Hemerley v. American Family Mut. Ins. Co.

• Decision Date: 07 November 1985
• Docket Number: No. 84-406,84-406
• Citation: 379 N.W.2d 860,127 Wis.2d 304
• Parties: 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.
• Court: Wisconsin Court of Appeals

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.

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

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. 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:

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 disagree is a question of law. St. John Vianney Sch. v. Janesville Ed. Bd., 114 Wis.2d 140, 150, 336 N.W.2d 387, 391 (Ct.App.1983). The rules of construction require us to look to the statutory context, subject matter, scope, history and object to be accomplished. In Interest of I.V., 109 Wis.2d 407, 409-10, 326 N.W.2d 127, 129 (Ct.App.1982). We search for a reasonable meaning. St. John Vianney, 114 Wis.2d at 151, 336 N.W.2d at 391.

Section 632.32(4), Stats., is entitled "Required Uninsured Motorist and Medical Payments Coverages." The titles to subsections are not part of the statutes and cannot be considered when determining whether a statute is ambiguous. State v. Dahlk, 111 Wis.2d 287, 294, 330 N.W.2d 611, 615 (Ct.App.1983); sec. 990.001(6), Stats. ²

Even without considering the statutory title, reasonable persons could read sec. 632.32(4), Stats., either to require coverage to protect persons injured by a motor vehicle which is not insured, or to require coverage to protect persons injured when the vehicle's owner or operator has no insurance. The statute refers both to "uninsured motor vehicles" in subsection (4)(a)1. and 2. and to "uninsured motorists' coverage" in subsection (4)(a)3. Doubt as to the proper reading is intensified by the introductory paragraph to sec. 632.32(4), which directs coverage in every policy "that insures with respect to any motor vehicle" without referring to coverage of the vehicle or coverage of the owner or operator. We conclude that the statute is ambiguous. We turn to the rules of statutory construction.

The guiding principle of statutory construction is to determine the intent of the legislature. Denter, 121 Wis.2d at 122, 357 N.W.2d at 557. That intent is found in the statute's purpose. The purpose is to compensate an injured person when liability coverage is unavailable to the person who ought to pay. That purpose makes it natural to speak in terms of uninsured motorist coverage. Thus, the supreme court has said the purpose is to compensate for "an uninsured motorist's negligence to the same extent as if the uninsured motorist were insured." Vidmar v. American Family Mut. Ins. Co., 104 Wis.2d 360, 370, 312 N.W.2d 129, 133 (1981). In view of that purpose, we construe "uninsured motor vehicle" in sec. 632.32(4)(a)(1), Stats., to include a vehicle, neither the owner nor the operator of which is insured by liability insurance.

The American...