Zarder v. Humana Ins. Co.

• Decision Date: 18 February 2009
• Docket Number: No. 2008AP919.,2008AP919.
• Parties: James ZARDER, Glory Zarder and Zachary Zarder, by Robert C. Menard, Guardian ad Litem, Plaintiffs-Respondents, v. HUMANA INSURANCE COMPANY, Defendant, Acuity, a Mutual Insurance Company, Defendant-Appellant.<SMALL><SUP>&#x2020;</SUP></SMALL>
• Court: Wisconsin Court of Appeals

765 N.W.2d 839

2009 WI App 34

James ZARDER, Glory Zarder and Zachary Zarder, by Robert C. Menard, Guardian ad Litem, Plaintiffs-Respondents, v. HUMANA INSURANCE COMPANY, Defendant Acuity, a Mutual Insurance Company, Defendant-Appellant.^†

No. 2008AP919.

Court of Appeals of Wisconsin.

Submitted on Briefs December 11, 2008.

Opinion Filed February 18, 2009.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Lance S. Grady and Daniel K. Miller of Grady, Hayes & Neary, LLC of Waukesha.

On behalf of the plaintiffs-respondents, the cause was submitted on the brief of Luke M. Wagner of Wagner Law Firm, S.C. of Menomonie and Robert Menard of Derzon & Menard, S.C. of Milwaukee.

Before BROWN, C.J., ANDERSON, P.J., and SNYDER, J.

¶ 1 BROWN, C.J

What does run mean when an insurance policy covers "hit-and-run" accidents as part of an uninsured motorist provision and the policy does not define the term? Does run mean to flee without stopping, or does it mean leaving the scene without providing identifying information even if the driver stopped to see if there was any injury? We hold that the latter definition controls and affirm the circuit court.

¶ 2 The facts relevant to this appeal are brief and undisputed. On December 9, 2005, twelve-year-old Zachary Zarder was riding his bicycle on the street. An unidentified motor vehicle cut the corner short, causing it to enter the wrong lane and strike Zarder. The vehicle stopped about one hundred feet away. Three males got out of the car and walked back towards Zarder. One asked Zarder if he was ok. Zarder said yes. So they walked back to their car and drove away. They never provided Zarder with identifying information or asked Zarder if he wanted it.

¶ 3 Witnesses also heard the accident and spoke to Zarder. They asked Zarder if he was hurt, and Zarder said he was ok. Zarder said he was just scared and wanted to remain where he was for a moment. So, the witnesses left. The witnesses did not attempt to identify the motor vehicle or the occupants.

¶ 4 A short while later, Zarder's family contacted the police. A police officer then questioned neighboring residents who had vehicles similar to the one involved in the accident, as so described by Zarder and the witnesses. The officer also contacted the nearest high school, thinking that the occupants might be students there. No information turned up, and the police did not thereafter continue the investigation of the accident as a "hit-and-run." This is most likely because, at that point, no one thought Zarder's injuries were serious.

¶ 5 Later, though, the Zarders realized that Zachary's injuries were serious. He suffered two fractures for which he had two surgeries and a lengthy recovery. The medical bills were more than Zarder's health insurance would cover. The Zarder family then sought coverage under their Acuity policy's uninsured motorist coverage. The Zarders asserted that the accident was a "hit-and-run" accident with an unidentified motor vehicle.

¶ 6 Acuity denied coverage and sought a declaratory judgment on coverage. It argued that the following provisions of the insurance policy issued to Zarder precluded Zarder's claim:

We will pay damages for bodily injury which an insured person is legally entitled to recover from the owner or operator of an uninsured motor vehicle. Bodily injury must be sustained by an insured person and must be caused by accident and result from the ownership, maintenance or use of the uninsured motor vehicle. (Emphasis omitted.)

The Acuity policy defined an "uninsured motor vehicle" as

2 .... a land motor vehicle or trailer which is

. . . .

c. A hit-and-run vehicle whose operator or owner is unknown and which strikes....

Acuity's position was that because the vehicle stopped and the operator inquired into Zarder's well-being, the accident was not a "hit-and-run."

¶ 7 The circuit court denied Acuity's claim based on public policy grounds. We granted leave to appeal because the issue is novel and because deciding it would further the administration of justice by definitively deciding the meaning of run in "hit-and-run."

¶ 8 The grant or denial of a declaratory judgment is addressed to the circuit court's discretion. Jones v. Secura Ins. Co., 2002 WI 11, ¶ 19, 249 Wis.2d 623, 638 N.W.2d 575. However, when the exercise of such discretion turns on a question of law, we review the question de novo. Id. Here, the issue turns upon the construction of an insurance contract, which is a question of law we review de novo. See Folkman v. Quamme, 2003 WI 116, ¶ 12, 264 Wis.2d 617, 665 N.W.2d 857.

WISCONSIN PRECEDENT

¶ 9 Acuity's main argument is that this issue has been previously decided. It cites Hayne v. Progressive Northern Insurance Co., 115 Wis.2d 68, 339 N.W.2d 588 (1983). There, the plaintiff sustained injuries when the car he was driving swerved to avoid an oncoming vehicle resulting in a loss of control and a roll-over. Id. at 69, 339 N.W.2d 588. The driver of the oncoming vehicle did not stop and was unidentified. Id. Important to that case, there was no physical contact between the plaintiff's vehicle and the other vehicle. Id. The supreme court stated the issue as follows:

The sole issue on appeal is whether sec. 632.32(4)(a)2.b., Stats., requires uninsured motorist coverage for an accident involving an insured's vehicle and an unidentified motor vehicle when there was no physical contact between the two vehicles.

Hayne, 115 Wis.2d at 69, 339 N.W.2d 588.

¶ 10 In deciding the question before it, the court cited recognized dictionaries to discover whether the term "hit-and-run" includes "miss-and-run" or whether it requires actual physical striking. Id. at 73-74, 339 N.W.2d 588. In all the dictionaries, the "hit" in "hit-and-run" was defined as physical contact. Id. Therefore, the court reasoned that, since the legislature is deemed to use words and phrases according to their common and approved usage and since "hit" in "hit-and-run" was commonly defined to include an element of "physical contact," the plaintiff could not recover because there had been no physical contact. Id. at 74, 339 N.W.2d 588. In making this statement, the court concluded that "[t]hese definitions clearly indicate that the plain meaning of `hit-and-run' consists of two elements: a `hit' or striking, and a `run,' or fleeing from the scene of an accident." Id. at 73-74, 339 N.W.2d 588. After having so stated, the court addressed and discarded the plaintiff's contention that "hit-and-run" simply meant an automobile that was "involved in an accident, after which the driver flees the accident scene." Id. at 74-75, 339 N.W.2d 588. It was in this context that the court again wrote:

We find his argument unpersuasive. The dictionary definitions we previously cited uniformly indicate that "hit-and-run" includes two elements: a "hit" or striking, and a "run," or fleeing from the accident scene.

Id. at 75, 339 N.W.2d 588. Acuity seizes upon these two passages to support its claim that the issue is dead and buried and that "run" is synonymous with "fleeing."

¶ 11 But, not so fast. First of all, the issue in that case, as cogently stated by the supreme court, was whether there was "physical contact" such that there was a "hit." When an appellate court intentionally takes up, discusses and decides a question germane to a controversy, such a decision is not dicta but is a judicial act of the court which it will thereafter recognize as a binding decision. State v. Sanders, 2007 WI App 174, ¶ 25, 304 Wis.2d 159, 737 N.W.2d 44. However, when the court's opinion expresses language that extends beyond the facts in that case and is broader than necessary and not essential to the determination of the issues before it, that language is dicta and not controlling. State v. Sartin, 200 Wis.2d 47, 60 & n. 7, 546 N.W.2d 449 (1996). Thus, the definition of a term is dicta when a court defines a term "only because that term and its definition were part of the larger instruction that also addressed ... the conduct at issue in the case." State v. Harvey, 2006 WI App 26, ¶ 19, 289 Wis.2d 222, 710 N.W.2d 482.

¶ 12 The Hayne court did not intentionally take up and decide the "run" part of "hit-and-run." And the passages Acuity quoted were not germane to the outcome of Hayne. Moreover, the statements Acuity relied on were obviously off-the-cuff statements, made without any careful thought or analysis, another indication of dicta. For example, while the court seemingly equated "run" with "flee," it did not define or discuss the circumstances that determine when a "flee" has occurred.

¶ 13 This is borne out by the supreme court's statement that the "dictionary definitions [it had] previously cited uniformly indicate that `hit-and-run' includes two elements: a `hit' or striking, and a `run,' or fleeing from the accident scene." Hayne, 115 Wis.2d at 75, 339 N.W.2d 588. While in truth, the cited dictionary definitions were uniform on the "hit" part of "hit-and-run," these same authorities were anything but uniform on the "run" part of the phrase. See id. at 73, 339 N.W.2d 588. One definition said "run" meant "leaving the scene of the accident without stopping to render assistance or to comply with legal requirements," another said it was "illegally" continuing on one's way and another had it as "driv[ing] on after striking." Id.

¶ 14 We conclude that Hayne's definition of "run" as a "fleeing from the scene of an accident" is dicta that begged the question. The facts in Hayne did not present an issue as to whether the unidentified vehicle "ran" from the scene. Instead, the issue presented was whether the term "hit" in "hit-and-run" includes accidents without any physical contact. Id. at 69, 339 N.W.2d 588. We conclude that Hayne discussed "run" in passing only because that term was part of the phrase "hit-and-run." See id. at 73-74, 339 N.W.2d 588. Therefore, Hayne's mention of "run" is uninformative dicta...