PUBLISHED
OPINION
Case No.: 95-1390
†Petition for
Review Filed
Complete Title
of Case:
MELISSA FRANK,
†Plaintiff-Respondent,
v.
WISCONSIN MUTUAL
INSURANCE COMPANY,
Defendant-Appellant.
Submitted on Briefs: November
27, 1995
Oral Argument:
COURT COURT
OF APPEALS OF WISCONSIN
Opinion Released: December
12, 1995
Opinion Filed: December 12, 1995
Source of APPEAL Appeal
from a judgment
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: St. Croix
(If "Special", JUDGE: Scott R. Needham
so indicate)
JUDGES: Cane,
P.J., LaRocque and Myse, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSFor the
defendant-appellant the cause was submitted on the briefs of Randall Skiles
of Stern, Skiles & Ward, S.C. of Madison.
Respondent
ATTORNEYSFor the
plaintiff-respondent the cause was submitted on the brief of Charles B.
Harris of Doar, Drill & Skow, S.C. of Baldwin.
COURT OF APPEALS DECISION DATED AND RELEASED December 12, 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. 95-1390
STATE
OF WISCONSIN IN COURT OF
APPEALS
MELISSA FRANK,
Plaintiff-Respondent,
v.
WISCONSIN MUTUAL
INSURANCE COMPANY,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for St. Croix County:
SCOTT R. NEEDHAM, Judge. Reversed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
MYSE, J. Wisconsin Mutual
Insurance Company appeals a judgment holding that a snowmobile is an uninsured
motor vehicle as defined in Wisconsin Mutual's insurance policy. Wisconsin Mutual contends that the
definition of an uninsured motor vehicle in the policy excludes snowmobiles
because they are vehicles designed principally for off-road use and are
vehicles operated on rails or crawler treads.
Because we conclude that a snowmobile is excluded from the definition of
uninsured motor vehicle in the policy because it is a vehicle that operates on
crawler treads, the judgment is reversed.
Melissa Frank was
injured in an accident involving a snowmobile.
After learning that the snowmobile was uninsured, Frank sought damages
under the uninsured motorist provision of her policy with Wisconsin
Mutual. Wisconsin Mutual denied
coverage on the grounds that the injury did not arise out of a motor vehicle
accident. Wisconsin Mutual's policy defined an uninsured motor vehicle as
follows:
(2) "Motor Vehicle" means
a land motor vehicle or a trailer, but does not mean a vehicle:
(a) operated
on rails or crawler treads. (b) which is a farm type tractor or equipment
designed for use principally off public roads, while not on public roads.
The
trial court granted summary judgment to Frank concluding that the snowmobile
was included as a motor vehicle under the terms of the policy. The parties stipulated to damages, and the
trial court entered judgment accordingly.
We review a grant of
summary judgment de novo, applying the same standards employed by the trial
court. Oaks v. American Family
Ins. Co., 195 Wis.2d 42, 47, 535 N.W.2d 120, 122 (Ct. App. 1995). Summary judgment is appropriate where the
facts as to a particular issue are undisputed and only a question of law
remains. Krause v. Massachusetts
Bay Ins. Co., 161 Wis.2d 711, 714, 468 N.W.2d 755, 756 (Ct. App. 1991).
The issue is whether a
snowmobile is an uninsured motor vehicle under the terms of Wisconsin Mutual's
policy. The interpretation of the
language of an insurance policy presents a question of law that we determine
without deference to the trial court. Oaks,
195 Wis.2d at 47, 535 N.W.2d at 122. We
give words used in the policy their plain and ordinary meaning. Id. at 48, 535 N.W.2d at 122. When the terms are plain and unambiguous, we
will construe the contract as it stands.
Holsum Foods v. Home Ins. Co. 162 Wis.2d 563, 569, 469
N.W.2d 918, 920 (Ct. App. 1991). Where
a policy is ambiguous, however, the language will be construed in favor of
coverage. Just v. Land
Reclamation Ltd., 155 Wis.2d 737, 746, 456 N.W.2d 570, 573 (1990).
Wisconsin Mutual first
argues that a snowmobile is excluded from coverage under subpara. (b), which
excludes "a farm-type tractor or equipment designed for use principally
off public roads, while not on public roads." Wisconsin Mutual acknowledges that the interpretation of this
language is controlled by Fletcher v. Aetna Cas. & Surety,
165 Wis.2d 350, 477 N.W.2d 90 (Ct. App. 1991).
In Fletcher, we held that "farm type" modified
both "tractor" and "equipment," and therefore a dune buggy
was not excluded from uninsured motorist coverage under practically identical
language. Id. at 354-55,
477 N.W.2d at 91.
Wisconsin Mutual
contends, however, that Fletcher was wrongly decided and that we
should interpret the language to have the word "farm" modify only the
word "tractor" and not the words "equipment designed principally
for off-public roads." We decline
Wisconsin Mutual's invitation. Not only
are we confident that Fletcher was correctly decided, we are
bound by our own precedent. Skrupky
v. Elbert, 189 Wis.2d 31, 56, 526 N.W.2d 264, 274 (Ct. App. 1994). Moreover, Fletcher has been in
existence for some four years providing Wisconsin Mutual ample opportunity to
clarify the ambiguity in its definition if it desired to do so. We therefore conclude that snowmobiles are
not excluded from coverage under subpara. (b).
Next, Wisconsin Mutual
contends that a snowmobile is excluded from coverage because it is operated on
rails or crawler treads under subpara. (a).
In attempting to determine whether a snowmobile is excluded by this
definition, we apply the plain and ordinary meaning attached to words. See Oaks, 195 Wis.2d at
48, 535 N.W.2d at 122. When determining
the plain and ordinary meaning of words, we may look to definitions in a
recognized dictionary. Id. The American
Heritage Dictionary of the English Language (3d ed. 1992), defines a
snowmobile as "a small vehicle with ski-like runners in front and tank-like
treads used for driving in or traveling on snow." In Webster's
New World Dictionary (3d College
ed. 1988), a snowmobile is defined as:
"any of various motor vehicles for traveling over snow, usually
with steerable runners at the front and tractor treads at the rear."
The connotation
reflected by these definitions appears to conform to subpara. (a) of the
definition that excludes vehicles operated on crawler treads. The tank-like treads contained in the
definition by the American Heritage
Dictionary and the tractor treads referred to by Webster's seem exactly the type of tread that is excluded in
the definition of subpara. (a). The
record contains no indication to the contrary.
We find further support
for our conclusion that a snowmobile is a vehicle operated on crawler treads by
examining conclusions reached by other jurisdictions interpreting the same or
similar language. In Detroit
Auto. Inter-Ins. Exch. v. Spafford, 255 N.W.2d 780, 782 (Mich. App.
1977), the Michigan court dealt with a provision in an insurance policy that
excluded from uninsured motorist coverage "a land motor vehicle ...
operated on ... crawler treads ...."
The Michigan court concluded that a snowmobile is a land motor vehicle
operated on crawler treads. Id.
Massachusetts reached a
similar conclusion when it noted "[a]s snowmobiles operate on crawler
treads and are 'designed for use principally off public roads,' [the trial
judge] determined, correctly, that the language of the policy excluded coverage
for snowmobile accidents." Arbella
Mut. Ins. Co. v. Vynorious, 607 N.E.2d 431, 432 (Mass. App. 1993). In Stepec v. Farmers Ins. Co.,
222 N.W.2d 796, 797 (Minn. 1974), the policy language under consideration
was: "a land motor vehicle or
trailer operated on rails or crawler treads." The Minnesota court concluded that the policy language excluded
snowmobiles. Although the additional
argument was advanced in that case that the exclusion did not apply because the
snowmobile was operated on a public road, the case is persuasive authority that
a snowmobile is a vehicle operated on crawler treads. The parties have not cited any case concluding that comparable
language did not encompass snowmobiles.
Frank argues that the
word "crawler," which is defined as "one which creeps" and
modifies the word "treads," means only slow moving vehicles that
operate on treads would be excluded by the definition. Perhaps in isolation "crawler" would
limit the definition to slow moving vehicles.
However, within the context of the policy's definition,
"crawler" appears to be an adjective describing the type of tread
excluding the vehicle from coverage.
Similarly, the dictionaries attempt to clarify the type of tread by
defining it as "tractor treads" or "tank-like treads." Therefore, we conclude that crawler
describes the type of tread and the policy definition is not limited to slow
moving vehicles.
Frank also suggests that
the existence of skis in the front of the snowmobile exclude it from the policy
definition. The fact that snowmobiles
are equipped with skis to assist in the steering and maneuvering of the vehicle
does not bring it within the definition of an uninsured vehicle. The fact that the snowmobile is propelled by
a tread-like device is sufficient to meet the policy exception contained in
subpara. (a). The fact that the vehicle
also has skis does not change the fact that it is operated on treads.
Frank further contends
that, in an engineering sense, a snowmobile operates on a track and not on treads. We need not apply a technical definition to
the term because the language in the policy is interpreted as it would be
understood by a reasonable person in the position of the insured. See Sprangers v. Greatway Ins. Co.,
175 Wis.2d 60, 67-68, 498 N.W.2d 858, 862 (Ct. App. 1993). The fact that a snowmobile may not in some
technical sense operate on crawler treads does not affect the commonly
understood use of the terms in the policy that encompass snowmobiles. See id.
Finally, Frank argues
that because Wisconsin Mutual did not use the statutory definition of motor
vehicle, the policy should be interpreted expansively, thereby granting
coverage to snowmobiles. Frank points
out that under the statutory definition of motor vehicle, snowmobiles are specifically
excluded. See
§ 632.32(2)(a), Stats. She argues that because the policy did not
use the statutory definition and did not specifically exclude snowmobiles, the
policy should be read to include snowmobiles.
This argument may be relevant if the language of the policy was
ambiguous. However, where the language
is clear, unambiguous and well understood by the average person, we cannot
resort to interpretations that alter the clear intent of the language. See Holsum Foods, 162
Wis.2d at 569, 469 N.W.2d at 920. The
fact that the statutory definition was not adopted by Wisconsin Mutual in
preparation of its policy does not alter the clear and unambiguous language
reflected by the policy.
We therefore conclude
that a snowmobile is excluded from uninsured motorist coverage under Wisconsin
Mutual's policy because it is a motor vehicle operated on crawler treads. Accordingly, we reverse the judgment.
By the Court.—Judgment
reversed.