Weimer v. Country Mutual Insurance Co.

SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE

¶ 39. (dissenting). I dissent because I conclude that Wis. Stat. § 631.43(1) (1993-94) permits the plaintiff to stack the liability policy for the defendant-insured's truck and the liability policy for the defendant-insured's trailer when both are driven together and cause bodily injury.

¶ 40. Wis. Stat. § 631.43(1) provides that stacking is permitted when an insured has two or more insurance policies protecting against the same loss. See Agnew v. American Family Mut. Ins. Co., 150 Wis. 2d 341, 349, 441 N.W.2d 222 (1989). The question presented is whether the two liability policies fall within the statutory phrase "the same loss."

¶ 41. The majority opinion concludes that stacking is not permitted because the liability policies for the truck and the trailer do not insure against the "same loss," that is, the same risk of loss. According to the majority opinion, the risks accompanying the truck are distinct from the risks accompanying the trailer. See Majority op. at 718, 720.

¶ 42. Under the majority opinion, the truck by itself is insured for $100,000/$300,000; the trailer by itself is insured for $100,000/$300,000; but when the truck and trailer are used together, the defendant-insured's coverage is limited to $100,000/$300,000.

¶ 43. I disagree with the majority opinion. In my view, the majority opinion's reasoning runs counter to common sense and to the "same loss" language set forth in Wis. Stat. § 631.43(1). As Judge Dykman stated in his dissent in the court of appeals, "[M]ost people would *727conclude that the time when liability coverage on a trailer is most needed is when it is being pulled by one's motor vehicle." Weimer v. County Mut. Ins. Co., 211 Wis. 2d 845, 868 (Ct. App. 1997) (Dykman, J., dissenting).

¶ 44. In this case the defendant-insured paid separate premiums for liability coverage for the truck and for the trailer. Each policy insured against liability for bodily injury arising from the operation of the vehicle specified in the policy owned by the defendant-insured. In light of the two separate liability policies, the defendant-insured and the insurer could presumably foresee that the trailer would sometimes be hitched to the truck. Because both vehicles were being operated at the time of the accident and both vehicles caused bodily injury, I conclude that each policy insured against the same loss and stacking is permitted.

¶ 45. Furthermore, the majority opinion's reliance on Agnew to support its interpretation of the "same loss" language is misplaced. In Agnew the plaintiff attempted to stack separate liability limits of three vehicles, but only one vehicle was involved in the accident. The Agnew court held that each policy insured against a different loss (namely the loss caused by each car) and that only one policy insured the insured against the loss incurred. See Agnew, 150 Wis. 2d at 349. Because only one policy promised to indemnify the insured against the loss incurred, the court concluded that Wis. Stat. § 631.43(1) did not apply. See Agnew, 150 Wis. 2d at 351. In the case at bar, in contrast to the Agnew case, both of the defendant-insured's vehicles were involved in the accident.

¶ 46. If stacking had been permitted in Agnew, the insured would have obtained increased unpurchased liability coverage for operation of the car *728involved in the accident. The court stated, "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 350-51.

¶ 47. The case at bar is very different. In this case the policyholder purchased separate insurance for the operation of each vehicle. Both insured vehicles were involved in causing the bodily injury. I conclude that in this case both policies insured against the same loss and that Wis. Stat. § 631.43(1) permits stacking the two liability policies.

¶ 48. For the foregoing reasons, I dissent.

¶ 49. I am authorized to state that Justice Wil- ■ liam A. Bablitch joins this opinion.