Lisowski v. Hastings Mutual Insurance

*407ANN WALSH BRADLEY, J.

¶ 31. (dissenting). I agree with the majority that the dispute here is "whether Jonathan Lisowski was entitled to coverage as an insured regardless of where he was at the time he was injured by the underinsured motorist." Majority op., ¶ 10 (emphasis added). Based upon what I refer to as Rule 101 of underinsured motorist coverage (UIM), the answer is undoubtedly: yes.

¶ 32. By Rule 101,1 mean that basic to the nature of underinsured motorist coverage is that it is "personal and portable" for resident family members of the named insured. As a learned treatise on Wisconsin insurance law explains: "Keep in mind that UIM as well as UM coverage is personal and portable and follows Class I insureds [resident family members of the named insured]." 1 Arnold R Anderson, Wisconsin Insurance Law § 4.14 (5th ed. 2004).

¶ 33. What does it mean to be "personal and portable"? "Personal" means that the coverage follows the person and not the vehicle, and "portable" means that it follows the person regardless of where he is at the time of the accident. Unlike general automobile liability policies which insure a specific auto, UIM policies insure the person.

¶ 34. We have previously explained that coverage for Class I insureds follows the insured "wherever he may go, be it 'in an unowned vehicle, on a motorcycle, on a bicycle, whether afoot or on horseback or even on a pogo stick.'" Teschendorf v. State Farm Ins. Co., 2006 WI 89, ¶ 25, 293 Wis. 2d 123, 717 N.W.2d 258 (quoting Welch v. State Farm Mut. Auto Ins. Co., 122 Wis. 2d 172, 181, 361 N.W.2d 680 (1985)).1

*408¶ 35. The majority correctly acknowledges that there is no dispute that, as a resident family member of the named insured, Jonathan is a Class I insured. Majority op., ¶ 10. Thus, I conclude based on Rule 101 (UIM coverage is "personal and portable") that Jonathan is covered under his UIM policy regardless of where he was at the time he was injured.

¶ 36. The problem with the majority opinion is twofold: (1) by ignoring this basic tenet of UIM coverage, it collapses the distinction between Class I and Class II insureds, requiring all insureds to be occupants of covered autos; and (2) by concluding that the language of the policy is clear and unambiguous, it contradicts a parade of cases from other courts and avoids the cannon of construction that ambiguity is decided in favor of the insured.

I

¶ 37. The majority concludes that occupancy of a covered auto is a requirement for UIM coverage under this policy. In reaching this conclusion the majority determines that UIM coverage for Class I insureds is neither "personal" nor "portable."

¶ 38. UIM policies traditionally cover three distinct classes of insureds. Wisconsin Insurance Law, supra, § 4.11. The named insured and any relatives who reside in the named insured's household are Class I insureds. Id. Class II insureds, or "occupant insureds," include anyone else while occupying a covered auto. Id. Finally, anyone who is entitled to a derivative claim is a Class III insured. Id. In Wisconsin as well as nationally, UIM coverage is personal and portable for Class I insureds.2

*409¶ 39. The provisions of Jonathan's father's UIM policy correspond with this understanding of UIM insurance. The initial grant of coverage states that Hastings will "pay all sums the 'insured' is legally entitled to recover as compensatory damages from the owner or driver of an 'underinsured motor vehicle.'" The policy further defines three distinct classes of insureds:

I. The Named Insured and any [resident] "family members."
II. Anyone else "occupying" a covered "auto" or temporary substitute for a "covered auto”....
III. Anyone for damages he or she is entitled to recover because of "bodily injury" sustained by another "insured."

¶ 40. The definition of Class I insureds contains no occupancy requirement. The only insureds who must occupy a covered auto to be afforded coverage are Class II insureds. Under the majority's analysis, however, there is no distinction between Class I and Class II insureds — both must be occupants of a covered vehicle in order to receive coverage.

¶ 41. An established principle of policy interpretation is that courts should read a policy to give meaning to every provision, avoiding constructions that render portions of the policy meaningless. Isermann v. MBL Life Assur. Corp., 231 Wis. 2d 136, ¶ 25, 605 N.W.2d 210 (Ct. App. 1999). If the language is given the effect advanced by the majority, the definition of Class I insureds is rendered meaningless here. Why would the policy differentiate between Class I insureds and Class II insureds if there is no distinction?

*410¶ 42. Reading this policy to give meaning to every provision, I conclude that there is a distinction between Class I and Class II insureds — Class I insureds need not occupy a covered auto in order to be covered under the UIM endorsement. As a Class I insured, Jonathan's UIM coverage is personal and portable and he is entitled to coverage wherever he may go.

II

¶ 43. After eschewing this basic principle of UIM coverage, the majority embarks upon a determination of whether the language of the policy is ambiguous or unambiguous. The lynchpin of the majority's analysis is that the language of the policy is clear and unambiguous. If, however, the majority concluded that the language was ambiguous, it would have to decide the case in favor of coverage for Jonathan. Ambiguity in an insurance policy must be construed in favor of coverage. Folkman v. Quamme, 2003 WI 116, ¶ 13, 264 Wis. 2d 617, 665 N.W.2d 857.

¶ 44. The problem with the majority opinion is that it remains steadfast to its conclusion that the language is clear and unambiguous, disregarding the conclusions of court after court examining the same language. Indeed, a parade of courts has examined identical language and reached a conclusion opposite to the majority.

¶ 45. Both the circuit court and the court of appeals found Jonathan's argument that the language was ambiguous to be persuasive. Nonetheless, both courts were bound to follow the holding of Crandall ex rel. Johnson v. Society Insurance,3 in which the court of appeals determined that similar language unambiguously restricted UIM coverage to occupants of covered *411autos. Both courts struggled to reconcile the obvious ambiguity in this UIM endorsement with the unequivocal holding in Crandall that it was unambiguous.

¶ 46. To begin, the circuit court stated that Jonathan's legal arguments and secondary authorities were persuasive: "I would be tempted to be sympathetic to the language — to a finding that it does create ambiguity." Nonetheless, the court concluded — as it must— that it was constrained to follow Crandall.

¶ 47. Initially, the court of appeals certified the question to this court, noting that "[t]he introductory provision Crandall relied on is plainly inconsistent with the provisions that follow it" and asked us to modify, limit, or overrule Crandall. We did not accept certification, and the court of appeals ultimately determined that under Cook v. Cook,4 it must follow the conclusion of the Crandall court, even though it disagreed with it. Lisowski v. Hastings Mut. Ins. Co., No. 2006AP2662, unpublished slip op., ¶ 1 (Ct. App. Jan. 31, 2008).

¶ 48. Likewise, the court of appeals in Ruenger v. Soodsma, 2005 WI App 79, 281 Wis. 2d 228, 695 N.W.2d 840, struggled to reconcile Crandall's unequivocal holding with plainly inconsistent policy language. Ruenger, the insured, argued that identical introductory language as here created ambiguity when read in conjunction with the coverage section of the UIM endorsement. Id., ¶ 34. The court acknowledged that the coverage section of the UIM endorsement, read alone, provided coverage for the Class I insured while occupying an uncovered vehicle. Id., ¶ 31. Noting that there was merit to Ruenger's ambiguity argument, the court concluded that nonetheless, it was bound by the holding in Crandall. Id., ¶ 34.

*412¶ 49. Courts around the country have examined identical language and have uniformly determined that it is ambiguous. See Reisig v. Allstate, 645 N.W.2d 544, 550-51 (Neb. 2002) (finding ambiguity because the terms of the UIM endorsement conflicted with the introductory language "for a covered auto"); Bushey v. N. Assurance Co., 766 A.2d 598, 603 (Md. Ct. App. 2001) (same); see also Stoddard v. Citizens Ins. Co., 643 N.W.2d 265, 269 (Mich. Ct. App. 2002) (determining that a similar UIM endorsement unambiguously provided coverage to a Class I insured even though the insured did not occupy a covered auto).

¶ 50. It should give the majority pause that in all of these cases, the courts have determined that identical language was, at the very least, contextually ambiguous. Nonetheless, the majority unhesitatingly turns a blind eye to this overwhelming weight of authority, clings to Crandall, and concludes that the language of the policy is clear and unambiguous. Wisconsin stands alone in this interpretation.

¶ 51. The majority determines that there is no ambiguity because the covered auto language in the UIM endorsement is consistent with the declarations page of the liability policy. Majority op., ¶ 25. It ignores, however, the obvious conflict between the covered auto language and the grant of coverage in the UIM endorsement. In focusing on the symmetry between the declarations page and the "for a covered auto" language, the majority skirts the established principle of insurance policy construction that ambiguity must be construed in favor of coverage.

¶ 52. Finally, as requested by the court of appeals in its certification memorandum to this court, I would take this opportunity to modify Crandall. The court of appeals correctly explained that "[t]he introductory *413provision Crandall relied on is plainly inconsistent with the provisions that follow it." Our interpretation should comport with the reality observed by other courts that have examined the same language — the policy language is ambiguous.

¶ 53. Although the majority proclaims that the language is clear and unambiguous, it does not necessarily make it so. Instead, all too often this court finds policy language unambiguous which then obviates the need for further meaningful analysis. I am reminded of the words of a nonsense poem by Lewis Carroll: "I have said it thrice: What I tell you three times is true."5

¶ 54. Just because Wisconsin courts thrice proclaim that this language is clear and unambiguous, it makes it no more true than was the proclamation in Carroll's poem. For the above reasons, I would conclude that Jonathan's injuries are covered under his father's UIM policy. This interpretation is consistent with established principles of UIM coverage and of insurance policy interpretation. Accordingly, I respectfully dissent.

¶ 55. I am authorized to state that CHIEF JUSTICE SHIRLEY S. ABRAHAMSON joins this dissent.

While Teschendorf dealt with an uninsured motorist (UM) policy, its analysis applies to UIM policies as well. See 1 Arnold R Anderson, Wisconsin Insurance Law § 4.14 (5th ed. 2004).

Wisconsin Insurance Law, supra, § 4.14; see also Alan I. Widiss & Jeffrey E. Thomas, Uninsured and Underinsured *409Motorist Insurance § 33.2 (3d ed. 2005) ("Most significantly, clause/class (1) insureds do not have to be an occupant of an insured vehicle when an injury occurs in order to be covered.").

2004 WI App 34, 269 Wis. 2d 765, 676 N.W.2d 174.

208 Wis. 2d 166, 189, 560 N.W.2d 246 (1997) (stating that the court of appeals may not overrule, modify, or withdraw language from a prior court of appeals decision).

"Just the place for a Snark!" the Bellman cried,

As he landed his crew with care;

Supporting each man on the top of the tide

By the finger entwined in his hair.

"Just the place for a Snark! I have said it twice:

That alone should encourage the crew.

Just the place for a Snark! I have said it thrice:

What I tell you three times is true."

Lewis Carroll, "The Hunting of the Snark" (1876).