632.32(4) requires that the uninsured motorist clauses of an insurance policy provide coverage when a detached piece of an unidentified motor vehicle is propelled into the insured’s motor vehicle by an unidentified motor vehicle.
Theis, 2000 WI 15, ¶11,
232
¶9 The plaintiff in Theis was injured when the
semi-trailer he was driving was hit by a leaf spring that had come off of
another semi-trailer. Theis,
2000 WI 15, ¶¶4–5, 232
¶10 Theis noted that coverage under Wis. Stat. § 632.32(4)(a)2.b is required if three elements
are met: First, there must be “an
unidentified motor vehicle.” Theis,
2000 WI 15, ¶14, 232
¶11 Theis began its analysis of the “hit” requirement by noting
that by not defining “hit” or “hit-and-run accident” the “legislature
apparently recognized that a vast variety of unpredictable scenarios can give
rise to claims for uninsured motorist coverage.”
¶12 Turning to whether the “hit” requirement was satisfied, Theis
held that the cases denying uninsured-motorist coverage because there was no
contact with the plaintiff’s vehicle were not on point because “although there
was no physical contact between two intact motor vehicles [in Theis],
there was physical contact between
the insured’s motor vehicle and a piece detached from the unidentified motor
vehicle.”
¶13 Although Theis held that the elements to
coverage were satisfied in that case, it recognized that “[n]either the
language of the statute, the existing case law nor the legislative history
mandates a decision in this case.”
¶14 We analyze this appeal against Theis’s teachings, turning first to whether the three requirements for mandatory coverage under Wis. Stat. § 632.32(4)(a)2.b are satisfied. The first element, as we have seen, is that there be an unidentified motor vehicle. Although Theis used the truck that passed the plaintiff in that case as the unidentified motor vehicle, Theis, 2000 WI 15, ¶14, 232 Wis. 2d at 756, 606 N.W.2d at 165, it could have just as easily chosen the truck that dropped the leaf spring, given that Theis framed the issue as whether there is “coverage when a detached piece of an unidentified motor vehicle is propelled into the insured’s motor vehicle by an unidentified motor vehicle,” id., 2000 WI 15, ¶2, 232 Wis. 2d at 751, 606 N.W.2d at 163, and, as we have seen, recognized that the leaf spring could have come from either the passing truck or from another unidentified truck, id., 2000 WI 15, ¶5, 232 Wis. 2d at 752, 606 N.W.2d at 164. Here, the truck that dropped the 400-pound dual-wheel assembly is not identified. The first element of mandatory coverage under § 632.32(4)(a)2.b is thus met.
¶15 As for the second requirement, whether there was a “hit,” as in
Theis,
there was physical contact here by something that came from an unidentified
truck. Accordingly, Theis’s holding is
equally applicable here: “although there
was no physical contact between two intact motor vehicles, there was physical
contact between the insured’s motor vehicle and a piece detached from the
unidentified motor vehicle.”
¶16 Significantly, and also contrary to the reading of the statute
by the circuit court here, there need not be first a “hit” and then a “run”;
under one of the two possible scenarios in Theis, the truck that left the leaf
spring in the road “ran” before there was any hit (the propelling of the leaf
spring into Theis’s truck by the passing unidentified truck)—all that is
required is that there be both a “hit” and a “run” (namely, a hit resulting
from something done by the unidentified vehicle) in any sequence. This latter point is exemplified by Smith
v. General Casualty Insurance Co., 2000 WI 127, 239
¶17 The third requirement for mandatory coverage is also present: as in Theis, where the truck that dropped the leaf spring was unidentified, the truck that dropped the wheel assembly in this case is also unidentified.[6] All three of the statute’s technical requirements are thus met here. But there is more.
¶18 As Theis held, the focal point of decisions under the statute is
the statute’s “primary purpose” “to compensate an injured person who is the
victim of an uninsured motorist’s negligence to the same extent as if the
uninsured motorist were insured.” Theis,
2000 WI 15, ¶28, 232
¶19 Accordingly, we reverse the judgment, and remand for further proceedings.[8]
By the Court.—Judgment reversed.
[1] We appreciate the amicus curiae brief submitted on behalf of The Wisconsin Association for Justice.
[2] The
Tomsons’ notice of appeal is from the circuit court’s order of
[3] These
provisions were changed by 2009 Wis. Act 28, §§ 3154 & 3155. Section 3154 created Wis. Stat. § 632.32(2)(f), which defines “Uninsured
motorist coverage” to mean “coverage for the protection of persons insured
under that coverage who are legally entitled to recover damages for bodily
injury, death, sickness, or disease from owners or operators of uninsured motor
vehicles.” Section 3155 of the Act
created § 632.32(2)(g), which defines “Uninsured motor vehicle” to
include, inter alia, “2. Except as provided in subd. 3., an
unidentified motor vehicle, provided that an independent 3rd party provides
evidence in support of the unidentified motor vehicle’s involvement in the
accident. 3. An unidentified motor
vehicle involved in a hit-and-run accident with the person.” 2009
[4] The
miss-and-run cases are: Hayne
v. Progressive Northern Ins. Co., 115
[5] Theis
v.
Midwest Security Insurance Co., 2000 WI 15, 232 Wis. 2d 749, 606 N.W.2d
162 also held that “[a] second purpose of the uninsured motorist statute is
that the reasonable coverage expectations of an insured should be honored,” and
that a reasonable insured would expect to have coverage under the facts in that
case.
[6] We
recognize that Theis, as noted in the main body of this opinion, used the
passing truck and not the truck that may have left the leaf spring in the road
before that leaf spring was hit by the passing truck as the unidentified
vehicle, but, as we also explain in the main body of this opinion, there is
nothing that suggests that the truck that may have lost the leaf spring would
not have also qualified as the unidentified vehicle in order to satisfy the
third requirement, especially because one of the Theis scenarios was that
the leaf spring was at rest on the highway before it was hit by the passing truck. Theis, 2000 WI 15, ¶5, 232
[7]
American Family relies heavily on cases from other jurisdictions and Milam
v. State Farm Mutual Automobile Insurance Co., 972 F.2d 166 (7th Cir.
1992), which applied federal common law in holding that there would be no
coverage under the uninsured-motorist policy issued by State Farm in an
accident caused when a truck hit a tire in the road, swerved out of control,
and then struck the insured’s decedent unless the tire was actually “rolling
upright” when the truck hit it. As we have seen, however, we are applying Wis. Stat. § 632.32(4)(a)2.b, as did Theis.
As Theis
recognized, “[c]ases from other
jurisdictions differ in the application of uninsured motorist coverage to the
fact situation presented in this case depending on their statutes and the
particular insurance policy language involved, but our decision today is
supported by existing case law” in Wisconsin. Theis, 2000 WI 15, ¶32,
232
[8]
Although American Family asserts that the Tomsons have not demonstrated how the
truck that dropped the wheel assembly was negligent, that issue was not dealt
with by the circuit court, and, as Theis teaches, that matter is better
left for trial. See Theis, 2000 WI 15,
¶¶34–35, 232