Brown v. Tokio Marine & Nichido Fire Insurance

2012 WI App 45, 811 N.W.2d 872, 340 Wis. 2d 707
CourtCourt of Appeals of Wisconsin
DecidedMarch 21, 2012
DocketNo. 2011AP454
StatusPublished
Cited by2 cases

This text of 2012 WI App 45 (Brown v. Tokio Marine & Nichido Fire Insurance) is published on Counsel Stack Legal Research, covering Court of Appeals of Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brown v. Tokio Marine & Nichido Fire Insurance, 2012 WI App 45, 811 N.W.2d 872, 340 Wis. 2d 707 (Wis. Ct. App. 2012).

Opinion

REILLY, J.

¶ 1. Michael Kuester leased a car from Nissan in 2007. The lease agreement required him to obtain motor vehicle liability insurance. Kuester failed to maintain a liability policy and was thereafter in an accident which injured Deanna Brown and her passenger Cynthia Eulenbach. As Kuester was uninsured, Brown and Eulenbach sued Nissan and its insurer, Tokio Marine & Nichido Fire Insurance Co., Ltd. Tokio Marine argues that its policy with Nissan excludes lessees and we agree. Nissan, however, did not file a certificate of insurance with the Department of Transportation when it leased the car to Kuester, and therefore Tokio Marine is liable for up to the statutory minimum amounts of coverage of $25,000 per person and $50,000 per accident.

BACKGROUND

¶ 2. On January 30, 2007, Kuester entered into a thirty-nine-month lease for a Nissan Altima. On November 23, 2007, Kuester swerved across the center line of traffic and hit Brown's vehicle head on, seriously injuring Brown and her passenger Eulenbach.2 At the [712]*712time of the accident, Kuester, despite a contractual obligation in the lease, did not have a personal auto insurance policy in force.

¶ 3. Brown and Eulenbach filed suit against Kuester and a direct action against Tokio Marine (which had previously issued a $5 million business auto coverage policy to Nissan).3 Kuester did not answer. Tokio Marine answered that its policy did not provide coverage to Kuester.

¶ 4. The Tokio Marine policy provides that an "insured" is anyone using a "covered auto" with Nissan's permission. Two distinct endorsements to the policy are at issue in this case. The first is the "Contingent Coverage for 'Leased Autos'" endorsement, which excludes coverage for "any person operating a 'leased auto." Both parties agree that Kuester, as a lessee, falls within this exclusion.

¶ 5. The second endorsement is a two-page endorsement called "Wisconsin Changes," which provides that "[t]he following is added to Who Is An Insured: Anyone else is an 'insured' while using a covered 'auto' [Nissan] own[s] with [Nissan's] or any adult 'family member's' permission." Brown and Eulenbach argue that this endorsement brings Kuester back into coverage under the Tokio Marine policy because, as a lessee, Kuester had Nissan's permission to use its leased automobiles. The Wisconsin Changes endorsement also makes the Tokio Marine policy compatible with Wisconsin law.

[713]*713¶ 6. Tokio Marine filed a motion for summary/ declaratory judgment asking the circuit court to declare that the policy did not provide coverage. Tokio Marine argued that: (1) as a lessee, Kuester was excluded as an insured and therefore the policy does not provide coverage; (2) Brown and Eulenbach could not bring a direct action against Tokio Marine because the policy was not issued or delivered in Wisconsin;4 and (3) even if coverage existed, Tokio Marine's exposure was limited to the statutory minimum amounts of $25,000 per person and $50,000 per accident as set forth in Wxs. Stat. § 344.01(2)(d) (2007-08).5 Brown and Eulenbach responded that the plain language of the policy's Wisconsin Changes endorsement added Kuester back in as an additional insured. They also argued that even if the Wisconsin Changes endorsement did not add Kuester back in, Wis. Stat. § 632.32(3), Wisconsin's "omnibus coverage statute,"6 provided coverage to Kuester.

¶ 7. The circuit court ruled that: (1) the Wisconsin Changes endorsement did not override the coverage exclusion for lessees; (2) the policy was subject to [714]*714Wisconsin law; and (3) liability was limited to the statutory minimum amounts of $25,000 per person and $50,000 per accident. Brown and Eulenbach appeal.

STANDARD OF REVIEW

¶ 8. Summary judgment is appropriate when there are no genuine issues as to any material facts and the moving party is entitled to judgment as a matter of law. Wis. Stat. § 802.08(2). The interpretation of an insurance policy and Wisconsin statutes are questions of law that we review de novo. See McKillip v. Bauman, 2005 WI App 165, ¶ 9, 285 Wis. 2d 646, 702 N.W.2d 79.

Do the Terms of the Policy Provide Coverage ?

¶ 9. We apply a three-part test to determine if an insurance policy provides coverage. American Family Mut. Ins. Co. v. American Girl, Inc., 2004 WI 2, ¶ 24, 268 Wis. 2d 16, 673 N.W.2d 65. We first look to see if the insurance policy makes an initial grant of coverage based on the facts. Id. If it does not, our analysis ends. Id. If the claim does trigger an initial grant of coverage, we then determine if there are any exclusions that preclude coverage. Id. An exclusion is a clause that limits coverage. Muehlenbein v. West Bend Mut. Ins. Co., 175 Wis. 2d 259, 265-66, 499 N.W.2d 233 (Ct. App. 1993). Finally, we look to see if any of the exclusions have exceptions that would reinstate coverage. American Girl, Inc., 268 Wis. 2d 16, ¶ 24. An exception only applies to the exclusion clause within which it appears; in other words, an exception to an exclusion cannot trump the insurance policy or a separate exclusion. Id.

[715]*715¶ 10. The Tokio Marine policy provides that an "insured" is anyone using a "covered auto" with Nissan's permission. As a "leased auto" is covered under the policy, and as Kuester was a lessee, we assume without deciding that the initial terms of the policy provide coverage.7

¶ 11. Our inquiry then moves to whether any exclusions within the policy preclude coverage. A three-page endorsement at the end of the policy entitled "Contingent Coverage for 'Leased Autos,'" states that coverage does not extend to lessees. Brown and Eulenbach acknowledge that this exclusion clearly precludes coverage for Kuester.

¶ 12. Given the exclusion from coverage, we then look to see if the exclusion has an exception that reinstates coverage. Brown and Eulenbach argue that the Wisconsin Changes endorsement is an exception to the lessee exclusion and thus brings Kuester back under the Tokio Marine policy. We disagree.

¶ 13. "An exception pertains only to the exclusion clause within which it appears . . . ." Id. The Wisconsin Changes endorsement is separate from the lessee exclusion endorsement. The Wisconsin Changes endorsement says nothing about lessees and thus is unrelated to the lessee exclusion endorsement. "[T]he applicability of an exception will not create coverage if the insuring agreement precludes it or if a separate exclu[716]*716sion applies." Id. We hold that the Wisconsin Changes endorsement does not address lessees and is not an exception to the lessee exclusion endorsement. The Tokio Marine policy does not provide coverage for Kuester.

Does the Omnibus Coverage Statute Mandate Coverage?

¶ 14. Brown and Eulenbach argue that, regardless of whether the Tokio Marine policy covers Kuester, coverage is mandated by Wisconsin's omnibus coverage statute, Wis. Stat.

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2012 WI App 45, 811 N.W.2d 872, 340 Wis. 2d 707, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-v-tokio-marine-nichido-fire-insurance-wisctapp-2012.