Commercial Union Midwest Insurance Company v. Vorbeck12/10/2003
. In Badger Mutual Insurance Co. v. Schmitz, 2002 WI 98, 255 Wis. 2d 61, 647 N.W.2d 223, the supreme court considered whether an underinsurance reducing clause in a motor vehicle insurance policy was ambiguous, thereby rendering the underinsured motorist (UIM) coverage illusory. Id., . As part of the analysis, the Schmitz court said, " educing clauses must be crystal clear in the context of the whole policy. Otherwise, insureds are not likely to understand what they are purchasing." Id., . Following Schmitz, the court of appeals issued a number of opinions applying the Schmitz methodology, including the "crystal clear" test. See Hanson v. Prudential Prop. & Cas. Ins. Co., 2002 WI App 275, , 258 Wis. 2d 709, 653 N.W.2d 915; Dowhower ex rel. Rosenberg v. Marquez, 2003 WI App 23, , 260 Wis. 2d 192, 659 N.W.2d 57, vacated, 2003 WI 127, ___ Wis. 2d ___, 668 N.W.2d 735; Van Erden v. Sobczak, 2003 WI App 57, n.3, 260 Wis. 2d 881, 659 N.W.2d 896, vacated, 2003 WI 129, ___ Wis. 2d ___, 668 N.W.2d 735; Gohde v. MSI Ins. Co., 2003 WI App 69, , 261 Wis. 2d 710, 661 N.W.2d 470, vacated, 2003 WI 128, ___ Wis. 2d ___, 668 N.W.2d 556.
. Recently, the supreme court revisited this question in Folkman v. Quamme, 2003 WI 116, 264 Wis. 2d 617, 665 N.W.2d 857. The Folkman court stated that its "crystal clear" language in Schmitz had produced "an unintended effect." Folkman, 264 Wis. 2d 617, ("A series of court of appeals decisions decided post-Schmitz reveals that our admonition of `crystal clarity' has been used to alter the analytical focus."). Having clarified Schmitz, the Folkman court then conducted its analysis without using the "crystal clear" test.
. With the benefit of Folkman, we now address the instant appeal. Lynn K. Vorbeck, in her personal capacity and as personal representative of the estate of her husband, Alan G. Vorbeck, appeals from a declaratory judgment limiting the liability of Commercial Union Midwest Insurance Company (Commercial) to $250,000 after application of the UIM reducing clause recited in the Commercial policy. Based on Folkman, we affirm the judgment.
FACTS AND PROCEDURAL HISTORY
. The facts of this case are undisputed. On June 11, 2001, a vehicle driven by Peter Scimeca collided with a vehicle driven by Alan G. Vorbeck. Alan was critically injured in the accident and died the same day. At the time of the accident, Scimeca was insured by Liberty Mutual Insurance Company (Liberty Mutual). The Liberty Mutual policy carried $250,000 per person limits of liability for bodily injuries. Lynn made a claim against Liberty Mutual for the policy limits. Liberty Mutual honored the claim and paid the policy limits of $250,000.
. At the time of the accident, Alan was insured under an insurance policy issued by Commercial. In addition to other coverage, the Commercial policy provided UIM "split limits" coverage in the amount of "$500,000 each person ... $500,000 each accident." Lynn made a claim against Commercial for the full UIM policy limits of $500,000. Commercial rejected the claim, relying on the policy's reducing clause, which stated that the limit of liability shown in the declarations page for each person "shall be reduced by all sums: 1. Paid because of the `bodily injury' by or on behalf of persons or organizations who may be legally responsible." Based on Liberty Mutual's prior payment of $250,000, Commercial paid Lynn $250,000, not the maximum UIM policy limits of $500,000 as demanded.
. Following its payment, Commercial instituted the instant declaratory judgment action and moved for summary judgment, seeking judicial confirmation that its $250,000 payment fully satisfied and discharged its obligations to Ly
Page 1 2 3 4 5 6 7 8 9 10 11 Wisconsin Personal Injury Attorneys
Personal Injury Lawyers
|