McCann v. Metropolitan Property & Cas. Ins. Co., No. 97-0381

• Court: Court of Appeals of Wisconsin
• Writing for the Court: LaROCQUE
• Citation: 212 Wis.2d 644,570 N.W.2d 64
• Decision Date: 31 July 1997
• Docket Number: No. 97-0381
• Parties: NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. Michelle McCANN, by her Guardian ad Litem, Ardell W. SKOW, Cynthia McCann and Bryan McCann, Plaintiffs-Appellants, v. METROPOLITAN PROPERTY & CASUALTY INS. CO., Defendant-Respondent, Wisconsin Mutual Ins. Co., Defendant.

Page 64

570 N.W.2d 64 212 Wis.2d 644 NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. Michelle McCANN, by her Guardian ad Litem, Ardell W. SKOW,
Cynthia McCann and Bryan McCann, Plaintiffs-Appellants,
v.
METROPOLITAN PROPERTY & CASUALTY INS. CO., Defendant-Respondent,
Wisconsin Mutual Ins. Co., Defendant. No. 97-0381. Court of Appeals of Wisconsin. July 31, 1997.

APPEAL from a judgment and an order of the circuit court for Pierce County: ROBERT W. WING, Judge. Affirmed.

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

LaROCQUE, Judge.

Michelle McCann appeals a summary judgment finding that an automobile policy issued by Metropolitan Property & Casualty Insurance Co. provides no underinsured motorist (UIM) coverage. McCann argues that Wisconsin case law establishes that the policy is ambiguous and therefore should be construed in favor of coverage. Because we conclude that the policy language unambiguously denies coverage, we affirm.

The relevant facts are undisputed. McCann, a minor, was injured while a passenger in a vehicle driven by Rosann Buck, also a minor. The vehicle was insured by Buck's father under a policy issued by American Family Insurance Company, with liability limits of $50,000 per person and $100,000 per accident. McCann settled her claim with American Family for the $50,000 policy limits.

This amount, however, was inadequate to fully compensate McCann for her injuries. McCann therefore submitted a claim for UIM coverage against a policy issued to her mother from Metropolitan. That policy included an "Underinsured Motorists Coverage Endorsement," which stated that "[w]e agree with you that Section IV, Protection Against Uninsured Motorists Coverage is amended to include Protection Against Underinsured Motorists Coverage." The UIM endorsement also included the following provisions:

We will pay bodily injury damages, caused by an accident arising out of the ownership, maintenance, or use of an underinsured highway vehicle, which you or a relative are legally entitled to collect from the owner or driver of an underinsured highway vehicle. Any other person occupying a covered automobile has the same rights as you.

.

Section VI, General Definitions, is amended as follows:

(1) Item (b) of the definition of "covered automobile" is amended to add "Protection Against Underinsured Motorists Coverage."

(2) "underinsured highway vehicle" means a motor vehicle with respect to which insurance or other financial security covering bodily injury is in effect at the time of the accident, in at least the minimum amount specified in the applicable motor vehicle financial responsibility law, compulsory insurance law, or other applicable law, but as to which the sum of the applicable limits of liability of such insurance and other financial security is less than the applicable limits of liability stated for Protection Against Underinsured Motorists Coverage in the Declarations. For purposes of Protection Against Underinsured Motorists Coverage, the applicable motor vehicle financial responsibility law, compulsory insurance law, or other similar applicable law shall be the law of the state in which the covered automobile is principally garaged.

This policy listed UM liability limits of $50,000 per person and $100,000 per accident, but does not list any limits for UIM coverage.

Metropolitan denied UIM coverage for McCann's injuries. McCann, by her guardian ad litem, filed a claim in circuit court demanding coverage. Metropolitan moved the court for summary judgment, which the court granted. McCann now appeals.

We review a motion for summary judgment using the same methodology as the trial court. See M & I First Nat'l Bank v. Episcopal Homes Mgmt., Inc., 195 Wis.2d 485, 496, 536 N.W.2d 175, 182 (Ct.App.1995); see also § 802.08(2), S TATS. That methodology is well known, and we will not repeat it here except to observe that summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See M & I First Nat'l Bank, 195 Wis.2d at 496-97, 536 N.W.2d at 182. Although summary judgment presents a question of law that we review de novo, we still value a trial court's decision on such a question. See id. at 497, 536 N.W.2d at 182.

The interpretation of an insurance policy is a question of law that this court decides independently of the trial court. Lambert v. Wrensch, 135 Wis.2d 105, 115, 399 N.W.2d 369, 373-74 (1987). The policy language, as the agreed upon articulation of the bargain reached between the parties, is dispositive to the extent it is plain and unambiguous. See Smith v. Atlantic Mut. Ins. Co., 155 Wis.2d 808, 811, 456 N.W.2d 597, 599 (1990).

McCann's first argument seems to contend that because the UIM endorsement explicitly states that the UM section of the policy "is amended to include" UIM coverage, UIM coverage is provided by the policy in this case. We see no merit in this argument. McCann does not, and cannot, argue that she would be entitled to UM coverage in this case. It is undisputed that the Buck vehicle was insured for $50,000 per person and $100,000 per accident. Because Wisconsin merely requires a policy with limits of "$25,000 because of bodily injury to or death of one person in any one accident and, subject to such limit for one person, $50,000 because of bodily injury to or death of 2 or more persons in any one accident," the Buck vehicle could not be an uninsured vehicle under the Metropolitan policy. ¹...