Mullen v. Walczak, No. 02-0129.

CourtUnited States State Supreme Court of Wisconsin
Citation2000 WI 51,262 Wis.2d 708,664 N.W.2d 76
Decision Date01 July 2003
PartiesJoseph MULLEN and Estate of Renee K. Petit, by Joseph Mullen, Special Administrator, Plaintiffs-Appellants-Petitioners, v. Douglas J. WALCZAK, ABC Insurance Company, Daniel Wheeler, DEF Insurance Company and Primax Recoveries Company, Defendants, AMERICAN FAMILY MUTUAL INSURANCE COMPANY, Defendant-Respondent.
Docket NumberNo. 02-0129.

262 Wis.2d 708
2000 WI 51
664 N.W.2d 76

Joseph MULLEN and Estate of Renee K. Petit, by Joseph Mullen, Special Administrator, Plaintiffs-Appellants-Petitioners,
v.
Douglas J. WALCZAK, ABC Insurance Company, Daniel Wheeler, DEF Insurance Company and Primax Recoveries Company, Defendants,
AMERICAN FAMILY MUTUAL INSURANCE COMPANY, Defendant-Respondent

No. 02-0129.

Supreme Court of Wisconsin.

Oral argument April 8, 2003.

Decided July 1, 2003.


262 Wis.2d 709
For the plaintiffs-appellants-petitioners there were briefs by D. James Weis and Habush Habush & Rottier, S.C., Rhinelander, and oral argument by D. James Weis.

262 Wis.2d 710
For the defendant-respondent there was a brief by John A. Kramer, Michael J. Roman, and Zalewski, Klinner & Kramer, LLP, Wausau, and oral argument by John A. Kramer.

An amicus curiae brief was filed by William C. Gleisner, III, Milwaukee, on behalf of the Wisconsin Academy of Trial Lawyers.

¶ 1. WILLIAM A. BABLITCH, J.

Joseph Mullen (Mullen) petitions this court for review of a court of appeals' decision, which held that Mullen's claim for emotional distress, resulting solely from witnessing the death of his wife, should be paid out of his wife's "per person" liability limit under their American Family insurance policy. Mullen v. Walczak, 2002 WI App 254, 257 Wis. 2d 928, 653 N.W.2d 529. We agree. Based on the parties' stipulation that Mullen's claim for emotional distress is solely the result of witnessing his wife's death and on the plain language of the American Family insurance policy, we conclude that Mullen's claim must be compensated out of his wife's "per person" liability limit. Accordingly, we uphold the decision of the court of appeals.

FACTS AND PROCEDURAL HISTORY

¶ 2. The relevant facts are undisputed. On May 31, 1996, Mullen and his wife, Renee Petit (Petit), were involved in an automobile accident that was caused by Douglas Walczak, an uninsured motorist. Petit died in the accident, and Mullen suffered serious physical injuries. Mullen witnessed the death of his wife at the scene.

¶ 3. In 1999, Mullen commenced an action both personally, and as the administrator of Petit's estate, for the wrongful death of Petit and Mullen's personal

262 Wis.2d 711
injuries. Mullen sought to recover under their automobile insurance policy issued by American Family, which provided uninsured motorists coverage. Mullen sued for: (1) the wrongful death of Petit; (2) his own physical injuries; and (3) the emotional distress he suffered as the result of witnessing Petit's death. Only the emotional distress injury is at issue in this case

¶ 4. Under the American Family policy, the "Limits of Liability" for uninsured motorists coverage provided that the "limit for `each person' is the maximum for all damages sustained by all persons as the result of bodily injury to one person in any one accident." The policy provided uninsured motorist limits of $100,000 per person and $300,000 per accident.

¶ 5. Mullen and American Family settled the wrongful death claim arising out of Petit's death for $100,000, thereby exhausting Petit's "per person" liability limit. Mullen and American Family also stipulated that Mullen's claim for his physical injuries totaled $50,000. Additionally, Mullen and American Family stipulated that Mullen "sustained and continues to suffer from emotional distress that resulted solely from witnessing his wife's death." (Emphasis added.)

¶ 6. Based on the stipulation, American Family refused to cover Mullen's emotional injuries resulting from his wife's death. American Family filed a motion for summary judgment, arguing that since Mullen's emotional distress arose from his wife's death, those damages would have to be paid out of Petit's "per person" limit, which had already been exhausted by the wrongful death settlement. Mullen responded that his emotional injuries were part of his own bodily injuries, and were thus payable out of his own "per person" limit, of which $50,000 remained.

262 Wis.2d 712
¶ 7. The circuit court for Lincoln County, Judge J. Michael Nolan presiding, agreed with American Family and granted its motion for summary judgment. The circuit court concluded that Mullen's damages for his emotional distress, as a result of witnessing his wife's death, was subject to Petit's "each person" limit since Mullen's emotional distress was the result of Petit's bodily injuries, citing Estate of Gocha v. Shimon, 215 Wis. 2d 586, 573 N.W.2d 218 (Ct. App. 1997). Mullen filed a motion for reconsideration, which was denied

¶ 8. Mullen appealed and argued that Gocha was not applicable because that case involved "bystander" claims of family members. Unlike the facts in Gocha, Mullen emphasized that he was involved in the accident with his wife, and was physically injured as a result. Mullen contended that since there were two physically injured persons in the accident, two "per person" liability limits should be available. Mullen asserted that all damages sustained by him were his own bodily injuries in the accident. As such, he claimed that these injuries should be properly compensated from his "per person" limit.

¶ 9. The court of appeals disagreed. After surveying the case law and reviewing the decision in Gocha, the court of appeals stated that "but for the death of his wife, Mullen would not have an emotional distress claim based on witnessing her death." Mullen, 257 Wis. 2d 928, ¶ 9. The court concluded, "[t]he parties settled Mullen's claim for his physical injuries and any emotional distress that arose from them for $50,000. The only claim at issue is Mullen's distress from witnessing his wife's death. Under the policy, that damage is subject to her `each person' limit." Id., ¶ 12.

¶ 10. Mullen petitioned this court for review, which was granted on December 10, 2002.

262 Wis.2d 713
STANDARDS OF REVIEW

[1]

¶ 11. A grant of summary judgment is reviewed de novo using the same methodology as the circuit court. Ahrens v. Town of Fulton, 2002 WI 29, ¶ 15, 251 Wis. 2d 135, 641 N.W.2d 423. Summary judgment shall be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits . . . show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Wis. Stat. § 802.08(2) (2001-02).

[2-5]

¶ 12. The...

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21 practice notes
  • State Farm Mut. Auto. Ins. Co. v. Langridge, No. 02-3353-FT.
    • United States
    • Wisconsin Supreme Court
    • July 13, 2004
    ...motion for summary judgment. When we review a grant of summary judgment, our review is de novo. Mullen v. Walczak, 2003 WI 75, ¶ 11, 262 Wis. 2d 708, 664 N.W.2d 76 (citing Ahrens v. Town of Fulton, 2002 WI 29, ¶ 15, 251 Wis. 2d 135, 641 N.W.2d 423)); Smith v. Katz, 226 Wis. 2d 798, 805, 595......
  • Pierce v. Physicians Ins. Co. of Wisconsin, Inc., No. 01-2710.
    • United States
    • United States State Supreme Court of Wisconsin
    • February 17, 2005
    ...suffering, including emotional distress, here. ¶ 26. We are satisfied that, as we reiterated recently in Mullen v. Walczak, 2003 WI 75, 262 Wis. 2d 708, 664 N.W.2d 76, in discussing Redepenning v. Dore, 56 Wis. 2d 129, 143, 201 N.W.2d 580 (1972), it may be impossible to segregate injuries f......
  • Martinez v. Calimlim, Case No. 08-CV-00810
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Eastern District of Wisconsin
    • September 13, 2010
    ...I may not rewrite them to bind an insurer to a risk it never contemplated and for which it did not receive premiums. Mullen v. Walczak, 262 Wis.2d 708, 713, 664 N.W.2d 76 (2003). Ambiguous terms in the policy are construed in favor of the insured. Zarder, 324 Wis.2d at 339, 782 N.W.2d 682. ......
  • Allstate Ins. Co. v. Tozer, No. 1:02-CV-1189-TAB-JDT.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Southern District of Indiana)
    • December 23, 2003
    ...injuries do not constitute "bodily injury" and even if they did, policy limited coverage to per-person limit); Mullen v. Walczak, 262 Wis.2d 708, 664 N.W.2d 76, 81 (2003) ("Under the terms of the policy, any damages sustained by all persons as the result of [the decedent's] death are covere......
  • Request a trial to view additional results
21 cases
  • State Farm Mut. Auto. Ins. Co. v. Langridge, No. 02-3353-FT.
    • United States
    • Wisconsin Supreme Court
    • July 13, 2004
    ...motion for summary judgment. When we review a grant of summary judgment, our review is de novo. Mullen v. Walczak, 2003 WI 75, ¶ 11, 262 Wis. 2d 708, 664 N.W.2d 76 (citing Ahrens v. Town of Fulton, 2002 WI 29, ¶ 15, 251 Wis. 2d 135, 641 N.W.2d 423)); Smith v. Katz, 226 Wis. 2d 798, 805, 595......
  • Pierce v. Physicians Ins. Co. of Wisconsin, Inc., No. 01-2710.
    • United States
    • United States State Supreme Court of Wisconsin
    • February 17, 2005
    ...suffering, including emotional distress, here. ¶ 26. We are satisfied that, as we reiterated recently in Mullen v. Walczak, 2003 WI 75, 262 Wis. 2d 708, 664 N.W.2d 76, in discussing Redepenning v. Dore, 56 Wis. 2d 129, 143, 201 N.W.2d 580 (1972), it may be impossible to segregate injuries f......
  • Martinez v. Calimlim, Case No. 08-CV-00810
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Eastern District of Wisconsin
    • September 13, 2010
    ...I may not rewrite them to bind an insurer to a risk it never contemplated and for which it did not receive premiums. Mullen v. Walczak, 262 Wis.2d 708, 713, 664 N.W.2d 76 (2003). Ambiguous terms in the policy are construed in favor of the insured. Zarder, 324 Wis.2d at 339, 782 N.W.2d 682. ......
  • Allstate Ins. Co. v. Tozer, No. 1:02-CV-1189-TAB-JDT.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Southern District of Indiana)
    • December 23, 2003
    ...injuries do not constitute "bodily injury" and even if they did, policy limited coverage to per-person limit); Mullen v. Walczak, 262 Wis.2d 708, 664 N.W.2d 76, 81 (2003) ("Under the terms of the policy, any damages sustained by all persons as the result of [the decedent's] death are covere......
  • Request a trial to view additional results

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