Weimer v. Country Mut. Ins. Co.
| Decision Date | 20 March 1998 |
| Docket Number | No. 96-1440,96-1440 |
| Citation | 575 N.W.2d 466,216 Wis.2d 705 |
| Parties | Paul A. WEIMER, Plaintiff-Appellant-Petitioner, v. COUNTRY MUTUAL INSURANCE COMPANY, Defendant-Respondent-Petitioner, 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 Supreme Court |
For the plaintiff-appellant-petitioner there were briefs by Larry B. Brueggeman, Hope K. Olson and Previant, Goldberg, Uelmen, Gratz, Miller & Brueggeman, S.C., Milwaukee and oral argument by Larry B. Brueggeman.
For the defendant-respondent-petitioner there were briefs by James J. Jacobson, Robert M. Piette and Piette & Jacobson, Milwaukee and oral argument by James J. Jacobson.
¶1
Plaintiff Paul A. Weimer (Weimer) and Defendant Country Mutual Insurance Company (Country Mutual) separately petition this court for review of a published decision of the court of appeals 1 affirming in part and reversing in part the judgment of the circuit court. The Jefferson County Circuit Court, Honorable William F. Hue presiding, concluded that Weimer cannot "stack" 2 two separate Country Mutual insurance policies insuring two separate vehicles where both vehicles are involved in the same accident. Citing Agnew v. American Family Mut. Ins. Co., 150 Wis.2d 341, 441 N.W.2d 222 (1989), the circuit court determined that Wis. Stat. § 631.43(1) (1993-94) 3 does not void the "other insurance" provisions 4 of the insurance policies that limit Country Mutual's liability, because the two separate policies do not insure against the "same loss." It is the court of appeals' affirmation of this issue from which Weimer appeals.
¶2 The circuit court also determined that Country Mutual "tendered" the limits of its liability to Weimer by letters dated October 3, 1990, and February 4, 1991. The circuit court therefore concluded that pursuant to language in the insurance policies, which relieves Country Mutual of liability for interest on the entire judgment if it tenders its policy limits, Country Mutual is liable to pay interest only on its policy limits of $100,000 from the date of the verdict until the date Country Mutual satisfies the judgment. The court of appeals reversed the circuit court on this issue, holding Country Mutual did not tender the limits of its liability and is consequently liable for interest on the entire judgment pursuant to the terms of the insurance policies. It is the court of appeals' reversal of this issue from which Country Mutual appeals.
¶3 We conclude that the two separate Country Mutual policies for the two insured vehicles involved in the accident do not insure against the "same loss" because the dump truck and the trailer do not present the same risks. Therefore Wis. Stat. § 631.43(1) does not void the provisions of the insurance policies limiting Country Mutual's liability to $100,000. 5 We further conclude that Country Mutual tendered its policy limits to Weimer by letters dated October 3, 1990, and February 4, 1991. Accordingly, Country Mutual has no liability for post-judgment interest.
¶4 The relevant facts are not in dispute. Weimer suffered bodily injury as a result of a motor vehicle accident which occurred on April 20, 1990. Ronald Trace (Trace), who was driving a dump truck with an attached trailer, crossed over the center line of a highway and collided with the vehicle driven by Weimer. On April 16, 1992, Weimer commenced an action against several parties, including Trace and Country Mutual as the insurer of the dump truck and trailer.
¶5 Country Mutual insures the dump truck and the trailer under a business automobile policy. The declarations page of the insurance policy lists the dump truck and the trailer as owned vehicles of Trace, in addition to five other vehicles. Trace pays a separate premium for insurance coverage for each of the seven vehicles insured. The declarations page also provides that the liability limits for bodily injury are $100,000 for each person and $300,000 for each accident.
¶6 On October 3, 1990, Country Mutual forwarded a letter to Weimer offering its policy limits of $100,000 in full settlement of his claim against Country Mutual and its insured, Trace. In a letter dated October 4, 1990, Weimer rejected Country Mutual's offer, indicating that the potential negligence of other defendants was being evaluated. Country Mutual sent a second letter to Weimer on February 4, 1991, acknowledging Weimer's rejection of its offer and stating that Country Mutual's offer of its policy limits of $100,000 in full settlement was still in effect.
¶7 On June 21, 1995, Country Mutual brought a motion for declaratory judgment that its limit of liability for Weimer's bodily injury was $100,000. 6 On October 10, 1995, the circuit court granted Country Mutual's motion, concluding that the policy insuring the dump truck and the policy insuring the trailer do not insure against the same loss. Therefore, the circuit court reasoned, Wis. Stat. § 631.43 is inapplicable, and the provisions of the insurance policies limiting liability for bodily injury to $100,000 per person are valid and enforceable.
¶8 A jury trial commenced on October 2, 1995. A special verdict was returned on October 18, 1995, wherein the jury found Trace 75 percent causally negligent and Weimer 25 percent causally negligent. The jury awarded Weimer total damages of $813,805.50. In an order dated March 7, 1996, the circuit court granted judgment on the verdict against Trace and Country Mutual in the amount of $610,354.35. The circuit court affirmed its non-final order for declaratory judgment and found Country Mutual liable to Weimer for its policy limits of $100,000 "together with taxable costs and interest as allowed by law."
¶9 At the request of the parties, a hearing was held on March 14, 1996, to clarify the March 7 order with respect to the interest payable by Country Mutual in accordance with the language of the insurance policy. 7 Weimer argued that Country Mutual was liable for the interest on the entire judgment, not limited to Country Mutual's policy limits. Weimer asserted that Country Mutual's act of forwarding letters offering its limits of liability did not constitute "tender" and therefore Country Mutual is not relieved of its obligation to pay interest on the entire judgment per the policy. Country Mutual, on the other hand, asserted that because its written offers to pay its liability limits did constitute "tender" it was not liable for any interest on any portion of the judgment, including its policy limits. The circuit court held that Country Mutual was liable only for the interest on its policy limits of $100,000 from the date of the verdict until the $100,000 was paid to Weimer. Weimer appealed.
¶10 In a split decision, the court of appeals affirmed in part and reversed in part the judgment of the circuit court. The court of appeals affirmed that portion of the circuit court's decision limiting Country Mutual's liability for damages to $100,000. The court of appeals concluded that the insurance policies covering the dump truck and the trailer do not insure against the same loss. As such, Wis. Stat. § 631.43(1) does not void the provisions of the insurance policies limiting Country Mutual's liability to $100,000 for Weimer's bodily injury.
¶11 The court of appeals reversed that portion of the circuit court's decision holding that Country Mutual is liable only for post-verdict interest on $100,000. The court of appeals determined that Country Mutual did not tender its policy limits. Based upon the language of the insurance policies, therefore, the court of appeals concluded Country Mutual is liable to pay interest on the entire amount of the judgment until it pays its policy limits to Weimer.
¶12 Weimer asserts that Wis. Stat. § 631.43(1) voids the language of the insurance policies limiting Country Mutual's liability to $100,000 for Weimer's bodily injury. "The construction of insurance contract provisions and statutes are questions of law which this court reviews de novo." West Bend Mut. Ins. Co. v. Playman, 171 Wis.2d 37, 40, 489 N.W.2d 915 (1992) (citing Martin v. Milwaukee Mut. Ins. Co., 146 Wis.2d 759, 766, 433 N.W.2d 1 (1988)).
¶13 The relevant language of Wis. Stat. § 631.43(1) states that where "2 or more policies ... indemnify an insured against the same loss, no 'other insurance' provisions of the policy may reduce the aggregate protection of the insured." (emphasis supplied). Hence, we must discern whether two policies exist in the present case and, if so, whether they insure Trace against the same loss.
¶14 The declarations page of the policy issued by Country Mutual indicates that Trace has only one policy number covering the seven insured vehicles. However, Trace pays a separate premium for each of the seven insured vehicles, including the dump truck and the trailer involved in the accident. Payment of separate premiums is the equivalent of having separately issued policies. See Burns v. Milwaukee Mut. Ins. Co., 121 Wis.2d 574, 578, 360 N.W.2d 61 (Ct.App.1984) (quoting Citizens Mut. Ins. Co. v. Turner, 53 Mich.App. 616, 220 N.W.2d 203, 204-05 (1974)); Schult v. Rural Mut. Ins. Co., 195 Wis.2d 231, 237, 536 N.W.2d 135 (Ct.App.1995). "[W]here a single insurance contract incorporates indemnity coverage for two vehicles, charging separate unit premiums, the insurer has issued two policies within the meaning of sec. 631.43, Stats." Krause v. Massachusetts Bay Ins. Co., 161 Wis.2d 711, 715, 468 N.W.2d 755 (Ct.App.1991) (citing Burns, 121 Wis.2d at 576-79, 360 N.W.2d 61). Thus where one policy covers two or...
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