Mau v. North Dakota Insurance Reserve Fund

JON E WILCOX, J.

¶ 43. (dissenting). Although I join Justice Sykes' dissent, which would hold that Mau was an occupancy insured rather than a named insured under Wisconsin law, I write separately because I think the court should go on to decide the question of whether Mau was "occupying" the rental vehicle when the collision occurred.

¶ 44. Both the majority opinion and Justice Sykes' dissent conclude that the question of whether Mau was occupying the vehicle was not certified to this court. Majority op. at ¶ 42 n.18, Justice Sykes' dissent at ¶ 58 n.l. I do not read the certified question that way. In its certification to this court, the Supreme Court of North Dakota states:

[W]e respectfully certify the following question to the Wisconsin Supreme Court:
*1059Is Endorsement #1 defining an "Insured" as "Only while occupying the Alamo rental vehicle, any rentee/lessee who purchases the International Extended Protection (IEP) Option, but only while the Alamo vehicle is being driven by the rentee/lessee" valid under Wisconsin law to preclude un-derinsured motorist coverage to one who rents a car from Alamo, purchases the IEP Option, and is injured while sitting in a different car?
We invite the justices of the Wisconsin Supreme Court to reformulate our question if they deem it appropriate. We do not intend anything in this certification to limit the scope of their inquiry. ...

Mau v. N.D. Ins. Reserve Fund, 610 N.W. 2d 761, 766-67 (N.D. 2000) (emphasis added). Earlier in its certification, the North Dakota court also notes "Mau has not shown he was occupying or using the rental car under Wisconsin law when he was injured." Id. at 766.

¶ 45. I do not read these sections as preventing us from reaching the occupancy question. Rather, I read them as recognizing that the question of whether Mau was an occupant of the insured vehicle has not been decided under Wisconsin law and is an integral part of what the Supreme Court of North Dakota has asked us to decide. Therefore, because I would find that Mau was an occupancy insured under the contract, I would also find it necessary to address the question of whether Mau was an occupant of the insured vehicle. I analyze this question now.

¶ 46. In the insurance contract at issue, "occupying" is defined as "in, upon, getting in, on, out of or off the rental vehicle" — a typical definition in insurance contracts. However, because this court has recognized *1060that commonly used terms like "upon," "in" and "entering into or alighting from" may be ambiguous, Moherek v. Tucker, 69 Wis. 2d 41, 45-46, 230 N.W.2d 148 (1975), and because this language normally varies only slightly from contract to contract, Wisconsin courts have tended to apply a standardized meaning to the term "occupy."

¶ 47. In general, Wisconsin courts have tended to interpret the term "occupy" rather liberally. It is obvious that when a person is in the passenger compartment of a vehicle, that person is occupying it. However, we have held that in some cases, occupancy extends beyond the inside of the vehicle. In Wisconsin, " 'a person has not ceased "occupying" a vehicle until he has severed his connection with it — i.e., when he is on his own without any reference to it. If he is still vehicle-oriented, as opposed to highway oriented, he continues to "occupy" the vehicle.'" Id. at 47 (quoting State-Wide Ins. Co. v. Murdock, 254 N.E.2d 908 (N.Y. 1969)).

¶ 48. This court and the Wisconsin Court of Appeals have recognized that to be "vehicle-oriented," a person does not have to be inside, or even touching the vehicle. For instance, an individual can "occupy" a vehicle while waiting on the street corner to be picked up by the vehicle because that person is vehicle-oriented. Kreuser v. Heritage Mut. Ins. Co., 158 Wis. 2d 166, 169, 461 N.W.2d 806 (Ct. App. 1990). Similarly, a plaintiff who has exited the insured car and is injured when a second car hits the insured car and pushes it into the plaintiff is still vehicle-oriented and is therefore "occupying" the insured car under our rule. Sentry Ins. Co. v. Providence Wash. Ins. Co., 91 Wis. 2d 457, 458-61, 283 N.W.2d 455 (Ct. App. 1979). However, our cases have not pushed the definition of "vehicle-orientation" as far as Mau asks us to in this case.

*1061¶ 49. I would hold that the limit of vehicle-orientation was reached here. Despite our generally liberal construction of the term "occupy," I would hold that Mau fell outside of our definition while he was sitting in the police vehicle. I would base this on the common-sense principle that a person cannot occupy two vehicles at the same time. When a person is sitting in one car, that person logically cannot be occupying another.

¶ 50. I am persuaded by the reasoning of the Rhode Island Supreme Court in General Accident Insurance Company of America v. D'Alessandro, 671 A.2d 1233 (R.I. 1996). The facts of DAlessandro, as they pertain to the occupancy question, are very similar to those in the present case. D'Alessandro's vehicle had broken down and she had pulled into the breakdown lane of the highway. A Rhode Island state police officer stopped to assist DAlessandro, parking his patrol vehicle behind her car. DAlessandro was waiting in the officer's patrol vehicle for a tow truck to arrive when another motorist collided with the police cruiser, injuring DAlessandro and the officer.

¶ 51. In the resultant lawsuit, the question arose of whether DAlessandro was "occupying" her own vehicle at the time of the collision. Despite the fact the Rhode Island court affords a liberal interpretation to the term "occupy", see, e.g., Gen. Accident Ins. Co. of Am. v. Olivier, 574 A.2d 1240, 1241 (R.I. 1990), the court held that DAlessandro was not occupying her car in this instance. The court held that it would be clearly impossible for DAlessandro to "occupy" two vehicles at *1062the same time. D'Alessandro, 671 A.2d at 1235.1 1 agree with this conclusion, and I find it applicable in this case.

¶ 52. Mau points out that many other jurisdictions have taken the same "liberal" approach to defining occupancy as we have in Wisconsin. See, e.g., Genther v. Progressive Cas. Ins. Co., 681 A.2d 479, 480 n.1 (Me. 1996) (listing cases in a number of jurisdictions that use a liberal definition of "occupy"). However, Mau is unable to show us a jurisdiction that has extended the definition of occupancy to include an individual sitting in another car, and I am not persuaded that we should be the jurisdiction that does so.

¶ 53. Therefore, in addition to finding that Mau is not a named insured, I would also reach the question of whether Mau was occupying the rental vehicle. In answering that question, I would hold that at the time of the collision, Mau did not occupy the vehicle for the purposes of the insurance contract.

¶ 54. For the foregoing reasons, I respectfully dissent.

The Montana Supreme Court came to a similar conclusion in Chilberg v. Rose, 903 P.2d 1377, 1379 (Mont. 1995) ("Obviously, Chilberg can only 'occupy' one car at a time.").