Hemerley v. American Family Mut. Ins. Co., No. 84-406

CourtCourt of Appeals of Wisconsin
Writing for the CourtGARTZKE
Citation379 N.W.2d 860,127 Wis.2d 304
PartiesCharles HEMERLEY and Judy Hemerley, individually and as parents and general guardians of Annette Hemerley, Plaintiffs-Appellants, v. AMERICAN FAMILY MUTUAL INSURANCE COMPANY, Defendant-Respondent.
Docket NumberNo. 84-406
Decision Date07 November 1985

Page 860

379 N.W.2d 860
127 Wis.2d 304
Charles HEMERLEY and Judy Hemerley, individually and as
parents and general guardians of Annette Hemerley,
Plaintiffs-Appellants,
v.
AMERICAN FAMILY MUTUAL INSURANCE COMPANY, Defendant-Respondent.
No. 84-406.
Court of Appeals of Wisconsin.
Submitted on Briefs July 8, 1985.
Opinion Released Nov. 7, 1985.
Opinion Filed Nov. 7, 1985.
Review Denied.

Page 861

[127 Wis.2d 305] Richard E. Rosenberg and Nowlan & Mouat, Janesville, for plaintiffs-appellants.

John C. Wickhem and Wickhem, Buell, Meier, Wickhem & Southworth, Janesville, for defendant-respondent.

Before GARTZKE, P.J., and DYKMAN and EICH, JJ.

GARTZKE, Presiding Judge.

Charles and Judy Hemerley, individually and as guardians of Annette Hemerley, appeal from a judgment declaring that the uninsured motorists coverage in their American Family policy is inapplicable to the automobile in which Annette was injured. Hemerleys argue that the automobile was an uninsured motor vehicle both under sec. 632.32(4), Stats., and their policy. Because a liability policy covered the operator of the automobile, we conclude that it was an insured motor vehicle. We therefore affirm. 1

[127 Wis.2d 306] Annette Hemerley was seriously injured in 1982 while a passenger in an automobile driven by Bart Jones. Jones did not own the automobile. No liability insurance covered the vehicle. Jones, however, was an insured under an American Family liability policy issued to his father. That policy provides liability limits of $25,000 for injuries to any person caused by the negligence of an insured. American Family admits Jones' negligence was a cause of Annette's injuries and admits liability on the father's policy to the extent of $25,000. Hemerleys demand payment of $50,000 on the uninsured motorist coverage in the policy American Family issued to Charles Hemerley. The damages far exceed all insurance coverages which might be available.

Hemerleys argue that a motor vehicle is uninsured unless a policy insures the vehicle. They contend that sec. 632.32(4), Stats., and their policy compel that result.

Page 862

They conclude that the automobile operated by Jones is an uninsured motor vehicle, even though Jones is covered by liability insurance. In their view, Jones' coverage is excess or additional insurance.

Section 632.32(4), Stats., provides:

Every policy of insurance subject to this section that insures with respect to any motor vehicle registered or principally garaged in this state against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle shall contain ... provisions approved by the commissioner:

(a) 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:

[127 Wis.2d 307] a. An insured motor vehicle if before or after the accident the liability insurer of the motor vehicle is declared insolvent by a court of competent jurisdiction.

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

3. Insurers making payment under the uninsured motorists' coverage shall, to the extent of the payment, be subrogated to the rights of their insureds.

The meaning of a statute is a question of law which we decide independently of the trial court's conclusion. State v. Denter, 121 Wis.2d 118, 122, 357 N.W.2d 555, 557 (1984). We apply the plain meaning of a staute without resort to the rules of construction. Id. at 123, 357 N.W.2d at 557. The rules of construction are used only to determine the meaning of an ambiguous statute. State v. Tollefson, 85 Wis.2d 162, 167, 270 N.W.2d 201, 203 (1978). A statute is ambiguous if reasonable persons could disagree as to its meaning. Kollasch v. Adamany, 104 Wis.2d 552, 561, 313 N.W.2d 47, 51-52 (1981). Whether reasonable persons could...

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35 practice notes
  • State v. Vonesh
    • United States
    • Court of Appeals of Wisconsin
    • 18 Diciembre 1986
    ...The guiding principle of statutory construction is to determine the intent of the legislature. Hemerley v. American Fam. Mut. Ins. Co., 127 Wis.2d 304, 308, 379 N.W.2d 860, 863 [Ct.App.1985). When an ambiguity in statutory language is present, we must determine the [135 Wis.2d 483] legislat......
  • Blum v. 1st Auto & Cas. Ins. Co., Case No. :2008ap1324
    • United States
    • United States State Supreme Court of Wisconsin
    • 14 Julio 2010
    ...Blum under these facts. ¶2 In its analysis, the court of appeals relied on holdings in Hemerley v. American Family Mutual Insurance Co., 127 Wis. 2d 304, 379 N.W.2d 860 (Ct. App. 1985), a decision that this court expressly overruled in Hull v. State Farm Mutual Automobile Insurance Co., 222......
  • Hull v. State Farm Mut. Auto. Ins. Co., No. 97-0659
    • United States
    • United States State Supreme Court of Wisconsin
    • 15 Diciembre 1998
    ...the owner of the vehicle which struck and killed her husband was uninsured. Relying on Hemerley v. American Family Mutual Insurance Co., 127 Wis.2d 304, 379 N.W.2d 860 Page 865 (Ct.App.1985), both the circuit court and court of appeals denied UM coverage. Both courts held that the vehicle w......
  • Jacobs v. Major, No. 85-0341
    • United States
    • Court of Appeals of Wisconsin
    • 15 Mayo 1986
    ...part of the statute, it cannot be considered when determining whether a statute is ambiguous. Hemerley v. American Fam. Mut. Ins. Co., 127 Wis.2d 304, 307, 379 N.W.2d 860, 862 (Ct.App.1985); sec. 990.001(6), 3 Joseph Story's Commentaries on the Constitution of the United States, supra, enjo......
  • Request a trial to view additional results
35 cases
  • State v. Vonesh
    • United States
    • Court of Appeals of Wisconsin
    • 18 Diciembre 1986
    ...The guiding principle of statutory construction is to determine the intent of the legislature. Hemerley v. American Fam. Mut. Ins. Co., 127 Wis.2d 304, 308, 379 N.W.2d 860, 863 [Ct.App.1985). When an ambiguity in statutory language is present, we must determine the [135 Wis.2d 483] legislat......
  • Blum v. 1st Auto & Cas. Ins. Co., Case No. :2008ap1324
    • United States
    • United States State Supreme Court of Wisconsin
    • 14 Julio 2010
    ...Blum under these facts. ¶2 In its analysis, the court of appeals relied on holdings in Hemerley v. American Family Mutual Insurance Co., 127 Wis. 2d 304, 379 N.W.2d 860 (Ct. App. 1985), a decision that this court expressly overruled in Hull v. State Farm Mutual Automobile Insurance Co., 222......
  • Hull v. State Farm Mut. Auto. Ins. Co., No. 97-0659
    • United States
    • United States State Supreme Court of Wisconsin
    • 15 Diciembre 1998
    ...the owner of the vehicle which struck and killed her husband was uninsured. Relying on Hemerley v. American Family Mutual Insurance Co., 127 Wis.2d 304, 379 N.W.2d 860 Page 865 (Ct.App.1985), both the circuit court and court of appeals denied UM coverage. Both courts held that the vehicle w......
  • Jacobs v. Major, No. 85-0341
    • United States
    • Court of Appeals of Wisconsin
    • 15 Mayo 1986
    ...part of the statute, it cannot be considered when determining whether a statute is ambiguous. Hemerley v. American Fam. Mut. Ins. Co., 127 Wis.2d 304, 307, 379 N.W.2d 860, 862 (Ct.App.1985); sec. 990.001(6), 3 Joseph Story's Commentaries on the Constitution of the United States, supra, enjo......
  • Request a trial to view additional results

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