Sweeney Ex Rel. Ross v. General Casualty Co. of Wisconsin

DEININGER, J.

(concurring). I agree that the result we reach in this appeal is compelled by prior holdings of this court. I write separately, however, to note that, in my view, our present holding, taken together with Smith v. Atlantic Mut. Ins. Co., 155 Wis. 2d 808, 456 N.W.2d 597 (1990) (Smith II), produces a set of incompatible results. The appellate decisions reviéwed in the court's opinion demonstrate that, while our stated purpose is to realize the reasonable expectations of the parties to the policy, we do not consistently achieve that goal. Cf. Weimer v. Country Mut. Ins. Co., 211 Wis. 2d 845, 857-58, 565 N.W.2d 595, 600-01 (Ct. App. 1997), rev'd in part on other grounds, 217 Wis. 2d 705, 575 N.W.2d 466 (1998).

*198The policy language presently at issue explicitly limits the underinsured motorist coverage as follows: "The limit of liability [$100,000] shall be reduced by all sums paid because of the 'bodily injury' by or on behalf of persons or organizations who may be legally responsible." We have previously held that this language creates coverage that is "illusory" and "contrary to public policy" because the insured can never obtain $100,000 in underinsured motorist coverage, but only some lesser amount. Kuhn v. Allstate Ins. Co., 181 Wis. 2d 453, 463-65, 510 N.W.2d 826, 830-31 (Ct. App. 1993) (Kuhn I), aff'd on other grounds, 193 Wis. 2d 50, 532 N.W.2d 124 (1995) (Kuhn II). Thus, the Sweeneys, who claim to have suffered $150,000 in damages, will be made whole in the present case by receiving their full damages from a combination of the tortfeasor's policy ($50,000) and General Casualty ($100,000).

The supreme court has concluded, however, that underinsured motorist coverage can be extinguished entirely by a definition in the insurance policy which compares the amount of liability coverage which exists for the tortfeasor's vehicle to the underinsured motorist coverage limit of the policy. Smith II, 155 Wis. 2d at 811-14, 456 N.W.2d at 599-600. The definition of "underinsured motor vehicle" in the present policy is virtually identical to that considered in Smith. See id. at 811, 456 N.W.2d at 599. Under that definition, any vehicle covered for at least $100,000 is not an "underin-sured motor vehicle." Thus, if the tortfeasor's liability coverage here had been $100,000, the Sweeneys would recover only $100,000 from the tortfeasor's insurer, and nothing from General Casualty, even though the tortfeasor would still have been "underinsured" with respect to the $150,000 in damages sustained. See Kuhn I, 181 Wis. 2d at 465, 510 N.W.2d at 831 (The *199purpose of underinsured motorist coverage is to compensate a victim when the tortfeasor's liability limits " 'are not adequate to fully compensate the victim for his or her injuries.'") (alteration in original, quoted source omitted).

I have difficulty understanding what public policy is served by our present and prior holdings on the issue presented. We insist here and in Kuhn I that an insurance policy may not be written so as to guarantee that a certain dollar amount of insurance coverage will be available to compensate an insured when he or she is injured in an accident caused by another driver, if the policy provides that the specified sum will be paid in part by the tortfeasor's insurer and in part by the insured's own company. Yet, the coverage in question may be written, with judicial blessing, so as to limit the compensation available to the insured to the same fixed sum, provided it is paid entirely by the tortfeasor's insurer. The legislature apparently does not share this court's view that policy language such as the reducing clause at issue here violates public policy. Section 632.32(5)(i)l, STATS., effective July 15, 1995, now permits a motor vehicle insurance policy to "provide that the limits under the policy for uninsured and underinsured motorist coverage for bodily injury . . . shall be reduced by... [ajmounts paid by or on behalf of any person or organization that may be legally responsible for the bodily injury ... for which the payment is made."