Brey v. State Farm Mut. Auto. Ins. Co., Appeal No. 2019AP1320

• Court: Court of Appeals of Wisconsin
• Writing for the Court: FITZPATRICK, P.J.
• Citation: 393 Wis.2d 574,947 N.W.2d 205,2020 WI App 45
• Decision Date: 25 June 2020
• Docket Number: Appeal No. 2019AP1320
• Parties: Elliot BREY and Estate of Ryan B. Johnson, Plaintiffs-Appellants, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Respondent, Channing H. Mathews, Craig A. Mathews and Sentry Insurance, a Mutual Company, Defendants.

393 Wis.2d 574
947 N.W.2d 205
2020 WI App 45

Elliot BREY and Estate of Ryan B. Johnson, Plaintiffs-Appellants,
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Respondent,^†

Channing H. Mathews, Craig A. Mathews and Sentry Insurance, a Mutual Company, Defendants.

Appeal No. 2019AP1320

Court of Appeals of Wisconsin.

Submitted on Briefs: January 22, 2020
Opinion Filed: June 25, 2020

On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of James G. Curtis and Garett T. Pankratz of Hale, Skemp, Hanson, Skemp & Sleik, La Crosse.

On behalf of the defendant-respondent, the cause was submitted on the brief of Andrew J. Hebl and Kathryn A. Pfefferle of Boardman & Clark LLP, Madison.

Before Fitzpatrick, P.J., Blanchard, and Kloppenburg, JJ.

FITZPATRICK, P.J.

947 N.W.2d 207

393 Wis.2d 577

¶1 Elliot Brey brought suit in the Monroe County Circuit Court against State Farm Mutual Automobile Insurance Company seeking to recover underinsured motorist benefits based on the

393 Wis.2d 578

death of Elliot's father, Ryan Johnson, who died from injuries sustained in a motor vehicle accident.¹ Elliot is an insured under the State Farm policy, but Johnson was not. Elliot and State Farm agree that a provision of the State Farm policy requires that an insured suffer "bodily injury" for there to be UIM coverage,² and they also agree that while Johnson suffered "bodily injury" as defined in the State Farm policy, Elliot did not. As a result, Elliot and State Farm also agree that the State Farm UIM insured requirement bars UIM coverage for Elliot's claims. Nonetheless, Elliot argues that his UIM claim against State Farm does not fail because, pursuant to WIS. STAT. § 632.32(1) and (2)(d) (2017-18),³ the UIM insured requirement in the State Farm policy is void and unenforceable.

¶2 The circuit court disagreed with Elliot's argument and granted summary judgment to State

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Farm dismissing Elliot's UIM claim. We conclude that the UIM insured requirement which bars Elliot's UIM claim is void and unenforceable pursuant to the operation of WIS. STAT. § 632.32(1) and (2)(d). Those statutory subparts do not allow for a UIM policy provision which demands that bodily injury must be sustained by an insured for there to be UIM coverage. Accordingly, we reverse the order of summary judgment and remand this matter to the circuit court with directions to grant summary judgment in favor of Elliot on the question of UIM coverage.

BACKGROUND

¶3 There is no dispute regarding the following material facts.

¶4 Ryan Johnson was the passenger in a vehicle driven by Channing Mathews which was involved in an accident. Johnson sustained fatal injuries in that accident. Johnson is survived by his minor child, Elliot.

¶5 At the time of Johnson's death, Elliot lived with his mother, Hannah Brey. Hannah is a named insured under the automobile

947 N.W.2d 208

liability policy issued by State Farm, and that policy includes UIM coverage.

¶6 The State Farm policy provides, in pertinent part, the following with regard to UIM coverage:

We will pay compensatory damages for bodily injury an insured is legally entitled to recover from the owner or driver of an underinsured motor vehicle . The bodily injury must be:

1. sustained by an insured ; and

2. caused by an accident that involves the ownership, maintenance, or use of an underinsured motor vehicle as a motor vehicle.

393 Wis.2d 580

¶7 As stated, Elliot is an insured under the State Farm policy for purposes of UIM coverage. Johnson was not an insured under the policy. Also germane to State Farm's UIM policy provision, Elliot and State Farm do not dispute that: the accident that caused Johnson's death involved the use of a motor vehicle; the vehicle Channing was driving at the time of the accident was an "underinsured motor vehicle" as defined in the State Farm policy; and only Johnson sustained "bodily injury" as defined in in the State Farm policy. Based on those undisputed facts, the sole policy language impediment to Elliot's UIM claim is the requirement in the State Farm UIM provision that the "bodily injury must be ... sustained by an insured."

¶8 Elliot filed a complaint against State Farm seeking to recover, under the State Farm policy's UIM provision, damages Elliot sustained as a result of Johnson's wrongful death.⁴ See WIS. STAT. § 895.04 (authorizing wrongful death actions). In that complaint, Elliot alleged that Channing negligently operated the motor vehicle, Channing's negligence was a

393 Wis.2d 581

cause of Johnson's death, and Elliot suffered a loss of monetary support from Johnson as a result of Johnson's death. Elliot further alleged that the State Farm policy provides UIM coverage for Elliot's underinsured losses.

¶9 State Farm requested that issues concerning coverage be bifurcated from issues of liability and damages. The circuit court granted State Farm's motion and stayed proceedings on issues of liability and damages.

¶10 State Farm and Elliot each filed a motion for summary judgment on the issue of UIM coverage for Elliot's claims. The circuit court concluded that the State Farm policy does not provide UIM coverage for Elliot's claims, granted summary judgment in favor of State Farm, and denied Elliot's motion for summary judgment. Elliot appeals.

DISCUSSION

¶11 We now summarize our standard of review, summary judgment methodology, and the principles that govern the interpretation of statutes. We then analyze the requirements of WIS. STAT. § 632.32(1), apply

947 N.W.2d 209

a plain language interpretation to § 632.32(2)(d), and explain why we reject State Farm's arguments.

I. Standard of Review, Summary Judgment Methodology, and Interpretation of Statutes.

¶12 This court reviews a grant of summary judgment de novo, using the same methodology employed by the circuit court.

393 Wis.2d 582

Bank of N.Y. Mellon v. Klomsten , 2018 WI App 25, ¶31, 381 Wis. 2d 218, 911 N.W.2d 364. Summary judgment is proper, and the moving party is entitled to judgment as a matter of law, "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." WIS. STAT. § 802.08(2) ; see Bank of N.Y. Mellon , 381 Wis. 2d 218, ¶31, 911 N.W.2d 364. In this case, because there are no disputed material facts, we must determine which party is entitled to judgment as a matter of law. Sec. 802.08(2) ; Town of Grant v. Portage Cty. , 2017 WI App 69, ¶12, 378 Wis. 2d 289, 903 N.W.2d 152.

¶13 This appeal requires us to interpret a statute. The interpretation of a statute is a question of law that we determine independently of the decision of the circuit court. Pasko v. City of Milwaukee , 2002 WI 33, ¶23, 252 Wis. 2d 1, 643 N.W.2d 72. "[T]he purpose of statutory interpretation is to determine what the statute means so that it may be given its full, proper, and intended effect." State ex rel. Kalal v. Circuit Court for Dane Cty. , 2004 WI 58, ¶44, 271 Wis. 2d 633, 681 N.W.2d 110. "We assume that the legislature's intent is expressed in the statutory language." Id. Accordingly, "statutory interpretation ‘begins with the language of the statute.’ " Id. , ¶45 (quoted source omitted). "If the meaning of the statute is plain, we ordinarily stop the inquiry." Id. (quoted source omitted). Our supreme court further notes:

Context is important to meaning. So, too, is the structure of the statute in which the operative language appears. Therefore, statutory language is interpreted in the context in which it is used; not in isolation but as part of a whole; in relation to the

393 Wis.2d 583

language of surrounding or closely-related statutes; and reasonably, to avoid absurd or unreasonable results.

Id. , ¶46. Statutory language is given its common, ordinary, and accepted meaning, except that technical or specially defined words are given their technical or special definitions. State v. Warbelton , 2008 WI App 42, ¶13, 308 Wis. 2d 459, 747 N.W.2d 717 ; see WIS. STAT. § 990.01(1).

¶14 In addition, courts should not add words to, or subtract words from, a statute to give it a certain meaning. See State ex rel. Zignego v. Wisconsin Elections Comm'n , 2020 WI App 17, ¶35, 391 Wis. 2d 441, 941 N.W.2d 284 ; see also Dawson v. Town of Jackson , 2011 WI 77, ¶42, 336 Wis. 2d 318, 801 N.W.2d 316 (stating "[w]e decline to read into the statute words the legislature did not see fit to write").

II. Analysis...