Weimer v. Country Mutual Insurance

DYKMAN, P.J.

(dissenting). When Ronald Trace contacted his insurance agent to purchase liability coverage for the four trucks and three trailers that he used in his landscaping business, he must have thought that he was obtaining liability coverage on all of the vehicles. Probably, no one told him that although he was paying for liability coverage for his trailers, coverage was non-existent when he pulled the trailers with his trucks. Had someone done so, I think Trace would have been incredulous. He and most people would conclude that the time when liability coverage on a trailer is most needed is when it is being pulled by one's motor vehicle. I cannot agree that all Trace bought was one coverage of $100,000 no matter how many premiums he paid or how many of his vehicles were involved in an accident. The real victim is Weimer, who should be entitled to the policy limits of the two policies that Trace purchased to cover this type of accident.1 Instead, he must now attempt to collect one-half million dollars from a small landscaper whose salvation will probably lie in bankruptcy.

I agree with much of the majority opinion. I agree that West Bend Mut. Ins. Co. v. Playman, 171 Wis. 2d 37, 42, 489 N.W.2d 915, 917 (1992), read together with Schult v. Rural Mut. Ins. Co., 195 Wis. 2d 231, 240-41, *872536 N.W.2d 135, 139 (Ct. App. 1995), requires a conclusion that where an insured pays multiple premiums insuring against the same loss, § 631.43(1), Stats., voids single-limit clauses in liability insurance policies. I agree that when Ronald Trace purchased liability insurance for his seven vehicles, he, in effect, purchased seven separate policies. I agree with the majority's discussion of post-verdict interest. Where I part company with the majority opinion is with its interpretation of Agnew v. American Family Mut. Ins. Co., 150 Wis. 2d 341, 441 N.W.2d 222 (1989), which is the underpinning of the majority's reasoning.

Section 631.43(1), Stats., which permits the "stacking" of insurance coverages, has been much litigated. The statute alters the agreement that insureds and insurance companies make with each other. The statute would seem to be self-explanatory, though it has been far from that:

(1) GENERAL. When 2 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 promised by the policies if there were no "other insurance" provision. . ..

Ronald Trace's policy has an "other insurance" clause:

OUR LIMIT OF LIABILITY
1. Regardless of the number of covered autos, insureds, claims made or vehicles involved in the accident, our limit of liability is as follows:
a. The most we will pay for all damages resulting from bodily injury to any one person *873caused by any one accident is the limit of Bodily Injury Liability shown in the declarations for "Each Person."
b. Subject to the limit of "Each Person" the most we will pay for all damages resulting from bodily injury caused by any one accident is the limit of Bodily Injury Liability shown in the declarations for "Each Accident."

It would seem that § 631.43(1), STATS., would void the "other insurance" clause in Trace's policy with Country Mutual. But the same could be said of that statute and the liability policy involved in Agnew. There, the court concluded that § 631.43(1) was inapplicable in a situation where three vehicles were covered by a liability insurance policy, but only one vehicle was involved in the accident. The court concluded that § 631.43(1) did not govern the three policies because the three policies did not insure against the same loss. The loss was the accident in which only one of the three vehicles was involved. The other two vehicles were not involved in the accident. The court explained its conclusion:

[I]n this case each policy insures against a different loss and only one policy insures the insured against the loss incurred. Each American Family policy insures against liability arising from the operation of the vehicle specified in the policy owned by the policyholder. Thus under this part of each policy in this case only the policy covering the Ford pickup truck covered liability incurred by reason of operation of the Ford pickup truck.
In this case, Larry Sailor purchased $25,000 in liability coverage for the Ford pickup truck, the vehicle he owned that was involved in this accident. *874He could have purchased more liability coverage for the Ford pickup. He chose not to. If stacking is permitted in this case, Larry Sailor would obtain increased unpurchased liability coverage for himself and the relatives residing in his household for operation of that Ford pickup. It does not make sense to conclude that the legislature intended sec. 631.43(1) to allow the insured in this case to aggregate the three policies to provide insurance protection that the policyholder did not purchase.

Agnew, 150 Wis. 2d at 349-51, 441 N.W.2d at 226-27.

The difference between Agnew and the case at hand is easy to see. Here, two insured vehicles were involved in the same accident. Had Larry Sailor's Ford pickup and his Ford LTD both been involved in the accident which injured Agnew, the Agnew court could not have reasoned as it did to reach a conclusion that two of Sailor's policies could not be stacked. In that hypothetical, Sailor would have purchased two policies, paying a premium for each, with each vehicle being involved in the same accident. In that hypothetical, the court would not have concluded that Sailor would have obtained increased unpurchased liability insurance for himself and his relatives. The Agnew court's reasoning applied to a situation in which one of an insured's several vehicles was involved in an accident. That reasoning is inapplicable to a case where two insured vehicles are involved in the same accident. Having concluded that Agnew is inapplicable, I also conclude that § 631.43(1), STATS., voids Country Mutual's "other insurance" clause. Weimer is therefore entitled to the policy limits of both the truck policy and the trailer policy.

Today, many people pull trailers. Boats, snowmobiles, recreational vehicles, household goods *875and iceboats are commonly transported in or on trailers. Ronald Trace's policy with Country Mutual provides that trailer liability coverage is primary coverage if the trailer is connected to an owned and insured motor vehicle. If Country Mutual's is a typical policy, trailer owners must be told that even though they purchase liability coverage for their trailers, and even though their policy tells them that this liability coverage is primary, in fact they have no liability coverage on their trailers, except for very unusual situations. They can avoid this problem by buying liability coverage for their motor vehicles from one insurance company and liability coverage for their trailers from another company, or they can buy double or triple the coverage that they need from one company. But if they buy trailer liability insurance and motor vehicle liability insurance from one company, they cannot assume that the liability coverage they purchase for their trailers will be there when they need it. I cannot agree with the majority's view of Ágnew, which leads to this result. I therefore respectfully dissent.

The parties do not dispute that operation of the trailer was a substantial factor in the accident.