COURT OF APPEALS DECISION DATED AND FILED August 3, 2010 A.
John Voelker Acting 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. Wisconsin Mutual Insurance Company appeals a judgment awarding Gerald Viebrock, Gerald Viebrock, Trustee, and Gerald and Nancy Viebrock Living Trust (collectively, Viebrock) $124,766.24 for property damage sustained during a fire on May 2, 2005. Wisconsin Mutual asserts Viebrock’s suit, filed two years after the fire, is untimely under Wis. Stat. § 631.83(1)(a), which provides a one-year statute of limitations.[1] We agree. We also reject Viebrock’s waiver, tolling, and estoppel arguments. Accordingly, we reverse and, on remand, direct the circuit court to enter judgment for Wisconsin Mutual.
BACKGROUND[2]
¶2 On May 5, 2005, a fire damaged Viebrock’s rental property, a
duplex, in
¶3 Gary Krumenauer, a Wisconsin Mutual field claims representative, requested an estimate from Clean-Works, a property restoration company. Clean-Works estimated it would cost $151,899.39 to repair the heavily damaged unit, and $15,818.37 for the smoke-damaged unit. Viebrock, believing Clean-Works’ bid underestimated the amount of damage, submitted a bid from his own construction company for $199,450, which he later reduced to $164,229.60.
¶4 On August 17, 2005, Krumenauer accepted the lower of Viebrock’s bids and requested repairs begin immediately. On September 9, 2005, Krumenauer sent Viebrock a check for $151,899, explaining the amount would allow Viebrock to begin repairs.[3] Krumenauer requested notice of any repair costs exceeding that amount, as well as receipts for material and labor charges.
¶5 Viebrock refused to accept the check and retained counsel, who notified Krumenauer the building was a complete loss and demanded Wisconsin Mutual pay the policy limits. Krumenauer objected, noting, “In my conversations with your client and [Clean-Works], it was never a consideration that the damage to the duplex could render it a total loss.” Krumenauer again asked that Viebrock accept the $151,899 and provide a detailed repair estimate, stating, “We understand that repair/restoration is significant and that some costs may vary. If there are additional damages found[,] … we will take care of them as repair/restoration proceeds.”
¶6 Krumenauer contacted Viebrock’s attorney on February 6, 2006, for an update. Krumenauer was told Viebrock had not cashed the September 9 check and had not started repairing the duplex. Krumenauer reissued the check, which Viebrock then cashed.
¶7 In March, Viebrock obtained an estimate from another contractor, Archer Cleaning and Restoration, for $224,458.67. Krumenauer rejected Archer’s estimate, explaining he had approved Viebrock’s earlier bid and believed Viebrock’s company would be doing the work.
¶8 Viebrock nonetheless hired Archer to restore the duplex. On April 24, 2006, Archer sent Krumenauer a copy of its agreement with Viebrock, and requested Krumenauer sign off on payment amounts. Krumenauer did not sign the agreement. Archer ultimately invoiced Viebrock $292,110.54 for the repairs.
¶9 On June 14, 2006, Krumenauer informed Viebrock he was closing the claim file. Krumenauer included a check for six months’ lost income and a repair estimate from another local contractor, which he described as “almost identical” to the original Clean-Works estimate. Based on the estimates, and noting Viebrock’s failure to justify a higher repair cost, Krumenauer stated no further payments would be forthcoming.
¶10 On May 2, 2007—the second anniversary of the fire—Viebrock sued Wisconsin Mutual, alleging breach of contract and bad faith and seeking the difference between Wisconsin Mutual’s payments and Archer’s $292,110.54 invoice. Wisconsin Mutual filed a motion for partial summary judgment, asserting Viebrock’s breach of contract claim was time-barred under the insurance policy and Wis. Stat. § 631.83(1)(a). Viebrock argued his suit was timely, claiming inconsistent limitation periods in the policy rendered the contract ambiguous. The circuit court accepted Viebrock’s argument and denied Wisconsin Mutual’s motion.
¶11 Following our denial of Wisconsin Mutual’s petition for leave to appeal, the parties stipulated to determine the amount of the loss using an appraisal process in the insurance policy. The appraisers awarded Viebrock $308,051. The circuit court approved the award and entered judgment in Viebrock’s favor for $124,766.24, representing the award less the amounts previously paid by Wisconsin Mutual.
DISCUSSION
¶12 Before reaching the merits of Wisconsin Mutual’s appeal, we
must first address Viebrock’s claim that Wisconsin Mutual waived its right to
appeal by stipulating to the appraisal process outlined in the insurance
policy. The primary rule when construing
stipulations is to ascertain and give effect to the parties’ intention. Milwaukee & Suburban Transp. Corp. v.
¶13 Viebrock argues Wisconsin Mutual’s intent to waive its right to appeal is evident from the stipulation’s plain language. In its entirety, the stipulation provides:
The parties, by their respective attorneys, hereby stipulate and agree that they shall follow the appraisal/umpire process with [sic] is set forth in the Wisconsin Mutual Insurance Company policy. The parties hereby stipulate and agree to be bound by the decision reached by the umpire.
We discern no intent to waive appeal rights from this agreement.
¶14 Instead, it does not appear the parties contemplated the stipulation’s effect on Wisconsin Mutual’s right to appeal. The appraisal process is designed to establish the amount of the loss, over which Viebrock and Wisconsin Mutual have tussled since the fire.[4] In e-mail messages, the circuit court repeatedly stated its understanding that the appraisal process was limited to determining damages.[5] In a final message on February 6, 2009, the circuit court confirmed that, even though the parties stipulated to damages, “[t]he defendant does intend to appeal … this court’s previous ruling on a contractual statute of limitations issue.” The record demonstrates Wisconsin Mutual did not intend to waive its right to appeal by agreeing to the appraisal process.
¶15 Alternatively, Viebrock claims Wisconsin Mutual forfeited its
appeal by consenting to entry of the judgment.
While “[a] party cannot complain about an act to which he or she
deliberately consents,” Cascade Mountain, Inc. v. Capitol Indemnity
Corp., 212
¶16 Wisconsin Mutual’s sole contention on appeal is that Viebrock’s
suit was time-barred. The circuit court effectively
granted summary judgment to Viebrock, and we review that decision de novo.[6] See Green Spring Farms v. Kersten, 136
¶17 Wisconsin Stat. § 631.83(1)(a)
requires that an action on a fire insurance policy be commenced within twelve
months after the inception of the loss. “Inception
of the loss” means the date on which the loss occurs. Borgen v. Economy Preferred Ins. Co.,
176
¶18 In the circuit court’s view, Viebrock’s suit was timely filed
because ambiguous language in the policy extended the limitation period. The circuit court observed the main body of
the policy establishes a two-year limitation period, while an amendatory
endorsement deletes this language and establishes a one-year limitation
period. A policy is not ambiguous simply
because an endorsement withdraws and replaces original policy language. Rather, we look to whether “the policy is
reasonably susceptible to more than one construction from the viewpoint of a
reasonable person of ordinary intelligence in the position of the insured
….” Filing v. Commercial Union Midwest Ins. Co.,
217
¶19 The rules governing the relationship between an insurance policy and its endorsements are well-settled:
In construing an endorsement to an insurance policy, the endorsement and policy must be read together, and the policy remains in full force and effect except as altered by the words of the endorsement. Where the endorsement expressly provides that it is subject to all terms, limitations, and conditions of the policy, it does not abrogate or nullify any provision of the policy unless it is so stated in the endorsement.
….
Endorsements
or riders on a policy become a part of the policy, and must be construed with it.
Such provisions in the body of the policy are not to be abrogated, waived,
limited, or modified by the provisions of an endorsement or rider unless
expressly stated therein that such provisions are substituted for those in the
body of the policy, or unless the provisions in the policy proper and in the
rider or endorsement are conflicting. But where the provisions are
inconsistent, those of the rider or endorsement must prevail. And where several
such documents appear, the last in point of time is controlling.
Inter-Insurance
Exch. of Chi. Motor Club v. Westchester Fire Ins. Co., 25
¶20 Viebrock next claims his action should be allowed to proceed
because (1) the statute of limitations was tolled while Viebrock and
Wisconsin Mutual exchanged estimates; and (2) Wisconsin Mutual is estopped from
asserting the statute of limitations as a defense. Where the relevant facts are undisputed, as
they are here, both are questions of law which we decide independently of the
circuit court. Milas v. Labor Ass’n of
¶21 Viebrock first invokes the tolling provision of Wis. Stat. § 631.83.
¶22 We next consider Viebrock’s estoppel claim. “The test of whether a party should be
estopped from asserting the statute of limitations is whether the conduct and
representations of the party against whom estoppel is sought were so unfair and
misleading as to outbalance the public’s interest in setting a limitation on
bringing actions.” Wieting, 277
¶23 We see nothing unfair, misleading or inequitable in Wisconsin
Mutual’s conduct during the limitations period.
Wisconsin Mutual obtained a repair estimate with which Viebrock
disagreed. Wisconsin Mutual claimed it
would not rigidly adhere to this estimate, but required Viebrock to submit
proper documentation of any costs exceeding that amount. While Wisconsin Mutual waited for Viebrock to
substantiate his claim for higher damages, it sent a check for the lower
estimate so Viebrock could begin repairs.
And in March 2006—nearly six months after Wisconsin Mutual first sent a
check and requested prompt repairs—Viebrock presented an estimate from Archer
claiming, for the first time, that restoration costs would exceed
$200,000. Wisconsin Mutual, having already
obtained lower estimates from another restoration company and from Viebrock
himself, refused to honor Archer’s estimate.
Viebrock hired Archer anyway, even after Wisconsin Mutual informed him
it rejected Archer’s estimate. Proof of
estoppel must be clear, satisfactory and convincing. Wieting, 277
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 2007-08 version unless otherwise noted.
[2] Both parties’ submissions take a rather
careless approach to record citations, sometimes citing whole record entries of
thirty or more pages, plus dozens of pages in exhibits, for one specific
proposition. Searching through that
volume of materials severely burdens this court, and we ordinarily will not do
it. Keplin v. Hardware Mut. Cas. Co., 24
[3] The amount of the check reflected Clean-Works’ detailed estimate for the more severely damaged unit. Wisconsin Mutual did not provide the full amount of Viebrock’s bid because it was waiting for him to supply detailed repair estimates reflecting material and labor costs. At some point, Wisconsin Mutual apparently made another payment to Viebrock for $26,500.50 to repair the smoke-damaged unit.
[4] The appraisal provision begins, “If ‘you’
and ‘we’ do not agree on the amount of the loss, either party may demand that
the amount be determined by appraisal.”
[5] On August 8, 2008, the circuit court understood the parties to be “in the process of working out an agreement to utilize an appraisal process set forth in the insurance contract to determine damages.” (Emphasis added.) Similarly, on September 9, 2008, the court confirmed the parties had agreed “to an appraisal process to resolve the damages issue.” (Emphasis added.) On December 10, 2008, the court stated, “The damages determined by the appraisal process will be binding on both parties and there will be no need for further litigation regarding the damages issue or any other issue.” (Emphasis added.)
[6] Viebrock also perceives the circuit court’s action to be the equivalent of summary judgment, as he argues that issues of material fact remain even if we conclude his suit was time-barred.