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Welin v. American Family Mutual Insurance Co.5/24/2005
t says, in relevant part:
We will pay compensatory damages for bodily injury which an insured person is legally entitled to recover from the owner or operator of an underinsured motor vehicle....
....
... Underinsured motor vehicle means a motor vehicle which is insured by a liability bond or policy at the time of the accident which provides bodily injury liability limits less than the limits of liability of this Underinsured Motorists coverage. ...
Welin's UIM limits were equal to, not less than, Pyrzynski's bodily injury liability limits. When the limits are the same, the tortfeasor is not underinsured. See Taylor v. Greatway Ins. Co., 2001 WI 93, , 245 Wis. 2d 134, 628 N.W.2d 916; Smith v. Atlantic Mut. Ins. Co., 155 Wis. 2d 808, 811, 456 N.W.2d 597 (1990).
Welin argues, however, that a "Special Notice to Policyholders," which precedes the UIM endorsement, creates an ambiguity in the policy. This special note says in relevant part:
This special notice is being given in accordance with Wisconsin law to advise you of the availability of Underinsured Motorist (UIM) coverage. If you do not presently carry UIM coverage, this message is especially important to you.
Underinsured Motorist coverage provides payment for legally collectible damages for bodily injury or death if you or any person riding in your vehicle is injured or killed in an accident with a vehicle whose driver has insurance coverage that is less than the limit of your underinsured motorist coverage.
Please see the actual policy for terms and conditions. (Emphasis added.)
Welin contends that a reasonable insured would read this special notice and think that he or she had found the coverage section for UIM protection. She also argues that the phrase "insurance coverage" has a different definition than "liability limits" as used in the endorsement, creating an ambiguity. We disagree with Welin's reading of the special notice.
First, WIS. STAT.ยง 632.32(4m) requires insurers notify customers of the availability of underinsured motorist coverage. This statute requires that the notice contain a brief description of UIM coverage. While some descriptions in the past have been found to create ambiguity, see Badger Mut. Ins. Co. v. Schmitz, 2002 WI 98, -71, 255 Wis. 2d 61, 647 N.W.2d 223, American Family's description does not suffer from the same flaws described in that case.
The description in Badger Mutual explained that UIM coverage "will pay the remainder of the bodily injury damages up to the limit of liability you select," without mentioning limits of or comparison to the tortfeasor's policy. Id., . In addition, our supreme court stated that the availability notice in the Badger Mutual policy was the most comprehensible definition in the policy. Id., . In contrast here, the definitions in the endorsement and the notice are practically identical. Finally, the Badger Mutual availability notice was specifically listed as one of the forms comprising the policy, id., , but no such form list exists in this case.
Second, the notice here clearly directs the insured elsewhere--that is, to the actual policy--to find the terms of UIM coverage. Welin contends the direction is circular: because the notice is between the policy and the endorsement, she argues the notice is in fact part of the "actual policy" to which the insured is referred. We disagree. The notice on its face draws a distinction between itself and the policy. However, even if the notice is part of the policy, we conclude a reasonable insured would look at the direction and realize the details of coverage are elsewhere, not
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