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Welin v. American Family Mutual Insurance Co.5/24/2005
in the special notice.
Third, in explaining this perceived ambiguity, Welin never sufficiently differentiates "insurance coverage" from "liability limits." Indeed, she defines "insurance coverage" as the "amount of protection or amount available to meet liabilities." But it is also reasonable to describe a liability limit as the "amount of protection or amount available to meet liabilities" an insured has purchased. Ambiguities must be genuine, not strained or fanciful. Richie, 140 Wis. 2d at 55. There is nothing contradictory or ambiguous between the special notice and the endorsement.
Welin's more compelling argument is the issue of multiple claims against Pyrzynski's policy. Because Welin's passenger also suffered injuries, he and Welin will share Pyrzynski's per occurrence policy limit. See Wondrowitz v. Swenson, 132 Wis. 2d 251, 258-59, 392 N.W.2d 449 (Ct. App. 1986). Welin argues that because of this, "insurance coverage" is ambiguous and renders her UIM coverage illusory because she will have less than $300,000 insurance coverage available to her. She contends, without citation to authority: "It is the recovery, the available protection, i.e., the coverage of the tortfeasor that is relevant to the question of whether the tortfeasor is underinsured." She also states that this is a question of first impression in Wisconsin.
Welin's argument ultimately fails. First, aside from pointing out that she will never recover the maximum $300,000 from Pyrzynski's insurance, American Family, or both, Welin provides no basis for reversal other than her illusory coverage argument. That argument is premised on her perceived ambiguity, which we have rejected.
Second, the "coverage of the tortfeasor" is different from "recovery." Whether paid to one victim or several, Pyrzynski has $300,000 insurance coverage available to pay for her liabilities. Whether we look to the special notice or the endorsement--which, we hold, mean the same thing in this case--neither clause asks us to go further and consider ultimate recovery of the insured as a factor. Indeed, because the policy is unambiguous on its face, we cannot rewrite it by construction. Richie, 140 Wis. 2d at 54.
Moreover, following the submission of briefs in this case, we ordered the publication of a case addressing the multiple claimant problem and reaching the same result we reach here: Praefke v. Sentry Ins. Co., 2005 WI App 50, __ Wis. 2d __, 694 N.W.2d 442. In that case, Roger Praefke was injured in an automobile accident caused by Thomas Grandstaff. Grandstaff's passenger was killed, and Praefke's injuries resulted in over $400,000 in medical expenses. Id., .
Grandstaff had a $100,000 liability limit. His insurance company paid $75,000 to Praefke and $25,000 to the estate of Grandstaff's passenger. Id., . Praefke had UIM coverage of $100,000 per person or $300,000 per accident from Sentry. Id. The Sentry policy defined an underinsured vehicle as: "An underinsured motor vehicle is a motor vehicle with liability protection afforded by liability insurance policies or bodily injury liability bonds with limits the sum of which are less than the limits you have selected for underinsured motorists coverage as shown on the declarations page." Id.
The parties sought a ruling from the trial court as to whether Grandstaff's vehicle was underinsured so as to trigger the UIM coverage. The court concluded UIM coverage was not triggered because Praefke's $100,000 limit matched--that is, was not less than--Grandstaff's $100,000 limit. Id., . We ultimately agreed, explaining:
The first step in every UIM coverage case is to start with the language of the policy and
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