COURT OF APPEALS DECISION DATED AND RELEASED June 11, 1996 |
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. 95-1709
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
LETRILLIAN'S, INC. and
WANDA BILLUPS,
Plaintiffs-Appellants,
v.
PATRICK C. MILLER,
A.N. ANSAY
& ASSOCIATES, INC.
and ALL
LINES INSURANCE
AGENCY, INC.,
Defendants-Respondents.
APPEAL from a judgment
of the circuit court for Milwaukee County:
LAURENCE C. GRAM, JR., Judge. Affirmed.
Before Wedemeyer, P.J., Sullivan
and Schudson, JJ.
PER CURIAM. Letrillian's, Inc., and Wanda Billups
(collectively, “Billups”) appeal from a judgment granted in favor of Patrick C.
Miller and A.N. Ansay & Associates, Inc., as a result of an insurance
dispute.[1] We conclude that the trial court properly
granted summary judgment against Billups and we affirm.
In mid-1992, Wanda
Billups bought a restaurant property.
Shortly afterwards she asked Patrick Miller, an employee of A.N. Ansay
& Associates, Inc., an insurance agency, to obtain replacement-cost
insurance coverage for the property.
Miller forwarded Billups's coverage application to All Lines, which
placed the insurance with Capitol Indemnity Company. The policy, however, provided only for actual cash value
coverage. All Lines forwarded the
policy to Miller, who told Billups that he had obtained a policy that provided
$600,000 replacement-cost coverage limits on the building and $150,000
replacement-cost coverage limits on the contents of the building.
The building was
destroyed by fire on February 17, 1993.
Billups submitted proofs of loss totaling $702,578.62, which listed
actual cash values for the building and its contents at approximately
$300,000. Billups subsequently learned,
however, that the policy provided for actual cash value coverage instead of replacement-cost
coverage. Prior to the initiation of
this lawsuit, Billups settled with Capitol Indemnity for $304,000 based on
actual cash values. Capitol refused to
pay anything more than $304,000 because of its belief that Billups had
deliberately set fire to the building.
Billups never replaced or rebuilt the building and it was razed.
Billups sued Miller,
Ansay and All Lines for breach of contract and for negligently failing to
obtain replacement-cost coverage. The
defendants moved for summary judgment, arguing that a Capitol replacement-cost
policy would have provided that it would not pay on a replacement cost basis
for any loss or damage “[u]ntil the lost or damaged property is actually
repaired or replaced.” The defendants
argued that they were not liable because Billups had not repaired or replaced
the property. The trial court granted
summary judgment in favor of the defendants and dismissed Billups's complaint.
Section 802.08, Stats., governs summary judgment
methodology. That methodology for
reviewing summary judgment motions has often been recited in many cases, see,
e.g., Grams v. Boss, 97 Wis.2d 332, 338, 294 N.W.2d 473, 476
(1980), and need not be repeated here.
Our review is de novo. Id.
Billups argues that her
action against Miller and Ansay for breach of contract and negligent failure to
procure replacement-cost coverage is a separate action and not an action on the
insurance contract. She contends,
therefore, that her remedy or damages should be the “natural and probable”
consequences of the breach, and thus that the policy language which would have
required that she actually repair or rebuild in order to receive
replacement-cost proceeds would be inapplicable. She also claims that whether the defendants breached a contract
to procure replacement-cost coverage and whether the defendants negligently
failed to obtain such coverage “involved genuine issues of material fact that
required resolution by the court and jury.”
Billups, however, fails to indicate what factual uncertainties
exist. Indeed, it is undisputed that
the defendants improperly failed to obtain replacement-cost coverage for
her. Thus this appeal presents purely a
legal issue: does policy language
requiring property to be repaired or replaced in order to receive replacement-cost
coverage apply?
In Appleton
Chinese Food Service, Inc. v. Murken Insurance, Inc., 185 Wis.2d 791,
519 N.W.2d 674 (Ct. App. 1994), the plaintiff sued an insurance agency for the
negligent failure of one of its agents to procure replacement-cost coverage and
for breach of contract. Although the
court of appeals did not rule on the exact issue presently before this court, see
id. at 811 n.10, 519 N.W.2d at 680 n.10, the court did rule that
“[d]amages arising out of [an agent's or] a broker's failure to procure
insurance are commonly determined by the terms of the policy the agent failed
to procure.” Id., 185
Wis.2d at 808, 519 N.W.2d at 679.
Here, it is undisputed
that Billups never repaired or replaced the property. Thus, she failed to satisfy what would have been the contractual
prerequisite for obtaining any proceeds other than actual cash value.
Billups also claims that
if she had properly been issued replacement-cost coverage, she would have been
able to obtain financing to rebuild the restaurant. In support of her claim, however, Billups submitted affidavits
that do not comply with the requirement of § 802.08(3), Stats., (affidavits in support of
summary judgment motions must “set forth such evidentiary facts as would be
admissible in evidence”). Thus Billups
has failed to present evidence necessary to establish each element of her case
in order to avoid a summary judgment against her. Transportation Ins. Co. v. Hunzinger Constr. Co., Inc.,
179 Wis.2d 281, 290-292, 507 N.W.2d 136, 139-140 (Ct. App. 1993). According to her deposition testimony,
Billups merely stated that if she could have obtained a liquor license and had
been permitted to rebuild, she would have had the “wherewithal” to rebuild the
restaurant. Her submissions offered no
evidence that she applied for any loan or contacted contractors regarding
credit for construction of any building.
Therefore, we conclude
that the trial court correctly granted summary judgment to the defendants based
on Billups's failure to satisfy the prerequisite of the policy language
requiring that the property be repaired or replaced.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.