Theis v. Midwest Security Ins. Co.

• Decision Date: 22 February 2000
• Docket Number: No. 98-2552.,98-2552.
• Parties: Richard THEIS, Plaintiff-Respondent, v. MIDWEST SECURITY INSURANCE COMPANY, Defendant-Appellant.
• Court: Wisconsin Supreme Court

232 Wis.2d 749

2000 WI 15

606 N.W.2d 162

Richard THEIS, Plaintiff-Respondent, v. MIDWEST SECURITY INSURANCE COMPANY, Defendant-Appellant.

No. 98-2552.

Supreme Court of Wisconsin.

Oral argument December 1, 1999.

Decided February 22, 2000.

For the defendant-appellant there were briefs, (in the court of appeals), by James W. Mohr, Jr. and Mohr & Anderson, S.C., Hartford, and oral argument by James W. Mohr, Jr.

For the plaintiff-respondent there was a brief, (in the court of appeals), by James O. Conway and Olsen, Kloet, Gunderson & Conway, Sheboygan, and oral argument by James O. Conway.

¶ 1. SHIRLEY S. ABRAHAMSON, C.J.

This case comes before the court on certification by the court of appeals pursuant to Wis. Stat. § (Rule) 809.61 (1997-98).¹ Midwest Security Insurance Company appeals a judgment of the Circuit Court for Sheboygan County, Hon. Gary Langhoff, Circuit Court Judge. The judgment entered in favor of Richard Theis, the plaintiff, declared that the uninsured motorist provision of the plaintiff's motor vehicle insurance policy with Midwest Security Insurance Company covered an injury to his person and property.

¶ 2. Two issues are presented. The first issue is whether Wis. Stat. § 632.32(4) requires Midwest Security Insurance Company to provide uninsured motorist coverage when a detached piece of an unidentified motor vehicle is propelled into the insured's motor vehicle by an unidentified motor vehicle. The piece either came from the unidentified motor vehicle that propelled it into the insured's motor vehicle or was highway debris from another unidentified motor vehicle that was propelled into the insured's motor vehicle by an unidentified motor vehicle. We hold that Wis. Stat. § 632.32(4) requires that the uninsured motorist clauses of an insurance policy provide coverage under these circumstances.

¶ 3. The second issue is whether Midwest Security Insurance Company should be granted summary judgment in this declaratory judgment action because the plaintiff failed to present evidence of negligence by the driver of the unidentified motor vehicle. We hold that under the terms of the insurance policy, this evidence need not be presented in the declaratory judgment action.

I

¶ 4. The relevant facts of the case are not in dispute. In March 1997, the plaintiff was driving a semi-tractor in the center lane of a three-lane highway in moderate traffic. Another semi-tractor, which has not been identified, passed the plaintiff's motor vehicle on the right. When the back of this passing semi-tractor was roughly 30 feet in front of the plaintiff's motor vehicle, the plaintiff saw a black object flying at his motor vehicle. The object crashed through the windshield of the plaintiff's motor vehicle and injured the plaintiff.

¶ 5. The object either came off the passing semi-tractor or came off yet another unidentified motor vehicle and was propelled into the plaintiff's vehicle by the passing semi-tractor. The object was identified by the circuit court as a leaf spring, which is a part of a semi-tractor.

¶ 6. The plaintiff sought coverage under his insurance policy with Midwest Security Insurance Company. The plaintiff's policy included the uninsured motorist provision set forth in the margin.² Midwest Security Insurance Company denied coverage, asserting that the incident did not come within the policy's uninsured motorist provision.

¶ 7. Plaintiff commenced this litigation in February 1998, seeking a declaratory judgment that the accident was covered by the uninsured motorist provision of his insurance policy so that the plaintiff could proceed with arbitration. Midwest Security Insurance Company moved for summary judgment, arguing that the plaintiff's action should be dismissed for two reasons. First, Midwest Security Insurance Company argued that the injury did not come within the uninsured motorist provision of the insurance policy. Second, Midwest Security Insurance Company asserted that the plaintiff did not present evidence of the unidentified motorist's negligence and therefore was not legally entitled to recover damages. The circuit court concluded that there is coverage under the insurance policy and that the plaintiff is entitled to proceed with arbitration consistent with the terms of that policy. Midwest Security Insurance Company appealed. The court of appeals certified the case to this court.

II

¶ 8. In a declaratory judgment action, the granting or denying of relief is a matter within the discretion of the circuit court. Hull v. State Farm Mut. Auto Ins. Co., 222 Wis. 2d 627, 635-36, 586 N.W.2d 863 (1998). This court reviews such decisions to determine whether the circuit court erroneously exercised its discretion. Id. If the circuit court proceeds on an erroneous interpretation of the law, the exercise of discretion is erroneous. Id.

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¶ 19. In this case the interpretation of Wis. Stat. § 632.32(4) is at issue. Interpretation of a statute is ordinarily a question of law, which this court determines independently, while benefiting from the analyses of the circuit court and court of appeals. Hull, 222 Wis. 2d at 636.

III

¶ 10. The first issue is whether Wis. Stat. § 632.32(4) requires Midwest Security Insurance Company to provide uninsured motorist coverage when a detached piece of an unidentified motor vehicle is propelled into the insured's motor vehicle by an unidentified motor vehicle. The piece may have come from the unidentified motor vehicle that propelled it into the insured's motor vehicle or was highway debris from another unidentified motor vehicle that was propelled into the insured's motor vehicle by an unidentified motor vehicle. If the statute requires coverage, we need not examine the insurance policy. See Hayne v. Progressive Northern Ins. Co., 115 Wis. 2d 68, 72, 339 N.W.2d 588 (1983).

[3]

¶ 11. We hold that Wis. Stat. § 632.32(4) requires that the uninsured motorist clauses of an insurance policy provide coverage when a detached piece of an unidentified motor vehicle is propelled into the insured's motor vehicle by an unidentified motor vehicle. The piece either came from the unidentified motor vehicle that propelled it into the insured's motor vehicle or was highway debris from another unidentified motor vehicle that was propelled into the insured's motor vehicle by an unidentified motor vehicle.

¶ 12. We reach this result by examining the language of Wis. Stat. § 632.32(4), case law and the purposes underlying § 632.32(4).

¶ 13. Section 632.32(4) requires insurance companies to provide uninsured motorist coverage, and the Midwest Security Insurance Company policy must meet the statutory requirements. Coverage omitted from an insurance policy may be compelled and enforced as part of that policy when the inclusion of such coverage is required by a statute. Hayne, 115 Wis. 2d at 72. Thus if the statute requires Midwest Security Insurance Company to provide coverage in this case we need not examine the policy language. Accordingly, we focus our attention initially on the statute, which provides in relevant part as follows:

(4) Required uninsured motorist and medical payments coverages. Every policy of insurance subject to this section that insures with respect to any motor vehicle registered or principally garaged in this state against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle shall contain therein or supplemental thereto provisions approved by the commissioner:

(a) Uninsured motorist. 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. . .in limits of at least $25,000 per person and $50,000 per accident.

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

b. An unidentified motor vehicle involved in a hit-and-run accident.

¶ 14. Three elements must be met before uninsured motorist coverage is mandated by the statute. First, the statute requires an unidentified motor vehicle. In this case the unidentified semi-tractor that passed the insured's motor vehicle and propelled the leaf spring into the insured's motor vehicle is an unidentified motor vehicle. This element of the statute is satisfied.

¶ 15. Second, the statute requires that an unidentified motor vehicle hit the motor vehicle involved in the accident. Here a piece of an unidentified motor vehicle was propelled into the insured's motor vehicle by an unidentified motor vehicle. We must determine whether a piece detached from an unidentified motor vehicle that is propelled into the insured's motor vehicle by an unidentified motor vehicle satisfies this requirement of a "hit."

¶ 16. Third, the statute requires that the unidentified motor vehicle must have run from the scene. The unidentified semi-tractor that propelled the leaf spring into the insured's motor vehicle in the present case did leave the scene of the accident, satisfying this requirement.

¶ 17. Having established the first and third elements in the present case, we explore the second element, the requirement of a "hit."

¶ 18. The legislature has defined neither the word "hit" in the phrase "hit-and-run accident," nor the phrase "hit-and-run accident" used in Wis. Stat. § 632.32(4)(a)2.b. The Legislative Council Note adopted by the legislature explains that "[a] precise definition of hit-and-run is not necessary for in the rare case where a question arises, the court can draw the line."³ The legislature apparently recognized that a vast variety of unpredictable scenarios can give rise to claims for uninsured motorist coverage.

¶ 19. Our court and the court of appeals have "drawn a line" on uninsured motorist claims in several cases upon which Midwest Security Insurance Company relies. We review those decisions to determine their application to the facts of this case.

¶ 20. Relying on ...