DeHart v. Wisconsin Mut. Ins. Co.

• Decision Date: 10 July 2007
• Docket Number: No. 2005AP2962-FT.,2005AP2962-FT.
• Citation: 734 N.W.2d 394,2007 WI 91
• Parties: Wendy S. DeHART and Gary C. DeHart, Plaintiffs-Appellants, v. WISCONSIN MUTUAL INSURANCE COMPANY, Defendant-Respondent-Petitioner, Medical Benefits Administrators, Subrogated Defendant.
• Court: Wisconsin Supreme Court

734 N.W.2d 394

2007 WI 91

Wendy S. DeHART and Gary C. DeHart, Plaintiffs-Appellants, v. WISCONSIN MUTUAL INSURANCE COMPANY, Defendant-Respondent-Petitioner Medical Benefits Administrators, Subrogated Defendant.

No. 2005AP2962-FT.

Supreme Court of Wisconsin.

Argued March 2, 2007.

Decided July 10, 2007.

For the defendant-respondent-petitioner there were briefs by Randall Skiles and

Skiles Law Office, Madison, and oral argument by Randall M. Skiles.

For the plaintiffs-appellants there was a brief by Lance Trollop and Bremer & Trollop Law Offices, S.C., Wausau, and oral argument by Lance Trollop.

¶ 1 PATIENCE DRAKE ROGGENSACK, J

This is a review of a decision of the court of appeals that reversed and remanded the circuit court's summary judgment¹ concluding that the motor vehicle insurance policy provided to Wendy and Gary DeHart (the DeHarts) by Wisconsin Mutual Insurance Company (Wisconsin Mutual) did not provide uninsured motorist (UM) coverage for Wendy's automobile accident. The court of appeals decided that the physical contact element of a "hit-and-run accident" under Wis. Stat. § 632.32(4)(a)2.b. (2005-06)² was met and the statute mandates UM coverage if the unidentified motor vehicle struck another vehicle before forcing Wendy's vehicle off the road. DeHart v. Wis. Mut. Ins. Co., 2006 WI App 129, ¶¶ 1, 16, 294 Wis.2d 387, 719 N.W.2d 518. Since the court of appeals also concluded there was a genuine issue of material fact as to whether the unidentified vehicle actually made physical contact with the other vehicle, it remanded the cause to the circuit court for further proceedings. Id., ¶ 17, 719 N.W.2d 518.

¶ 2 We conclude that the physical contact element for a "hit-and-run accident" under Wis. Stat. § 632.32(4)(a)2.b. requires: (1) a "hit" by the unidentified motor vehicle, or part thereof, and (2) a "hit" to the insured's vehicle by another vehicle or part thereof, but not necessarily by the unidentified vehicle. Since Wendy's vehicle was not "hit," § 632.32(4)(a)2.b. does not mandate UM coverage in this case. Accordingly, we reverse the court of appeals.

I. BACKGROUND

¶ 3 Wendy was involved in an automobile accident on a two-lane highway in Langlade County, Wisconsin, on December 6, 2000. Wendy's vehicle was following vehicles driven by Donna Brewer and Charlotte Ellwitz. An unidentified vehicle, which was traveling toward Wendy and the other vehicles, crossed the center line and proceeded toward Brewer's vehicle. The DeHarts contend that the unidentified vehicle hit Brewer's vehicle, striking off the driver's side mirror. However, Wisconsin Mutual disagrees and argues that Brewer is not positive that the mirror was struck off by the unidentified vehicle. In any event, the unidentified vehicle continued to travel in the oncoming lane of traffic toward Ellwitz's vehicle, forcing Ellwitz to pull over and nearly stop, and then continued toward Wendy's vehicle, forcing Wendy to lose control of her vehicle and travel off the road. The unidentified vehicle did not make physical contact with Wendy's vehicle, nor did any other vehicle. The unidentified vehicle then left the scene and positive identification of the vehicle or its driver has never been made.

¶ 4 Since identification of the driver of the unidentified vehicle could not be made, the DeHarts filed a lawsuit in Langlade County against their insurer, Wisconsin Mutual, seeking UM benefits under their own policy³ for damages caused by the unidentified vehicle.⁴ Wisconsin Mutual moved for summary judgment, contending that there was no coverage because no vehicle struck Wendy's vehicle. The circuit court granted summary judgment, denying UM coverage for Wendy's accident and dismissing the DeHarts' complaint.

¶ 5 The DeHarts appealed, arguing that because the unidentified motor vehicle struck Brewer's vehicle and then forced Wendy's vehicle off the road, it is an unidentified motor vehicle involved in a hit-and-run accident under Wis. Stat. § 632.32(4)(a)2.b. Therefore, the statute mandates coverage. The court of appeals recognized that "Wisconsin courts have consistently concluded the term `hit-and-run' is unambiguous and includes a physical contact element." DeHart, 294 Wis.2d 387, ¶ 5, 719 N.W.2d 518. Therefore, the court of appeals interpreted § 632.32(4)(a)2.b. to mandate coverage in this case if the unidentified motor vehicle actually made physical contact with Brewer's vehicle. Id., ¶ 14, 719 N.W.2d 518. Since the court of appeals concluded that a genuine issue of material fact remained as to whether the unidentified vehicle did so, the court of appeals remanded for further proceedings. Id., ¶¶ 6, 17, 719 N.W.2d 518.

¶ 6 We granted Wisconsin Mutual's petition to review the decision of the court of appeals.

II. DISCUSSION

A. Standard of Review

¶ 7 We review a grant of summary judgment independently, applying the same methodology as the circuit court. Green Spring Farms v. Kersten, 136 Wis.2d 304, 315, 401 N.W.2d 816 (1987). In determining whether summary judgment should be granted, we view the facts in the light most favorable to the nonmoving party. Kraemer Bros., Inc. v. United States Fire Ins. Co., 89 Wis.2d 555, 567, 278 N.W.2d 857 (1979) (citing Adickes v. Kress & Co., 398 U.S. 144, 157-58, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970)).

¶ 8 To determine whether summary judgment is appropriate in this case, we interpret Wis. Stat. § 632.32(4)(a)2.b. The interpretation of a statute is a question of law that we review independently, "but benefiting from the analyses of the court of appeals and the circuit court." Marder v. Bd. of Regents of the Univ. of Wis. Sys., 2005 WI 159, ¶ 19, 286 Wis.2d 252, 706 N.W.2d 110.

B. Uninsured Motorist Coverage

¶ 9 Wendy's accident may be covered by the Wisconsin Mutual policy if the policy language requires coverage or if Wis. Stat. § 632.32 requires coverage. Coverage not included in an insurance contract may be "compelled and enforced as though a part thereof where the inclusion of such coverage is required by a properly enacted statute." Progressive N. Ins. Co. v. Romanshek, 2005 WI 67, ¶ 13, 281 Wis.2d 300, 697 N.W.2d 417 (quoting Amidzich v. Charter Oak Fire Ins. Co., 44 Wis.2d 45, 53, 170 N.W.2d 813 (1969)); see also Wegner v. Heritage Mut. Ins. Co., 173 Wis.2d 118, 124, 496 N.W.2d 140 (Ct.App. 1992) ("Every policy of auto insurance issued in Wisconsin must provide at least as much protection as the statute, although insurers may broaden the coverage.").

¶ 10 In this case, the DeHarts concede that Wendy's accident is not covered by the policy language, which requires the unidentified vehicle to strike the insured, the insured's vehicle, or a vehicle in which the insured is an occupant. Therefore, the question we must decide is not the proper construction of the policy language, but what the statute requires. As such, "the reasonable expectation of the insured regarding the language of the policy is not relevant to our analysis." Romanshek, 281 Wis.2d 300, ¶ 13, 697 N.W.2d 417 (quoting Smith v. Gen. Cas. Ins. Co., 2000 WI 127, ¶ 27, 239 Wis.2d 646, 619 N.W.2d 882).

¶ 11 Wisconsin Stat. § 632.32(1) requires every policy of insurance issued or delivered in Wisconsin to contain certain provisions.⁵ One of the mandatory provisions is UM coverage under § 632.32(4)(a), which provides:

1. For the protection of persons injured who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death resulting therefrom, in limits of at least $25,000 per person and $50,000 per accident.

2. In this paragraph "uninsured motor vehicle" also includes:

...

b. An unidentified motor vehicle involved in a hit-and-run accident.

Wis. Stat. § 632.32(4)(a) (emphasis added).

C. Wisconsin Stat. § 632.32(4)(a)2.b.

¶ 12 In this case, we interpret Wis. Stat. § 632.32(4)(a)2.b. to determine whether coverage for Wendy's accident is mandated. "[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. Cir. Ct. for Dane County, 2004 WI 58, ¶ 44, 271 Wis.2d 633, 681 N.W.2d 110. "[S]tatutory interpretation `begins with the language of the statute.'" Id., ¶ 45, 681 N.W.2d 110 (quoting Seider v. O'Connell, 2000 WI 76, ¶ 43, 236 Wis.2d 211, 612 N.W.2d 659). If the words of a statute have a plain meaning, we ordinarily stop our inquiry and apply the words chosen by the legislature. Id. The statutory language is given its common and ordinary meaning unless there are technical or specially-defined words or phrases. Id. "[A] statute is ambiguous if it is capable of being understood by reasonably well-in-formed persons in two or more senses." Id., ¶ 47, 681 N.W.2d 110. If a statute is ambiguous, the court may examine extrinsic sources, such as legislative history. Id., ¶ 48, 681 N.W.2d 110. The court may also consult legislative history "to confirm or verify a plain-meaning interpretation." Id. ¶ 51, 681 N.W.2d 110.

¶ 13 We have interpreted Wis. Stat. § 632.32(4)(a)2.b. in prior cases and recently reaffirmed our 20-plus years of precedent establishing that the phrase "hit-and-run accident" is unambiguous and includes a physical contact element. Romanshek, 281 Wis.2d 300, ¶¶20, 31, 697 N.W.2d 417 (citing Smith, 239 Wis.2d 646, ¶ 11, 619 N.W.2d 882; Hayne v. Progressive N. Ins. Co., 115 Wis.2d 68, 74, 339 N.W.2d 588 (1983)).⁶ We quoted Hayne, our first case interpreting § 632.32(4)(a)2.b., as follows:

[T]he statutory language of § 632.32(4)(a)2.b., Stats., is unambiguous. We therefore arrive at the legislature's intent by according the language its common and accepted meaning. As previously noted, the common and accepted meaning of the term "hit-and-run" includes an element of physical contact. Section 632.32(4)(a)2.b. mandates coverage only for "hit-and-run" accidents involving an unidentified motor vehicle. The clear statutory...