Filing v. Commercial Union Midwest Ins. Co., No. 97-2136

CourtCourt of Appeals of Wisconsin
Writing for the CourtCANE
Citation579 N.W.2d 65,217 Wis.2d 640
PartiesRichard M. FILING, Phyllis Filing, and Hazel Boggs, Plaintiffs-Appellants, v. COMMERCIAL UNION MIDWEST INSURANCE COMPANY, Defendant-Third-Party Plaintiff-Respondent, d Lisa Marie Filing, Metropolitan Life Ins. Co., ABC Ins. Co., Blue Cross/Blue Shield United of WI, Aetna Insurance Co., and Donna Shalala, Secretary of the United States Department of Health & Human Services, Third-Party Defendants.
Decision Date03 March 1998
Docket NumberNo. 97-2136

Page 65

579 N.W.2d 65
217 Wis.2d 640
Richard M. FILING, Phyllis Filing, and Hazel Boggs,
Plaintiffs-Appellants,
v.
COMMERCIAL UNION MIDWEST INSURANCE COMPANY,
Defendant-Third-Party Plaintiff-Respondent, d
Lisa Marie Filing, Metropolitan Life Ins. Co., ABC Ins. Co.,
Blue Cross/Blue Shield United of WI, Aetna Insurance Co.,
and Donna Shalala, Secretary of the United States Department
of Health & Human Services, Third-Party Defendants.
No. 97-2136.
Court of Appeals of Wisconsin.
Submitted on Briefs Jan. 27, 1998.
Opinion Released March 3, 1998.
Opinion Filed March 3, 1998.

[217 Wis.2d 642] On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Virginia M. Antoine of Habush, Habush, Davis & Rottier, S.C. of Milwaukee, and John D. Murray of Habush, Habush, Davis & Rottier, S.C. of Appleton.

[217 Wis.2d 643] On behalf of the defendant-third-party plaintiff-respondent, the cause was submitted

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on the brief of Michael T. Steber of Nelson, Dries & Zimmerman, S.C. of Brookfield.

Before CANE, P.J., and MYSE and HOOVER, JJ.

CANE, Presiding Judge.

In this dispute involving underinsured motorist coverage (UIM), the plaintiffs appeal from a declaratory judgment concluding that they could not claim underinsured benefits from their insurer, Commercial Union Midwest Insurance Company, for injuries incurred in a two-vehicle accident. The plaintiff, Richard Filing, was driving his automobile with three family members as passengers: his wife, Phyllis; his daughter, Lisa; and his mother-in-law, Hazel Boggs. The plaintiffs were injured when their vehicle was struck by a vehicle operated by Gregg Gulbrand. At the time of the accident, Gulbrand was insured by American Family Insurance Company with bodily injury liability coverage of $100,000 per person/$300,000 per accident. Richard Filing had two vehicles insured by Commercial with underinsured motorist coverage for each of his vehicles in the amount of $300,000. Commercial concedes that each plaintiff is an insured under its policy.

Because Gulbrand's liability insurance was insufficient to cover the plaintiffs' injuries, each plaintiff made a claim against Commercial for underinsured benefits. 1 Commercial denied the claims and both sides sought a declaratory judgment on the issue of whether [217 Wis.2d 644] the plaintiffs were entitled to recover underinsured benefits. The trial court concluded that the Gulbrand vehicle was not an underinsured vehicle and, therefore, granted Commercial's motion and denied the plaintiffs' motion.

Only the coverage issue is before us on appeal. Specifically, the plaintiffs contend that in determining whether Gulbrand's vehicle was underinsured, the trial court incorrectly compared the $300,000 per accident liability limit of Gulbrand's policy rather than the $100,000 per person limit. Because we conclude that the Gulbrand vehicle was an underinsured motor vehicle at the time of the accident, we reverse and remand the matter for further proceedings.

The interpretation of an insurance policy is a question of law, and we owe no deference to the trial court's interpretation. Keane v. Auto-Owners Ins. Co., 159 Wis.2d 539, 547, 464 N.W.2d 830, 833 (1991). When interpreting words of an insurance contract, we operate under the principle that the test is not what the insurer intended the words to mean, but rather what a reasonable person in the position of the insured would have understood the words to mean. Wood v. American Family Mut. Ins. Co., 148 Wis.2d 639, 652, 436 N.W.2d 594, 599 (1989), rev'd in part on other grounds by Matthiesen v. Continental Cas. Co., 193 Wis.2d 192, 199, 532 N.W.2d 729, 733 (1995). This test is an objective test. Bertler v. Employers Ins. of Wausau, 86 Wis.2d 13, 17, 271 N.W.2d 603, 605 (1978).

Whether an ambiguity in an insurance policy exists depends on the meaning that the term or provision [217 Wis.2d 645] would have to a reasonable person of ordinary intelligence. Kozak v. United States Fid. & Guar. Co., 120 Wis.2d 462, 467, 355 N.W.2d 362, 364 (Ct.App.1984). An ambiguity exists when the policy is reasonably susceptible to more than one construction from the viewpoint of a reasonable person of ordinary intelligence in the position of the insured. Northwestern Nat'l Ins. Co. v. Nemetz, 135 Wis.2d 245, 255, 400 N.W.2d 33, 37 (Ct.App.1986). When an ambiguity exists, the court must construe the policy against the insurance company which drafted it and in favor of the insured. Stanhope v. Brown County, 90 Wis.2d 823, 849, 280 N.W.2d 711, 722 (1979).

This issue is one of first impression in Wisconsin. In our analysis, we begin with the definition of "underinsured motor vehicle" in Commercial's policy. The definition, common to many auto insurance policies, reads as follows:

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"Underinsured motor vehicle" means a land motor vehicle or trailer of any type to which a bodily injury liability bond or policy applies at the time of the accident but its limit for bodily injury liability is less than the limit of liability for this coverage. (Emphasis added.)

Thus, to determine whether Gulbrand's vehicle is underinsured, the phrase "limit for bodily injury liability " under American Family's policy must be compared to the single limit of $300,000 underinsured motorist coverage under the Commercial policy. When defining an underinsured motor vehicle in its policy, Commercial does not specify which bodily injury limit, the per person or the per accident limit, is to be compared with its single limit. Under the rationale in Smith v. Atlantic Mut. Ins. Co., 155 Wis.2d 808, 811, 456 N.W.2d 597, [217 Wis.2d 646] 599 (1990), if we compare the $100,000 per person limit to Commercial's $300,000 UIM limit, Gulbrand's vehicle is an underinsured vehicle. On the other hand, if we compare the $300,000 per accident limit to Commercial's $300,000 UIM limit, Gulbrand's vehicle is not an underinsured vehicle. 2 See id.

The parties agree that a policy providing $100,000 per person/$300,000 per accident means that, in any one accident, if only one person is killed or injured, the maximum liability limit is $100,000, but if two or more persons are killed...

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18 practice notes
  • State Farm Mut. Auto. Ins. Co. v. Gillette, No. 00-0637.
    • United States
    • United States State Supreme Court of Wisconsin
    • March 29, 2002
    ...to fully compensate the victim for his or her injuries) (Deininger, J., concurring); Filing v. Commercial Union Midwest Ins. Co., 217 Wis. 2d 640, 649, 579 N.W.2d 65 (Ct. App. 1998) (underinsured motorist coverage compensates the victim of an underinsured motorist's negligence when the thir......
  • Taylor v. Greatway Ins. Co., No. 99-1329.
    • United States
    • Court of Appeals of Wisconsin
    • February 17, 2000
    ...The interpretation of an insurance policy is a question of law which we decide de novo. See Filing v. Commercial Union Midwest Ins. Co., 217 Wis. 2d 640, 644, 579 N.W.2d 65, 66 (Ct. App. 1998). Whether the accidental death benefit provision set forth in the policies promises to indemnify an......
  • Dowhower v. West Bend Mut. Ins. Co., No. 98-2762.
    • United States
    • United States State Supreme Court of Wisconsin
    • June 30, 2000
    ...of coverage. Smith v. Atlantic Mut. Ins. Co., 155 Wis. 2d 808, 811, 456 N.W.2d 597 (1990); Filing v. Commercial Union Midwest Ins.Co., 217 Wis. 2d 640, 647, 579 N.W.2d 65 (Ct. App. 1998). Accordingly, the underinsured motorist provisions should be construed against West Bend, and the Dowhow......
  • Jacob v. Russo Builders, No. 97-3736
    • United States
    • Court of Appeals of Wisconsin
    • November 10, 1998
    ...of an insurance policy presents a question of law which we review de novo. See Filing v. Commercial Union Midwest Ins. Co., 217 Wis.2d 640, 644, 579 N.W.2d 65, 66 (Ct.App.), review denied, 220 Wis.2d 366, 585 N.W.2d 158 (1998). "When interpreting words of an insurance contract, we operate u......
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18 cases
  • State Farm Mut. Auto. Ins. Co. v. Gillette, No. 00-0637.
    • United States
    • United States State Supreme Court of Wisconsin
    • March 29, 2002
    ...to fully compensate the victim for his or her injuries) (Deininger, J., concurring); Filing v. Commercial Union Midwest Ins. Co., 217 Wis. 2d 640, 649, 579 N.W.2d 65 (Ct. App. 1998) (underinsured motorist coverage compensates the victim of an underinsured motorist's negligence when the thir......
  • Taylor v. Greatway Ins. Co., No. 99-1329.
    • United States
    • Court of Appeals of Wisconsin
    • February 17, 2000
    ...The interpretation of an insurance policy is a question of law which we decide de novo. See Filing v. Commercial Union Midwest Ins. Co., 217 Wis. 2d 640, 644, 579 N.W.2d 65, 66 (Ct. App. 1998). Whether the accidental death benefit provision set forth in the policies promises to indemnify an......
  • Dowhower v. West Bend Mut. Ins. Co., No. 98-2762.
    • United States
    • United States State Supreme Court of Wisconsin
    • June 30, 2000
    ...of coverage. Smith v. Atlantic Mut. Ins. Co., 155 Wis. 2d 808, 811, 456 N.W.2d 597 (1990); Filing v. Commercial Union Midwest Ins.Co., 217 Wis. 2d 640, 647, 579 N.W.2d 65 (Ct. App. 1998). Accordingly, the underinsured motorist provisions should be construed against West Bend, and the Dowhow......
  • Jacob v. Russo Builders, No. 97-3736
    • United States
    • Court of Appeals of Wisconsin
    • November 10, 1998
    ...of an insurance policy presents a question of law which we review de novo. See Filing v. Commercial Union Midwest Ins. Co., 217 Wis.2d 640, 644, 579 N.W.2d 65, 66 (Ct.App.), review denied, 220 Wis.2d 366, 585 N.W.2d 158 (1998). "When interpreting words of an insurance contract, we operate u......
  • Request a trial to view additional results

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