PUBLISHED OPINION
Case No.: 95-0009
†Petition for
Review Filed
Complete Title
of Case:
JERRY NORMAN,
Plaintiff,
v.
CITY OF MILWAUKEE,
Defendant-Appellant,†
GENERAL CASUALTY COMPANY OF ILLINOIS,
Defendant-Respondent.
Submitted on Briefs: October 3, 1995
Oral Argument: ----
COURT COURT
OF APPEALS OF WISCONSIN
Opinion Released: November 7, 1995
Opinion Filed: November 7, 1995
Source of APPEAL Appeal
from a judgment
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Milwaukee
(If "Special", JUDGE: LOUISE M. TESMER
so indicate)
JUDGES: WEDEMEYER,
P.J., FINE and SCHUDSON, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSFor
the defendant-appellant the cause was submitted on the briefs of Nick G.
Kotsonis of Crivello, Carlson, Mentkowski & Steeves, S.C. of
Milwaukee.
Respondent
ATTORNEYSFor
the defendant-respondent the cause was submitted on the briefs of Jacqueline
E. Frakes of Eiche & Frakes, S.C. of Milwaukee.
|
COURT OF APPEALS DECISION DATED AND RELEASED November 7, 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(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-0009
STATE
OF WISCONSIN IN COURT OF
APPEALS
JERRY NORMAN,
Plaintiff,
v.
CITY OF MILWAUKEE,
Defendant-Appellant,
GENERAL CASUALTY
COMPANY OF ILLINOIS,
Defendant-Respondent.
APPEAL from a judgment
of the circuit court for Milwaukee County:
LOUISE M. TESMER, Judge. Affirmed.
Before Wedemeyer, P.J.,
Fine and Schudson, JJ.
WEDEMEYER, P.J. The City of Milwaukee appeals from a
judgment in favor of General Casualty Company of Illinois on an insurance
coverage dispute. The City claims that
the trial court erred in determining that the City's uninsured motorist policy
afforded primary coverage for damages suffered by an on-duty police officer
when the squad car he was driving was struck by an uninsured motorist. General Casualty provided personal
automobile insurance to the police officer.
Because § 66.189, Stats.,
as interpreted by our supreme court in Millers Nat'l Ins. Co. v.
Milwaukee,[1] compels the
City to provide primary uninsured motorist coverage under the facts of this
case, we affirm.
I. BACKGROUND
On September 3, 1991,
Jerry Norman, a Milwaukee police officer, was injured when the squad car he was
driving was rear-ended by an unidentified uninsured motorist. Officer Norman was acting in the course of
his employment with the City at the time of the accident. Norman sued both the City and General Casualty
seeking uninsured motorist coverage. In
May 1993, the City filed a declaratory judgment motion seeking a ruling that
General Casualty provided primary UM coverage.
The trial court examined the policies in question, ruled that the “other
insurance” provisions of the policies were in conflict, and that because of the
conflict, both the City and General Casualty should provide coverage, shared on
a pro rata basis.[2]
After this ruling,
General Casualty settled the claim for $10,500. General Casualty then requested the City to pay its pro rata
share. The City objected, questioning
the reasonableness and necessity of the amount of the settlement. The City demanded to try these issues. In July 1994, General Casualty sought
reconsideration of the coverage decision on the basis of the Millers
case. The trial court heard the motion
and vacated the earlier coverage determination, ruling that § 66.189, Stats., as interpreted by Millers,
requires the City to provide primary uninsured motorist coverage.[3] The parties entered into a stipulation on
the liability and damage issues so that judgment could be entered. Judgment was entered in favor of General
Casualty and against the City in the amount of $10,934.75. The City now appeals.
II. DISCUSSION
The City claims that
§ 66.189, Stats., does not
require the City's uninsured motorist coverage to act as the primary
policy. General Casualty argues that
the statute and the Millers case clearly require the City's
policy to operate as the primary policy.
The trial court agreed with General Casualty. We affirm.
The issue presented in
this case involves the interpretation of a statute, which is a question of law
that this court reviews de novo.
Brandt v. LIRC, 160 Wis.2d 353, 361, 466 N.W.2d 673, 676
(Ct. App. 1991), aff'd, 166 Wis.2d 623, 480 N.W.2d 494 (1992). Section 66.189, Stats., provides in pertinent part:
A 1st
class city shall provide uninsured motorist motor vehicle liability insurance
coverage for motor vehicles owned by the city and operated by city employes in
the course of employment. The coverage
required by this section shall have at least the limits prescribed for
uninsured motorist coverage under s. 632.32(4)(a).
Both
this court and our supreme court recently interpreted the meaning of this
statute in the Millers cases.
See Millers, 177 Wis.2d 573, 586-89, 503 N.W.2d
284, 289-90 (Ct. App. 1993), aff'd, 184 Wis.2d at 171-73, 516 N.W.2d at
381-82. In examining the legislative
purposes behind § 66.189, Stats.,
this court concluded:
[T]he
legislature, when enacting the statute, most certainly was aware of the
possibility that requiring the City to carry such insurance would inevitably
reduce the burden placed on other insurers in some instances. One of the main concerns of the police union
was that its members were told by the City to rely on their private insurers
for UM coverage. Based on that concern,
the legislature could reasonably have concluded that the cost of providing UM
coverage to police officers for on-the-job accidents is a cost that is more
appropriately borne by the City as a whole, than by private insurers who may,
in turn, attempt to pass the burden on to police officers in the form of
increased premiums, decreased coverage, or perhaps even specific exclusion from
coverage.
Millers, 177
Wis.2d at 589, 503 N.W.2d at 290. In Millers,
we decided that the legislative intent of § 66.189 was to protect City
employees and provide them with uninsured motorist coverage without forcing
them to secure either supplemental or additional coverage. See Millers, 177 Wis.2d
at 589, 503 N.W.2d at 290. Our supreme
court further refined this court's decision and specifically held:
[T]he
City's obligation to provide UM insurance is mandatory and categorical. Nothing in the statute suggests that the
City is only secondarily liable or may elect to be so. The City is, therefore, primarily
responsible for providing such coverage, and as a self-insurer under sec.
66.189, Stats., the City is the
primary insurer.
(Emphasis
in original). Millers,
184 Wis.2d at 173, 516 N.W.2d at 381-82.
Accordingly, we reject the City's claim that § 66.189 does not
require it to provide primary UM coverage to city employees who are injured by
an uninsured motorist while operating a city-owned vehicle.
The City attempts to
distinguish the present case from the Millers case. It argues that the Millers
holding does not apply to the instant case because the accident in this case
(unlike the accident in Millers) occurred after the City
developed its uninsured motorist self-insurance plan, which was approved and
adopted by the common council, pursuant to § 62.11(5), Stats.
The City claims that the Millers court did not address the
plan's “other insurance” clause and, therefore, cannot control the instant
case. We are not convinced.
The statute, as
interpreted by our supreme court in Millers, is clear: when City employees operating City vehicles
make a UM claim, the City provides the primary insurance. The plan adopted by the City, and approved
by the common council, conflicts with this holding because the plan's “other
insurance clause” elects to not provide primary UM coverage.[4] This conflict renders the “other insurance
clause” of the City's plan void, see Anchor Sav. & Loan Ass'n
v. Equal Opportunities Comm'n, 120 Wis.2d 391, 397, 355 N.W.2d 234, 238
(1984) (a common council of a city may not pass ordinances or resolutions that
conflict with the laws of this state), and the Millers holding
controls. Accordingly, we conclude that
§ 66.189, Stats., as
interpreted by our supreme court in Millers, requires the City to
provide primary UM coverage to Officer Norman.
By the Court.—Judgment
affirmed.
[4] The plan's “other
insurance” clause provides in pertinent part:
A.There is no coverage for City
employees under this Self-Insurance Plan if the City employee is covered, at
the time of a motor vehicle accident by any other collectible insurance or
other self-insurance with limits of liability sufficient to indemnify for his
or her damages.
B.If coverage is provided under
this Self-Insurance Plan, it shall be excess over the limits of liability
provided by any other collectible insurance or self-insurance even though the
other insurance or self-insurance states itself to be primary, contributing,
excess or contingent.
C.If this Self-Insurance Plan and another Self-Insurance Plan or uninsured motorist policy are determined to provide coverage on a pro rata basis, the City of Milwaukee will only be responsible for damages in proportion to its share of the total of the limits of all applicable self-insurance plans and insurance policies. Under no circumstances, however, will the City of Milwaukee be responsible for damages greater than those limits of liability established in this Self-Insurance Plan.