Vidmar v. American Family Mutual Insurance

*371COFFEY, J.

(dissenting). I dissent from the majority’s decision because it effectively rewrites and extends the insurance coverage afforded by the clear and unambiguous terms of the policy.

The insurance policy involved in this case is a standard automobile liability policy, including uninsured motorist coverage as required by statute.1 This standard policy was modified by the addition of Endorsement 44. This endorsement was added because of the high risk associated with Vidmar’s use of emergency-type vehicles in the course of his employment as a police officer. Rather than pay the higher premiums that would be required in order to insure against the extraordinary risks involved in his occupation, Vidmar and the insurance company agreed to exclude from coverage all liability and injury incurred while operating or occupying nonowned emergency-type vehicles.

The complete exclusion of these damages from any coverage provided in the policy is clearly provided for by the plain language of Endorsement 44 which states:

“The insurance afforded under any of the parts of this policy for the operation of or damage to non-owned automobiles shall not apply to such automobiles while used or occupied by
VIDMAR, ROBERT

in connection with his employment, occupation, or profession.”

The meaning of the exclusion is further emphasized and clarified by the title of the endorsement which states: “Exclusion op non-owned emergency type VEHICLES.”

In addition, Vidmar’s name is typed clearly in the center of the endorsement in such a manner as to clearly indicate that it was intended to exclude coverage of Vidmar’s use of emergency-type vehicles. This addition of his name to the endorsement, along with a mere read*372ing of the exclusion, undoubtedly supports the conclusion that Vidmar was aware of the meaning and extent of the exclusion and agreed to it. How can the exclusion be ambiguous when it specifically refers to the insured and his occupation ?

A common sense .reading of the endorsement and its title clearly excludes from coverage any and all injury sustained in connection with Vidmar’s use of nonowned emergency vehicles in the course of his employment. Such exclusion does not relate to a specific coverage provided under the policy. Rather, it excludes all forms of coverage provided at any time Vidmar is using an emergency-type vehicle. Therefore, the majority’s position that the endorsement does not exclude damages caused by an uninsured motorist must be rejected.

The majority’s reasoning that the phrase “any of the parts of this policy” is limited to provisions that make coverage contingent upon Vidmar’s occupation or operation of a nonowned vehicle; thus excluding uninsured motorist coverage is erroneous. There is no indication in the record that there is any portion, of the policy entitled “Coverage for Occupation or Operation of Non-owned Vehicles.” Ordinarily, the coverage provided by an insurance policy for nonowned vehicles is included within specific coverages such as liability coverage, collision coverage and uninsured motorist coverage. The majority’s construction of the policy assumes just the opposite to be true although there is no copy of the policy in the record. The majority recognizes the general rule that an appellate court will assume that omissions from the record would support the trial court’s exercise of discretion, citing Austin v. Ford Motor Company, 86 Wis. 2d 628, 641, 273 N.W.2d 233 (1979). Yet, they ignore this rule in their holding in this case. I dissented from the Austin decision because there, too, the majority recognized this rule and then proceeded to overturn the trial court’s discretionary act of ordering a new trial. *373See: Austin v. Ford, Motor Co., COFFEY, J. (dissenting) , Id. at 648. In light of the holdings in both Austin and this case, it appears that most any case presents an exception to the rule supporting the trial court’s exercise of discretion.

The majority’s construction of the endorsement renders the entire provision useless. Although they recognize that a construction which gives reasonable meaning to every provision of a contract is preferable to one leaving part of the language useless or meaningless, Stanhope v. Brown County, 90 Wis. 2d 823, 848-49, 280 N.W.2d 711 (1979), their construction of the endorsement involved in this case renders the phrase “under any of the parts of this policy” useless. In fact, in this situation, it renders Endorsement Uk useless. The majority’s interpretation of Endorsement 44 is contrary to the well-established principle that the insurance policy and the endorsement should be construed, if possible, to give full effect to all words and provisions of both. Riteway Builders, Inc. v. First National Insurance Co., 22 Wis. 2d 418, 420-21, 126 N.W.2d 24 (1964).

This court has repeatedly held that insurance contracts, like all contracts, are to be construed in a reasonable fashion so as not to lead to absurd results. Olguin v. Allstate Ins. Co., 71 Wis. 2d 160, 165, 255 N.W.2d 903 (1975); McPhee v. American Motorists Ins. Co., 57 Wis. 2d 669, 679, 205 N.W.2d 152 (1972). As we stated in Kopp v. Home Mutual Ins. Co., 6 Wis. 2d 53, 94 N.W.2d 224 (1959) :

“Furthermore, policies of insurance are to be given a reasonable construction, and not one that leads to an absurd result. 13 Appleman, Insurance Law and Practice, p. 38, sec. 7386, and 44 C.J.S., Insurance pp. 1163, 1164, sec. 296.” Id. at 57.

A more absurd result can hardly be contemplated than one which renders the clear and unambiguous language of a policy provision ineffective.

*374Any reasonable interpretation of the plain language of the endorsement results in a determination that the provision applies to the entire policy, including uninsured motorist coverage. The endorsement expressly excludes from coverage “insurance afforded under any of the parts of the policy” (emphasis supplied) for the operation of nonowned vehicles in connection with “Robert Vidmar’s” employment. Thus, the provision clearly applies to the policy as a whole. Further, support for this reading of the endorsement is found in the fact that the uninsured motorist coverage incorporates Endorsement 44 since the provision for such coverage states that it is subject “to applicable terms of this policy.” Endorsement 44 is clearly one of the applicable terms.

The majority’s analysis relies on the rule of construction that the contract must be interpreted in light of “What a reasonable person in the position of the insured would have understood to be covered.” Patrick v. Head of Lakes Cooperative Elec. Ass’n., 98 Wis. 2d 66, 69, 295 N.W.2d 205 (Ct. App. 1980), citing Ehlers v. Colonial Penn. Insurance Co., 81 Wis. 2d 64, 259 N.W.2d 718 (1977). Applying this rule, the majority concludes that the insured would not have realized that the exclusion extended to uninsured motorist coverage.

I submit, however, that no reasonable person in the insured’s position would have believed that any coverage was provided for accidents occurring while using emergency-type vehicles in the line of duty as a policeman. The only reason the coverage afforded Vidmar under the policy differed from the standard automobile liability policy was that Vidmar was employed as a police officer. The addition of the endorsement was plainly ■ for the purpose of excluding from coverage under “any of the parts of [the] policy” (emphasis supplied) damage caused by the high-risk nature of Vidmar’s employment and this was agreed to by Vidmar as demonstrated by *375his acceptance of the policy with the bold endorsement that specifically excluded coverage for use of emergency-type vehicles by Robert Vidmar. The effect of the provision was to put Vidmar in the same position as other average risk insureds when operating their own vehicles.

It cannot be doubted that the increased risk associated with Vidmar’s employment included the risk of collision with an uninsured motorist. As a police officer in this state’s largest metropolitan community, Vidmar is frequently called upon to use his automobile to force other vehicles to the side of the road or as a roadblock. Drivers who try to avoid being pulled over often collide with police vehicles in attempting to escape. These, drivers try to escape for many reasons, including the fact that frequently they are in the act of committing a felony, fleeing a crime such as an armed robbery, the vehicle is stolen, unregistered or their driver’s license has been revoked. In virtually all these cases, the driver is uninsured. It is reasonable to assume that both the insurer and Robert Vidmar were aware of this increased risk of collision with uninsured motorists and, in order to keep Vidmar’s premium to a minimum, excluded it from the policy. The majority’s construction of Endorsement 44 ignores the plain and unambiguous language of the policy and the reality of the increased risk of the collision with an uninsured motorist caused by Vidmar’s employment as a police officer.

The majority’s opinion also ignores the fact that Vidmar was covered for his injuries by his employer, the city of Milwaukee, through his worker’s compensation benefits. Vidmar started this action solely to recover additional compensation for the personal injuries he allegedly sustained. Thus, any recovery under the uninsured motorist coverage of this policy is to a certain extent an additional or double recovery by Vidmar,

*376It is unrealistic to assert that Vidmar did not understand the extent of the exclusion encompassed in Endorsement 44. It would take highly sophisticated mental gymnastics on the part of the average insured to interpret the endorsement’s application as being limited to those parts of the policy-making coverage contingent upon the use of nonowned vehicles, thus excluding uninsured motorist coverage. The construction adopted by the majority as to the average insured’s reasonable belief is more a product of plaintiff’s counsel’s ingenuity than any realistic appraisal of the endorsement and its interpretation by the average insured.

The majority reasons that because the language of Endorsement 44 is ambiguous, it should be strictly construed against American Family and, therefore, holds that the uninsured motorist coverage is not affected by the endorsement. The author of this dissenting opinion recognizes that any ambiguity in an insurance contract is strictly construed against the drafter and that this is especially true when the provision under review is an exclusion from coverage. Lawver v. Boling, 71 Wis.2d 408, 420-21, 238 N.W.2d 514 (1976). But this rule has no application to the instant case which involves no ambiguity. D’Angelo v. Cornell Paperboard Products Co., 59 Wis. 2d 46, 207 N.W.2d 846 (1972); Reeves v. Midland Casualty Co., 170 Wis. 370, 174 N.W. 475 (1920).

This court has stated on numerous occasions that the rule of strict construction against the insurer should not be used to rewrite the insurance contract so as to bind the insurer to a risk which it was unwilling to assume, the result being that the insured pays the smaller premium yet receives more coverage than mutually agreed to and accepted by the insured. Olguin v. Allstate Ins. Co., 71 Wis. 2d 160, 255 N.W.2d 903 (1975); Amidzich v. Charter Oak Fire Ins. Co., 44 Wis. 2d 45, 52-53, 170 *377N.W.2d 813 (1969). As the court stated in Garriguenc v. Love, 67 Wis. 2d 130, 226 N.W.2d 414 (1976) :

“However, when the terms of a policy are plain on their face, the policy should not be rewritten by construction to bind the insurer to a risk it was unwilling to cover, and for which it was not paid. Litigants should not be able to resort to rules of construction for the purpose of modifying the contract or creating a new contract; and a court need not resort to either construction or case law to bolster its recognition of that plain meaning.” Id. at 135.

This case falls squarely within this principle and thus I cannot join in the majority’s revision of the policy to afford coverage where none was intended. It can be assumed that the amount of Vidmar’s premiums does not reflect the extraordinary risk of automobile accidents which is a fact of life associated with his employment. The result of the majority’s decision is to require the insurance company and inevitably, other average risk insureds, to unfairly pay for the high-risk situation presented by Vidmar’s employment. As assuredly as it is against public policy to avoid coverage where coverage is reasonably expected, so is it against public policy, under the guise of strict construction, to bind an insurer to a risk not covered under the express terms of the policy. Public policy does not usually require the average insured driver to pay the increased premiums necessary to cover another driver’s operation of emergency-type vehicles for not all companies insure drivers in more hazardous occupations. There is no statutorily mandated risk-sharing plan governing personal insurers of persons “using emergency-type vehicles” like the pool established for insuring persons with unacceptable driving records. No man’s personal insurer should be responsible for liability or injury arising from the use of emergency-type vehicles in the course of high-risk public occupations like that of a *378policeman, fireman or ambulance driver unless he agrees to accept this increased risk.

The purpose of Endorsement 44 and the intent of the parties in including it in the policy is clear: to exclude from the coverage of the entire policy, the greater risks arising from Vidmar’s use of automobiles in connection with his employment. Where the purpose of a provision of an insurance contract is clear through a reasonable examination of its plain language, it should be construed, not as the majority has done to defeat that purpose, but rather to accomplish it. Rood v. Merchants Ins. Co., 240 Wis. 329, 337, 3 N.W.2d 353 (1942). I, therefore, respectfully dissent. I am authorized to say that Mr. Justice William G. Callow joins this dissent.

Sec. 632.32(3), Stats. 1975, now renumbered sec. 632.32(4) (a), Stats.