Krause v. Massachusetts Bay Ins. Co.

• Decision Date: 22 February 1991
• Docket Number: No. 90-1504,90-1504
• Parties: Mary J. KRAUSE and Jack Krause, Plaintiffs-Respondents, d v. MASSACHUSETTS BAY INS. CO., a foreign insurance corporation, Defendant-Appellant, Health Protection Plan, Defendant. . Oral Argument
• Court: Wisconsin Court of Appeals

Page 755

468 N.W.2d 755

161 Wis.2d 711

Mary J. KRAUSE and Jack Krause, Plaintiffs-Respondents, d v. MASSACHUSETTS BAY INS. CO., a foreign insurance corporation,

Defendant-Appellant,

Health Protection Plan, Defendant.

No. 90-1504.

Court of Appeals of Wisconsin.

Oral Argument Feb. 22, 1991.

Opinion Released March 12, 1991.

Opinion Filed March 12, 1991.

Thomas J. Binder (argued), of Otjen, Van Ert, Stangle, Lieb & Weir, S.C., on the brief, Milwaukee, for defendant-appellant.

Steven G. Danielson, argued, of Herrick, Hart, Duchemin, Danielson & Guettinger, S.C., on the brief, Eau Claire, for plaintiffs-respondents.

Virginia M. Antoine of Habush, Habush & Davis, S.C., Milwaukee, amicus curiae, for Wisconsin Academy of Trial Lawyers.

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

LaROCQUE, Judge.

Massachusetts Bay Insurance Company, the plaintiffs' automobile liability insurer, appeals a summary judgment allowing the plaintiffs to stack the underinsured motorist (UIM) benefits of their Mass Bay policy. ¹ The circuit court reasoned that Mass Bay's insurance contract should be construed as two policies because the insured plaintiffs were charged two separate premiums for coverage of their vehicles, and any attempt by Mass Bay to avoid aggregate coverage through its "Limit of Liability" clause runs afoul of Wisconsin's stacking statute, sec. 631.43(1), Stats. We agree and affirm.

The relevant facts are undisputed; only a question of law is presented and thus partial summary judgment is appropriate. Kane v. Employers Ins., 142 Wis.2d 702, 705, 419 N.W.2d 324, 326 (Ct.App.1987). The plaintiffs, Mary and Jack Krause, were involved in an auto accident and Mary was injured. It is stipulated that the other driver was solely at fault, and his insurer paid its $25,000 policy limits to the Krauses, an amount insufficient to cover the plaintiffs' losses. The Krauses have a single Mass Bay insurance contract covering two vehicles with separate UIM coverage for each in the amount of $300,000 and $1,000 for each for medical pay. The Krauses pay separate premiums for each coverage. The Mass Bay contract contains UIM limit of liability provisions that read:

The limit of liability shown ... for this coverage is our maximum limit of liability for all damages resulting from any one accident. This is the most we will pay regardless of the number of:

1. Covered persons;

2. Claims made;

3. Vehicles or premiums shown in the Declarations; or

4. Vehicles involved in the accident. (Emphasis added.)

The Krauses seek to stack the UIM and medical payment coverages despite the preceding language. They rely on sec. 631.43(1), Stats.:

When 2 or more policies promise to indemnify an insured against the same loss, no "other insurance" provisions of the policy may reduce the aggregate protection of the insured below the lesser of the insured loss suffered by the insured or the total indemnification promised by the policies if there were no "other insurance" provisions. (Emphasis added.)

Mass Bay, meanwhile, seeks to escape the confines of this statute through several routes: first, insisting that it issued one policy, not two; second, that the statute has reference only to mandatory insurance; and, third, that Mass Bay's limit of liability clause is not the "other insurance" clause voided by the statute.

Mass Bay's first route is blocked because this court previously ruled that where a single insurance contract incorporates indemnity coverage for two vehicles, charging separate unit premiums, the insurer has issued two policies within the meaning of sec. 631.43, Stats. Burns v. Milwaukee Mut. Ins. Co., 121 Wis.2d 574, 576-79, 360 N.W.2d 61, 63-64 (Ct.App.1984). The Burns court adopted the reasoning of the Michigan Court of Appeals, holding that from the viewpoint of the insured, two separate premiums for two vehicles amounts to two policies of insurance despite the existence of a single physical document. Id. at 578, 360 N.W.2d at 63-64.

Mass Bay also argues that Burns' "two-premiums--two policies" analysis is in error because it conflicts with a subsequent statement by the supreme court in Tahtinen v. MSI Ins. Co., 122 Wis.2d 158, 361 N.W.2d 673 (1985), that says:

When we look to the plain meaning of sec. 631.43(1), Stats., we find that the legislative intent is clearly and unambiguously set forth in the first sentence of the statute.

....

This sentence clearly refers to policies, without limitation or qualification, not to companies. We agree with the court of appeals that the common and accepted meaning of the term "policies" is more than one policy, regardless of whether the same or different insurers have issued them.

Id. at 167, 361 N.W.2d at 678 (emphasis in original). We see no conflict. The quoted excerpt from Tahtinen does not address the question answered in Burns. In Tahtinen, the insurer had issued three separate insurance contracts (three tangible documents). The supreme court was merely rejecting the insurance company's suggestion that the "2 or more policies" language of the statute was intended to mean policies issued by different insurance companies and not to multiple policies from a single insurer. Tahtinen had no occasion to address the issue in Burns, i.e., the payment of separate premiums for separate coverage but set forth in one physical document. Burns is therefore still good law.

Mass Bay next maintains that the provisions of sec. 631.43(1), Stats., apply only to insurance that the company is mandated to provide by statute. If this were so, because UIM coverage is not mandated, the anti-stacking provisions of the policy here would not violate sec. 631.43(1). This argument was rejected in Wood v. American Fam. Mut. Ins. Co., 148 Wis.2d 639, 436 N.W.2d 594 (1989), and the plaintiff was permitted to stack UIM coverage. Wood held: "Section 631.43(1) has no reference, explicit or inferential, which...