Secura Supreme Insurance Company v. The Estate of Daniel Keith Huck

2023 WI 21

• Court: Wisconsin Supreme Court
• Decided: March 22, 2023
• Docket: 2020AP001078-FT
• Status: Published

Opinion

2023 WI 21

SUPREME COURT OF WISCONSIN CASE NO.: 2020AP1078-FT

COMPLETE TITLE: Secura Supreme Insurance Company, Plaintiff-Appellant-Petitioner, v. The Estate of Daniel Keith Huck, Defendant-Respondent.

REVIEW OF DECISION OF THE COURT OF APPEALS Reported at 399 Wis. 2d 542, 966 N.W.2d 124 PDC No: 2021 WI App 69 - Published

OPINION FILED: March 22, 2023 SUBMITTED ON BRIEFS: ORAL ARGUMENT: November 7, 2022

SOURCE OF APPEAL: COURT: Circuit COUNTY: Racine JUDGE: Eugene A. Gasiorkiewicz

JUSTICES: ROGGENSACK, J., delivered the majority opinion of the Court with respect to ¶¶1-2, 4-16, and 29, in which ZIEGLER, C.J., ANN WALSH BRADLEY, DALLET, HAGEDORN, and KAROFSKY, JJ., joined, and an opinion, in which ZIEGLER, C.J., joined. DALLET, J., filed a concurring opinion, in which ANN WALSH BRADLEY, HAGEDORN, and KAROFSKY, JJ., joined. REBECCA GRASSL BRADLEY, J., filed a dissenting opinion. NOT PARTICIPATING:

ATTORNEYS:

For the plaintiff-appellant-petitioner, there were briefs filed by Barbara A. O’Brien, Erik M. Gustafson, and Borgelt, Powell, Peterson & Frauen, S.C., Milwaukee. There was an oral argument by Patryk Silver.

For the defendant-respondent, there was a brief filed by Susan R. Tyndall, Tony M. Dunn, Angela Komp, and Habush, Habush & Rottier, S.C., Racine. There was an oral argument by Tony M. Dunn.

An amicus curiae brief was filed by Edward E. Robinson and Cannon & Dunphy, S.C., Brookfield, for the Wisconsin Association for Justice. There was an oral argument by Edward E. Robinson.

An amicus curiae brief was filed by James A. Friedman, Daniel C.W. Narvey, and Godfrey & Kahn, S.C., Madison, for the Wisconsin Insurance Alliance, the American Property Casualty Insurance Association, and the Wisconsin Defense Counsel.

2 2023 WI 21 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2020AP1078-FT (L.C. No. 2019CV1847)

STATE OF WISCONSIN : IN SUPREME COURT

Secura Supreme Insurance Company,

Plaintiff-Appellant-Petitioner, FILED v. MAR 22, 2023

The Estate of Daniel Keith Huck, Sheila T. Reiff Clerk of Supreme Court

Defendant-Respondent.

ROGGENSACK, J., delivered the majority opinion of the Court with respect to ¶¶1-2, 4-16, and 29, in which ZIEGLER, C.J., ANN WALSH BRADLEY, DALLET, HAGEDORN, and KAROFSKY, JJ., joined, and an opinion, in which ZIEGLER, C.J., joined. DALLET, J., filed a concurring opinion, in which ANN WALSH BRADLEY, HAGEDORN, and KAROFSKY, JJ., joined. REBECCA GRASSL BRADLEY, J., filed a dissenting opinion.

REVIEW of a decision of the Court of Appeals. Affirmed.

¶1 PATIENCE DRAKE ROGGENSACK, J. Petitioner Secura

Supreme Insurance Company (Secura), which insured Daniel Keith

Huck, seeks review of a published court of appeals decision1 that

1Secura Supreme Ins. Co. v. Est. of Huck, 2021 WI App 69, 399 Wis. 2d 542, 966 N.W.2d 124. No. 2020AP1078-FT

affirmed an order granting judgment to the Estate of Daniel

Keith Huck (Estate).2 We affirm the court of appeals.

¶2 We interpret Secura's policy as precluding Secura from

reducing its liability to the Estate by the total amount of

payments the Estate initially received. The Estate first

received worker's compensation from Huck's employer's worker's

compensation insurer (WC insurer), and then a settlement from

the tortfeasor's insurer. Wisconsin Stat. § 102.29(1)(b)(2021-

22)3 obligated the Estate to reimburse the WC insurer with a

portion of the settlement it received from the tortfeasor.

Secura's underinsured motorist (UIM) policy contemplated

payments made in accordance with worker's compensation law in

its reducing clause, and obligated the Estate to reimburse the

WC insurer. The policy also required the Estate to exhaust any

other bodily injury liability bonds or policies and to receive

payment from them before Secura would pay UIM benefits.

Accordingly, we conclude the policy's plain language required

its payment of UIM benefits based on the Estate's recovery after reimbursements to the WC insurer and collection of the

tortfeasor's liability payment had occurred.

¶3 However, Secura argues its policy "substantially

incorporates" the statutory language of Wis. Stat.

§ 632.32(5)(i), which permits it to reduce payment by the amount

2 The Honorable Eugene A. Gasiorkiewicz of Racine County presided. 3 All subsequent references to the Wisconsin Statutes are to the 2021-22 version unless otherwise indicated.

2 No. 2020AP1078-FT

the Estate initially received. We conclude the plain language

of § 632.32(5)(i) establishes that an insurer may reduce its

liability by the recovery of the insured at the time the insurer

enforces its reducing clause. The Estate's obligatory

reimbursement was made pursuant to "worker's compensation law,"

which § 632.32(5)(i)2. recognizes. For these reasons, we

conclude that Secura is not statutorily authorized to reduce its

liability limits by the total worker's compensation and

tortfeasor settlement payments the Estate initially received but

was obligated to reimburse in part. Accordingly, Secura's

policy and § 632.32(5)(i) require Secura to provide an

additional $9,718.73 to the Estate.

I. BACKGROUND

¶4 The facts are undisputed. Mr. Huck was struck and

killed by a motorist while he performed his job duties for the

Village of Mount Pleasant. Since the fatal accident occurred in

the course of Mr. Huck's employment, the Village's WC insurer

initially provided $35,798.04 to the Estate. ¶5 The motorist that struck Mr. Huck was insured for

$25,000 in liability coverage, which also was provided to

Mr. Huck's Estate. However, by receiving the $25,000 settlement

from the tortfeasor, the Estate was obligated to reimburse the

WC insurer from the settlement based on Wis. Stat.

§ 102.29(1)(b). As required, the Estate reimbursed the WC

insurer $9,718.73 so that the Estate ultimately retained

$26,079.31 from worker's compensation. This dispute centers on the importance of the $9,718.73 reimbursement (the "Disputed 3 No. 2020AP1078-FT

Amount") that the Estate was required to return to the WC

insurer.

¶6 Mr. Huck had purchased an automobile insurance policy

from Secura that included UIM coverage with a liability limit of

$250,000 for "each person." The Estate's recovery from worker's

compensation and the tortfeasor were insufficient to cover

Mr. Huck's damages, which exceeded $250,000. The Estate

submitted a claim under the Secura UIM policy. The policy's

reducing clause allowed Secura to reduce its UIM liability

limits by the amounts paid by a tortfeasor, and by "amounts paid

or payable under any worker's compensation law."4 Therefore,

Secura reduced its liability limit to the Estate by the $25,000

settlement with the tortfeasor. Secura also reduced its

liability limit by the total worker's compensation benefit of

$35,798.04, "even [though] some of that money (the Disputed

Amount) return[ed] to the [worker's compensation] Payor." Based

on these reductions, Secura tendered $189,201.96 to the Estate.5

¶7 Secura filed a declaratory judgment complaint and moved for judgment on the pleadings pursuant to Wis. Stat.

§ 802.06(3). Secura sought a declaration that its UIM reducing

4 A reducing clause "permits a setoff from the insured's UIM coverage the amount paid to the insured by the underinsured tortfeasor," or by other enumerated sources. Dowhower ex rel. Rosenberg v. W. Bend Mut. Ins. Co., 2000 WI 73, ¶1, 236 Wis. 2d 113, 613 N.W.2d 557. 5 Secura explained in its declaratory judgment complaint that: ($250,000)-($25,000 tortfeasor settlement)-($35,798.04 in worker's compensation) = $189,201.96.

4 No. 2020AP1078-FT

clause applies to the total "amount paid" pursuant to the

worker's compensation payment, notwithstanding any reimbursement

under Wis. Stat. § 102.29. The circuit court denied Secura's

motion and granted the Estate judgment on its counterclaim,

ordering Secura to tender the Disputed Amount to the Estate.

Secura appealed.

¶8 The court of appeals affirmed, relying on our

statutory analysis of Wis. Stat. § 632.32(5)(i) in Teschendorf

v. State Farm Ins. Cos., 2006 WI 89, 293 Wis. 2d 123, 717 N.W.2d

258. In Teschendorf, we held that § 632.32(5)(i) "does not

allow an insurer to reduce uninsured motorist [UM] policy limits

by worker's compensation payments that are not made to or on the

behalf of the insured, the insured's heirs, or the insured's

estate." Id., ¶2. The court of appeals reviewed our statutory

analysis and public policy rationales in Teschendorf before

concluding that Secura is "permitted to reduce its [UIM]

coverage limits . . . [only] by the total amount of worker's

compensation actually received by the Estate." Secura Supreme Ins. Co. v. Est. of Huck, 2021 WI App 69, ¶20, 399 Wis. 2d 542,

966 N.W.2d 124. Accordingly, the court of appeals determined

Secura must provide the Estate the Disputed Amount.

¶9 Secura petitioned us for review, which we granted.

Secura renews its argument that the plain language of "amounts

paid" and "payment" settles this matter. Secura argues it may

reduce its liability by the "amounts paid" to the Estate

regardless of what happened after those amounts were provided because the Estate was paid those amounts, notwithstanding its 5 No. 2020AP1078-FT

obligation to reimburse the WC insurer.6 The Estate contends the

Disputed Amount cannot be considered an "amount paid" because

the Estate did not retain possession of it. It argues that

Secura impermissibly reduced its UIM liability limits by the

Disputed Amount, and that Secura owes it the Disputed Amount for

a total recovery of $198,920.69 under the policy.

II. DISCUSSION

A. Standard of Review

¶10 Our task is to interpret an insurance policy and Wis.

Stat. § 632.32(5)(i) based on undisputed facts. The

interpretation of an insurance policy presents a question of law

that we review independently. Smith v. Atl. Mut. Ins. Co., 155

Wis. 2d 808, 810, 456 N.W.2d 597 (1990). Statutory

interpretation also presents a question of law that we review

independently. Mau v. N.D. Ins. Rsrv. Fund, 2001 WI 134, ¶28,

248 Wis. 2d 1031, 637 N.W.2d 45.

B. Secura's Policy

¶11 We first review the UIM policy Mr. Huck purchased from Secura. The Declarations page provides that Mr. Huck purchased

UIM coverage with a liability limit of $250,000 for "each

6The policy allows Secura to reduce its liability by "all sums: paid" (by or on behalf of persons who are legally responsible) and by "all sums: paid or payable" (worker's compensation law). Wisconsin Stat. § 632.32(5)(i) allows insurers to reduce their liability by "[a]mounts paid" (by or on behalf of persons who are legally responsible) and "[a]mounts paid or payable" (worker's compensation law). Despite the minor differences between the policy language and statute, Secura relies on its interpretation of "paid."

6 No. 2020AP1078-FT

person." The policy includes an "Underinsured Motorist

Coverage" endorsement. The UIM endorsement establishes that

Secura "will pay under this coverage only after the limits of

liability under any bodily injury liability bonds or policies

have been exhausted by payment of judgments or settlements."

The policy also includes a reducing clause, which provides in

pertinent part:

The limit of liability shall be reduced by all sums:

(1) Paid because of the bodily injury by or on behalf of persons or organizations who may be legally responsible . . . .

(2) Paid or payable because of the bodily injury under any of the following or similar law:

a. Worker['s] compensation law;

. . . .

This coverage, when combined with any amounts paid by liability policies or bonds applicable to the owner or driver of an underinsured motor vehicle, will provide coverage up to the amount stated in the Declarations. This is the contract language we interpret to determine whether Secura's policy permits the insurer to reduce its UIM liability

limit to the Estate by the total payments it initially received,

rather than by the Estate's recovery after reimbursement to the

WC insurer had occurred.

¶12 We begin by revisiting the rules that guide our

analysis. Our interpretation of an insurance policy is

controlled by the same rules of construction that we apply to

interpret a contract. Kremers-Urb. Co. v. Am. Emps. Ins. Co., 119 Wis. 2d 722, 735, 351 N.W.2d 156 (1984). Our goal is to

7 No. 2020AP1078-FT

"give effect to the intent of the parties as expressed in the

language of the policy." Folkman v. Quamme, 2003 WI 116, ¶12,

264 Wis. 2d 617, 665 N.W.2d 857. Language in an insurance

contract "is to be given the common and ordinary meaning it

would have in the mind of a lay person." Kremers-Urb., 119

Wis. 2d at 735. "If possible, a court should interpret a

contract so that all parts are given meaning." Whirlpool Corp.

v. Ziebert, 197 Wis. 2d 144, 154, 539 N.W.2d 883 (1995). When

the "terms of an insurance policy are plain on their face, the

policy must not be rewritten by construction." Smith, 155

Wis. 2d at 811.

¶13 The policy does not define the term "paid." Secura

argues that "paid" simply means an obligation has been

discharged, "no matter the ultimate destination." Secura argues

that the WC insurer and the tortfeasor's insurer "paid" the

Estate, consequently discharging their obligations. Therefore,

Secura argues it may reduce its liability limit by the Disputed

Amount despite the Estate's statutory obligation to repay a portion of its recovery to the WC insurer.

¶14 The plain language in the policy's reducing clause

allows Secura to reduce its liability by "sums" "[p]aid or

payable . . . under any . . . [w]orker['s] compensation law."

Accordingly, the policy contemplates payments made consistent

with worker's compensation laws (because of bodily injury). See

State ex rel. Journal/Sentinel, Inc. v. Pleva, 155 Wis. 2d 704,

8 No. 2020AP1078-FT

710, 456 N.W.2d 359 (1990) (express reference to a law by a

contract reflects the parties' clear intent to address it).7

¶15 Located in Wis. Stat. ch. 120 "Worker's Compensation,"

Wis. Stat. § 102.29, the statute by which the Estate was

obligated to reimburse the WC insurer, is a worker's

compensation law. Although the policy does not specifically

identify the worker's compensation law to which it refers, there

is no dispute that § 102.29 comes within that general provision

in the policy. See id. at 712 ("[W]e give full meaning to the

intent of the parties, as ascertained from the express language

of the contract.").

¶16 Accordingly, Secura may not alter its liability limit

based on the outcome of some, and not all, "sums" paid "because

of" a payment under worker's compensation law. It follows that

the "sums" by which Secura may reduce its liability because of

"worker's compensation law" account for the Estate's

reimbursement pursuant to the Wis. Stat. § 102.29 requirements.

Lastly, because the policy's plain language does not except reimbursements made under ch. 102, we will not read in an

exception that is not there. To do so would rewrite the policy,

which we cannot do. Smith, 155 Wis. 2d at 811. Since the

See also Dairyland Greyhound Park, Inc. v. Doyle, 2006 WI 7

107, ¶60, 295 Wis. 2d 1, 719 N.W.2d 408 ("[T]he laws which subsist at the time and place of the making of a contract . . . enter into and form a part of it, as if they were expressly referred to or incorporated in its terms. This principle embraces alike those which affect its validity, construction, discharge, and enforcement." (quoting Von Hoffman v. City of Quincy, 71 U.S. 535, 550 (1866)).

9 No. 2020AP1078-FT

policy contemplates payments made in accordance with worker's

compensation law, including § 102.29, Secura may not ignore the

law's effects on the Estate's recovery. Accordingly, Secura may

not reduce its liability limit by the Disputed Amount.

¶17 Furthermore, even if we were to accept Secura's

argument that the word "paid" completely resolved the dispute,

we would have to reject its interpretation of the policy's terms

because it impermissibly interprets the reducing clause in a

manner that renders a portion of the contract meaningless. Md.

Arms Ltd. P'ship v. Connell, 2010 WI 64, ¶45, 326 Wis. 2d 300,

786 N.W.2d 15 ("[C]ontract language should be construed to give

meaning to every word, 'avoiding constructions which render

portions of a contract meaningless, inexplicable or mere

surplusage.'" (internal citations omitted)).

¶18 The policy directs, "We will pay under this coverage

only after the limits of liability under any bodily injury

liability bonds or policies have been exhausted by payment of

judgments or settlements." The policy amount that is "paid or payable" under worker's compensation law is a timed payment as

the policy directs that Secura "will pay" UIM coverage "only

after" other sources of payment "have been exhausted." Because

we must give meaning to a policy's provisions by reviewing the

policy as a whole, we do not review the reducing clause in

isolation. Folkman, 264 Wis. 2d 617, ¶24. Stated otherwise,

the policy's plain language conditions Secura's UIM payment on

the final resolution of "amounts paid" by other sources;

10 No. 2020AP1078-FT

accordingly, we conclude that the policy addresses an insured's

recovery after required reimbursements have been made.8

C. Wisconsin Stat. §§ 632.32(5)(i) and 102.29

¶19 Secura argues its policy "substantially incorporates"

the language of Wis. Stat. § 632.32(5)(i), which it argues

"provides" that Secura need not pay the Disputed Amount to the

Estate. Accordingly, we turn next to interpret the statute to

determine whether it permits Secura to reduce its payment to the

Estate as Secura contends.9 Secura argues that the statute

8We note Wis. Stat. § 893.43(2) supports our interpretation of the policy. There, the legislature has provided that "A cause of action involving underinsured motorist coverage . . . accrues on the date there is final resolution of the underlying cause of action by the injured party against the tortfeasor." This is important because final resolution of the claim against the tortfeasor is what causes the injured party, under Wis. Stat. § 102.29(2), to reimburse the WC insurer for a portion of its initial payment to the injured workman. 9We have interpreted this statute previously, but never in light of the novel issue now facing us: "[w]hether the statutorily approved phrase 'all sums . . . [p]aid or payable because of the bodily injury under [w]orker's compensation law' in an underinsured motorist ('UIM') insurance policy's reducing clause necessarily permits the reduction for all amounts paid, including those amounts that the employer/worker's compensation insurer initially paid, but then recovered through a third-party action pursuant to Wis. Stat. § 102.29." Pet. Br. at 7. See Teschendorf v. State Farm Ins. Cos., 2006 WI 89, 293 Wis. 2d 123, 717 N.W.2d 258 (interpreting Wis. Stat. § 632.32(5)(i) to determine whether an insurance company may reduce its liability by the amount of worker's compensation paid to the State Fund rather than to an estate); Marotz v. Hallman, 2007 WI 89, ¶23, 302 Wis. 2d 428, 734 N.W.2d 411 (interpreting whether payments to an insured from non-UIM tortfeasors are ones "that apply" under § 632.32(5)(i)); Dowhower, 236 Wis. 2d 113, ¶2 (interpreting whether § 632.32(5)(i) violates substantive due process). See also Landis v. Physicians Ins. Co. of Wis., Inc., 2001 WI 86, ¶15, 245 Wis. 2d 1, 628 N.W.2d 893 ("Depending on 11 No. 2020AP1078-FT

allows an insurer to reduce its liability by "amounts paid" by

worker's compensation and the tortfeasor, and therefore it is

"not relevant" that the Estate had to repay a portion of the

worker's compensation recovery.

¶20 Wisconsin Stat. § 632.32(5)(i) states in relevant

part:

(i) A policy may provide that the limits under the policy for . . . underinsured motorist coverage for bodily injury or death resulting from any one accident shall be reduced by any of the following that apply:

1. Amounts paid by or on behalf of any person or organization that may be legally responsible for the bodily injury or death for which the payment is made.

2. Amounts paid or payable under any worker's compensation law. ¶21 We first review the principles of statutory

interpretation, as set forth in Kalal. State ex rel. Kalal v.

Cir. Ct. for Dane Cnty., 2004 WI 58, 271 Wis. 2d 633, 681 N.W.2d

110. We "assume that the legislature's intent is expressed in

the statutory language." Id., ¶44. Accordingly, we begin with

the language of the statute, and "[i]f the meaning of the

statute is plain, we ordinarily stop the inquiry." Id., ¶45.

"A dictionary may be utilized to guide the common, ordinary

meaning of words." Noffke ex rel. Swenson v. Bakke, 2009 WI 10,

¶10, 315 Wis. 2d 350, 760 N.W.2d 156. We also strive to give

"reasonable effect to every word, in order to avoid surplusage."

the facts of a case, the same statute may be ambiguous in one setting and unambiguous in another.").

12 No. 2020AP1078-FT

Kalal, 271 Wis. 2d 633, ¶46. We note that "[s]tatutory

interpretation centers on the 'ascertainment of meaning,' not

the recitation of words in isolation." Brey v. State Farm Mut.

Auto. Ins. Co., 2022 WI 7, ¶13, 400 Wis. 2d 417, 970 N.W.2d 1

(quoting Kalal, 271 Wis. 2d 633, ¶47).

¶22 With these principles in mind, we conclude that the

plain language of the statute grants permission to an insurer to

reduce its liability limit when the final amount of an insured's

worker's compensation recovery has been determined. The parties

agree that Wis. Stat. § 632.32(5)(i) serves as legislative

permission to insurers to reduce their limit of liability by

enumerated means. Subdivisions (i)1. and (i)2. are at issue in

the instant case.

¶23 Both subdivisions contain the phrase "amounts paid,"

so we begin there. In this context, "paid" is a past participle

of pay that the legislature uses to modify "amounts." Secura

argues the word, "paid," simply communicates past action, but it

overlooks that past participles are "routinely used as adjectives to describe the present state of a thing." Henson v.

Santander Consumer USA Inc., 582 U.S. 79, 84 (2017)

(interpreting the Fair Debt Collection Practices Act). For

example, the Supreme Court explained in its statutory

interpretation of "a debt owed" that an ordinary person would

understand "collect[ing] a debt owed to Steve," as "a debt

currently owed to Steve," rather than "a debt Steve used to own"

and now does not. Id. (emphases in original).

13 No. 2020AP1078-FT

¶24 Similarly, "amounts paid" uses the past participle of

"pay" as an adjective to describe a present state. An ordinary

person would understand "amount paid" to mean "amount currently

paid" rather than "amount once paid and then given back." See

id.

¶25 To ensure our interpretation gives meaning to all

words in the statute, we next interpret the word, "payable,"

that appears only in Wis. Stat. § 632.32(5)(i)2. Kalal, 271

Wis. 2d 633, ¶46. "Payable" is defined as "requiring to be

paid, specifying payment to a particular payee at a specified

time or occasion, or in a specified manner." Webster's Third

New Int'l Dictionary 1659 (1986). The plain meaning of

"payable," therefore, is that payment is due, but the manner and

the timing of payment may involve future payments. For

instance, a settlement may be "payable in installments," or

"payable monthly." Regardless, it would still be an "amount

payable" under our interpretation of the statute.

¶26 Lastly, Wis. Stat. § 632.32(5)(i)2. allows for the reduction of "[a]mounts paid or payable under any worker's

compensation law." As we stated earlier, Wis. Stat. § 102.29 is

a worker's compensation law that establishes reimbursement of

amounts initially received as worker's compensation due to

subsequent settlements. By including "worker's compensation

law" in § 632.32(5)(i)2., the legislature contemplated

proceedings such as those subject to § 102.29. See Union

Cemetery v. City of Milwaukee, 13 Wis. 2d 64, 68-69, 108 N.W.2d 180 (1961) ("A general reference refers generally to the law on 14 No. 2020AP1078-FT

a subject and incorporates the entire subject matter.").

Because § 102.29 obligated the Estate to reimburse the Disputed

Amount, the reimbursement was made pursuant to a worker's

compensation law. We interpret § 632.32(5)(i)2. to account for

the reimbursement into the "amount paid" to the Estate so that

the statute contemplates the Estate's final recovery.

¶27 Accordingly, we conclude, that "amounts paid" under

Wis. Stat. § 632.32(5)(i)1. and "amounts paid or payable" in

subd. 2., both reference the present tense. "Amounts paid" is

interpreted as the current "amounts paid" or outstanding such as

by an installment agreement,10 at the time an insurer seeks to

reduce its liability under § 632.32(5)(i). Stated otherwise,

"amounts paid" refers to an insured's final recovery at the time

an insurer reduces its liability, which we recognize may occur

when a UIM claim accrues.11 See Wis. Stat. § 893.43(2).

¶28 At the time Secura sought to reduce its liability, the

Estate had already reimbursed the Disputed Amount pursuant to a

worker's compensation law. The final "amounts paid" to the Estate pursuant to Wis. Stat. § 632.32(5)(i) was $51,079.31 from

the combined tortfeasor and worker's compensation settlements.

10We provide just one example of a situation that gives meaning to the term "payable." Our decision today does not limit "payable" to just installment payments or other circumstances that have not been briefed before us. 11Our conclusion is consistent with that reached in other jurisdictions. See Wildman v. Nat'l Fire & Marine Ins. Co., 703 N.E.2d 683, 687 (Ind. App. 1998); Cherry v. Coregis Ins. Co., 204 P.3d 522, 525-26 (Idaho 2009).

15 No. 2020AP1078-FT

Secura seeks to reduce its UIM liability to the Estate by both

the "amounts paid" and also by the Disputed Amount; in other

words, Secura seeks to reduce its liability by the amount the

Estate initially received before required reimbursements were

made. Section 632.32(5)(i) does not support this. Secura must

tender the Disputed Amount to the Estate in accordance with the

statute.

III. CONCLUSION

¶29 We interpret Secura's policy as precluding Secura from

received worker's compensation from Huck's employer's WC

insurer, and then a settlement from the tortfeasor's insurer.

Wisconsin Stat. § 102.29(1)(b)2. obligated the Estate to

reimburse the WC insurer with a portion of the settlement it

received from the tortfeasor. Secura's UIM policy contemplated

payments made in accordance with worker's compensation law in

its reducing clause, and obligated the Estate to reimburse the WC insurer. The policy also required the Estate to exhaust any

other bodily injury liability bonds or policies and to receive

payment from them before Secura would pay UIM benefits. We

therefore conclude that the policy's plain language required its

payment of UIM benefits based on the Estate's recovery after

reimbursements to the WC insurer and collection of the

¶30 However, Secura argues its policy "substantially incorporates" the statutory language of Wis. Stat. 16 No. 2020AP1078-FT

§ 632.32(5)(i), which permits it to reduce payment by the amount

the Estate initially received. We conclude the plain language

liability by the recovery of the insured at the time the insurer

reimbursement was made pursuant to a "worker's compensation

law," which § 632.32(5)(i)2. recognizes. For these reasons, we

conclude that Secura is not statutorily authorized to reduce its

liability limits by the gross worker's compensation and

tortfeasor settlement payments the Estate initially received but

was obligated to reimburse in part. Accordingly, Secura's

By the Court.—The decision of the court of appeals is

affirmed.

17 No. 2020AP1078-FT.rfd

¶31 REBECCA FRANK DALLET, J. (concurring). If I buy an

$8 sandwich, hand the cashier a $10 bill, and she hands me my

sandwich and $2 in change, how much was she "paid" for the

sandwich? Eight dollars, of course. But according to Secura,

that isn't so clear. It contends that the Estate of Daniel Huck

was "paid" $250,000 in connection with the accident that caused

Huck's death, even though the Estate ended up with just

$240,281.27 after it was required by statute to pay the

$9,718.73 difference back to a workers' compensation insurer.

See generally Wis. Stat. § 102.29(1). By that same logic, the

cashier in my sandwich example was paid $10, even though she

kept only $8. I agree with the majority/lead opinion that this

nonsensical result is contrary to the plain meaning of the word

"paid" and, therefore, the policy's language. I write

separately, however, because I reach that conclusion for

different——and in my view, simpler——reasons.

¶32 The language of Secura's policy is clear. It

guaranteed the Estate a "predetermined, fixed level of [underinsured motorist coverage]," $250,000, "that is arrived at

by combining payments from all sources." Welin v. Am. Fam. Mut.

Ins. Co., 2006 WI 81, ¶49, 292 Wis. 2d 73, 717 N.W.2d 690. The

initial grant of coverage states that Secura will pay damages

the Estate "is legally entitled to recover from the owner or

operator of an underinsured motor vehicle because of bodily

injury." The emphasized terms are defined in the policy, and

one of them——"underinsured motor vehicle"——is relevant here. An underinsured motor vehicle is one "to which a bodily

1 No. 2020AP1078-FT.rfd

injury . . . policy applies at the time of the accident but its

limit for bodily injury liability is . . . [l]ess than the limit

of liability for this [underinsured motor vehicle] coverage."

The limit of liability for Secura's coverage is $250,000, which

Secura "will pay . . . only after the limits of liability under

any bodily injury liability . . . policies have been exhausted

by payments of judgments or settlements." In other words,

Secura promised to pay last, after the Estate recovered any

money it was owed for the accident by the tortfeasor or others,

and only if the limits of the tortfeasor's insurance coverage

were less than $250,000. And all Secura promised to pay was the

difference between the money the Estate recovered from those

other sources and $250,000. That is spelled out clearly in the

policy's reducing clause, which decreases Secura's limit of

liability by "all sums" paid by those legally responsible for

the accident or "[p]aid or payable because of the bodily injury

under . . . [w]orkers' compensation law."

¶33 The upshot of these provisions is simple. Every dollar the Estate is paid either by those legally responsible

for the accident or by workers' compensation reduces Secura's

$250,000 limit of liability by that same amount. If the Estate

is paid $250,000 or more by those legally responsible or by

workers' compensation, then Secura owes nothing. If not, Secura

makes up the difference up to $250,000. In any case, the Estate

is guaranteed to end up with at least the predetermined, fixed

amount of coverage it bargained for, $250,000. See Welin, 282

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Wis. 2d 73, ¶49. Or at least that's what the policy says should

happen.

¶34 Secura argues, however, based on a hyper-literal

interpretation of the word "paid," that the Estate should

receive just $240,281.27. That is because the Estate initially

received $35,798.04 in workers' compensation payments, even

though it later had to pay $9,718.73 back to the workers'

compensation insurer according to a statutory formula. See Wis.

Stat. § 102.29(1), (giving the workers' compensation insurer a

right to a portion of the proceeds the Estate recovered from the

tortfeasor). In Secura's view, the Estate was therefore "paid"

the full $35,798.04, even though it netted only $26,079.31 in

the end.

¶35 The problem with Secura's interpretation is that when

the policy is read as a whole, the Estate is only "paid" the

money it retains after resolving both its claims against the

tortfeasor and any resulting obligations to the workers'

compensation insurer. See Liebovich v. Minn. Ins. Co., 2008 WI 75, ¶27, 310 Wis. 2d 751, 751 N.W.2d 764 (explaining that we

must read insurance policies "as a whole"). Simply put, it is

not enough if, at one point in time or another, the Estate had

$250,000. Rather, the policy requires that the Estate end up

with the predetermined, fixed, final recovery of at least

$250,000 it bargained for. And because Secura's argument would

leave the Estate with less than that amount, it must be

rejected.

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¶36 This conclusion is confirmed both by the policy's

language regarding workers' compensation recoveries and by a

statute governing underinsured motorist claims. First, the

policy's reducing clause lowers Secura's limits of liability by

"all sums . . . [p]aid or payable . . . under . . . [w]orkers'

compensation law." And as mentioned previously, § 102.29(1)——a

provision of workers' compensation law——mandates that the

workers' compensation insurer receive a portion of the money the

Estate recovered from the tortfeasor. Thus, the amount "[p]aid

or payable" under workers' compensation must be determined by

taking into account money the Estate had to pay back to the

workers' compensation insurer under § 102.29(1). Only after

that repayment is made can we know "all sums" the Estate was

"[p]aid." See also majority/lead op., ¶16 (reaching a similar

conclusion). Second, Wis. Stat. § 893.43(2) states that an

underinsured motorist claim accrues for statute-of-limitations

purposes only after the "final resolution of the underlying

cause of action by the injured party against the tortfeasor." The final resolution of the underlying cause of action against

the tortfeasor is also what triggers the injured party's

obligation under § 102.29(1) to repay a portion of that final

recovery against the tortfeasor to the workers' compensation

insurer. For that reason, it makes no sense to calculate the

amounts "paid" to the Estate under Secura's policy before that

point in time, as Secura does. We only know what the Estate was

"paid," and therefore what Secura owes, once the Estate has resolved its claim against the tortfeasor and made any necessary

4 No. 2020AP1078-FT.rfd

reimbursement to the workers' compensation insurer under

§ 102.29(1).

¶37 In my view, that's all we need to say to resolve this

case. Despite that, the majority/lead opinion goes further,

unnecessarily analyzing a provision of the policy that the

parties did not meaningfully discuss in their briefs, see

majority/lead op., ¶¶17-18, and the omnibus statute, Wis. Stat.

§ 632.32(5)(i), which regulates reducing clauses. See id.,

¶¶19-28. Even though I agree with the majority/lead opinion's

bottom line, I would not reach these issues. Accordingly, I

respectfully concur.1

¶38 I am authorized to state that Justices ANN WALSH

BRADLEY, BRIAN HAGEDORN, and JILL J. KAROFSKY join this opinion.

1 I join ¶¶1-2, 4-16, and 29 of the majority/lead opinion.

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¶39 REBECCA GRASSL BRADLEY, J. (dissenting).

I remember once I was with [Justice Oliver Wendell Holmes, Jr.]; it was Saturday when the Court was to confer. It was before we had a motor car, and we jogged along in an old coupé. When we got down to the Capitol, I wanted to provoke a response, so as he walked off, I said to him: "Well, sir, goodbye. Do justice!" He turned quite sharply and he said: "Come here. Come here." I answered: "Oh, I know, I know." He replied: "That is not my job. My job is to play the game according to the rules." Learned Hand, A Personal Confession, in The Spirit of Liberty

302, 306–07 (Irving Dillard ed., 3d ed. 1960).

¶40 This court should resolve this case by considering the

parties' arguments and neutrally applying well-established rules

for interpretating insurance policies. Instead, the majority

rejects the parties' contractual agreement in favor of doing

justice in a case involving tragic facts. While the results

achieved by the majority's decision may be more palatable, the

resulting injury to the rule of law is anything but just.

¶41 Daniel Keith Huck died from a bodily injury he

sustained while working for the Village of Mt. Pleasant. The Estate of Huck received about $36,000 in worker's compensation

benefits. Later, the Estate became statutorily required to

reimburse a portion of this payout. Huck had an insurance

policy with underinsured motorist (UIM) coverage through Secura

Supreme Insurance Company. The Estate filed a claim. Secura

and the Estate dispute the amount owed under the policy. Secura

relies on the policy's reducing clause, which provides that the

policy's limits "shall be reduced by all sums . . . [p]aid . . . because of the bodily injury under . . . [w]orkers'

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compensation law[.]" Secura argues the Estate was "paid"

$36,000 because Mt. Pleasant's $36,000 financial obligation to

the Estate was discharged when the Estate was provided with the

money. The Estate does not respond by referencing definitions

of "paid" or relying on grammatical principles. Instead, the

Estate primarily argues that siding with Secura would produce an

"absurd result." That argument is grounded not in law but in

subjective perceptions of justice.

¶42 The majority/lead opinion sides with the Estate, but

conspicuously absent from the opinion is any discussion of the

Estate's principal argument.1 Instead, the opinion attempts to

develop a textual analysis that was——at best——underdeveloped by

the Estate. This court need not address an underdeveloped

argument, and it should not do so in this case. See, e.g., Papa

v. Wis. Dep't of Health Servs., 2020 WI 66, ¶42 n.15, 393

Wis. 2d 1, 946 N.W.2d 17 (declining to address an underdeveloped

argument). Although suffering from its own analytical flaws,

Justice Rebecca Frank Dallet's concurrence correctly notes the majority/lead opinion goes too far by "analyzing a provision of

the policy that the parties did not meaningfully discuss in

their briefs[.]" Concurrence, ¶37. While this court has near-

absolute discretion to deviate from the parties' arguments and

often does given its law-development function, the majority/lead

This court's internal operating procedures explain, "[i]f 1

. . . the opinion originally circulated as the majority opinion does not garner the vote of a majority of the court, it shall be referred to in separate writings as the 'lead opinion[.]'" Wis. Sup. Ct. IOP III.G.4 (Feb. 28, 2023).

2 No. 2020AP1078-FT.rgb

opinion does not exercise discretion because it does not explain

its departure from the party presentation principle. See Town

of Wilson v. City of Sheboygan, 2020 WI 16, ¶73, 390

Wis. 2d 266, 938 N.W.2d 493 (Rebecca Grassl Bradley, J.,

concurring). The majority/lead opinion does not even

acknowledge——let alone explain——why it leaves the Estate's

primary argument unaddressed.

¶43 In this case, a persuasive explanation would be

difficult to provide. This court granted the petition for

review to address the Estate's primary argument, which the court

of appeals, in a published opinion, held it was compelled by

this court's precedent to adopt. See Secura Supreme Ins. v.

Estate of Huck, 2021 WI App 69, ¶7, 399 Wis. 2d 542, 966

N.W.2d 124. Specifically, the court of appeals held it was

bound by Teschendorf v. State Farm Insurance Cos., 2006 WI 89,

293 Wis. 2d 123, 717 N.W.2d 258, in which this court disregarded

the plain meaning of the law in favor of what the court deemed a

more just result. While a majority of the court could not coalesce on a rationale, six justices agreed that a "literal"

reading of the law favored the insurer and accordingly deemed it

either absurd or ambiguous in order to decide the case in favor

of a sympathetic plaintiff. Id., ¶¶18, 22, 32 (majority/lead

op.). Notably, in this case court of appeals judge Shelley A.

Grogan wrote a concurrence signaling concern that Teschendorf

required the court of appeals to disregard the plain language of

the insurance policy and Wis. Stat. § 632.32(5)(i)2. (2019–20).2

2 Unless otherwise noted, all subsequent references to the Wisconsin Statutes are to the 2019–20 version. 3 No. 2020AP1078-FT.rgb

See Secura Supreme Ins., 399 Wis. 2d 542, ¶21 (Grogan, J.,

concurring). As the majority/lead opinion notes, this court

granted review of the court of appeals decision, but the

majority leaves that decision largely unreviewed in its

opinions. Majority/lead op., ¶¶1, 9.

¶44 Justice Dallet's concurrence, with its references to

allegedly "nonsensical" results, aligns more closely with the

Estate's actual argument, but her concurrence is problematic for

a different reason. See Concurrence, ¶¶31, 36. Justice Dallet

endorses a case-deciding approach grounded in subjective

perceptions of justice at the expense of the rule of law.

¶45 Applying the law to the parties' arguments, I conclude

the policy's limits should be reduced by the total amount of

worker's compensation paid, not by the amount ultimately netted

by the Estate. I further conclude Wis. Stat. § 632.32(5)(i)2.,

which also uses the word "paid," permits such a reduction. I

respectfully dissent.

I. BACKGROUND A. The Tragic Facts

¶46 The parties have stipulated to the tragic facts of

this case. Huck was struck by a negligently driven motor

vehicle while employed as a utility worker for Mt. Pleasant.

Huck died as a result. The Estate received about $36,000 in

worker's compensation benefits. After that, the Estate settled

with the negligent driver's insurance company for the policy

limits of $25,000. Additionally, Wis. Stat. § 102.49(5) required Mt. Pleasant to pay $20,000 to the state treasury for

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the benefit of the Work Injury Supplemental Benefits Fund.

Under § 102.29, the Estate was obligated to reimburse about

$10,000 of the worker's compensation benefits to the worker's

compensation carrier using the settlement proceeds.

Accordingly, the Estate received $36,000 in worker's

compensation benefits, but the Estate netted only about $26,000.

Huck's insurance policy with Secura provided UIM coverage with

limits of $250,000; the damages exceed those limits. The Estate

made a claim under the policy.

B. The Reducing Clause

¶47 The parties calculate the amount Secura owes

differently, based on different readings of the reducing clause,

which provides:

B. Reducing Clause: The limit of liability shall be reduced by all sums:

1. Paid because of bodily injury by or on behalf of persons or organizations who may be legally responsible. . . .

2. Paid or payable because of the bodily injury under any of the following or similar laws:

a. Workers' compensation law[.] The parties dispute only the amount of reduction for worker's

compensation benefits. Secura argues for a $36,000 reduction——

the amount the Estate received under worker's compensation law——

while the Estate argues the reduction should be only $26,000

because the Estate had to reimburse the worker's compensation

carrier approximately $10,000. The parties agree the $25,000

settlement reduces the limits.3 They also agree the $20,000

payment by Mt. Pleasant to the Fund does not trigger the

reducing clause. Accordingly, the parties calculate the amount

owed under the policy as follows:

Secura The Estate

$250,000 (the limit of $250,000 (the limit of liability) liability)

−$36,000 (the amount of −$26,000 (the amount of worker's compensation received) worker's compensation netted)

−$25,000 (from the settlement) −$25,000 (from the settlement)

= $189,000 = $199,000 ¶48 Notably, the language of the reducing clause is

materially similar to the language of Wis. Stat. § 632.32, also

known as the "Omnibus Statute" because, as this court has

explained, "it sets the minimum requirements all motor vehicle

insurance policies in Wisconsin must satisfy." Brey v. State

Farm Mut. Auto. Ins., 2022 WI 7, ¶5, 400 Wis. 2d 417, 970

N.W.2d 1. Subsection (5)(i)2. provides:

(i) A policy may provide that the limits under the policy for uninsured motorist coverage or underinsured motorist coverage for bodily injury or death resulting from any one accident shall be reduced by any of the following that apply:

The Estate notes the parties agree that "[t]he UIM 3

reducing clause permitted reduction of the $250,000 UIM limits by the $25,000 recovered from the tortfeasor and the $26,079.31 net benefits paid by the worker's compensation carrier." The parties "part[] ways" over the $10,000 of worker's compensation benefits that was "repaid[.]"

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2. Amounts paid or payable under any worker's compensation law. The operative effect of the reducing clause must be permissible

under § 632.32(5)(i)2.

C. The Procedural History

¶49 This case's procedural history demonstrates the

parties focused on the applicability of Teschendorf. Secura

sought from the circuit court a declaration stating it owed only

$189,000, and the Estate counterclaimed. The circuit court

sided with the Estate.

¶50 Secura appealed, and the Estate's argument in response

focused mainly on this court's decision in Teschendorf. It

framed the sole issue on appeal as follows:

In Teschendorf v. State Farm Ins. Companies, 2006 WI 89, 293 Wis. 2d 123, 717 N.W.2d 258, a statutorily- permitted reducing clause was declared impermissible when used to reduce underinsured motorists . . . limits by sums paid not to the insured, but to a state fund . . . . Does a reducing clause permitted by Wis. Stat. § 632.32(5)(i), reducing UIM limits by "all sums . . . [p]aid or payable because of the bodily injury under . . . [w]orker's compensation law," become impermissible where the worker's compensation insurer has been reimbursed pursuant to Wis. Stat. § 102.29, precluding double recovery by the insured?[4]

Answered by the Circuit Court: Yes. (Third and fourth ellipsis and modifications in the original.)

¶51 The court of appeals affirmed the circuit court's

decision in a published opinion. Secura Supreme Ins., 399

Wis. 2d 542 (majority op.). The court of appeals accepted the

4 Although this issue statement claims Teschendorf was about UIM coverage, the case was actually about uninsured motorist coverage. See infra Section III.B.

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Estate's framing, concluding, "[t]he court in Teschendorf

squarely rejected the literal reading of the reducing clause

Secura proposes here." Id., ¶10 (citing Teschendorf, 293

Wis. 2d 542, ¶¶22, 24, 44). The majority opinion of the court

of appeals cites Teschendorf more than 30 times, demonstrating

its centrality in the reasoning of the court below. In

concurrence, Judge Grogan wrote, "[o]n a clean slate, Secura's

textual argument may not have been so swiftly dismissed, but our

supreme court foreclosed it in Teschendorf." Id., ¶21 (Grogan,

J., concurring).

¶52 Secura filed a petition for review. It explicitly

argued "Teschendorf is ripe for reexamination to——at least——

clarify the proper analysis [to] the lower courts[.]" In

response, the Estate professed this case does not present a

novel question of law given Teschendorf. The Estate framed the

issue in much the same way that it had framed the issue before

the court of appeals:

Words in statutes and insurance policies are given a meaning which avoids absurd or unreasonable results, or results clearly at odds with the legislature's purpose. . . . Can an insurer reduce its [UIM] coverage limits by sums neither its insured nor his workers compensation insurer recovered because its policy contains a reducing clause deducting "all sums . . . [p]aid or payable because of the bodily injury under . . . [w]orker's compensation law"? (Second and third ellipsis and second and third modifications in

the original.) The Estate argued Teschendorf should not be

reexamined because the absurd results canon has been "repeatedly applied" in various contexts——not just in Teschendorf. It

claimed this case would be a mere "rehash[ing]" of the "same 8 No. 2020AP1078-FT.rgb

principles" applied in Teschendorf and several other cases.

This court granted Secura's petition.

D. The Parties' Briefing

¶53 The focus on Teschendorf continued in the briefing.

Secura argues the case does not need to be overruled but should

be limited to its extreme facts (discussed more in Part III).

The Estate argues the court of appeals was correct to "center"

its analysis on Teschendorf, declaring the analysis "spot on."

Similarly, the Estate claims this case does not raise an issue

of "first impression" because, in its view, "the issue raised is

very similar to that addressed in Teschendorf[.]" The Estate

continues, "Teschendorf . . . require[s] that the appellate

court's decision be affirmed." The Estate opens its brief by

noting, "Wisconsin courts reject interpretations of statutes

that produce results contrary to the statute's purpose and

common sense." (Citation omitted.) The Estate also makes

passing reference to the principle that statutes should be

construed in harmony, grounding this argument in consequentialism. The Estate argues, "[a]s the court of appeals

correctly explained, Secura's argument——that the workers

compensation was 'paid' to the insured but ignoring that that

sum had been reimbursed to the workers compensation insurer——

'defies common sense and the fundamental purpose of [UIM]

insurance coverage[.]'" Quoting Secura Supreme Ins., 399

Wis. 2d 542, ¶17 (majority op.). Claiming a purported ambiguity

in the policy, the Estate argues this court must affirm the decision of the court of appeals because "[t]o hold otherwise

9 No. 2020AP1078-FT.rgb

would create an absurd result[.]" Regardless of how the Estate

frames its arguments, every contention advanced by the Estate

rests on the absurd results canon.

¶54 In contrast, Secura offers a fully-developed plain

language argument in response to the Estate's emphasis on the

purported absurdity of the results Secura's plain language

interpretation may yield. Secura references dictionary

definitions to support its interpretation of "paid," some of

which have been adopted by Wisconsin courts in other contexts.

See, e.g., Danbeck v. Am. Fam. Mut. Ins., 2000 WI App 26, ¶9,

232 Wis. 2d 417, 605 N.W.2d 925 (noting "payment" is defined as

"1: the act of paying or giving compensation : the discharge of

a debt or an obligation . . . 2: something that is paid :

something given to discharge a debt or obligation or to fulfill

a promise" (quoting Payment, Webster's Third New International

Dictionary (1993)) (ellipsis in the original)).

¶55 In contrast, the Estate references dictionary

definitions once——for the word "reimburse"——which appears nowhere in the relevant language of the policy or the Omnibus

Statute.5 Apparently, the Estate means to suggest that money

reimbursed has not been "paid," but even the language the Estate

uses to describe the facts of this case presupposes the Estate

was, in fact, paid. For example, the Estate writes, "[t]he

parties parted ways . . . as to Secura's denial of the

[E]state's claim to the extent of the . . . [disputed amount]

5The brief also contains a reference to Black's Law Dictionary, within a block quote of another source, but the definition is for the word "insurance."

10 No. 2020AP1078-FT.rgb

repaid to the workers compensation carrier." (Emphasis added.)

An amount can be "repaid" only if it in fact has been "paid."

¶56 In attempting to illustrate the meaning of this

utterly plain word, Justice Dallet's sandwich shop analogy

suffers from a basic mathematical error. She begins her

concurrence with the following scenario: "If I buy an $8

sandwich, hand the cashier a $10 bill, and she hands me my

sandwich and $2 in change, how much was she 'paid' for the

this isn't so clear." Concurrence, ¶31. This simple analogy

fails because Justice Dallet did not incur a $10 financial

obligation——only an $8 one. The moment she handed $10 to the

cashier, she satisfied her obligation to pay for the sandwich,

but the cashier immediately incurred an obligation to give back

$2. In this case, the worker's compensation carrier incurred a

$36,000 financial obligation, which was satisfied when that

amount was paid to the Estate. Had the carrier incurred a mere

$26,000 obligation but inadvertently sent the Estate a check for $36,000, perhaps Justice Dallet's analogy would be relevant. In

this case, however, the carrier used exact change. Even though

the law later compelled a reimbursement, had the carrier paid

only $26,000 initially, it would not have fulfilled its

obligation. Perhaps textual arguments may exist for a

definition of "paid" favoring the Estate, but Justice Dallet

offers none.

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II. STANDARD OF REVIEW

¶57 This case requires this court to interpret an

insurance policy. The interpretation of a policy is a question

of law, subject to independent review. Talley v. Mustafa

Mustafa, 2018 WI 47, ¶13, 381 Wis. 2d 393, 911 N.W.2d 55 (citing

Water Well Sols. Serv. Grp., Inc. v. Consol. Ins., 2016 WI 54,

¶12, 369 Wis. 2d 607, 881 N.W.2d 285).

¶58 Contrary to the majority, the policy language compels

a reduction by the total amount of worker's compensation paid to

the Estate. Accordingly, I must determine whether Wis. Stat.

§ 632.32(5)(i)2. permits such a reduction. Statutory

interpretation, like policy interpretation, presents a question

of law subject to this court's independent review. Water Well

Sols. Serv. Grp., Inc., 369 Wis. 2d 607, ¶12 (citing Estate of

Sustache v. Am. Family Mut. Ins., 2008 WI 87, ¶18, 311

Wis. 2d 548, 751 N.W.2d 845).

III. ANALYSIS

A. The Consequence of the Majority/Lead Opinion not Reviewing the Court of Appeals Decision ¶59 The majority/lead opinion correctly notes this court

granted review of a court of appeals decision; however, it does

not review it. In a published opinion, the court of appeals

decided it was bound by Teschendorf. By affirming the court of

appeals without reviewing its decision, the majority preserves

the court of appeals opinion as binding precedent. Although the

majority affirms the decision on a different basis, it does not expressly——or even impliedly——signal that the opinion below does

not retain its precedential value. Consequently, the court of 12 No. 2020AP1078-FT.rgb

appeals will understand itself to be bound by that opinion. See

State v. Schmidt, 2016 WI App 45, ¶48 n.11, 370 Wis. 2d 139, 884

N.W.2d 510 (citing Blum v. 1st Auto & Cas. Ins., 2010 WI 78,

¶44, 326 Wis. 2d 729, 786 N.W.2d 78). See generally Wis. Mfrs.

& Com. v. Evers, 2023 WI 5, ¶2, 405 Wis. 2d 478, 984 N.W.2d 402

(per curiam) (noting that while this court has not addressed the

issue directly, when this court affirms a published opinion of

the court of appeals, on different grounds but without

suggesting its rationale was incorrect, the court of appeals

opinion remains binding precedent). At a minimum, the majority

should withdraw the precedential status of the opinion below.

B. This Court's Decision in Teschendorf

¶60 If the majority had reviewed the decision of the court

of appeals, it would need to revisit Teschendorf, on which the

Estate's argument continues to heavily rely. Although no less

tragic, the facts of Teschendorf are quite different than the

facts of this case. A man died while acting in the scope of his

employment after an uninsured motor vehicle struck a car in which the man was riding. 293 Wis. 2d 123, ¶3 (majority op.).

In accordance with Wis. Stat. § 102.49(5)(b) (2001–02), a

portion of worker's compensation benefits were paid to the Fund,

but none were paid to the man's estate because he was single and

had no dependents. Id. Of the approximately $174,000 paid in

worker's compensation benefits, $159,000 went to the Fund, and

the rest went to recipients other than the man's estate. Id.

The man had a policy providing uninsured motorist coverage, with limits of $150,000. Id., ¶4. The insurer argued the reducing

13 No. 2020AP1078-FT.rgb

clause operated to change the limits to $0 because more than

$150,000 had been paid in worker's compensation benefits. Id.,

¶5.

¶61 The issue in Teschendorf was whether Wis. Stat.

§ 632.32(5)(i)2. (2001–02) prohibited reducing the limits by the

$159,000 paid to the Fund. Although this court resolved the

issue, it was divided on the rationale. Public policy pervaded

each member's reasoning.

¶62 This court held Wis. Stat. § 632.32(5)(i)2. prohibited

the reduction; however, it was split into two factions. The

first faction, which has been subsequently called the "absurdity

faction," consisted of three justices who concluded the

statutory language unambiguously did not prohibit the reduction

but determined the result of applying the unambiguous language

would be absurd. Id., ¶18 & n.8. They first recognized the

plain meaning of the reducing clause:

There is no ambiguity in Wis. Stat. § 632.32(5)(i)2. The statute says that policy limits may be reduced by "amounts paid or payable under any worker's compensation law." The clause "amounts paid or payable" is not qualified and unambiguously brings within its scope payments made to the insured or to any other person or entity, provided that the payment was made under any worker's compensation law. Id., ¶30 (lead op.); see also id., ¶18 n.8 (majority op.)

(explaining the absurdity faction "believe[d] that the meaning

of the statute is plain, but the results produced by the plain

meaning are absurd"). These justices declined to apply the

plain meaning, however, because in their view "the results that follow are so unreasonable . . . that they require the plain

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meaning to be rejected." Id., ¶18 (majority op.). Accordingly,

these justices "construe[d] the statute to avoid that result."

Id., ¶32 (lead op.) (citing State v. Delaney, 2003 WI 9, ¶15,

259 Wis. 2d 77, 658 N.W.2d 416). Defying a fundamental canon of

construction, they opted to read the words "to the insured" into

the statute after the words "amounts paid or payable[.]" Id.,

¶31. These justices expressly acknowledged the qualifier "to

the insured" "is not present in the text of the statute" and its

plain meaning "allows policy limits to be reduced regardless of

to whom worker's compensation benefits are made." Id.

Nevertheless, to protect "injured persons," they opted to

rewrite the statute, openly discarding what they (correctly)

understood to be the plain meaning of the words chosen by the

legislature. Id., ¶38.

¶63 The second group, known as the "ambiguity faction,"

consisted of three justices who agreed the statute was ambiguous

and who resolved the ambiguity in favor of the insured. Id.,

¶18 (majority op.). Like the absurdity faction, they conceded the plain meaning of the statute:

The literal reading of Wis. Stat. § 632.32(5)(i)2. favored by [the insurer] permits the conclusion that an insurer may reduce uninsured motorist limits by the amount of worker's compensation payments made to anyone. Subsection (5)(i)2. contains no qualifying language specifying to whom the payments must be made; payments could be made to the insured, to the Fund, or to anyone. Id., ¶22 (lead op.). This faction noted the insurer's "literal

interpretation" could reduce the limits to $0. Id., ¶28. Finding that result unpalatable, these justices read into the

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statute "an implicit condition that the insurer may reduce

uninsured motorist benefits only by the amount of worker's

compensation payments made to or on behalf of the insured."

Id., ¶23. This implicit condition was supported, the three

claimed, by § 632.32(4) (2001–02), which required that every

motor vehicle insurance policy include uninsured motorist

coverage. Id., ¶24. Under the ambiguity faction's extra-

textual reasoning, "[t]he consistent leading purpose of this

statutory scheme is to require that insurers provide uninsured

motorist coverage for the protection of their insureds," while

"the subordinate purpose is to minimize the insurers' exposure

by allowing insurers to limit the protection offered by

uninsured motorist coverage to a fixed, predetermined amount

that takes into account payments from specified sources[.]"

Id., ¶27. According to the ambiguity faction, the purported

"leading purpose" would be defeated if not for the read-in

implicit condition.

¶64 The two factions achieved their desired result—— defeating the contractual reduction——after joining together in a

lengthy discussion of legislative history and public policy,

rather than text. Id., ¶¶44–62 (majority op.). Then-Chief

Justice Shirley S. Abrahamson concurred with the mandate but

joined neither the absurdity faction nor the ambiguity faction.

Id., ¶66 (Abrahamson, C.J., concurring).

C. Evaluating the Parties' Arguments: Teschendorf's Limited Reach ¶65 In this case, the parties' arguments primarily address

the reach of Teschendorf and, more generally, the absurd results 16 No. 2020AP1078-FT.rgb

canon. Secura does not ask this court to overturn Teschendorf.

In fact, it concedes the reducing clause may not be read to

cause a subtraction from the limits for the $20,000 paid to the

Fund——because of Teschendorf. Instead, Secura simply argues

that Teschendorf does not apply to the $10,000 in worker's

compensation benefits, which were paid to the Estate and later

repaid. Secura asserts the court of appeals erred in extending

Teschendorf too far. In contrast, the Estate argues Teschendorf

should be the focal point of this court's analysis and prohibits

the reduction at issue.

¶66 As a preliminary matter, Secura argues Teschendorf is

largely "non-binding" because no majority agreed on a rationale,

citing State v. Elam, 195 Wis. 2d 683, 685, 538 N.W.2d 249

(1995) (per curiam). In Elam, this court explained that "[a]

general principle of appellate practice is that a majority of

the participating judges must have agreed on a particular point

for it to be considered the opinion of the court." Id. (citing

State v. Dowe, 120 Wis. 2d 192, 194–95, 352 N.W.2d 660 (1984) (per curiam)). Critically, no majority in Teschendorf held the

particular result absurd, and no majority held the statute

ambiguous——a majority formed almost exclusively on a discussion

of legislative history and public policy. As this court has

explained, a dearth of overlap between rationales on which a

mandate was based is "troublesome." Koschkee v. Taylor, 2019 WI

76, ¶8 n.5, 387 Wis. 2d 552, 929 N.W.2d 600. Teschendorf's

application to this case is a prime example: In applying Teschendorf, how much weight should this court place on its

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specific facts and the purported absurdity of the insurer's

proffered interpretation? The lack of a majority rationale in

Teschendorf provides sufficient justification to limit the

decision's application to its extreme facts because determining

how Teschendorf applies to even a slightly different fact-

pattern is difficult. See Bryan A. Garner et al., The Law of

Judicial Precedent 198–99 (2016). See generally Johnson v. Wis.

Elections Comm'n, 2022 WI 14, ¶243, 400 Wis. 2d 626, 971

N.W.2d 402 (Rebecca Grassl Bradley, J., dissenting), summarily

rev'd sub. nom. Wis. Legislature v. Wis. Elections Comm'n, 595

U.S. __, 142 S. Ct. 1245 (per curiam) (explaining this court

does not follow the so-called "Marks rule," pursuant to which a

legal rule may be precedential even if its rationale was not

adopted by a majority).

¶67 Although noting this divide, Secura restricts its

argument to attacking the rationale advanced by the ambiguity

faction in Teschendorf, because the absurdity faction's analysis

would not extend to the significantly less extreme facts of this case. In contrast to Teschendorf, the Estate in fact receives

insurance proceeds approaching the policy limit, and the

variance between the parties' positions approximates $10,000.

Secura asserts "the only way the [a]mbiguity [f]action could

find an alternative to the 'literal' meaning [wa]s by adding a

qualification into the statute . . . that is simply not there."

(Citation omitted.) Judges may not, however, either add words

to or subtract words from the text of the law. See State v. Hinkle, 2019 WI 96, ¶24, 389 Wis. 2d 1, 935 N.W.2d 271 ("It is a

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cardinal 'maxim[] of statutory construction . . . that courts

should not add words to a statute to give it a certain

meaning.'" (quoting State v. Fitzgerald, 2019 WI 69, ¶30, 387

Wis. 2d 384, 929 N.W.2d 129) (modification in the original)).

As Judge Grogan explained in her concurrence, the text of the

law does not state "the 'payment' must be made to the insured"

even though this court in Teschendorf so held. Secura Supreme

Ins., 399 Wis. 2d 542, ¶21 (Grogan, J., concurring) (quoting

Teschendorf v. State Farm Ins., 2005 WI App 10, ¶¶19-20, 278

Wis. 2d 354, 691 N.W.2d 882 (2004) (Fine, J., dissenting),

aff'd, 293 Wis. 2d 123). Nor, as Judge Grogan also noted, does

the text "address what happens after a worker's compensation

payment is made but is subsequently partially paid back, which

is the factual scenario presented in this case." Id. Secura is

correct to argue the ambiguity faction's rationale should be

rejected; it is antithetical to fundamental rules of textual

interpretation.

¶68 In effect, the ambiguity faction searched for ambiguity, which this court has repeatedly rejected as

inappropriate. See, e.g., Lamar Cent. Outdoor, LLC v. Div. of

Hearings & Appeals, 2019 WI 109, ¶18, 389 Wis. 2d 486, 936

N.W.2d 573 ("We do not, however, look for ambiguity because

'[s]tatutory interpretation involves the ascertainment of

meaning, not a search for ambiguity.'" (quoting State ex rel.

Kalal v. Cir. Ct. for Dane Cnty., 2004 WI 58, ¶47, 271

Wis. 2d 633, 681 N.W.2d 110) (modification in the original)). A good lawyer can render a sentence as straightforward as "the sky

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is blue" ambiguous if he stares at it long enough; perhaps the

sky is just sad. Merely because the argument can be made that

the sky is sad does not mean a reasonable person would actually

ascribe that meaning to the sentence "the sky is blue."

Ambiguity must be facially present in a statute, and it

certainly does not come into existence merely because three

justices are troubled by a result dictated by plain meaning.

See Antonin Scalia & Bryan A. Garner, Reading Law: The

Interpretation of Legal Texts 174 (2012) ("A provision that

seems to the court unjust or unfortunate . . . must nonetheless

be given effect.").

¶69 While the court in Teschendorf agreed on very little,

it should disturb this court that six justices acknowledged a

"literal" reading of the statute supported the insurer. 293

Wis. 2d 123, ¶¶24, 32 (lead op.). A literal reading is not

necessarily the same as a plain reading, but the absurdity

faction noted the insurer's reading was not only "literal" but

"plain[.]" Id., ¶32. See generally Brey, 400 Wis. 2d 417, ¶11 (explaining "the plain-meaning approach is not 'literalistic'"

(quoting Kalal, 271 Wis. 2d 633, ¶52)). Self-evidently, a plain

meaning cannot be ignored by merely labelling it literal, as the

ambiguity faction did in discarding it.

¶70 The ambiguity faction's addition of what it deemed an

"implied condition" is reminiscent of a time when "the monarch

. . . [was considered by some] a one-man legislator." Scalia &

Garner, Reading Law, at 349. Centuries ago, one treatise

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embraced judicial law-making in an early exposition of the

usefulness of divining legislative intent:

[I]n order to form a right judgment when the letter of a statute is restrained, and when enlarged, by equity, it is a good way, when you peruse a statute, to suppose that the lawmaker is present, and that you have asked him the question you want to know touching the equity; then you must give yourself such an answer as you imagine he would have done, if he had been present . . . . And if the lawmaker would have followed the equity, notwithstanding the words of the law . . . , you may safely do the like. Edmund Plowden, Note to Eyston v. Studd, (1574) 2 Plow. 459a,

467, as reprinted in Scalia & Garner, Reading Law, at 349

(ellipses in the original). Centuries later, the people of

Wisconsin vested the law-making power exclusively in a

representative body of the people. See Wis. Const. art. IV,

§ 1. To ask what the king would want may yield an answer, but

to divine what hundreds of legislators would want is impossible.

See Scalia & Garner, Reading Law, at 349. Collective intent is

nothing more than a "fiction" because each legislator has his

own "subjective views[.]" Id. at 392; see also Town of Wilson, 390 Wis. 2d 266, ¶68 ("Crafting judicial doctrines based on the

collective intent of a large body relies on the false premise

that a deliberative body acts with a single purpose." (citing

John W. MacDonald, The Position of Statutory Construction in

Present Day Law Practice, 3 Vand. L. Rev. 369, 371 (1950))).

Additionally, to ask the latter has the potential to invite

"judicial mischief," Scalia & Garner, Reading Law, at 350,

because "judicial predictions of how the legislature would have decided issues it did not in fact decide are bound to be little

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more than wild guesses, and thus lack the legitimacy that might

be accorded to astute guesses." Frank Easterbrook, Statutes'

Domains, 50 U. Chi. L. Rev. 533, 548 (1983).

¶71 While members of the judiciary may have valid and good

ideas for improving the law, the people deny us the authority to

make such policy decisions, having vested the law-making power

exclusively in the legislature. The desirability of such

"improvements" undoubtedly depends on how one may be affected by

the rewritten law. "Although judges may profess well-

intentioned justification for 'improving' the law,

'interpretative approaches can be used for all kinds of

purposes, not just beneficent ones.'" Friends of Frame Park,

U.A. v. City of Waukesha, 2022 WI 57, ¶96, 403 Wis. 2d 1, 976

N.W.2d 263 (Rebecca Grassl Bradley, J., concurring) (quoting

Bryan A. Garner, Old-Fashioned Textualism Is All About

Interpretation, Not Legislating from the Bench, ABA J., Apr.

2019). "The people of Wisconsin elect judges to interpret the

law, not make it." Id. ¶72 The ambiguity faction's rationale was nothing more

than a dangerous "venture" down the "path of judicial

legislation" to reach a result deemed "desirable[.]" See State

ex rel. Crow v. West Side St. Ry. Co., 47 S.W. 959, 961 (1898).

Such an action aggregates law-making power to the judiciary,

thereby consolidating in one branch governmental powers the

people deliberately kept separate to avoid tyranny. See League

of Women Voters of Wis. v. Evers, 2019 WI 75, ¶35, 387 Wis. 2d 511, 929 N.W.2d 209.

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¶73 After attacking its rationale, Secura suggests the

absurdity faction may have framed the case correctly, but would

limit the reach of the absurdity doctrine to a "truly anomalous"

situation identified after an "exacting analysis." Secura

points out, "[h]ad the insurer prevailed in Teschendorf, the

insured's estate would have received nothing because the

employer's payments exceeded the . . . limits." In contrast,

the Estate would receive just about five percent less if this

court adopted Secura's argument. The Estate counters that Huck

bargained for a "predetermined, fixed level of coverage"——

$250,000——and Secura's interpretation of the policy would deny

the Estate the benefit of Huck's bargain, a result it declares

"absurd."

¶74 A historical analysis of the absurdity doctrine

supports Secura's argument that even if the absurdity faction in

Teschendorf was correct (it wasn't), that faction's rationale

does not extend to this case. Defining absurdity is

challenging, but two "archetypal" examples of an absurd result exist in common law. Veronica M. Dougherty, Absurdity and the

Limits of Literalism: Defining the Absurd Result Principle in

Statutory Interpretation, 44 Am. U. L. Rev. 127, 139 (1994).

One scholar wrote that these two examples are "the nearest thing

we have to a legal definition of absurdity." Id. Both examples

developed in the context of statutory interpretation, but the

absurd results canon is materially the same as applied in

contract interpretation. The examples were summarized and the

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absurd results canon applied long ago by the United States

Supreme Court in the following oft-quoted passage:

The common sense of man approves the judgment mentioned by Puffendorf, that the Bolognian law which enacted, 'that whoever drew blood in the streets should be punished with the utmost severity,' did not extend to the surgeon who opened the vein of a person that fell down in the street in a fit. The same common sense accepts the ruling, cited by Plowden, that the statute of 1st Edward II, which enacts that a prisoner who breaks prison shall be guilty of felony, does not extend to a prisoner who breaks out when the prison is on fire——'for he is not to be hanged because he would not stay to be burnt.' And we think that a like common sense will sanction the ruling we make, that the act of Congress which punishes the obstruction or retarding of the passage of the mail, or of its carrier, does not apply to a case of temporary detention of the mail caused by the arrest of the carrier upon an indictment for murder. United States v. Kirby, 74 U.S. 482, 487 (1868).

¶75 To equate the Estate receiving $189,000 instead of

$199,000 with the two archetypal examples of absurdity would be,

well, absurd. The two examples are qualitatively different than

the Estate's received insurance proceeds. History tells us

punishing a person for trying to preserve life would work a grievous moral injustice. Punishing a doctor who provides life-

saving care or a prisoner who escapes a burning prison would not

violate only common sense——it would violate natural law. See 1

William Blackstone, Commentaries *129 ("THE right of personal

security consists in a person's legal and uninterrupted

enjoyment of his life, his limbs, his body, his health, and his

reputation."); see also Wis. Const. art. I, § 1 ("All people are born equally free and independent, and have certain inherent

rights; among these are life, liberty and the pursuit of 24 No. 2020AP1078-FT.rgb

happiness; to secure these rights, governments are instituted,

deriving their just powers from the consent of the governed.").

Punishing a mail carrier for temporarily detaining mail while

the carrier was detained by the State would be Kafkaesque and

contrary to the common law tradition of prohibiting punishment

for involuntary acts. See actus reus, Black's Law Dictionary

(11 ed. 2019).

¶76 The two archetypal examples demonstrate "the absurd

. . . results canon applies only rarely and in rather narrow

circumstances[.]" Container Life Cycle Mgmt., LLC v. Wis. Dep't

of Nat. Res., 2022 WI 45, ¶79, 402 Wis. 2d 337, 975 N.W.2d 621

(Rebecca Grassl Bradley, J., dissenting). "Just because a court

dislikes the outcome does not mean it is absurd." Id. (quoting

Schwab v. Schwab, 2021 WI 67, ¶44 n.1, 397 Wis. 2d 820, 961

N.W.2d 56 (Rebecca Grassl Bradley, J., dissenting)). Properly

understood, absurdity is not about "practical[ity]" or "fit"

because "people differ over what is sensible and what is

desirable," which is why "we elect those who write our laws——and expect courts to observe what has been written." Backus v.

Waukesha County, 2022 WI 55, ¶26, 402 Wis. 2d 764, 976

N.W.2d 492 (Rebecca Grassl Bradley, J., dissenting)

(modification in the original) (quoting Scalia & Garner, Reading

Law, at 22). An absurd result "consists of a disposition that

no reasonable person could intend." Scalia & Garner, Reading

Law, at 237.

¶77 Justice Joseph Story described the extraordinary facts necessary to disregard plain language to avoid absurdity:

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[I]f, in any case, the plain meaning of a provision . . . is to be disregarded, because we believe the framers of that instrument could not intend what they say, it must be one, where the absurdity and injustice of applying the provision to the case would be so monstrous, that all mankind would, without hesitation, unite in rejecting the application. 1 Joseph Story, Commentaries on the Constitution of the United

States § 427 (1833). The Estate's primary argument would have

this court lower the threshold for application of the absurdity

doctrine from "monstrous" to merely unfavorable. In ruling for the Estate, the majority implicitly endorses a new rule

declaring that when happenstance——i.e., an event outside the

control of the insured——reduces the "predetermined, fixed level

of coverage," the result is legally absurd, justifying judicial

revision of the insurance contract.

¶78 If results are to drive interpretation of insurance

policies, the majority should consider the consequent increase

in insurance premiums, which alone demonstrates that the effect

of Secura's proffered interpretation is not "so monstrous, that

all mankind would, without hesitation, unite in rejecting the

application." Id. In its discussion of the absurd results

canon, a leading treatise on Wisconsin insurance law repeats the

maxim, "an insurance company should not be bound to risks it did

not contemplate and for which it did not receive a premium." 1

Sheila M. Sullivan, Anderson on Wisconsin Insurance Law § 1.34

(8th ed. 2022). "[W]hen the terms of a policy are plain on

their face, the policy should not be rewritten . . . to bind the insurer to a risk it was unwilling to cover, and for which it

was not paid." Olguin v. Allstate Ins., 71 Wis. 2d 160, 164–65, 26 No. 2020AP1078-FT.rgb

237 N.W.2d 694 (1976). Happenstance often plays a role in

determining how a policy applies. Ambiguity in a policy is

almost always resolved against an insurer, but if unambiguous

policy provisions can also be interpreted against an insurer

whenever judges think the language would produce unfair results,

insurers are left with increased risk uncertainty and will price

their policies accordingly.6

¶79 As amicus Wisconsin Insurance Alliance et al. (WIA)

explains: "Insurers underwrite and issue policies in belief

that policies – and the statutes with which the policies must

comply – will be interpreted and enforced as written. Deviating

from this precept injects uncertainty and additional costs into

an already heavily-regulated industry." Reducing clauses,

especially, "are valued by insurers because they serve to reduce

the cost of premiums to policyholders." Therefore, "[t]he

decision below fosters confusion and undue complexity and will

6Usually, this court has interpreted ambiguity against an insurer. See, e.g., Marks v. Houston Cas. Co., 2016, WI 53, ¶42, 369 Wis. 2d 547, 881 N.W.2d 309 (citing Estate of Sustache v. Am. Family Mut. Ins., 2008 WI 87, ¶21, 311 Wis. 2d 548, 751 N.W.2d 845). In at least one case, however, this court used the absurd results canon to side with the insurer's interpretation of an ambiguous policy provision. Kopp v. Home Mut. Ins., 6 Wis. 2d 53, 57–58, 94 N.W.2d 224 (1959) ("Even though the policy provision is ambiguous and must be construed against the insurer, the unreasonable result should be avoided of so construing the medical payments clause of defendant's policy as to permit the injured person to recover for medical or hospital services supplied to him by some third party volunteer without cost or personal liability to pay therefor on the part of such injured person."). That case demonstrates the possible "absurdity"——if that word will be used so loosely——of holding insurers liable for risks never contemplated and for which no premium has been paid.

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harm insurers and consumers by placing upward pressure on the

cost of insurance."

¶80 Lowering the threshold for absurdity would effect a

substantial change in the law. The purpose of UIM coverage is

to "substitute[] for insurance that the tortfeasor should have

had." Teschendorf, 293 Wis. 2d 542, ¶24 (quoted source

omitted). Had Huck been hit by a negligently-driven motor

vehicle that was not underinsured (i.e., by a vehicle covered

under a policy with $250,000 limits), the Estate would have

received about $10,000 less than it would receive in this case

under Secura's proffered reading. But for the negligently

driven motor vehicle being underinsured, the reducing clause

would have no relevance. The Estate would have received

$250,000 in settlement, plus a $36,000 payment of worker's

compensation benefits, for a total of $286,000. Wisconsin

Statute § 102.29(1), however, would have required the Estate to

refund the $36,000 in total. Additionally, the worker's

compensation carrier would have been entitled to $20,000 of the settlement under Wis. Stat. § 102.29(2). After these

statutorily-required deductions, the Estate would have received

only $230,000. Accordingly, Secura accurately notes, "Huck

purchased UIM insurance to protect against being injured by a

tortfeasor with liability limits less than $250,000. . . . [The

Estate] received exactly that——and more——since the Estate

recovered more than if the tortfeasor had been insured to

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$250,000."7 The Estate has no response to this fact. As Secura

accurately observes, under a plain language interpretation of

the policy, "the Estate's recovery is greater than zero——already

distinguishing this case from Teschendorf——and more than if the

tortfeasor had liability limits of $250,000."

¶81 Expanding the absurd results canon to override the

text whenever judges deem the results "nonsensical," as the

Estate would have it, would unsettle the reasonable expectations

of contracting parties, not to mention leave the law vulnerable

to judicial revision. The language of the reducing clause

plainly contemplates reducing the limits by all sums paid in

worker's compensation benefits. $36,000 was a sum paid.

Nothing in the policy language gives the reimbursement any

relevance. Reimbursement of money paid does not change the

simple fact that money was, in fact, paid. While this result

may seem "unfair," nothing gives this court the authority to

disregard the plain language of an insurance policy.

Teschendorf was wrongly decided but may be distinguished based on its materially different facts. Either way, Teschendorf has

no bearing on a textual interpretation of the policy in this

case.

D. The Analysis of Wis. Stat. § 632.32(5)(i)2.

¶82 The majority/lead opinion (in a part joined only by

the author and one other justice) concludes Secura's proffered

WIA similarly observes, "the outcome advanced by SECURA is 7

not absurd at all because it results in the insured recovering a greater amount than if the tortfeasor had liability coverage equivalent to the insured's UIM limits."

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interpretation of the reducing clause is not authorized by Wis.

Stat. § 632.32(5)(i)2. Majority/lead op., ¶¶19–28. This non-

precedential analysis is unnecessary given the opinion's

conclusion that Secura's interpretation of the reducing clause

is incorrect. Regardless, that analysis is wrong.

¶83 The majority/lead opinion's analysis works only by

improperly adding a word to Wis. Stat. § 632.32(5)(i)2. Section

632.32(5)(i)2. authorizes a reduction by "[a]mounts paid or

payable under any worker's compensation law[.]" The

majority/lead opinion inserts the word "current" before "amounts

paid," so the statute becomes: "Current amounts paid or payable

under any worker's compensation law[.]" Id., ¶27 ("'Amounts

paid' is interpreted as the current 'amounts paid' or

outstanding such as by an installment agreement, at the time an

insurer seeks to reduce its liability under § 632.32(5)(i).").

Problematically for the majority/lead opinion, the text does not

use the phrase "current amounts paid." It does not include any

temporal limitation on how the amount paid is to be calculated. Without rewriting the statute, the majority/lead opinion's

analysis fails.

IV. CONCLUSION

¶84 This case demonstrates that "the law is such an Ass."

George Chapman, Revenge for Honour, A Tragedie 37 (1654). If,

however, we are to be a "government of laws, and not of men,"

that is the price we must occasionally pay. John Adams,

Novanglus: A History of the Dispute with America, from Its Origin, in 1754, to the Present Time, in Revolutionary Writings

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of John Adams (C. Bradley Thompson ed. 2000). Because I would

leave the revision of our laws with the legislature where that

work belongs, I respectfully dissent.

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