Kane v. Employer's Ins. of Wausau

• Decision Date: 23 December 1987
• Docket Number: No. 87-1465,87-1465
• Citation: 419 N.W.2d 324,142 Wis.2d 702
• Parties: Agnes KANE, Plaintiff-Appellant, v. EMPLOYER'S INSURANCE OF WAUSAU, a Wisconsin mutual company, Defendant-Respondent.
• Court: Wisconsin Court of Appeals

Page 324

419 N.W.2d 324

142 Wis.2d 702

Agnes KANE, Plaintiff-Appellant, v. EMPLOYER'S INSURANCE OF WAUSAU, a Wisconsin mutual company Defendant-Respondent.

No. 87-1465.

Court of Appeals of Wisconsin.

Submitted on Briefs Nov. 9, 1987.

Opinion Released Dec. 23, 1987.

Opinion Filed Dec. 23, 1987.

Douglas K. Marone and Curran, Curran & Hollenbeck, S.C., Mauston, for plaintiff-appellant.

David B. Russell and Hale, Skemp, Hanson & Skemp, La Crosse, for defendant-respondent.

Before DYKMAN, EICH and SUNDBY, JJ.

DYKMAN, Judge.

Agnes Kane appeals from an order dismissing her complaint against Employer's Insurance of Wausau (Wausau). The issue is whether an insurer must give notice to a mortgagee, who is an additional insured under the insurance contract, when the term of the insurance contract is shortened at the request of the mortgagor. Because we conclude there was a duty to give notice, we reverse. We remand for a finding as to whether Wausau gave Kane that notice.

Kane holds a first mortgage on a warehouse in New Lisbon, Wisconsin. The mortgagors, Bailey Brothers, insured the building with Wausau. Kane is listed in the insurance policy as a mortgagee to whom losses would be paid. The policy's original expiration date was December 6, 1985, but Bailey Brothers asked Wausau to change this to April 1, 1985. Wausau did so, but did not send Kane a copy of the endorsement changing the policy's expiration date. On October 28, 1985, the building was destroyed by fire. Wausau refused to pay the policy's proceeds to Kane because the policy had expired.

Kane sued Wausau, and both parties moved for summary judgment. The trial court granted Wausau's motion, holding that Wausau was not required to give Kane any notice that Wausau had shortened the policy term.

In reviewing a summary judgment we follow the same methodology as the trial court. State Bank of La Crosse v. Elsen, 128 Wis.2d 508, 511, 383 N.W.2d 916, 917 (Ct.App.1986). We need not repeat that methodology here. Kane's complaint states that Wausau insured the building when it burned, that she was a beneficiary of the policy, and that Wausau has refused to pay her the policy proceeds. Kane's complaint states a claim. Wausau's answer raises a defense because it alleges that the policy covering the building expired before the building burned.

Wausau's affidavit shows that: (1) endorsement No. 4 to Bailey Brothers' changed the policy's expiration date from December 6, 1985 to April 1, 1985; (2) all subsequent endorsements to the policy (amendatory endorsements No's. 5, 6, 7, 8, 9, 10, 11, 12) refer to the policy period as December 6, 1982 to April 1, 1985.

Kane's affidavit alleges that: (1) other mortgagees of Bailey Brothers received copies of amendatory endorsements No's. 3, 5, 7, 8, 10; (2) no mortgagee received a copy of amendatory endorsement No. 4; (3) Kane received "other Amendatory Endorsements" subsequent to amendatory endorsement No. 2.

Wausau claims that there were eight endorsements subsequent to amendatory endorsement No. 4. The new policy expiration date of April 1, 1985 appears on all endorsements subsequent to No. 4. Kane admits she received "other Amendatory Endorsements," and does not dispute Wausau's claim that there were only eight endorsements subsequent to endorsement No. 4.

Kane admits she received at least one amendatory endorsement subsequent to amendatory endorsement No. 4. Therefore, the issues are whether Wausau must notify Kane of the changed policy period, and if so, whether receipt of an amendatory endorsement, the purpose of which was other than to change the policy period, is notification of a changed policy expiration date because the new expiration date appears on the endorsement. Because the trial court decided the first issue in Wausau's favor, it did not reach the second issue. On appeal, neither party has raised or briefed the second issue, and we decline to consider it sua sponte. Loy v. Bunderson, 101 Wis.2d 215, 222, 304 N.W.2d 140, 144 (Ct.App.1981), rev'd on other grounds, 107 Wis.2d 400, 320 N.W.2d 175 (1982).

We therefore consider only whether Wausau must give Kane notice of the shortening of the policy period. Because this question requires the interpretation of an unambiguous contract, a question of law is presented, which we review de novo. Bartel v. Carey, 127 Wis.2d 310, 313, 379 N.W.2d 864, 866 (Ct.App.1985). Questions of law are properly decided by summary...