Artmar, Inc. v. United Fire & Casualty Co.

148 N.W.2d 641, 34 Wis. 2d 181, 25 A.L.R. 3d 1223, 1967 Wisc. LEXIS 1078
CourtWisconsin Supreme Court
DecidedFebruary 28, 1967
StatusPublished
Cited by26 cases

This text of 148 N.W.2d 641 (Artmar, Inc. v. United Fire & Casualty Co.) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Artmar, Inc. v. United Fire & Casualty Co., 148 N.W.2d 641, 34 Wis. 2d 181, 25 A.L.R. 3d 1223, 1967 Wisc. LEXIS 1078 (Wis. 1967).

Opinions

Wilkie, J.

Two issues are raised on this appeal:

(1) Can the doctrine of estoppel be used to bring a location not included in an insurance contract within the coverage of the policy risk?

(2) Was there a sufficient issue of fact as to the existence of a different agreement than the one contained in the insurance contract so that the motion for summary judgment on the reformation cause of action should be denied ?

Estoppel.

The issue in this case is whether the outbuildings on the “Kunnert property” come within the coverage of the United Fire & Casualty Company policy. The policy clause expressly covers only the residential dwelling on the property. Plaintiffs contend that defendant is es-topped from denying coverage because of the knowledge and conduct of defendant or its agents.

Essentially, plaintiffs are attempting to expand the policy’s coverage by estoppel. Wisconsin has repeatedly held that estoppel cannot be used to create a liability for benefits not contracted for at all.1 Permitting estoppel [186]*186in such cases would extend the contract to a liability which the parties understood and expressly agreed should not be covered by the contract. The policy behind this rule is to avoid creating a new contract providing coverage for which no premium has been paid. Eespondents’ cases cited to establish the use of estoppel to expand coverage are not in point because they involve cases where the insurer was estopped from relying on a forfeiture or exclusion clause.2

Reformation.

Eespondents have also pleaded a second cause of action for reformation of the insurance contract. In their complaint the respondents allege that they always intended and believed that the insurance policy as issued by the defendant included the outbuildings as part of the general location covered by the policy, and that the policy failed to cover the outbuildings by virtue of the mistake or neglect of the agent, Ealph Larson. A cause of action for reformation of an insurance policy is allowed when the one seeking reformation shows that because of fraud or mutual mistake the policy does not contain provisions desired and intended to be included.3 In insurance cases less is required to make out a cause of action for reformation than in ordinary contract disputes.4 One reason for this standard is quoted in Jeske v. General Accident Fire & Life Assur. Corp.: 5

[187]*187“ Tn common practice the assured informs the agent of his coverage necessities and leaves it entirely to the agent to provide therefor. The average individual accepts the policy tendered relying upon the assurance on the part of the insurer, express or implied, that the policy affords him the coverage desired.’ ”

The standard for reformation of an insurance contract where fault or neglect of the agent is involved is spelled out by 13 Appleman, Insurance, p. 368, sec. 7609:

“Where a policy of insurance, which has been drawn up by the agent of the insurer and merely accepted by the insured, does not represent the intention of both parties, because of the fault or neglect of the agent, it may be reformed so as to express the contract it was intended should be made. Where the party applying for insurance states the facts to the agent and relies on him to write the policy, which will protect his interests, and the agent so understands, but fails by mistake to so write the contract, the mistake is considered mutual. The insured has been held entitled to a reformation and is not limited to a return of the policy and demand of a rescission.
“A mistake due to the negligence of an agent, acting within the scope of his employment, is satisfactory ground for reformation, since the insured ordinarily relies upon the agent to set out properly the facts in the application. . . .”

This statement permits an action for reformation when there is a mistake by the agent, even though the mistake is not technically mutual. Moreover, the statement recognizes the reliance which most people place upon an insurance agent to protect their interests.

Appellant’s motion for summary judgment denying plaintiffs’ cause of action based on reformation is grounded on its assertion that reformation requires a prior mutual agreement which is not embodied in the contract because of fraud or mutual mistake, and no such prior agreement exists in this case. Appellant asserts that there can be no issue of fact concerning the [188]*188existence of a prior agreement to which the insurance contract can be reformed because the plaintiffs’ president cannot positively assert that he ever told Agent Larson that he wanted the outbuildings on the property covered nor that he ever told Agent Larson that he was storing inventory in the outbuildings thereby requiring location coverage on them.

The rules on summary judgment were recently collated in Leszczynski v. Surges.6 Summary judgment will not be granted except in cases where there is no issue of fact. When the motion is made by a defendant, it must be accompanied by an affidavit which sets forth sufficient evidentiary facts to show that the defense is sufficient to defeat the plaintiff. The moving party must make out a prima facie case in his motion and affidavits. If a prima facie case is established the court then examines the affidavits in opposition to the motion to see if the other party’s affidavits show facts sufficient to entitle him to trial. The proof shown must only be substantial enough to raise questions of fact. Any evidentiary facts in an affidavit are to be taken as true unless contradicted by other opposing affidavits or proof.

The premise which must be established by the defendant to entitle it to summary judgment is that there never was an understanding that Larson was to insure the outbuildings as part of the location coverage on the Kunnert property. Essentially, the proof in the affidavit supporting defendant’s motion consists of the depositions of plaintiffs’ president, Robert Hickisch, and Agent Larson. These depositions are designed to show (1) that Hickisch never communicated to Larson his desire for location coverage on the outbuildings, and (2) that Hickisch never told Larson that he was storing inventory in the outbuildings, thus requiring location coverage. If this is established, appellant argues, then location coverage of the outbuildings was never con[189]*189templated by the parties and there is no mutual agreement to which the present insurance contract can be reformed.

More specifically, defendant’s affidavit makes the following points:

(1) That Agent Larson represented several insurance companies.

(2) That immediately upon acquisition, said Robert M. Hickisch secured a fire insurance policy upon the structures of said property which consisted of a one and one-half story frame dwelling house and a detached garage or shed referred to as an outbuilding; that said policy of insurance was secured through Ralph Larson and was from the Herman Mutual Insurance Company and that said policy contained provisions stating that 10 percent of the basic insurance on the dwelling house would automatically extend to cover the outbuilding or outbuildings.

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Cite This Page — Counsel Stack

Bluebook (online)
148 N.W.2d 641, 34 Wis. 2d 181, 25 A.L.R. 3d 1223, 1967 Wisc. LEXIS 1078, Counsel Stack Legal Research, https://law.counselstack.com/opinion/artmar-inc-v-united-fire-casualty-co-wis-1967.