Weimer v. Country Mut. Ins. Co.

• Decision Date: 29 May 1997
• Docket Number: No. 96-1440,96-1440
• Parties: Paul A. WEIMER, Plaintiff-Appellant, d v. COUNTRY MUTUAL INSURANCE COMPANY, Defendant-Respondent, Traceland Landscape, Design Construction Company, Ronald E. Trace, United States Fidelity & Guaranty Company, Dynaweld Trailer Company, Royal Insurance Company of America, General Motors Corporation, Wisconsin Physicians Service Insurance Corporation, BBB Insurance Company, General Casualty Company of Illinois, Frederick R. Ross, Eugene Sheets, George Meyer and Keith Jurkowski, Defendants.
• Court: Wisconsin Court of Appeals

Page 595

565 N.W.2d 595

211 Wis.2d 848

Paul A. WEIMER, Plaintiff-Appellant, ^d v. COUNTRY MUTUAL INSURANCE COMPANY, Defendant-Respondent,

Traceland Landscape, Design Construction Company, Ronald E.

Trace, United States Fidelity & Guaranty Company, Dynaweld

Trailer Company, Royal Insurance Company of America, General

Motors Corporation, Wisconsin Physicians Service Insurance

Corporation, BBB Insurance Company, General Casualty Company

of Illinois, Frederick R. Ross, Eugene Sheets, George Meyer

and Keith Jurkowski, Defendants.

No. 96-1440.

Court of Appeals of Wisconsin.

Submitted on Briefs Jan. 16, 1997.

Opinion Released May 29, 1997.

Opinion Filed May 29, 1997.

For the plaintiff-appellant the cause was submitted on the briefs of Hope K. Olson and Larry B. Brueggeman of Previant, Goldberg, Uelmen, Gratz, Miller & Brueggeman, S.C. of Milwaukee.

For the defendant-respondent the cause was submitted on the briefs of James J. Jacobson of Piette & Jacobson of Milwaukee.

Before EICH, C.J., and DYKMAN, P.J., and DEININGER, J.

DEININGER, Judge.

Paul Weimer appeals a judgment awarding him damages for personal injuries he sustained in a motor vehicle accident. The

judgment against Ronald Trace and Trace's insurer, Country Mutual Insurance Co. (Country Mutual), limited Weimer's recovery from the insurer to $100,000 plus post-verdict interest on that sum. The issues are: (1) whether § 631.43(1), STATS., allows Weimer to stack the [211 Wis.2d 852] liability coverages on Trace's truck and trailer, both of which were involved in the accident; (2) if not, whether the policy language permits an interpretation that the $100,000 limit on both the truck and the trailer are available to Weimer; and (3) whether Country Mutual is liable for interest on the entire $610,000 judgment against Trace or just on the limit of its coverage. We conclude that neither § 631.43(1) nor the language of the policy permits Weimer to stack the liability coverages. We further conclude that because Country Mutual did not tender its policy limits to Weimer before the judgment, it is liable for interest on the full judgment. Accordingly, we affirm in part and reverse in part.

BACKGROUND

The facts are not in dispute. On April 20, 1990, Trace, driving a dump truck with a trailer attached, crossed the center line of a highway and collided with a car driven by Paul Weimer. Weimer was injured in the accident. Trace had insured both the dump truck and the trailer under a business automobile policy issued by Country Mutual. The declarations page lists a separate premium for bodily injury liability coverage for each of the truck and the trailer. The declarations page also lists the liability limits for bodily injury as $100,000 for each person and $300,000 for each accident.

In October 1990, Country Mutual sent Weimer a letter containing Country Mutual's "offer ... of its policy limits of $100,000.00 in full settlement of [Weimer's] claim against Country Mutual Insurance" and Trace. About four months later Country Mutual sent another letter confirming its earlier offer of the policy limits. Country Mutual's second letter also stated its understanding that Weimer could not accept the offer because he was "in the process of evaluating the potential negligence of other defendants." Weimer filed suit against Trace and Country Mutual in April 1992.

Country Mutual moved for a declaration of rights on its limit of liability. The trial court ruled that Country Mutual's liability for bodily injury under the policy was the $100,000 stated in the limit of liability clause. The case proceeded to trial and a jury awarded Weimer $610,354.35 in damages against Trace. ¹

On March 7, 1996, the trial court signed an order for judgment ruling that Country Mutual was liable to Weimer for only the $100,000 policy limit and "interest as allowed by law." On March 14, 1996, the trial court held a hearing at the request of the parties to clarify the ruling on interest contained in the March 7 order. The trial court denied Weimer's motion to require Country Mutual to pay interest on the entire judgment and ruled that Country Mutual was liable for interest on the $100,000 limit alone, from the date of the jury verdict until the $100,000 was paid to Weimer.

Weimer appeals the determination limiting Country Mutual's liability to $100,000 and to interest on the $100,000 policy limit only. Other facts will be discussed below.

ANALYSIS

Whether Stacking is Permitted under § 631.43(1), Stats.

Weimer argues that under § 631.43(1), STATS., the bodily injury coverage attributable to each vehicle should be aggregated or "stacked" because Trace paid a separate premium for coverage on each of the truck and trailer. ² If Weimer is correct, Country Mutual would be liable for a limit of $100,000 per person per insured vehicle, or Country Mutual contends that its liability is limited to $100,000 because Trace's policy contains the following single-limit clause limiting its total liability:

$200,000 total, rather than the $100,000 per person limit stated on the face of the policy.

OUR LIMIT OF LIABILITY

1. Regardless of the number of covered autos, insureds, claims made or vehicles involved in the accident, our limit of liability is as follows:

a. The most we will pay for all damages resulting from bodily injury to any one person caused by any one accident is the limit of Bodily Injury Liability shown in the declarations for "Each Person."

b. Subject to the limit of "Each Person" the most we will pay for all damages resulting from bodily injury caused by any one accident is the limit of Bodily Injury Liability shown in the declarations for "Each Accident."

(Emphasis added.)

Section 631.43(1), STATS., prohibits insurers from limiting an insured to a single policy limit where the insured has purchased multiple policies for the "same loss":

When 2 or more policies promise to indemnify an insured against the same loss, no "other insurance" provisions of the policy may reduce the aggregate protection of the insured below the lesser of the actual insured loss suffered by the insured or the total indemnification promised by the policies if there were no "other insurance" provisions.

Whether § 631.43(1), STATS., permits an injured party to stack liability coverages for which an insured has paid separate premiums regardless of a single-limit clause involves a question of law that we review de novo, owing no deference to the reasoning of the trial court. See Schult v. Rural Mut. Ins. Co., 195 Wis.2d 231, 237, 536 N.W.2d 135, 137 (Ct.App.1995). The interpretation of language or clauses of an insurance contract is also a question of law. Fletcher v. Aetna Cas. & Sur. Co., 165 Wis.2d 350, 354, 477 N.W.2d 90, 91 (Ct.App.1991).

The supreme court has held that the "2 or more policies" language of § 631.43(1), STATS., is satisfied if separate premiums are paid for each covered automobile. Carrington v. St. Paul Fire & Marine Ins. Co., 169 Wis.2d 211, 224, 485 N.W.2d 267, 272 (1992); see Burns v. Milwaukee Mut. Ins. Co., 121 Wis.2d 574, 578, 360 N.W.2d 61, 64 (Ct.App.1984). The parties dispute, however, whether Trace paid separate premiums protecting against "the same loss."

The Wisconsin Supreme Court has held that where an insured pays multiple premiums for uninsured (UM) or underinsured motorist (UIM) protection, § 631.43(1), STATS., voids single-limit clauses contained in the policy, because the insured has paid multiple premiums insuring against the same loss. West Bend Mut. Ins. Co. v. Playman, 171 Wis.2d 37, 42, 489 N.W.2d 915, 917 (1992) (underinsured motorist); Carrington, 169 Wis.2d at 224, 485 N.W.2d at 272 (uninsured motorist); Wood v. American Family Mut. Ins. Co., 148 Wis.2d 639, 650, 436 N.W.2d 594, 598 (1989) (underinsured motorist); Welch v. State Farm Mut. Auto. Ins. Co., 122 Wis.2d 172, 178, 361 N.W.2d 680, 683 (1985) (uninsured motorist).

This court has held that there is no basis in the law for limiting the application of § 631.43(1), STATS., to uninsured motorist and underinsured motorist cases. Schult, 195 Wis.2d at 240, 536 N.W.2d at 139. We have held that § 631.43(1) permits the stacking of liability coverage for nonowned vehicles. Id. at 241-42, 536 N.W.2d at 139. In Schult, Rural issued a policy for three of Keith Schult's vehicles, upon which Keith had paid three separate premiums for nonowned vehicle coverage. Keith was driving a rental van when he had an accident that injured his passenger, Connie Schult, in the van. We held that because Keith had paid three separate premiums protecting against the same loss, i.e., the risk of loss caused by the operation of a nonowned vehicle, § 631.43(1) permitted the coverages to be stacked. Id. at 241-43, 536 N.W.2d at 139-40.

Weimer argues that Trace, like the insured in Schult, paid Country Mutual two separate premiums, each protecting against the same loss. We disagree. Under Agnew v. American Family Mut. Ins. Co., 150 Wis.2d 341 In Agnew, the insured owned three automobiles, each with a separate insurance policy. Each policy contained a liability limit of $25,000 for bodily injury per person per accident. Id. at 343, 441 N.W.2d at 223. A member of the insured's household was involved in an accident in one of the insured vehicles, causing over $75,000 in bodily injury damages. The plaintiff sought to stack the $25,000 liability limits of each vehicle for a total of $75,000 in coverage, based on § 631.43(1), STATS. Id. at 344, 441 N.W.2d at 224.

349, 441 N.W.2d 222, 226 (1989), the liability coverages on Trace's separate vehicles may not be stacked because Trace did not pay separate premiums insuring against "the same loss."

The supreme court noted that the stacking permitted by § 631.43(1), STATS., "is logical when the insured has two or more insurance policies protecting against the same loss" such as "fire, life, or medical coverage, or uninsured or underinsured motorist coverage" because "the insured has usually...