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COURT OF APPEALS DECISION DATED AND FILED June 10, 2004 Cornelia G. Clark 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 an order of the circuit court for Portage County:� federic Fleishauer, Judge.� Affirmed.�
����������� Before Deininger, P.J., Dykman and Lundsten, JJ.�
�1����������������������� PER CURIAM. Wilbert Oldenhoff, James Billington and Patricia Billington (collectively, �Oldenhoff�) appeal the circuit court�s order granting summary judgment in favor of American Standard Insurance Company.� The issue is whether Oldenhoff�s Ford van is a vehicle covered under his automobile insurance policy.� This case was placed on the expedited appeals calendar pursuant to Wis. Stat. Rule 809.18 (2001-02).[1]� We affirm.
�2����������������������� We review summary judgments de novo applying the same methodology as the circuit court.� Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315-17, 401 N.W.2d 816 (1987).� The methodology is well established and need not be repeated here. �See, e.g., Lambrecht v. Estate of Kaczmarczyk, 2001 WI 25, ��20-24, 241 Wis. 2d 804, 623 N.W.2d 751.� The interpretation of an insurance contract and whether coverage exists under a given contract are questions of law we review independently.� Ledman v. State Farm Mut. Auto Ins. Co., 230 Wis. 2d 56, 61, 601 N.W.2d 312 (Ct. App. 1999).�
�3����������������������� The relevant language in Oldenhoff�s policy states:
14.� Your insured car means:
a. Any car described in the declarations and any private passenger car or utility car you replace it with.� You must tell us within 30 days of its acquisition.
b. Any additional private passenger car or utility car of which you acquire ownership during the policy period, provided:
1) If it is a private passenger car or utility car, we insure all of your other private passenger cars; or
2) �.
You must tell us within 30 days of its acquisition that you want us to insure the additional car.
c. �.
d. Any car or utility trailer not owned by you being temporarily used as a substitute for any other vehicle described in this definition, because of its withdrawal from normal use due to breakdown, repair, servicing, loss or destruction.� (Emphasis deleted).�
�4����������������������� Language in an insurance contract
is to be given the common and ordinary meaning it would
have in the mind of a lay person.� Words
or phrases in a contract are ambiguous when they are fairly susceptible to more
than one construction�.� Where no
ambiguity exists in the terms of the policy, we will not engage in
construction, but will merely apply the policy terms.
Maryland Cas. Co. v. Ben-Hur, 203 Wis. 2d 411, 418, 553 N.W.2d 535 (Ct. App. 1996) (quoting Kremers-Urban Co. v. Am. Employers Ins., 119 Wis. 2d 722, 735, 351 N.W.2d 156 (1984)).�
�5����������������������� The policy is not ambiguous.� Under section 14(a), the policy covers a vehicle that is acquired to replace an insured vehicle.� Oldenhoff did not acquire his van to replace his Tempo.� He had already owned the van for eight years when he began to use it instead of the Tempo because the Tempo had been damaged.� Oldenhoff contends that the van was �acquired� for purposes of the policy at the point that he began to use it in place of his Tempo.� This reading ignores the meaning of the word �acquire.�� To �acquire� a vehicle means �[t]o gain possession of� it.� American Heritage Dictionary 15 (4th ed. 2000).� The policy anticipates a future event�acquisition of the replacement car�subsequent to the issuance of the policy.� Oldenhoff had title to and possession of the van long before the policy was issued.� Therefore, it is not covered under the policy.
����������� By the Court.�Order affirmed.
����������� This opinion will not be published.� Wis. Stat. Rule 809.23(1)(b)5.