Preview:

2001  WI  App  12
COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION
Case No.:                                                              00-0950
Complete Title
of Case:
ALICIA DANIELSON,
PLAINTIFF-APPELLANT,
V.
ANDREA H. GASPER, ABC INSURANCE COMPANY, AND
WISCONSIN MEDICAL ASSISTANCE,
DEFENDANTS,
JEROME ERIC CLARK AND ILLINOIS FARMERS
INSURANCE COMPANY,
DEFENDANTS-RESPONDENTS.
Opinion Filed:                                                         December 19, 2000
Submitted on Briefs:                                                   November 6, 2000
JUDGES:                                                                Cane, C.J., Hoover, P.J., and Peterson, J.
Appellant
ATTORNEYS:                                                             On behalf of the plaintiff-appellant, the cause was submitted on the briefs
                                                                       of  Jason W. Whitley of Novitzke, Gust & Sempf of Amery.
Respondent
ATTORNEYS:                                                             On behalf of the defendant-respondent, Illinois Farmers Insurance
Company, the cause was submitted on the brief of Susan R. Tyndall of
CMT Legal Group, Ltd. Of Waukesha.




COURT OF APPEALS                                                2001  WI  App  12
DECISION
                                                                DATED AND FILED           NOTICE
                                                                                          This  opinion  is  subject  to  further  editing.  If
                                                                December 19, 2000         published, the official version will appear in the
                                                                                          bound volume of the Official Reports.
                                                                Cornelia G. Clark
                                                                                          A  party  may  file  with  the  Supreme  Court  a
                                                                Clerk, Court of Appeals
                                                                                          petition  to  review  an  adverse  decision  by  the
                                                                of Wisconsin
                                                                                          Court of Appeals.   See WIS. STAT. § 808.10 and
                                                                                          RULE 809.62.
No.                                                             00-0950
                                                                STATE OF WISCONSIN        IN COURT OF APPEALS
                                                                ALICIA DANIELSON,
                                                                PLAINTIFF-APPELLANT,
                                                                V.
ANDREA H. GASPER, ABC INSURANCE COMPANY, AND
WISCONSIN MEDICAL ASSISTANCE,
DEFENDANTS,
JEROME ERIC CLARK AND ILLINOIS FARMERS
INSURANCE COMPANY,
DEFENDANTS-RESPONDENTS.
APPEAL from a judgment of  the circuit court for Polk County:
ROBERT RASMUSSEN, Judge.   Affirmed.




No. 00-0950
Before Cane, C.J., Hoover, P.J., and Peterson, J.
¶1                                                                                         CANE, C.J.    Alicia   Danielson   appeals   a   summary   judgment
dismissing Illinois Farmers Insurance Company from this action.   Danielson was
injured when the car in which she was a passenger was struck by Andrea Gasper,
who was driving a car that Jerome Clark had loaned her.   Danielson acknowledges
that Clark’s insurer, Farmers, paid her $100,000, its full policy coverage for each
person  per  occurrence.    However,  she  argues  Farmers  should  not  have  been
dismissed  because  Clark’s alleged negligent entrustment of  the  car  to  Gasper
constitutes a separate occurrence that provides an additional $100,000 in policy
coverage.    Thus,  the  issue  is  whether  this  single  automobile  liability  policy
provides coverage for two occurrences where there was a single  car accident
allegedly caused by negligent entrustment and negligent driving.    Because we
conclude that there was only one occurrence as defined by the policy (equating an
occurrence  with  an  accident),  we  reject  Danielson’s  argument  and  affirm the
judgment.
¶2                                                                                         After Danielson was injured, she brought suit alleging that Gasper
negligently drove  the  car  and  that  Clark  had negligently entrusted the  car  to
Gasper.   At the time of the accident, Clark, a Minnesota resident, had an insurance
policy  with  Farmers  that  provided                                                      $100,000/$300,000  coverage  for  each
occurrence.   The policy potentially provided coverage to Gasper as the driver and
Clark as the owner.   Farmers paid $100,000 to Danielson for Gasper’s negligence.
¶3                                                                                         After  Farmers  paid  Danielson  $100,000,  it  moved  for  summary
judgment on grounds that it had exhausted its policy limits because it had no
further obligation to defend or indemnify Clark.   Danielson opposed the motion,
arguing that Gasper’s negligent driving and Clark’s negligent entrustment were
2




No. 00-0950
separate acts that constitute separate occurrences under the Farmers policy.1   The
circuit court concluded that there were no disputed issues of material fact and that
Farmers was entitled to judgment as a matter of law.   The court dismissed Farmers
from the suit and this appeal followed.
¶4                                                                                              On appeal, the parties agree that there are no issues of disputed fact
and that this case presents issues of contract interpretation.   The interpretation of
an insurance contract is a question of law that this court reviews de novo.   See
Hull v. State Farm Mut. Auto. Ins. Co., 222 Wis. 2d 627, 635-36, 586 N.W.2d
863 (1998).   The interpretation of an insurance contract is controlled by principles
of contract construction.   See General Cas. Co. v. Hills, 209 Wis. 2d 167, 175,
561 N.W.2d 718 (1997).   "The primary objective in interpreting a contract is to
ascertain and carry out the intentions of  the parties."    Id.    To that end, "the
language of an insurance policy should be interpreted to mean what a reasonable
person in the position of the insured would have understood the words to mean."
Id.
¶5                                                                                              The first issue presented is whether Minnesota or Wisconsin law
governs interpretation of the contract.    The insurance policy was delivered to
Clark  in  Minnesota  and  Clark,  a  Minnesota  resident,  kept  the  vehicle  in
Minnesota.    However, the accident occurred in Wisconsin, and Danielson and
Gasper are both Wisconsin residents.   The threshold determination in a conflict of
laws case is whether a genuine conflict exists between Wisconsin law and the law
of the other state.   See Gavers v. Federal Life Ins. Co., 118 Wis. 2d 113, 115, 345
1 Clark did not actively participate in the motion and did not take a position for or against
summary judgment.
3




No. 00-0950
N.W.2d 900 (Ct. App. 1984).   If the laws of the two states are the same, we apply
Wisconsin law.   See Sharp ex rel. Gordon v. Case Corp., 227 Wis. 2d 1, 11, 595
N.W.2d 380 (1999).
¶6                                                                                      Danielson argues that regardless of whether we interpret the Farmers
policy pursuant to Wisconsin or Minnesota contract law, the result is the same
because a clause in the Farmers policy requires that the policy be interpreted
according to the broadest coverage allowed by the state in which the accident
occurred.   Although we reject this argument because Danielson raises it for the
first time on appeal, we note that Danielson has not argued, in the alternative, for
the application of Minnesota law.   Farmers argues that Minnesota law applies, but
that even if Wisconsin law applies, the result would be the same.   Because neither
party identifies a conflict, we will apply Wisconsin law.   See id.
¶7                                                                                      The second issue presented is whether there were two occurrences,
as defined by the insurance policy.   In its definition section, the policy provides:
“Accident or occurrence means a sudden event, including continuous or repeated
exposure to the same conditions, resulting in bodily injury or property damage
neither expected nor intended by the insured person.”   Danielson argues that there
are two separate occurrences, two separate torts, two separate tortfeasors and,
therefore, two separate policy limits that would provide coverage.    Danielson
bases her argument on Iaquinta v. Allstate Ins. Co., 180 Wis. 2d 661, 510 N.W.2d
715  (Ct. App. 1993).   In Iaquinta, we examined an insurance policy issued in
Wisconsin to a Wisconsin resident who, like Danielson, alleged both negligent
driving and negligent entrustment.
¶8                                                                                      In  Iaquinta,  we  concluded  that  Wisconsin’s  omnibus  statute
required that full policy coverage be afforded to two tortfeasors, which raised the
4




No. 00-0950
insurer’s liability to $200,000.   See id. at 665-66.   Specifically, we concluded that
WIS. STAT. § 632.32(3)2 required that full policy coverage be provided in cases
where both the named insured and the additional insured are actively negligent.
See id. at 666.
¶9                                                                                        Danielson argues that as in Iaquinta, Wisconsin’s omnibus statute
requires that the Farmers policy provide full coverage because both the named
insured,  Clark,  and  the  additional  insured,  Gasper,  were  actively  negligent.
Farmers  responds  that  Iaquinta  was  legislatively  overruled  in                      1995  by  the
introduction of WIS. STAT. § 632.32(5)(f) and, alternatively, that § 632.32 applies
2 WISCONSIN STAT. § 632.32 provides in relevant part:
Provisions of motor vehicle insurance policies.
….
(3) REQUIRED PROVISIONS.   Except as provided in sub. (5),
every policy subject to this section issued to an owner shall
provide that:
(a) Coverage provided to the named insured applies in the
same manner and under the same provisions to any person using
any motor vehicle described in the policy when the use is for
purposes and in the manner described in the policy.
(b) Coverage extends to any person legally responsible for the
use of the motor vehicle.
5




No. 00-0950
only to policies issued and delivered in Wisconsin.   See WIS. STAT. § 632.32(1).3
We conclude that Farmers’ second argument is dispositive.4
¶10    WISCONSIN STAT. § 632.32(1) does not require a Minnesota insurer
issuing a policy in Minnesota to comply with statutes established for policies
issued in Wisconsin.   Instead, it expressly indicates that it applies “to every policy
of  insurance  issued  or  delivered  in  this  state.”    See  WIS.  STAT.  § 632.32(1).
Because the policy was not issued or delivered in this state, the only way that
§ 632.32 could apply is if Farmers and its insured, Clark, agreed by contract to
incorporate Wisconsin’s omnibus statute into the policy.
¶11    Danielson contends that a provision of the Farmers policy entitled
“Out of State Coverage” requires that the policy provide whatever coverage is
required by Wisconsin law.5   Farmers asserts that because Danielson raises the
3 WISCONSIN STAT. § 632.32(1) provides:
SCOPE.  Except as otherwise provided, this section applies to
every policy of insurance issued or delivered in this state against
the insured’s liability for loss or damage resulting from accident
caused by any motor vehicle, whether the loss or damage is to
property or to a person.
4 Therefore we do not consider further Farmers’ argument that Iaquinta v. Allstate Ins.
Co., 180 Wis. 2d 661, 510 N.W.2d 715 (Ct. App. 1993), was legislatively overruled.  See Gross v.
Hoffman,  227  Wis.  296,  300,  277  N.W.  663  (1938)  (only  dispositive  issues  need  to  be
addressed).
5 The provision states:
An  insured  person  may  become  subject  to  the  financial
responsibility law, compulsory insurance law or similar law of
another state or in Canada.   This can happen because of the
ownership, maintenance or use of your insured car when you
travel outside of Minnesota.   We will interpret this policy to
provide any broader coverage required by those laws, except to
the extent that other liability insurance applies.   No person may
collect more than once for the same elements of loss.
6




No. 00-0950
issue of the applicability of this policy provision for the first time on appeal, we
should decline to address this argument.    We agree.   See State v. Caban,  210
Wis. 2d 597, 604, 563 N.W.2d 501 (1997) (issues not presented in trial court will
not be considered for the first time on appeal).    Even if we were inclined to
address  this  argument,  Danielson  has  offered  no  case  law  to  support  her
interpretation of the provision, thereby providing another reason why we decline
to address this argument.    See State v. Pettit,  171 Wis.  2d  627,  646-47,  492
N.W.2d 633 (Ct. App. 1992).
¶12    Danielson has not convinced us that WIS. STAT. § 632.32 applies to
an insurance policy issued in Minnesota to a Minnesota resident.    Therefore,
Iaquinta is not controlling.   Neither the omnibus statute nor any other Wisconsin
statute requires us to impose additional rights or duties on the contracting parties.6
Instead, the parties’ rights and duties must be determined based solely on our
interpretation of the words in the policy.   The language of the policy should be
interpreted to mean what a reasonable person in the position of the insured would
have understood the words to mean.  See General Cas. Co., 209 Wis. 2d at 175.
¶13    The Farmers policy provides that the bodily injury liability limit for
each person, $100,000, is the maximum for bodily injury sustained by one person
in  any  occurrence.     The  policy  explicitly  defines  the  key  terms  at  issue:
“Accident or occurrence means a sudden event, including continuous or repeated
exposure to the same conditions, resulting in bodily injury or property damage
6 In addition to not convincing us that any Wisconsin statute requires us to impose
additional rights or duties on the parties’ contract, Danielson fails to cite any Minnesota statute or
case that would impose rights or duties.
7




No. 00-0950
neither  expected  nor  intended  by  the  insured  person.”     This  definition  is
unambiguous; an occurrence is the same thing as an accident:   a sudden event
resulting in bodily injury.   Here, the sudden event resulting in bodily injury was
the collision of Gasper’s and Danielson’s cars.   Pursuant to the policy’s definition
of the word accident, we do not consider the acts, incidents or omissions that led
to the accident for purposes of  determining  the maximum amount payable to
Danielson under this single policy.7   Instead, we look to the accident itself and the
number of persons injured to determine the limits of liability.
¶14    The Farmers policy had a bodily injury liability limit of $100,000 for
each person injured in an auto accident, with $300,000 as the maximum amount
payable to injured persons in each accident.   The policy states that these amounts
are the most that Farmers will pay regardless of the number of “insured persons”
or  claims  made.8  Thus,  the  number  of  insureds whose  negligence  caused  the
accident does not determine the amount payable under the policy. Instead, the
amount payable is $100,000 for each person injured in an accident or a total of
7 We are mindful that our supreme court has previously held that in some cases, the words
“accident” and “occurrence” should be viewed from the perspective of cause rather than effect.  See
Olsen v. Moore, 56 Wis. 2d 340, 349-51, 202 N.W.2d 236 (1972).  In Olsen, the court was dealing
with insurance coverage for passengers of two cars that were struck by the defendant Moore’s car.
See id. at 342-43.   The passengers argued that Moore’s impact with the first automobile was a
separate                                                                                               “occurrence”  from  Moore’s  impact  with  the  second  automobile  for  purposes  of
determining coverage under Moore’s policy.   See id. at 345.   The court had to look to the cause of
the collisions to determine whether a single, uninterrupted cause resulted in a number of injuries.
See id. at 349.   The court concluded that because there was only one cause, there was only one
accident.   See id. at  350.   In the case before us, only one collision—one accident—occurred.
Therefore, in contrast to Olsen, we do not have to construe the word “accident” from the standpoint
of the cause rather than the effect.
8 The policy states:                                                                                   “We will pay no more than the maximum limits provided by this
policy regardless of the number of vehicles insured, insured persons, claims, claimants, policies
or vehicles involved in the occurrence.”
8




No. 00-0950
$300,000 for all persons injured if two or more persons are injured. Therefore,
under the plain language of the policy, Danielson is entitled to $100,000 from the
policy to compensate her for her injuries.   Because Farmers has already settled
with  Danielson  for  this  amount,  the  circuit  court  correctly  granted  summary
judgment in Farmers’ favor.
By the Court.—Judgment affirmed.
9

Download 2474.pdf

Wisconsin Law