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Welin v. American Family Mutual Insurance Co.5/24/2005
Before Cane, C.J., Hoover, P.J., and Peterson, J.
Alison Welin appeals a summary judgment dismissing American Family Mutual Insurance Company from her personal injury action. The court determined Welin's American Family policy unambiguously defined the scope of her underinsured motorist (UIM) coverage and, based on its language, the tortfeasor was not underinsured. Welin argues the policy is ambiguous and should be construed to provide coverage. We disagree and affirm the judgment.
Background
On September 10, 2001, a vehicle driven by Elizabeth Pyrzynski crossed the center line and struck a vehicle driven by Welin. Welin and a passenger in the Pyrzynski vehicle, Joshua Opichka, were both injured. Pyrzynski had an insurance policy with limits of $300,000 per person and $300,000 per occurrence. Welin's medical expenses were $180,000 at the time of trial while Opichka's totaled $25,000, but it is undisputed that Welin's total damages will exceed $300,000.
Welin is insured by American Family under her father's policy. The policy provides UIM limits of $300,000 per person and $300,000 per occurrence. The American Family UIM endorsement, on its face, requires a comparison between Pyrzynski's liability limits and Welin's UIM limits to determine whether the coverage is triggered. Welin argued to the trial court--and now argues on appeal--that the policy is ambiguous. She contended that a special notice to policyholders, issued in accordance with WIS. STAT.ยง 632.23(4m), contained a different definition of UIM coverage than the endorsement. American Family maintained the policy was unambiguous and Pyrzynski was not underinsured. Accordingly, American Family sought summary judgment. The court rejected Welin's argument, finding the policy unambiguous, and granted summary judgment dismissing American Family from the case. Welin appeals.
Discussion
We review summary judgments de novo, using the same methodology as the trial court. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315-17, 401 N.W.2d 816 (1987). Summary judgment is appropriate when there is no material factual dispute and the moving party is entitled to judgment as a matter of law. Germanotta v. National Indem. Co., 119 Wis. 2d 293, 296, 349 N.W.2d 733 (Ct. App. 1984). Summary judgment methodology is well established and need not be repeated here. See, e.g., Lambrecht v. Estate of Kaczmarczyk, 2001 WI 25, -24, 241 Wis. 2d 804, 623 N.W.2d 751.
Interpretation of an insurance policy presents a question of law we review de novo. Richie v. American Family Mut. Ins. Co., 140 Wis. 2d 51, 54, 409 N.W.2d 146 (Ct. App. 1987). Policy language is to be given its ordinary, common meaning. Id. This is not necessarily what the insurer intended, "but what a reasonable person in the position of the insured would have understood the words to mean." Kremers-Urban Co. v. American Employers Ins. Co., 119 Wis. 2d 722, 735, 351 N.W.2d 156 (1984).
"Occasionally a clear and unambiguous provision may be found ambiguous in the context of the entire policy." Folkman v. Quamme, 2003 WI 116, , 264 Wis. 2d 617, 665 N.W.2d 857. The test for contextual ambiguity, however, is the same as that for a disputed term--whether words or phrases in the policy, read in the context of the rest of the policy language, are reasonably or fairly susceptible to more than one construction. Id., . "The standard for determining a reasonable and fair construction is measured by the objective understanding of an ordinary insured." Id. (citations omitted).
Whether The Policy Is Contextually Ambiguous
Welin's policy provides UIM coverage by endorsement. The endorsemen
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