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Wilkinson v. Safeco Insurance Co. of Illinois8/23/2005
Before Wedemeyer, P.J., Fine and Curley, JJ.
Marc Wilkinson, by his guardian ad litem, appeals the grant of summary judgment to Safeco Insurance Company of Illinois (Safeco) in his declaratory judgment action seeking underinsured motorist benefits (UIM) from his parents' Safeco automobile liability insurance policy for injuries he received in an accident in which his grandmother was driving her car. Wilkinson argues that the trial court erred: (1) in determining that the doctrine of issue preclusion bars him from now questioning whether his grandmother's car was an underinsured motor vehicle under his parents' Safeco insurance policy; and (2) in declaring that under his parents' policy's definition of underinsured motor vehicle, his grandmother's automobile was not an underinsured motor vehicle. We have chosen to address the merits of his argument because it resolves the matter. This case is controlled by the holding in the recent case of Praefke v. Sentry Ins. Co., 2005 WI App 50, 279 Wis. 2d 325, 694 N.W.2d 442. Praefke instructs that, when multiple claims against a tortfeasor's insurance policy have reduced the amount an injured party receives from the tortfeasor's insurance below the amount of the injured party's UIM insurance, in determining whether a car qualifies as an underinsured motor vehicle, the correct comparison is to compare the limits of liability of the two policies. Id., -10. The Wilkinsons' automobile insurance policy defines an underinsured motor vehicle as one that has policy "limits ... less than the limits of liability for this coverage." Since Marc's grandmother's policy limits were identical to those of the Safeco policy, the policy limits were not less than those found in his parents' policy, and Marc's grandmother's automobile was not an underinsured motor vehicle. Thus, we affirm.
I. BACKGROUND.
Marc Wilkinson, his two siblings, and his grandfather were passengers in a car being driven in Nebraska by his grandmother, Carol Geithman, when, while passing a truck in heavy rain, she lost control of her car, entered the lanes of oncoming traffic and was hit from behind by a semi-trailer. Marc's two siblings were killed, while his grandfather and Marc were injured, Marc seriously. Also injured was the semi-trailer driver.
The Geithmans had automobile liability insurance with State Farm Mutual Automobile Insurance Company of Bloomington, Illinois (State Farm), providing insurance coverage liability limits of $100,000 per person and $300,000 for each accident. The accident produced five claims against the insurance policy. Two of the claims were for the wrongful deaths of Marc's siblings, another of the claims was for his grandfather's injuries, the fourth was the claim of the driver of the semi-trailer truck involved in the accident, and Marc's claim was the fifth.
Before this action was filed, Marc's parents commenced a legal action seeking payment for the wrongful deaths of their children and seeking to stack the UIM limits for their two insured vehicles in order to obtain insurance coverage from their Safeco policy. The wrongful death actions resulted in the trial court ruling against the Wilkinsons in their effort to stack their policies to obtain UIM insurance, but they did receive payments of $200,000 ($100,000 for each child) from Geithman's insurance company, leaving $100,000 to be distributed among the three remaining claims. The Wilkinsons appealed the ruling regarding the stacking of insurance policies and this court affirmed. See Wilkinson v. Safeco Ins. Co. of Ill., No. 02-0579, unpublished slip op. (WI App Oct. 29, 2002). Eventually, the remaining $100,000 bodily injury liability limit available under the Gei
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