COURT OF APPEALS DECISION DATED AND RELEASED October 5, 1995 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No.
93-1857
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
DONN S. JACOBSON,
Plaintiff-Appellant,
v.
ALLIED CROP AGENCY, INC.,
Defendant-Respondent,
WILLIAM J. RAMECKER, TRUSTEE
FOR THE BANKRUPTCY ESTATE OF
WAYNE R. JACOBSON AND JANET JACOBSON,
Defendants.
APPEAL from a judgment
of the circuit court for Dane County:
ROBERT R. PEKOWSKY, Judge. Affirmed.
Before Eich, C.J.,
Gartzke, P.J., and Dykman, J.
GARTZKE, P.J. Donn S. Jacobson appeals from a summary
judgment dismissing his complaint against Allied Crop Agency, Inc. The dispositive issue is whether, as the
trial court held, Jacobson cannot recover because he has not shown that a
contract of insurance exists between him and Allied or that he is the assignee
of a party to such a contract. We agree
with the trial court.[1] We affirm the judgment.
Summary judgment
methodology is well established. It is
described in many cases such as Grams v. Boss, 97 Wis.2d 332,
338, 294 N.W.2d 473, 476-77 (1980). The
court of appeals and the trial court apply the same methodology. In re Cherokee Park Plat, 113
Wis.2d 112, 115-16, 334 N.W.2d 580, 582-83 (Ct. App. 1983). Our review is de novo and we do not
defer to the opinion of the trial court.
Jacobson's complaint
alleges that in May 1989 about 100 acres of tobacco-based acreage was
registered with the United States of America, ASCS, under his name. The majority of acreage was planted and
cultivated during the 1989 crop year.
In April 1989 Allied issued a policy of multi-peril crop insurance,
covering the tobacco allotment acreage.
He has held legal and equitable interest to the crop at all times
pertinent to his complaint. On
September 22, 1989, frost damaged the crop.
He alleges that the loss is covered under the multi-peril crop insurance
policy issued by Allied. Allied refused
to pay the insurance proceeds to him.
Liberally construed, the complaint states a claim.
Allied's answer denies
that Jacobson is the real party in interest and has standing. The answer sufficiently raises the issue
whether a contract exists between him and Allied. We therefore turn to Allied's motion.
To support its motion
for summary judgment, Allied submitted Jacobson's deposition. Jacobson testified that he is not and never
has been a stockholder in Whispering Pine Farm, Inc. He has never been a member of the board of directors. When Whispering Pine applied to Allied for
crop insurance, his parents owned the majority of shares in the
corporation. He did not prepare the
application. His mother signed it. Allied has not issued a policy to him
insuring the 1989 tobacco crop. He did
not pay and does not know the amount of the policy premium. Whispering Pine has not executed an
assignment of its interest in the policy to him. Allied also submitted a copy of the application and the policy in
support of its motion.
In his affidavit in
opposition to Allied's motion, Jacobson states he "relied upon the conduct
of Greater Insurance Agency and Allied Crop Agency, Inc., in assuring him that
there was insurance coverage for his tobacco crop," but that statement is
directed to issues regarding the statute of limitations.[2]
We conclude that Allied
established a prima facie defense.
Jacobson is not the named insured or its assignee. A person who is not the named insured and is
not the assignee of the named insured cannot recover on a policy. See Madgett v. Monroe County
Mut. Tornado Ins. Co., 46 Wis.2d 708, 176 N.W.2d 314 (1970). The policy does not name a particular
insured, but because the applicant for crop insurance was Whispering Pine Farm,
Inc., and the policy issued on that application, the only reasonable inference is
that Whispering Pine is the insured.
Jacobson is a stranger to the policy.
His opposing affidavit fails to raise a genuine issue of material fact
regarding the existence of an insurance contract between him and Allied.
Jacobson relies on
§ 631.08, Stats., which
provides:
(1) Except
as otherwise provided in chs. 600 to 646 and 655, general contract law applies
to mistakes in insurance contracts.
(2) Mistake in designating the person to whom the
insurance is payable in a policy of property insurance does not void the policy
nor constitute a defense for the insurer unless the mistake was due to
misrepresentation or concealment by the owner of the property or someone
representing the owner in procuring the policy, or unless the company would not
have issued or continued the policy if it had known the truth.
Section 631.08(1), Stats., does not assist Jacobson. He has no right to reformation under general
contract law to add him as a named insured.
"Reformation may be granted at the request of any party to the
contract, including an intended beneficiary, or of a party's successor in
interest." Restatement (Second) of Contracts, § 155 cmt. e
(1981). Jacobson is not a party to the
insurance contract, an intended beneficiary or a party's successor in
interest. Section 631.08(2) does not
assist him. He has produced nothing
tending to show that a mistake occurred when he was not made a named insured.
Jacobson refers us to 7
CFR ch. IV, § 435.6 which provides in part, "The contract shall cover
the tobacco crop as provided in the policy" and, to 7 CFR ch. IV,
§ 435.7(a), which provides in part, "Application for insurance on a
form prescribed by the Corporation (the Federal Corp Insurance Corporation) may
be made by any person to cover such person's share in the tobacco crop as
landlord, owner-operator, or tenant."
The question here, however, is whether Jacobson is a party to a contract
with Allied. He has shown nothing
tending to establish that such is the case.
Jacobson erroneously
relies on 7 CFR ch. IV, § 435.5.[3] On its face, § 435.5 applies to an
"insured person." Jacobson
has not shown that he is an insured person.
Jacobson has not shown
that he is entitled to summary judgment or that a genuine issue of material
fact exists which must be tried. The
trial court properly concluded that Allied was entitled to summary judgment
dismissing his complaint.
By the Court.—Judgment
affirmed.
Not recommended for
publication in the official reports.
[1] We therefore do not reach the second issue, whether the one-year period of limitation in the policy and in § 631.83, Stats., apply and the action is time barred.
[2] In any event, estoppel cannot create a contract where none exists. Madgett, 46 Wis.2d at 711, 176 N.W.2d at 316.
[3] Section
435.5 Good faith reliance on misrepresentation.
Notwithstanding
any other provision of the tobacco insurance contract, whenever
(a) An insured person under a contract of crop
insurance entered into under these regulations, as a result of a
misrepresentation or other erroneous action or advice by an agent or employee
of the Corporation (1) is indebted to the Corporation for additional premiums,
or (2) has suffered a loss to a crop which is not insured or for which the
insured person is not entitled to an indemnity because of failure to comply
with the terms of the insurance contract, but which the insured person believed
to be insured, or believed the term of the insurance contract to have been
complied with or waived, and
(b) The Board of Directors of the Corporation, or
the Manager in cases involving not more than $100,000.00, finds that: (1) An agent or employee of the Corporation
did in fact make such misrepresentation or take other erroneous action or give,
erroneous advice; (2) said insured person relied thereon in good faith; and (3)
to required [sic.] the payment of the additional premiums or to deny such
insured's entitlement to the indemnity would not be fair and equitable, such
insured person shall be granted relief the same as if otherwise entitled
thereto.
Application for relief under this section must be submitted to the Corporation in writing.