Paskiewicz v. Am. Family Mut. Ins. Co., 2012AP2758.

• Court: Court of Appeals of Wisconsin
• Writing for the Court: GUNDRUM
• Citation: 2013 WI App 92,834 N.W.2d 866,349 Wis.2d 515
• Parties: Michelle L. PASKIEWICZ and Andrew A. Paskiewicz, Plaintiffs–Appellants, v. AMERICAN FAMILY MUTUAL INSURANCE COMPANY, Ray R. Vogt, Jr., Brenda Free and Wisconsin Health Fund, Defendants, Acuity, A Mutual Insurance Company, Defendant–Respondent.
• Docket Number: No. 2012AP2758.,2012AP2758.
• Decision Date: 26 June 2013

349 Wis.2d 515
834 N.W.2d 866
2013 WI App 92

Michelle L. PASKIEWICZ and Andrew A. Paskiewicz, Plaintiffs–Appellants,
v.
AMERICAN FAMILY MUTUAL INSURANCE COMPANY, Ray R. Vogt, Jr., Brenda Free and Wisconsin Health Fund, Defendants,
Acuity, A Mutual Insurance Company, Defendant–Respondent.^†

No. 2012AP2758.

Court of Appeals of Wisconsin.

Submitted on Briefs May 2, 2013.
Opinion Filed June 26, 2013.

On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Patrick J. Schott and April Rockstead Barker of Schott, Bublitz & Engel, S.C., Brookfield.

On behalf of the defendant-respondent, the cause was submitted on the brief of Julie K. Vaughn of Simpson & Deardorff, S.C., Milwaukee.

Before BROWN, C.J., REILLY and GUNDRUM, JJ.

GUNDRUM, J.

[349 Wis.2d 517]¶ 1 Michelle and Andrew Paskiewicz appeal from a summary judgment dismissing their uninsured and underinsured motorists (UM/UIM) claims against their insurer, Acuity. They contend the circuit court erred in concluding that their insurance

[834 N.W.2d 867]

policy ¹ did not provide coverage because the miniature all-terrain vehicle at issue is a toy and therefore not a “land motor vehicle” under the policy. We agree with the Paskiewiczes and reverse.

BACKGROUND

¶ 2 The Paskiewiczes filed a complaint alleging Michelle sustained serious injury to her left leg as a result of three-year-old Alyssa Free striking her with a four-wheel recreational all-terrain vehicle Alyssa was operating. On the date of the alleged injury, Alyssa was at the Paskiewiczes' property with her grandfather, Ray Vogt, a neighbor of the Paskiewiczes. The vehicle Alyssa was operating is a Kazuma Meerkat50–4A.² The manufacturer's specifications identify the Meerkat50–4A[349 Wis.2d 518]as having, among other characteristics, a 50–cubic–centimeter 4–stroke gasoline-powered internal-combustion engine, 4–speed semi-automatic transmission, timing chain, crankshaft, clutch, oil pump and pistons, with a wheelbase of 2.3 feet and net weight of 156.53 pounds.³ The specifications further identify the maximum speed for the Meerkat50–4A as 21.75 miles per hour and the dimensions, in feet, as: length, 3.61; width, 2.13; and height, 2.43.⁴

¶ 3 As part of their complaint, the Paskiewiczes sued Acuity under the UM/UIM provisions of their policy. Acuity moved for summary judgment,⁵ arguing that, because the Meerkat50–4A with which Alyssa struck Michelle was “child-sized” and was “a child's toy,” the policy did not provide coverage for damages caused by it. The circuit court granted Acuity's motion, and the Paskiewiczes appeal. Additional facts are discussed below as needed.

DISCUSSION

¶ 4 We review de novo a grant of summary judgment, applying the same methodology as the circuit court. [349 Wis.2d 519]Frank v. Wisconsin Mut. Ins. Co., 198 Wis.2d 689, 693–94, 543 N.W.2d 535 (Ct.App.1995). Summary judgment is proper when the relevant facts are undisputed and only a question of law remains. Id. at 694, 543 N.W.2d 535.

¶ 5 The parties agree that the provision of UM/UIM coverage under the policy turns on the question of whether the Meerkat50–4A is a “land motor vehicle.” ⁶

[834 N.W.2d 868]

This question requires that we interpret the policy, which is a matter of law we review de novo. Id. We give words used in the insurance contract their plain and ordinary meaning. Id. “When the terms are plain and unambiguous, we will construe the contract as it stands.” Id. Where policy language is ambiguous, the policy will be construed in favor of coverage. Id.

¶ 6 The Paskiewiczes contend the Meerkat50–4A “unambiguously falls within the common and ordinary use of the phrase ‘land motor vehicle,’ ” and, thus, coverage applies. They alternatively argue that if there is any ambiguity regarding that term, the policy must be interpreted so as to provide them with coverage. Acuity also contends the term “land motor vehicle” is unambiguous, but argues that the Meerkat50–4A does not fall within the scope of the term because it is a “toy ATV” and a reasonable insured would not consider such a “child's toy” to qualify as a “land motor vehicle” or “vehicle” under an “automobile/cycle” insurance policy. We agree with the Paskiewiczes that the term “land motor vehicle” is unambiguous and covers the Meerkat50–4A.

¶ 7 The policy does not define the terms “land motor vehicle,” “motor vehicle” or “vehicle.” When a [349 Wis.2d 520]policy fails to define a term, it is appropriate to consider other sources to assist in determining the ordinarily understood meaning of a word or phrase. See, e.g., Just v. Land Reclamation, Ltd., 155 Wis.2d 737, 745, 456 N.W.2d 570 (1990)...