Progressive Northern Insurance Company v. Romanshek, 2004AP740.

• Citation: 697 N.W.2d 417,281 Wis.2d 300,2005 WI 67
• Decision Date: 07 June 2005
• Docket Number: No. 2004AP740.,2004AP740.
• Parties: PROGRESSIVE NORTHERN INSURANCE COMPANY, Plaintiff-Respondent, v. Richard P. ROMANSHEK, Defendant-Appellant, BLUE CROSS BLUE SHIELD UNITED OF WISCONSIN, Defendant.
• Court: United States State Supreme Court of Wisconsin

281 Wis.2d 300

2005 WI 67

697 N.W.2d 417

PROGRESSIVE NORTHERN INSURANCE COMPANY, Plaintiff-Respondent, v. Richard P. ROMANSHEK, Defendant-Appellant, BLUE CROSS BLUE SHIELD UNITED OF WISCONSIN, Defendant.

No. 2004AP740.

Supreme Court of Wisconsin.

Oral argument February 4, 2005.

Decided June 7, 2005.

For the defendant-appellant there was a brief (in the court of appeals) by Charles H. Bohl, Michael R. Sarner and Whyte, Hirschboeck Dudek S.C., Milwaukee, and oral argument by Tamara Hayes O'Brien.

For the plaintiff-respondent there was a brief (in the court of appeals) by Robert J. Lauer, Patti J. Kurth, and Kasdorf, Lewis & Swietlik, S.C., Milwaukee, and oral argument by Robert J. Lauer.

An amicus curiae brief was filed by Michael Riley and Axley Brynelson, LLP, Madison, on behalf of Wisconsin Academy of Trial Lawyers.

An amicus curiae brief was filed by Noreen J. Parrett, James A. Friedman and LaFollette Godfrey & Kahn, Madison, on behalf of the Wisconsin Insurance Alliance.

¶ 1. JON P. WILCOX, J.

This case is before the court on a motion to bypass, pursuant to Wis. Stat. § 808.05 (2001-02)¹ and Wis. Stat. § (Rule) 809.60. We are once again called upon to determine whether the phrase "hit-and-run" within the definition of "uninsured motor vehicle" in Wis. Stat. § 632.32(4)(a)2.b. requires an insurer to provide uninsured motorist (UM) coverage when its insured is the victim of a "miss-and-run" accident. We decline to overrule our long line of precedent requiring physical contact in an accident involving an unknown vehicle in order for there to be a "hit-and-run" within the meaning of § 632.32(4)(a)2.b. Therefore, we affirm the order of the circuit court.

I

¶ 2. On May 28, 2003, Progressive Northern Insurance Company (Progressive) filed a complaint for declaratory judgment against its insured, Richard P. Romanshek (Romanshek), seeking a declaration of the rights of the parties under its insurance policy. The following facts were alleged in Progressive's complaint and admitted in Romanshek's answer.

¶ 3. Progressive is a domestic insurance company licensed to do business in Wisconsin. Romanshek is an adult resident of Wisconsin. Romanshek had a Progressive motorcycle liability insurance policy in full force and effect at all relevant times. The policy contained a provision providing UM coverage. On December 28, 2002, Romanshek was driving his Harley-Davidson motorcycle in Naples, Florida, and was involved in a motor vehicle accident.² The accident involved an unidentified vehicle that turned in front of Romanshek's motorcycle, causing Romanshek to lose control of his machine, fall to the ground, and suffer injuries. Romanshek's motorcycle never came into physical contact with the unidentified vehicle or any part of said vehicle. The unknown vehicle drove away and has never been identified.³

¶ 4. Romanshek subsequently made a claim with Progressive under the UM portion of his policy. Progressive denied his claim in a letter dated February 3, 2003, on the ground that the unknown vehicle was not an "uninsured motor vehicle" as defined in the policy. Progressive's policy provides, in pertinent part:

INSURING AGREEMENT-UNINSURED MOTORIST COVERAGE

....

ADDITIONAL DEFINITIONS

....

3. "Uninsured motor vehicle" means a land motor vehicle of any type or a trailer while used with a land motor vehicle:

....

c. that is a hit-and-run vehicle whose operator or owner cannot be identified and which strikes

i. you or a relative;

ii. a vehicle that you or a relative are occupying; or iii. a covered vehicle;

provided that the insured person, or someone on his or her behalf, reports the accident to the police or civil authority as soon as practicable after the accident.

(Underscoring added.) Progressive subsequently commenced the present action, seeking a declaration that no UM coverage is provided under the policy for a miss-and-run accident.

¶ 5. On October 22, 2003, Progressive filed a motion for declaratory/summary judgment, arguing that its policy did not provide UM coverage because the unknown vehicle did not strike Romanshek's motorcycle and thus was not an "uninsured motor vehicle" as defined in its policy. In its brief in opposition to Progressive's motion for summary judgment, Romanshek did not contest that Progressive's policy requires physical contact in order for an unidentified vehicle to qualify as an "uninsured motor vehicle" under the "hit-and-run" definition. Rather, Romanshek argued that by requiring physical contact, Progressive's policy impermissibly attempts to narrow the scope of UM coverage mandated by § 632.32(4)(a)2.b., which, according to Romanshek, should not be read as containing a physical contact requirement. Specifically, Romanshek argued that Hayne v. Progressive Northern Insurance Co., 115 Wis. 2d 68, 339 N.W.2d 588 (1983), which interpreted § 632.32(4)(a)2.b. to require physical contact, "has been eroded to the point that it has no meaning."

¶ 6. At the hearing on the motion, the circuit court noted that "it seems to me it would be appropriate to include [a miss-and-run] in the definition for uninsured motorist coverage at this point in time. But at least right now that's not the definition as it exists in the State of Wisconsin." The court ruled: "The State of Wisconsin clearly requires that there be a physical contact component, if you will, between the vehicle or the injured party and what is the uninsured vehicle .... And, quite clearly, that has been the law for the past twenty years."

¶ 7. Thus, on January 28, 2004, the circuit court entered an order for declaratory/summary judgment in favor of Progressive. Romanshek appealed, and this court granted his petition to bypass on October 19, 2004.

II

¶ 8. The sole question presented on this appeal is whether § 632.32(4)(a)2.b. mandates UM coverage for an accident involving an unidentified motor vehicle and an insured's vehicle when there is no physical contact. In other words, we must determine whether the phrase "hit-and-run" within the definition of "uninsured motor vehicle" in § 632.32(4)(a)2.b. requires an insurer to provide UM coverage when its insured is the victim of a "miss-and-run" accident. Statutory interpretation is an issue of law, reviewed de novo by this court. State v. Waushara County Bd. of Adjustment, 2004 WI 56, ¶ 14, 271 Wis. 2d 547, 679 N.W.2d 514. Further:

In a declaratory judgment action, the granting or denying of relief is a matter within the discretion of the circuit court. This court reviews such decisions to determine whether the circuit court erroneously exercised its discretion. If the circuit court proceeds on an erroneous interpretation of the law, the exercise of discretion is erroneous.

Theis v. Midwest Sec. Ins. Co., 2000 WI 15, ¶ 8, 232 Wis. 2d 749, 606 N.W.2d 162(citations omitted). ¶ 9. The standards for granting summary judgment are well known and need not be set forth in full. See Wis. Stat. § 802.08. When the facts are undisputed, the interpretation and application of a statute to these facts present a question of law appropriate for summary judgment. See Tri-Tech Corp. of Am. v. Americomp Servs., Inc., 2002 WI 88, ¶ 19, 254 Wis. 2d 418, 646 N.W.2d 822; Fore Way Express, Inc. v. Bast, 178 Wis. 2d 693, 701, 505 N.W.2d 408 (Ct. App. 1993); Hake v. Zimmerlee, 178 Wis. 2d 417, 421, 504 N.W.2d 411 (Ct. App. 1993).

III

¶ 10. Wisconsin Stat. § 632.32(1) provides that every policy of insurance issued in Wisconsin must contain certain provisions. Among these mandatory provisions is Wis. Stat. § 632.32(4), which requires insurance policies to provide UM coverage and medical payments coverage. Wisconsin Stat. § 632.32(4)(a) governs UM coverage and provides that insurance policies must contain a provision:

1. For the protection of persons injured who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death resulting therefrom, in limits of at least $25,000 per person and $50,000 per accident.

2. In this paragraph "uninsured motor vehicle" also includes:

a. An insured motor vehicle if before or after the accident the liability insurer of the motor vehicle is declared insolvent by a court of competent jurisdiction b. An unidentified motor vehicle involved in a hit-and-run accident.

3. Insurers making payments under the uninsured motorists' coverage shall, to the extent of payment, be subrogated to the rights of their insureds.

(Emphasis added.)

¶ 11. Romanshek argues that Wisconsin courts have eroded the physical contact requirement set forth in Hayne and that this court should therefore abandon it. He also argues that requiring physical contact contravenes the intent of UM coverage. Finally, he asserts that a majority of other states have held that requiring physical contact in order for there to be a hit-and-run is against public policy.

¶ 12. In contrast, Progressive argues that case law interpreting § 632.32(4)(a)2.b. has consistently required physical contact in order for UM coverage to be required. It also argues that because the court has consistently interpreted the statute, any change in the statutory requirements must come from the legislature. Moreover, Progressive states that because its policy clearly requires physical contact in order for there to be a hit-and-run, Romanshek could not reasonably expect coverage where there was no physical contact. Progressive states that the parties are bound by their contractual agreement, and the court cannot rewrite the insurance contract to eliminate the physical contact requirement.

¶ 13. We begin by emphasizing that the sole issue on appeal is the proper construction of § 632.32(4)(a)2.b. Therefore, "[t]he question to be decided here ... is not the construction of the policy, but what the law requires. Thus, the reasonable expectation of the insured regarding the language of the policy is not relevant to our analysis of Wis. Stat. §...