United Fire & Cas. Co. v. Kleppe, 91-1231-FT

• Court: Court of Appeals of Wisconsin
• Writing for the Court: LaROCQUE
• Citation: 166 Wis.2d 844,480 N.W.2d 537
• Parties: UNITED FIRE & CASUALTY COMPANY, Plaintiff-Appellant, v. Gayle L. KLEPPE, Beau Wold, Defendants-Respondents, d Employers Insurance of Wausau, State of Wisconsin Department of Industry, Labor and Human Relations, Workers' Compensation Division, Defendants.
• Docket Number: No. 91-1231-FT,91-1231-FT
• Decision Date: 14 January 1992

Page 537

480 N.W.2d 537 166 Wis.2d 844 UNITED FIRE & CASUALTY COMPANY, Plaintiff-Appellant,
v.
Gayle L. KLEPPE, Beau Wold, Defendants-Respondents,
^d
Employers Insurance of Wausau, State of Wisconsin Department
of Industry, Labor and Human Relations, Workers'
Compensation Division, Defendants. No. 91-1231-FT. Court of Appeals of Wisconsin. Submitted on Briefs Sept. 3, 1991.
Opinion Released Jan. 14, 1992.
Opinion Filed Jan. 14, 1992.

Page 538

[166 Wis.2d 846] On behalf of plaintiff-appellant, the cause was submitted on the briefs of Michael F. O'Brien of Garvey, Anderson, Johnson, Gabler & Geraci, S.C. of Eau Claire.

On behalf of defendants-respondents, the cause was submitted on the brief of Lori J. Franson of Guelzow, Senteney & Franson Ltd. of Eau Claire.

Before CANE, P.J., and LaROCQUE and MYSE, JJ.

LaROCQUE, Judge.

United Fire and Casualty Company appeals a declaratory judgment voiding part of its policy that reduces the $300,000 uninsured motorist (UM) coverage by the sums already paid or payable to its insured, Gayle Kleppe, by her employer's workers' compensation carrier. ¹ The trial court declared that the UF & C policy violates sec. 632.32(4)(a), Stats., that requires motor vehicle insurance policies to provide minimum mandatory UM coverage of $25,000 per person and $50,000 per accident. The court did not reach the issue of whether the same limit of liability clause violates the collateral source rule.

Because Kleppe's damages are undetermined, it is premature to decide whether enforcement of the UF & C policy's limit of liability provision has the effect of violating the mandatory UM coverage statute. We also conclude[166 Wis.2d 847] that the collateral source rule has no application here. We therefore reverse the declaratory judgment.

Gayle Kleppe, an elementary school principal, was injured in the course of her employment as the result of a motor vehicle accident with an uninsured motorist. Kleppe and her husband, Beau Wold, (collectively Kleppe), made a claim for all of their damages under a UF & C motor vehicle insurance policy that provides UM benefits with a limit of $300,000 per accident. The extent of Kleppe's damages have not been established. In the meantime, Kleppe collected and will continue to collect workers' compensation from Employers Insurance of Wausau in payment of certain of her damages. ² Because Kleppe sought recovery for her medical bills paid or payable by worker's compensation insurance, UF&C sought a declaratory judgment enforcing the "limit of liability" provision in its policy. The policy provides as follows:

PART C--UNINSURED MOTORISTS COVERAGE

....

[166 Wis.2d 848] LIMIT OF LIABILITY

....

B. Any amounts otherwise payable for damages under this coverage [uninsured motorist] shall be reduced by all sums:

1. Paid ... by or on behalf of persons ... who may be legally responsible. This includes all sums paid under Part A [liability coverage]; and

2. Paid or payable because of the "bodily injury" under any of the following or similar law:

a. workers' compensation law

....

C. Any payment under this coverage will reduce any amount that person is

Page 539

entitled to recover for the same damages under Part A [liability coverage].

The circuit court held this reciprocal reducing clause to be invalid, citing prior case law interpreting sec. 632.32(4), Stats. Prior decisions have held reducing clauses virtually identical to the clause found in this policy in violation of the mandatory UM coverage of sec. 632.32(4)(a). ³ Those decisions, however, were expressly grounded upon the fact that reduction in coverage would have breached the legislative policy underlying the UM statute. The legislature intended to guarantee coverage to the injured party as if the uninsured motorist had been insured by the statutory minimums, presently $25,000 per person and $50,000 per accident. In each decision holding the clause unenforceable, the insured [166 Wis.2d 849] suffered damages greater than the minimum mandatory coverage provided by the policy, and the reducing clause had the effect of lowering policy payments below those minimums.

In Nicholson v. Home Ins. Cos., 137 Wis.2d 581, 405 N.W.2d 327 (1987), the vehicle policy under consideration contained a reducing clause almost identical to UF & C's clause. In Nicholson, the insurer tried to use the limit of liability provision to reduce the coverage payable even though that would no longer place the injured party in the same position as if the uninsured tortfeasor had been minimally insured. Id. at 594, 405 N.W.2d at 332. In Nicholson, the plaintiff, a passenger in the insured vehicle, suffered damages in excess of a half million dollars attributable to the negligence of an uninsured motorist. The Home Insurance Company policy in question provided minimum mandatory UM limits of $15,000 per person and liability limits of $50,000 per person. ⁴ Although Home Insurance paid the entire $15,000 UM coverage to the plaintiff, it sought to reduce its $50,000 liability coverage payable to the plaintiff by the $15,000 paid, or to $35,000.

The Nicholson court recited the plaintiff's argument: Her damages were in excess of the combined total [166 Wis.2d 850] of the separate liability and uninsured motorist coverages, and the reducing clause effectively violated the mandate of the UM statute and was therefore unenforceable, even though the actual reduction was applied to the liability coverage. Id. at 590-91, 405 N.W.2d at 330-31. The court found the plaintiff's argument persuasive and accepted...