Mullen v. Coolong

• Decision Date: 17 July 1986
• Docket Number: No. 85-0308,85-0308
• Citation: 393 N.W.2d 110,132 Wis.2d 440
• Parties: Shirley W. MULLEN, Plaintiff-Respondent, Douglas Mullen, Plaintiff, v. Scott A. COOLONG, American Family Insurance Company, Tracey E. Strain, Defendants, Horace Mann Insurance Company, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

Page 110

393 N.W.2d 110

132 Wis.2d 440

Shirley W. MULLEN, Plaintiff-Respondent Douglas Mullen, Plaintiff, v. Scott A. COOLONG, American Family Insurance Company, Tracey E. Strain, Defendants Horace Mann Insurance Company, Defendant-Appellant.

No. 85-0308.

Court of Appeals of Wisconsin.

Submitted on Briefs May 7, 1986.

Opinion Released July 17, 1986.

Opinion Filed July 17, 1986.

[132 Wis.2d 441] John Possi and Bell, Metzner & Gierhart, S.C. Madison, for defendant-appellant.

Bruce D. Huibregtse and Stafford, Rosenbaum, Rieser & Hansen, Madison, for plaintiff-respondent.

Scott G. Pernitz and Winner, McCallum, Wixson & Pernitz, Madison, for amicus curiae Wisconsin Ins. Alliance.

William C. Gleisner, III, and David E. Sunby and Weiss, Steuer, Berzowski, Brady & Donahue, Milwaukee, for amicus curiae Wisconsin Academy of Trial Lawyers.

Before GARTZKE, P.J., and DYKMAN and EICH, JJ.

DYKMAN, Judge.

Horace Mann Insurance Company appeals from a judgment and order in favor of Shirley and Douglas Mullen on their claim under a policy of uninsured motorist insurance. The issue is whether the court erred by construing secs. 632.32(4)(a)1., Stats., and 631.43(1), Stats., ¹ to invalidate a reducing clause in the policy ² and by permitting the Mullens to stack ³ the uninsured motorist indemnity coverage with a recovery from the liability insurer of a jointly liable motorist. Because we conclude that neither statute nor public policy prohibits such clauses, Horace Mann's contractual obligations were limited by the reducing clause. We therefore reverse the judgment and order.

FACTS

In April, 1983, Shirley Mullen was struck and injured by a car driven by Scott Coolong. She and her husband sued Coolong and another motorist, Tracey Strain, alleging that the negligence of both caused Mullen's injuries. They joined American Family Mutual Insurance Company, Coolong's insurer. They also joined Horace Mann, their uninsured motorist carrier, because Strain was uninsured.

The Mullens settled their claims against Coolong and American Family, receiving $26,000 in exchange for Pierringer releases. ⁴ They obtained a default judgment against Strain for $100,012.00.

The Mullens moved for summary judgment against Horace Mann for $25,000, the limit of their uninsured motorist coverage.

                Horace Mann also filed a motion for summary judgment. 5  Its motion was based on a reducing clause of their policy which provided in part:  "Any amount payable under this coverage shall be reduced by any amount paid or payable to or for the insured:  by or for any person or organization who is or may be held legally liable for the bodily injury to the insured."  (Emphasis in original.)
                

The court granted the Mullens' motion for summary judgment and Horace Mann appeals. We granted leave to the Wisconsin Academy of Trial Lawyers and the Wisconsin Insurance Alliance to file briefs as amici curiae.

STANDARD OF REVIEW

"Summary judgment is appropriate where a determination of an issue of law concludes the case." Johansen v. Reinemann, 120 Wis.2d 100, 101, 352 N.W.2d 677, 678 (Ct.App.1984). This is such a case. Because the facts are undisputed, we need not undertake the entire summary judgment analysis. The resolution of this case depends upon the effects of insurance statutes applied to those facts. The construction of a statute in regard to a particular set of facts is a question of law. Tahtinen v. MSI Ins. Co., 122 Wis.2d 158, 166, 361 N.W.2d 673, 677 (1985). "Therefore, we need not give special deference to the determination of the circuit court." Id.

ENFORCEABILITY OF REDUCING CLAUSE

In 1971, uninsured motorist coverage was made mandatory in every policy of motor vehicle liability insurance issued with respect to vehicles registered or principally garaged in Wisconsin. Sec. 204.30(5)(a), ch. 28, Laws of 1971. ⁶ Neither that statute nor its companion insurance provisions barred or limited "other insurance" or reducing clauses.

The supreme court held, in a case with facts virtually identical to those at hand, that a reducing clause in an uninsured motorist contract did not violate public policy. Leatherman v. American Family Mutual Ins. Co., 52 Wis.2d 644, 650-51, 190 N.W.2d 904, 907 (1971). The court approved the provision, noting that if reducing clauses were to be prohibited, it was up to the legislature to do so. Id. at 651, 190 N.W.2d at 907.

The Mullens correctly note that Leatherman involved an accident and claim which predated the enactment of sec. 204.30(5)(a), Stats. (1971). They argue that the case was purely a contract case not decided in the context of mandatory uninsured motorist coverage and is therefore inapposite. We disagree. The supreme court held in Scherr v. Drobac, 53 Wis.2d 308, 310-11, 193 N.W.2d 14, 15 (1972), that it did "not think that the provisions of 204.30(5)(a), Stats. [1967], change the [Leatherman ] In 1973, the legislature amended sec. 204.30(5)(a), Stats., by adding the following:

                outcome. 7  All this new statute does, is require that the coverage be offered....  [T]he statute is silent as to the validity of the 'reducing clause' found in the uninsured motorist protection provisions of the ... contract in Leatherman."
                

The uninsured motorist bodily injury coverage limits provided in an automobile liability or motor vehicle liability policy of insurance as required in this subsection shall not be reduced by the terms thereof to provide the insured with less protection than would be afforded him if he were injured by a motorist insured under an automobile liability or motor vehicle liability policy of insurance containing the limits provided in this subsection.

Ch. 72, Laws of 1973. There are no cases construing this amendment, but the legislative council specifically noted that it was a response to the Leatherman decision. It said:

In Leatherman the court upheld the validity of policy provisions relating to uninsured motorist coverage. The court agreed with the insurer's position that these provisions required the insurer to pay the amount the insured was legally entitled to recover as damages from the owner or operator of an uninsured automobile, but reduced this amount by payments recovered from anyone jointly or severally liable for the accident even if the payments did not cover any portion of the uninsured motorist's share of the liability....

This bill would make certain that the reduction in coverage permitted in Leatherman would not occur under the amended statute.

Legislative council note--1973, to sec. 204.30, Stats. (1973). There is no question that, under sec. 204.30(5)(a), Stats. (1973), a reducing clause such as that in Leatherman or the case at bar would be unenforceable.

However in 1975, sec. 204.30(5)(a), Stats., was recodified as sec. 632.32(3)(a), Stats. ⁸ Sec. 632.32(3)(a), ch. 375, Laws of 1975. In doing so, the legislature deleted the language of the 1973 amendment entirely. The legislative council noted that: "In sub. (3)(a) the final sentence of s. 204.30(5)(a) is omitted [because i]t does not seem to add anything." Committee comment--1975 to sec. 632.32, Wis.Stat.Ann.

We are perplexed by the Council's willingness in 1975 to dismiss a provision as adding nothing whose effects took three paragraphs to explain in 1973. Drafting files and committee reports associated with this recodification give no additional explanation for the change.

However, inquiry as to this point is irrelevant if the current statute is unambiguous and clear on its face. Town of Two Rivers v. DNR, 105 Wis.2d 721, 733, 315 N.W.2d 377, 383 (Ct.App.1981), overruled on other grounds, Milwaukee Met. Sewerage Dist. v. DNR, 126 Wis.2d 63, 375 N.W.2d 648 (1985). Where statutory language is clear and unambiguous, we must give it its ordinary and accepted meaning, Stoll v. Adriansen, 122 Wis.2d 503, 510, 362 N.W.2d 182, 186 (Ct.App.1984), without reference to extrinsic aids to construction. Tahtinen, 122 Wis.2d at 166, 361 N.W.2d at 677. The alternative plain meaning rule adopted in City of Madison v. Town of Fitchburg, 112 Wis.2d 224, 236, 332 N.W.2d 782, 787 (1983), leads to the same result. That rule, that the spirit or intent of a statute should govern over the literal or technical meaning of the statute, leads us again to Scherr, where the supreme court concluded that statutory language similar in pertinent part to the present language of sec. 632.32(4)(a)1., Stats., required only that automobile liability insurance policies offer uninsured motorist coverage. Scherr, 53 Wis.2d at 311, 193 N.W.2d at 15.

Had the supreme court felt that the spirit or intent of sec. 204.30(5)(a), Stats. (1967), required the stacking of uninsured motorist coverage, the result in Scherr would have been different.

Section 632.32(4)(a), Stats., is clear and unambiguous. "Ambiguity arises when more than one reasonable, although not necessarily correct, meaning can be attributed to a word, phrase, or statute." West Allis School Dist. v. DILHR, 116 Wis.2d 410, 418-19, 342 N.W.2d 415, 420 (1984).

The dissent does not dispute that the legislation in question is plain on its face. Nonetheless, it concludes that a legislative council comment gives the statute a meaning not found in its language. This is despite specific language not adopting those comments. Wisconsin Legislature, Joint Rule 7(2)(g) (1973). Under the dissent's view, the non-adopted comment becomes "public policy," a concept which then prevails over the action of the legislature.

Using legislative council comments to override legislation is improper because those notes are but another form of legislative history "to be resorted to in cases of ambiguity." State v. Beets, 124 Wis.2d 372, 382 n. 6, 369 N.W.2d 382, 386 (1985). There is no ambiguity in a repealed statute. Moreover, in situations where the supreme court concluded that statutes were repealed by mistake or error, it has nonetheless held that the repealing act must be given effect according to its terms....