Estate of Dorschner v. STATE FARM MUT. AUTO. INS., 00-2229.

• Court: Court of Appeals of Wisconsin
• Citation: 244 Wis.2d 261,628 N.W.2d 414,2001 WI App 117
• Docket Number: No. 00-2229.,00-2229.
• Parties: The ESTATE OF Jean E. DORSCHNER, by its Personal Representative, Gene P. Dorschner, Plaintiff-Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Respondent, Gordon J. SERVIS, Defendant.
• Decision Date: 25 April 2001

244 Wis.2d 261
2001 WI App 117
628 N.W.2d 414

The ESTATE OF Jean E. DORSCHNER, by its Personal Representative, Gene P. Dorschner, Plaintiff-Appellant,¹
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Respondent,
Gordon J. SERVIS, Defendant

No. 00-2229.

Court of Appeals of Wisconsin.

Submitted on briefs February 26, 2001.

Decided April 25, 2001.

244 Wis.2d 263

On behalf of the plaintiff-appellant, the cause was submitted on the brief of John T. Schomisch, Jr. of Dilley, Schomisch and Associates, L.L.C. of Appleton

On behalf of the defendant-respondent, the cause was submitted on the brief of Claude J. Covelli of Boardman, Suhr, Curry & Field, LLP of Madison.

Before Brown, P.J., Anderson and Snyder, JJ.

¶ 1. BROWN, P.J.

The estate of Jean E. Dorschner appeals from a summary judgment enforcing the antistacking clause contained in an uninsured

244 Wis.2d 264

motorist policy owned by Dorschner at the time of her death. The estate asserts that the policy is ambiguous and illusory because it has not fulfilled its promise of mandatory coverage. Because WIS. STAT. § 632.32(5)(f) (1999-2000)² explicitly authorizes the type of antistacking provision contained in the policy, we affirm the order of summary judgment

¶ 2. Dorschner died of injuries sustained in a two-car accident. Dorschner was a passenger in a car owned and operated by a relative. The accident was caused primarily by Gordon J. Servis, who was driving while intoxicated in an uninsured motor vehicle. The car in which Dorschner was riding was insured by Economy Preferred Insurance Company (Economy). The Economy car policy provided uninsured motorist (UM) coverage with $100,000 per person and $300,000 per accident limits of liability. As an occupant of the car, Dorschner was insured for UM coverage. Economy paid Dorschner's estate the full $100,000 limits of its coverage. The estate then sought to collect the $50,000 limits contained in a UM policy issued by State Farm Mutual Automobile Insurance Company (State Farm) and owned by Dorschner at the time of her death. On a motion for summary judgment, the trial court held that the antistacking clause contained in Dorschner's policy prevents the estate from stacking the State Farm coverage on top of the Economy coverage.

[1-5]

¶ 3. The court of appeals reviews summary judgment motions de novo. Blazekovic v. City of Milwaukee, 225 Wis. 2d 837, 840, 593 N.W.2d 809 (Ct. App. 1999), aff'd, 2000 WI 41, 234 Wis. 2d 587, 610 N.W.2d 467. For summary judgment to be granted, there must be no

244 Wis.2d 265

genuine issue of material fact and the moving party must be entitled to judgment as a matter of law. Calbow v. Midwest Sec. Ins. Co., 217 Wis. 2d 675, 679, 579 N.W.2d 264 (Ct. App. 1998). Furthermore, the interpretation of an insurance contract is a question of law that this court decides without deference to the trial court. Meyer v. Mich. Mut. Ins. Co., 2000 WI App 37, ¶ 8, 233 Wis. 2d 221, 607 N.W.2d 333. Whether the language in the policy is ambiguous is also a question of law. Id. at ¶ 9. Ambiguity exists if the words or phrases of the policy are susceptible to more than one reasonable interpretation. Id. This is determined by considering what a reasonable person in the position of the insured would have understood the policy to mean. Id. at ¶ 8. There are no disputed facts here and the only remaining issue is the question of law involving the interpretation of the policy

¶ 4. The source of contention between the parties is the following provisions contained in Endorsement 6083BB of Dorschner's policy, commonly known as the antistacking clause and the excess clause:

Regardless of the number of policies involved, vehicles involved, persons covered, claims made, vehicles insured, or premiums paid, the limits for uninsured motor vehicle coverage under this policy may not be added to the limits for similar coverage applying to other motor vehicles to determine the limits of uninsured motor vehicle coverage available for bodily injury suffered by an insured in any one accident.

Subject to the above:

. . . .

2. If the insured sustains bodily injury while occupying a vehicle not owned or leased by you, your

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spouse or your relative who resides primarily in your household, then this coverage applies:

a. as excess to any uninsured motor vehicle coverage which applies to the vehicle or driver as primary coverage; but

b. only in the amount by which it exceeds the primary coverage.

¶ 5. We understand the estate to argue that the excess clause has the effect of eliminating the policy's UM coverage altogether.³ The purpose of mandatory UM coverage is to place the insured in the same position as if the uninsured motorist had been insured. Yet, according to the estate, the language of the policy's excess clause, which states that its coverage is applicable only in the amount by which it exceeds the primary coverage, circumvents this purpose. The estate contends that, in this case, the excess clause allows State Farm to pay nothing at all even though the decedent had paid for mandatory coverage: "To allow a policy to not provide any uninsured motorist benefits is contrary to public policy, Wisconsin Statutes and case law. [The estate] should receive State Farm uninsured motorist policy limits of $50,000. [The decedent] paid for it."

¶ 6. State Farm, on the other hand, points out that the excess clause merely identifies which coverage

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is primary and which is excess. It has no bearing on the maximum amount of UM coverage available under the policy. "[T]he...