Van Erden v. Sobczak

• Decision Date: 25 February 2003
• Docket Number: No. 02-1595.,02-1595.
• Citation: 2003 WI App 57,659 N.W.2d 896,260 Wis.2d 881
• Parties: Steven VAN ERDEN and Cherie Van Erden, Plaintiffs-Appellants, v. Joseph A. SOBCZAK, Defendant, AMERICAN FAMILY MUTUAL INSURANCE COMPANY and City of Milwaukee, Defendants-Respondents, BADGER MUTUAL INSURANCE, Intervenor.
• Court: Wisconsin Court of Appeals

260 Wis.2d 881

2003 WI App 57

659 N.W.2d 896

Steven VAN ERDEN and Cherie Van Erden, Plaintiffs-Appellants,¹ v. Joseph A. SOBCZAK, Defendant, AMERICAN FAMILY MUTUAL INSURANCE COMPANY and City of Milwaukee, Defendants-Respondents, BADGER MUTUAL INSURANCE, Intervenor.

No. 02-1595.

Court of Appeals of Wisconsin.

Submitted on briefs January 7, 2003.

Decided February 25, 2003.

On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Jonathan Cermele and Laurie Eggert of Eggert & Cermele, S.C., of Milwaukee.

On behalf of the defendant-respondent American Family Mutual Insurance Company, the cause was submitted on the brief of Beth A. Boyer-Ryan of American Family Insurance Group of Milwaukee.

On behalf of the defendant-respondent City of Milwaukee, the cause was submitted on the brief of Nick G. Kotsonis of Crivello, Carlson & Mentkowski, S.C., of Milwaukee.

A nonparty amicus curiae brief was filed by John F. Fuchs of Fuchs, DeStefanis & Boyle, S.C., of Milwaukee, on behalf of the Milwaukee Police Association and Milwaukee Police Supervisors Organization.

Before Fine, Schudson and Curley, JJ.

¶ 1. CURLEY, J.

Steven and Cherie Van Erden appeal from the trial court's order granting summary judgment and dismissing their declaratory judgment action against the City of Milwaukee, in which the Van Erdens sought a declaration that the City had a duty to offer underinsured motorist (UIM) coverage to Steven Van Erden, as a City employee, in accordance with WIS. STAT. § 632.32(4m)(a)1 (1999-2000).² The Van Erdens also appeal from the trial court's order granting summary judgment dismissing their declaratory judgment action against American Family Mutual Insurance Company, their automobile insurance carrier, in which they sought full UIM coverage under two policies, despite reducing and anti-stacking clauses in their insurance policies.

¶ 2. With respect to the City, the Van Erdens contend that, as a result of its obligation to provide uninsured motorist (UM) coverage pursuant to WIS. STAT. § 62.67, the City should be classified as "[a]n insurer writing policies" under WIS. STAT. § 632.32(4m)(a)1, and therefore, should be required to offer underinsured motorist coverage to its employees. With respect to American Family, the Van Erdens contend that the reducing clauses contained in both policies issued separately to Steven and Cherie Van Erden were ambiguous. The Van Erdens also claim that the UIM policy issued to Steven was illusory because, as a result of an anti-stacking provision, they would never receive any UIM benefits under Steven's policy. We disagree with each contention.

¶ 3. Because the City is self-insured, it is not "[a]n insurer writing policies" in accordance with WIS. STAT. § 632.32(4m)(a)1. Moreover, WIS. STAT. § 62.67, which applies specifically to cities that are self-insured, such as the City of Milwaukee, only applies to UM coverage. We assume that if the legislature had intended to require that the City offer UIM coverage to its employees, it would have either expressly stated so in § 62.67, amended § 62.67 to include UIM coverage when it amended § 632.32 to include subsection (4m), or passed a new statute requiring UIM coverage for City employees. We cannot usurp the legislature's function.

¶ 4. Additionally, because the reducing clauses comply with WIS. STAT. § 632.32(5)(i) and clearly set forth the limits under both policies, we conclude that they are not ambiguous. Finally, because the anti-stacking clause complies with WIS. STAT. § 632.32(5)(f) and clearly sets forth the limits for similar coverage suffered by a person in any one accident, we conclude that the coverage is not illusory. Accordingly, the trial court is affirmed.

I. BACKGROUND.

¶ 5. On November 22, 1998, while operating a Milwaukee Police Department squad car, Steven Van Erden, a Milwaukee Police Department officer, was struck broadside by a vehicle driven by Joseph Sobczak. Officer Van Erden suffered serious injuries. Through Badger Mutual Insurance Company, Sobczak carried an automobile liability insurance policy with liability limits of $25,000. Badger paid the full limits of the policy to Officer Van Erden and his wife, Cherie. The Van Erdens were also paid $159,496.33 in worker's compensation coverage by the City.

¶ 6. The Van Erdens then filed a claim for UIM coverage with their own insurance carrier, American Family. American Family had issued separate policies of insurance to Steven and Cherie. Both policies contained identical reducing and anti-stacking provisions. Based on the terms of the policies, American Family paid the Van Erdens $65,503.67 — the difference between the largest amount of UIM coverage under either policy ($250,000) and the aggregate payments made by Badger on behalf of Sobczak and the City as Officer Van Erden's worker's compensation carrier ($184,496.33).

¶ 7. On November 16, 2001, the Van Erdens filed a declaratory judgment action against the City and American Family. All parties moved for summary judgment. The trial court granted summary judgment in favor of the City and American Family.

II. ANALYSIS.

[1]

¶ 8. This appeal involves issues decided pursuant to summary judgment. We apply the same summary judgment methodology as the trial court. Preloznik v. City of Madison, 113 Wis. 2d 112, 115-16, 334 N.W.2d 580 (Ct. App. 1983). Thus, our review of the circuit court's decision to grant summary judgment is de novo. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315-16, 401 N.W.2d 816 (1987).

[2, 3]

¶ 9. Summary judgment must be granted if the evidence demonstrates "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." WIS. STAT. RULE 802.08(2). We must first determine whether the complaint states a claim. Green Spring Farms, 136 Wis. 2d at 315. If the plaintiff has stated a claim and the pleadings show the existence of factual issues, then we must examine whether the moving party has presented a defense that would defeat the claim. Preloznik, 113 Wis. 2d at 116. If the defendant has made a prima facie case for summary judgment, the court examines the pleadings, affidavits, depositions, answers to interrogatories, and admissions on file to determine whether a genuine issue exists as to any material fact, or whether reasonable conflicting inferences may be drawn from undisputed facts, therefore requiring a trial. Green Spring Farms, 136 Wis. 2d at 315.

¶ 10. We first confine our analysis within the summary judgment analysis to one issue: whether the City, which is a self-insured entity, is "[a]n insurer writing policies" under WIS. STAT. § 632.32(4m)(a)1, and, therefore, required to offer UIM coverage to its employees. Resolution of this issue involves the interpretation of both § 632.32(4m)(a)1 and WIS. STAT. § 62.67.

[4-6]

¶ 11. "The interpretation and application of a statute present questions of law which we review de novo." State v. Volk, 2002 WI App 274, ¶ 34, 258 Wis. 2d 584, 654 N.W.2d 24. Thus, our interpretation of a statute begins with the language of the statute, and if the language is plain and unambiguous, we will apply it without further inquiry into extrinsic interpretive aids, see State v. T.J. Int'l, Inc., 2001 WI 76, ¶ 20, 244 Wis. 2d 481, 628 N.W.2d 774, because if the language employed is clear and unambiguous, it is conclusive of legislative intent, see Cemetery Servs., Inc. v. Dep't of Regulation & Licensing, 221 Wis. 2d 817, 825, 586 N.W.2d 191 (Ct. App. 1998). However, "[i]f statutory language is ambiguous, that is, `if reasonable minds could differ as to its meaning,' we look to the scope, history, context, subject matter, and purpose of the statute to help establish its proper interpretation." T.J., 2001 WI 76 at ¶ 20 (citations omitted).

¶ 12. WISCONSIN STAT. § 632.32(4m)(a)1 provides:

An insurer writing policies that insure with respect to a motor vehicle registered or principally garaged in this state against loss resulting from liability imposed by law for bodily injury or death suffered by a person arising out of the ownership, maintenance or use of a motor vehicle shall provide to one insured under each such insurance policy that goes into effect after October 1, 1995, that is written by the insurer and that does not include underinsured motorist coverage written notice of the availability of underinsured motorist coverage, including a brief description of the coverage. An insurer is required to provide the notice required under this subdivision only one time and in conjunction with the delivery of the policy.

(Emphasis added.) WISCONSIN STAT. § 62.67 states:

A 1st class city shall provide uninsured motorist motor vehicle liability insurance coverage for motor vehicles owned by the city and operated by city employees in the course of employment. The coverage required by this section shall have at least the limits prescribed for uninsured motorist coverage under s. 632.32 (4) (a).

(Emphasis added.)

¶ 13. Despite the fact that WIS. STAT. § 62.67 deals exclusively with UM coverage, the Van Erdens argue that, as a result of its obligation to provide UM liability coverage under § 62.67, the City should be considered "[a]n insurer writing policies" under WIS. STAT. § 632.32(4m)(a)1, and, therefore, has an obligation to offer UIM to its employees pursuant to § 632.32(4m)(a)1. However, the argument as to whether a self-insured entity is "[a]n insurer writing policies" under § 632.32 has already been settled by this court in Classified Insurance Co. v. Budget Rent-A-Car of Wisconsin, Inc., 186 Wis. 2d 478, 521 N.W.2d 177 (Ct. App. 1994). In Classified, an employee of Budget Rent-A-Car was driving a Budget car when she was involved in a collision with an uninsured motorist. See id. at 480. Budget was self-insured under WIS. STAT. § 344.16. See id. The employee's insurer sued Budget for indemnification/contribution, but the trial court granted summary...