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Kontowicz v. American Standard Insurance Co. of Wisconsin1/19/2005
" and contend that the legislature clearly included third-party claims. Further, they argue that § 628.46(3) plainly states that it applies only to classes of claims enumerated in Wis. Stat. § 646.31(2), which includes third-party claimants who are Wisconsin residents under § 646.31(2)(d). We agree that this interpretation of the plain language of § 628.46, in conjunction with § 646.31(2)(d), is a reasonable one.
. American Standard and Metropolitan insist that the Wis. Stat. § 628.46 use of terms such as "insurance claim," "claim ... under the policy," "proof of loss" and "covered loss" historically relate to first-party claims. They direct us to the standard fire insurance policy annexed to Wis. Stat. § 203.01(1) (1973). This standard policy contains language and concepts also contained in § 628.46. They further point out that § 628.46 appears in a chapter entitled "Insurance Marketing," clearly a reference to the first-party relationship. Finally, they note that § 628.46(2) applies to claims "under the policy," which are distinguishable from claims by third parties "against the policy." For support, they refer us to Wis. Stat. § 645.68(3m), where the legislature describes certain claims as " laims against the insurer that are not under policies and that are for liability for bodily injury or for injury to or destruction of tangible property." (Emphasis added.) We are persuaded that this first-party focus presents another reasonable interpretation of § 628.46.
. We conclude that because there are two incompatible, yet reasonable, interpretations of Wis. Stat. § 628.46, the statute is ambiguous. See State ex rel. Angela M.W. v. Kruzicki, 209 Wis. 2d 112, 122, 561 N.W.2d 729 (1997). We turn to the historical context of the statute in our quest to discern the legislative intent. See Village of Lannon, 267 Wis. 2d 158, .
Analysis of Wis. Stat. § 628.46
. Kontowicz and Buyatt maintain that Wisconsin jurisprudence has consistently supported the right of third parties to be treated fairly and equitably by insurers. This guiding principle, they contend, leads to only one reasonable conclusion: the legislature intended third parties to benefit from the interest penalty set forth in Wis. Stat. § 628.46. American Standard and Metropolitan respond that in construing § 628.46 we must keep to the legislature's purpose in creating the interest penalty, which is to reinforce the duty of good faith owed by the insurer to the insured. Neither the appellants nor the respondents point to any Wisconsin case law addressing the application of § 628.46 interest to third-party bodily injury or personal injury claims. Further, authority from other jurisdictions lends little assistance.
. Kontowicz and Buyatt ask us to consider the greater context of the insurance code. Wisconsin Stat. § 601.01(2) provides that the purposes of Wis. Stat. chs. 600 to 655 are " o ensure that policyholders, claimants and insurers are treated fairly and equitably" and Wis. Stat. § 600.12(1) instructs us to liberally construe the insurance code. Kontowicz and Buyatt argue that policyholders are by definition first-party claimants; therefore, the § 601.01(2) reference to "policyholders, claimants and insurers" cannot be narrowly construed to mean first-party claimants without rendering the term "claimants" superfluous. See State v. Achterberg, 201 Wis. 2d 291, 299, 548 N.W.2d 515 (1996) (statutory construction that renders a word or phrase superfluous must be avoided). The natural conclusion, they contend, is that the legislature created the interest penalty to encourage insurers to treat both first-party and third-party claimants fairly and equitably. Our supreme court has addressed this statutory
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