Krech v. Hanson
| Decision Date | 30 July 1991 |
| Docket Number | No. 91-0130,91-0130 |
| Citation | 164 Wis.2d 170,473 N.W.2d 600 |
| Parties | Douglas KRECH, Plaintiff-Appellant, d v. Palmer HANSON, Allstate Insurance Company, Pierce County, St. Croix County, Employer's Insurance of Wausau, a mutual company, and Northern States Power Company, Defendants, IDS Property Casualty Insurance Company, f/k/a Wisconsin Employer's Casualty Company, Defendant-Respondent. |
| Court | Wisconsin Court of Appeals |
Ardell W. Skow of Doar, Drill & Skow, S.C., Baldwin, on the brief, for plaintiff-appellant.
Theodore A. Franti of Weisel, Thrasher, Doyle & Pelish, Ltd., Rice Lake, on the brief, for defendant-respondent.
Before CANE, P.J., and LaROCQUE and MYSE, JJ.
Douglas Krech appeals a decision granting IDS Property Casualty Insurance Company's motion for summary judgment. Krech argues that the trial court erred by determining that the truck driven by Palmer Hanson did not fall within the definition of an underinsured motor vehicle in Krech's policy and, therefore, Krech was not entitled to collect any benefits from his underinsured motorist provision. For the reasons that follow, we affirm the trial court's decision.
Krech was injured in a motor vehicle accident as a passenger in a truck driven by Hanson. The truck was insured by Allstate Insurance Company with liability coverage limitations of $100,000 per person. Krech qualifies as an additional insured under his brother's policy provided by IDS. The IDS policy covers two vehicles. A separate premium was charged per vehicle. With respect to each vehicle policy there was underinsured coverage limits of $100,000 per person.
The IDS policy defines an underinsured motor vehicle as "a motor vehicle for which there is a bodily injury policy or liability bond available at the time of the car accident which provides bodily injury liability limits less than the limit of liability for this coverage." (Emphasis added.) The sole issue on appeal is whether Hanson's car is an underinsured motor vehicle under the terms of the IDS policy. Because Hanson's vehicle does not qualify as an underinsured vehicle, Krech is not entitled to recover under the underinsured provisions of the IDS policy.
Krech asks us to stack the $100,000 underinsured motorist coverage for each vehicle on his policy to find that Hanson's truck qualifies as an underinsured vehicle. In other words, he asks this court to stack the amounts on the policy before we decide if there is coverage. If we do this, he argues, he would have $200,000 underinsured coverage. Comparing his $200,000 coverage to the $100,000 liability policy on Hanson's truck, the truck would qualify under the policy definition of an underinsured motor vehicle. We reject Krech's argument and hold that coverage must be determined prior to the "stacking" of insurance policies.
Wisconsin law provides that although two motor vehicles may be listed as insured on one document, if separate premiums are paid with regard to each vehicle, the document in fact represents two separate policies. Burns v. Milwaukee Mut. Ins. Co., 121 Wis.2d 574, 578, 360 N.W.2d 61, 63-64 (Ct.App.1984). Here, because the policy that insures Krech contains two separate premiums paid for two $100,000 limits on underinsured motor vehicle coverage, we start from the premise that this document contains two separate policies. Therefore, the first step in our analysis is to determine whether each policy separately provides coverage for this loss. Only if both policies provide indemnification against the "same loss" do we stack the amounts. 1 Because we find that neither policy provides indemnification for this loss, this is not a stacking case.
In order to determine whether coverage is afforded under the provisions of an insurance contract, we first look to the language of the contract. The construction of language in an insurance policy is a question of law that we review de novo. Lambert v. Wrensch, 135 Wis.2d 105, 115, 399 N.W.2d 369, 373-374 (1987). We cannot alter the unambiguous language of an insurance policy. Schroeder v. Blue Cross & Blue Shield, 153 Wis.2d 165, 173, 450 N.W.2d 470, 473 (Ct.App.1989).
The recent case, Smith v. Atlantic Mut. Ins. Co., 155 Wis.2d 808, 456 N.W.2d 597 (1990), is helpful. In that case, Smith and Goulias were involved in an accident. Atlantic Mutual, Smith's insurance company defined an underinsured motor vehicle as follows:
[A] land motor vehicle ... 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.
Id. at 811, 456 N.W.2d at 599 (emphasis in original). The supreme court ruled that as a matter of law Goulias' vehicle did not fit within the policy definition of an underinsured motor vehicle. It stated:
Coverage under this provision only applies when the owner or driver of the other vehicle maintains a policy with a lower coverage than the insured. Here, Goulias' liability limits of $50,000 were the same as, and not less than, the $50,000 limits of Smith's UIM coverage. Accordingly, under the clear terms of the policy, Goulias' vehicle is not an underinsured motor vehicle, and Atlantic Mutual need not provide coverage.
Id. (emphasis added). Because the language used to define "underinsured motor vehicle" in Smith is virtually identical to the language in the IDS policy, we are constrained to use the same definition set forth by the Wisconsin Supreme Court as "plain and unambiguous." 2
Applying the Smith definition of underinsured motor vehicle to these facts, the "limit of liability for this coverage" under each vehicle policy is $100,000. We must, therefore, take each $100,000 IDS policy individually and compare it to Hanson's $100,000 liability coverage. Comparing Krech's first $100,000 policy limit to Hanson's $100,000 liability coverage, because Hanson's limits are equal to and not less than Krech's, Hanson's truck does not meet the IDS definition of underinsured motor vehicle. The results are the same when we compare the second $100,000 limit to Hanson's $100,000 liability policy.
We disagree with Krech's contention that coverage is compelled by the supreme court decisions in Kaun and Wood. We find these cases inapplicable for the same reasons that the supreme court found them inapplicable in Smith. The court reasoned: Smith, 155 Wis.2d at 814, 456 N.W.2d at 600. Here, as in Smith, the question concerns the definition of underinsured vehicle. Therefore, Smith is the controlling law on this issue.
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