Ryan v. Friede

• Decision Date: 27 November 1962
• Citation: 18 Wis.2d 138,118 N.W.2d 208
• Parties: John W. RYAN, Individually and as Special Adm'r. of the Estate of Helen Ryan, deceased, Respondent, v. Edward J. FRIEDE, a minor, by Charles P. Curran, his gdn. ad litem, et al., Appellants.
• Court: Wisconsin Supreme Court

Page 208

118 N.W.2d 208

18 Wis.2d 138

John W. RYAN, Individually and as Special Adm'r. of the Estate of Helen Ryan, deceased, Respondent, v. Edward J. FRIEDE, a minor, by Charles P. Curran, his gdn. ad litem, et al., Appellants.

Supreme Court of Wisconsin.

Nov. 27, 1962.

Arno J. Miller, Portage, Charles P. Curran, guardian ad litem, Mauston, for appellants.

Robert Dougherty, Wisconsin Dells, Rogers & Owens, Portage, of counsel, for respondent.

WILKIE, Justice.

The sole issue in this case is whether or not the defendant-insurer can claim that its liability is limited to $10,000 (rather than $20,000) due to the fact that the plaintiff, in effect, is the only one damaged as a result of the defendant-insured's negligence, although two persons were injured in the single accident (one of the injured dying instantly).

Under sec. 331.04, Stats., there is no question but what the plaintiff, John Ryan, can bring an action for the wrongful death of his wife. This is undisputed. Under sec. 331.04(2), Stats., the amount recovered under the wrongful death statute shall be paid to the spouse of the deceased, if there are no surviving minor children. (None here.) In this case, therefore, any amount recovered under the wrongful death statute properly belongs to the plaintiff, John Ryan. Furthermore, there is no question that the plaintiff was a cause of action against the defendants for his own injuries. In other words, two persons were injured and there were two causes of action, both vested in the plaintiff.

The court awarded the plaintiff $18,500. If the defendant-insurer is found to be liable to the extent of $20,000, then the amount of the judgment will be recovered from the defendant-insurer in toto. However, if the defendant-insurer is found to be liable to the extent of only $10,000, then, because of the stipulation, judgment will be entered only for $10,000 and the defendant-insurer will pay that judgment.

The trial court, looking at the entire policy, concluded that the greater limits of $20,000 applied and reasoned as follows:

'Defendant's counsel conceded in oral argument that if a child or children of Mrs. Ryan were the beneficiaries under the wrongful death statute (assuming that Mr. Ryan had subsequently died) that the policy limits would be $20,000.00. The defendant's contention, then, is reduced to the proposition that while this fact situation, involves a 'one accident' limit of liability, the husband is limited to the 'one person' limit. To reach that result, a policy provision must be found that limits the amount that any one person can recover from the insurer. The contract is between the insurer and the insured, it cannot limit the liability of the insured to the injured person or to another person who is damaged by reason of the injury, yet if the contract is construed as defendant demands, then the insured would be required to pay $10,000.00 more damages personally to Mr. Ryan than he would be required to pay if the death statute beneficiary was someone other than Mr. Ryan. This is not the protection the insured purchased. The insurer placed a limit on its liability and it did so on the basis of the number of persons injured.'

Respondent contends that the policy limit of $20,000 applies since there were two persons injured in one accident; appellant contends that the policy limit of $10,000 applies since there is only one person sustaining damages although two were injured. In other words the question is whether the limits are dictated by the number of persons injured or the number of persons sustaining damage.

The material provisions of the policy are as follows:

The company under 'Insuring Agreements agrees * * * subject to the limits of liability, exclusions, conditions and other terms of this policy:

'I Coverages A * * * Bodily Injury * * * To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of: Coverage A bodily injury * * * including death resulting therefrom, sustained by any person, caused by accident and arising out of the * * * use of the automobile * * *.'

Limits of Liability, Coverages A and B 'The limit of bodily injury liability stated in the declarations as applicable to 'each person' is the limit of the company's liability for all damages * * * arising out of bodily injury * * * sustained by one person in any one accident; the limit of such liability stated in the declarations as applicable to 'each accident' is, subject to the above provisions respecting each person, the total limit of the company's liability for all damages * * * arising out of personal injury * * * including death * * * resulting therefrom, sustained by two or more persons in any one accident.'

Bodily Injury Liability Limits: 'Each person $10,000.00; each accident $20,000.00.'

If there is any ambiguity in this language, then, as was stated in the case of Schluckebier v. Arlington Mutual Fire Ins. Co. (1959), 8 Wis.2d 480, 99 N.W.2d 705:

'* * * in case of ambiguity in such terms, they...