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COURT OF APPEALS DECISION DATED AND RELEASED June 22, 1995 |
NOTICE |
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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. 95-0413-FT
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
WILLIAM D. PURDY and
LISA PURDY,
and ABBY PURDY and
COREY PURDY,
Minors, by their
Guardian ad Litem,
JAMES J. MURPHY,
Plaintiffs-Co-Appellants,
TIME INSURANCE
COMPANY,
Plaintiff,
AUDREE HEDERER,
Intervenor-Plaintiff-Appellant,
JEFFREY STROEDE, CINDY
STROEDE,
and DANE COUNTY,
Intervenors-Plaintiffs,
v.
FEDERATED MUTUAL
INSURANCE COMPANY,
Defendant,
HERITAGE MUTUAL
INSURANCE COMPANY,
Defendant-Respondent.
APPEALS from a judgment
of the circuit court for Dane County:
MORIA KRUEGER, Judge. Reversed.
Before Gartzke, P.J.,
Sundby and Vergeront, JJ.
PER CURIAM. William Purdy, his wife Lisa and his
children Abby and Corey, by their guardian ad litem, appeal from that part of a
judgment dismissing the Purdys' complaint against Heritage Mutual Insurance
Company. Audree Hederer appeals from
that part of the same judgment dismissing her complaint against Heritage. William Purdy was injured and Mrs. Hederer's
husband died in an automobile accident caused by William's father, Donald
Purdy, who also died in the accident.
Heritage was sued as one of two companies that insured Donald. The issue is whether § 631.43(1), Stats., invalidates a clause in the
Heritage policy that negates coverage for the Purdys' and Mrs. Hederer's
injuries. We conclude that it does, and
therefore reverse the trial court's ruling to the contrary.[1]
Donald caused the
accident while driving a car owned by a car dealership. Liability coverage of $500,000 was provided
to Donald, as an insured, under the dealership's policy with Federated Mutual
Insurance Company. Donald's own
liability policy with Heritage has liability limits of $100,000 per person and
$300,000 per accident. His policy
provides, in relevant part:
OTHER INSURANCE ... 2. Other Car. Insurance afforded under this part for a
vehicle you do not own is excess over any other collectible auto
liability insurance, and this insurance then applies only in the amount by
which the limit of liability exceeds the applicable limit of liability of the
other insurance.
Because
the "other insurance" provided by Federated exceeds Heritage's
liability limit, the quoted clause, if valid, denies coverage for the Purdys'
and Mrs. Hederer's injuries.
The clause is not valid,
however, because it conflicts with § 631.43(1), Stats. That section
provides in relevant part:
When
two or more policies promise to indemnify an insured against the same loss, no
"other insurance" provisions of the policy may reduce the aggregate
protection of the insured below the lesser of the actual insured loss suffered
by the insured or the total indemnification provided by the policies if there
were no "other insurance" provisions. The policies may by their terms define the extent to which each
is primary and each excess, but if the policies contain inconsistent terms on
that point, the insurers shall be jointly and severely liable to the insured on
any coverage where the terms are inconsistent, each to the full amount of
coverage it provided.
The
Purdys' or Mrs. Hederer's actual loss may exceed $500,000. Heritage's exclusion clause denies the
Purdys and Mrs. Hederer any recovery above $500,000. Section 631.43(1) plainly prohibits that outcome.
Heritage contends,
however, that § 631.43(1), Stats.,
does not apply because as the excess insurer it did not insure against the same
risk as Federated's primary coverage policy.
It relies on Millers Nat'l Ins. Co. v. City of Milwaukee,
184 Wis.2d 155, 172-73, 516 N.W.2d 376, 381-82 (1994), in which the supreme
court, in another context, commented that primary and excess insurers do not
cover the same "risk."
Heritage then argues that "risk" equates to "loss,"
a premise we cannot accept. The
"risk" described in Millers was the insurer's risk of
incurring liability under the policy as a primary or excess insurer. The "loss" that § 631.43(1)
refers to is the insured's damages resulting from an accident covered by the
policy.
Heritage also contends
that § 631.43(1), Stats.,
does not apply because Donald was not Federated's policy holder, and that the
intent of § 631.43(1) is to protect policy holders only. However, the statute plainly identifies the
protected person as "an insured," which Donald undisputedly was under
both policies, and not as a "policy holder." The plain language of a statute is
conclusive as to legislative intent, absent a clearly expressed legislative
purpose to the contrary. Matter
of Estate of Berth, 157 Wis.2d 717, 722, 460 N.W.2d 436, 438 (Ct. App.
1990). No contrary purpose exists here.
By the Court.—Judgment
reversed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.