Sukala v. Heritage Mutual Insurance

2004 WI App 128, 685 N.W.2d 809, 275 Wis. 2d 469, 2004 Wisc. App. LEXIS 506
CourtCourt of Appeals of Wisconsin
DecidedJune 17, 2004
Docket03-0173
StatusPublished
Cited by4 cases

This text of 2004 WI App 128 (Sukala v. Heritage Mutual 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
Sukala v. Heritage Mutual Insurance, 2004 WI App 128, 685 N.W.2d 809, 275 Wis. 2d 469, 2004 Wisc. App. LEXIS 506 (Wis. Ct. App. 2004).

Opinions

DYKMAN, J.

¶ 1. Dawn and John Sukala (the Sukalas) appeal from an order denying them relief under Wis. Stat. § 806.07(l)(h) (2001-02).1 They assert that the trial court erroneously exercised its discretion when it found that a change in case law did not justify opening the judgment. We agree and reverse.

FACTS

¶ 2. Because our review is limited to the trial court's denial of relief under Wis. Stat. § 806.07(l)(h), we need not consider the merits of the underlying insurance claims in this case. We set forth only those facts relevant to the § 806.07(l)(h) motion, which focuses primarily on the procedural history of this case and supreme court decisions rendered after the trial [473]*473court entered judgment. For an explanation of the facts of the underlying insurance claims see Sukala v. Heritage Mutual Insurance Co., 2000 WI App 266, 240 Wis. 2d 65, 622 N.W.2d 457 (Sukala I).

¶ 3. The Sukalas sued respondents to recover under automobile insurance policies with underinsured motorist (UIM) coverage. The UIM coverage contained reducing clauses. On April 14, 1999, the trial court entered an order and judgment in favor of the insurers. The Sukalas appealed, raising two issues: (1) whether Heritage Mutual Insurance Company (Heritage) complied -with the notification requirements in Wis. Stat. § 631.36(5); and (2) whether the statute permitting reducing clauses, Wis. Stat. § 632.32(5)(i), was constitutional. After the parties filed their briefs, the supreme court decided Dowhower v. West Bend Mutual Insurance Co., 2000 WI 73, 236 Wis. 2d 113, 613 N.W.2d 557. There, the supreme court held that § 632.32(5)(i) was constitutional and that:

an insurer may reduce payments made pursuant to a UIM policy by amounts received from other legally responsible persons or organizations, provided that the policy clearly sets forth that the insured is purchasing a fixed level of UIM recovery that will be arrived at by combining payments made from all sources.

Id., ¶ 33. We allowed the parties in Sukala I to address the issue of policy ambiguity at oral argument. We concluded that Dowhower disposed of the Sukalas' constitutionality claims. We held that the policy was unambiguous. Accordingly, we affirmed the trial court's decision. The supreme court denied the Sukalas' petition for review on April 5, 2001.

¶ 4. While we were considering Sukala I, Badger Mutual Insurance Co. v. Schmitz was also being liti[474]*474gated. Badger Mut. Ins. Co. v. Schmitz, 2002 WI 98, 255 Wis. 2d 61, 647 N.W.2d 223. Schmitz raised the issue of whether a UIM reducing clause was unenforceable because it rendered UIM coverage ambiguous or illusory. The trial court held that the reducing clauses were unenforceable because the policy language did not clearly set forth the insurer's right to reduce liability. On appeal, we relied on our decision in Sukala I and held that the policy was enforceable because the reducing clause was unambiguous. Accordingly, we reversed the trial court's order.

¶ 5. The supreme court granted a petition for review in Schmitz on October 23, 2001. It reversed on July 10, 2002, concluding that a reviewing court must examine "an unambiguous reducing clause in the context of the entire policy to determine whether the coverage provided is understandable and clear. If the coverage provided is misleading and unclear, the policy is ambiguous, or worse, and the clause reducing UIM coverage is not enforceable." Schmitz, 255 Wis. 2d 61, ¶ 49. In reaching this conclusion, the supreme court addressed Sukala I, where we concluded:

[T]hat under Dowhower and the declared public policy of the legislature in Wis. Stat. § 632.32(5)(i), UIM reducing clauses complying with § 632.32(5) (i) cannot render UIM coverage "illusory." Once we have concluded that the UIM provisions of a policy are unambiguous, as we have here, then our inquiry is at an end.

Sukala I, 240 Wis. 2d 65, ¶ 20. The supreme court considered this reasoning ambiguous because

the Sukala court shifted terms, moving from the reducing clause to "the UIM provisions" of the policy, although the two could easily be read as one and the same. A policy in which all "the UIM provisions" are [475]*475unambiguous is different from a policy in which only the reducing clause is unambiguous. In any event, the concluding sentence implies that once the reducing clause is found to be unambiguous, the inquiry is at an end. That is incorrect because Dowhower contemplates consideration of the entire policy.

Schmitz, 255 Wis. 2d 61, ¶ 42 (citations omitted).

¶ 6. In this case, Sukala II, the trial court held a hearing concerning the developments in case law since it entered a judgment validating the reducing clauses in the Sukalas' policies. In its oral decision, the court compared the facts here to those in Mullen v. Coolong, 153 Wis. 2d 401, 406, 451 N.W.2d 412 (1990) (Mullen II) and reasoned that the inequity in Mullen II derived from contrary constructions of the same policy. It also recognized that the Sukalas had signed a release for Western National Mutual Insurance Company (Western) and a stipulated dismissal for Heritage. It noted that seven months passed between the time the supreme court denied review in Sukala I and granted review in Schmitz. Finally, the trial court reasoned that the supreme court would have explicitly overruled Sukala I if its result was incorrect. The court explained,

[I]t becomes very difficult for me to say that the judgment ought to be reopened and find some extraordinary circumstance, other than the fact that there's a new precedent in the Court of Appeals. And I think that for me to reopen simply on the ground that there's a new precedent... or new language interpreting the precedent is inappropriate.

The trial court concluded that no extraordinary circumstances justified relief and denied the Sukalas' Wis. Stat. § 806.07(l)(h) motion. The Sukalas appeal,

[476]*476STANDARD OF REVIEW

¶ 7. Whether to grant relief from a judgment under Wis. Stat. § 806.07(l)(h) lies within the discretion of the trial court. Mullen, 153 Wis. 2d at 406. We will reverse only if the trial court erroneously exercised its discretion. Id. "The term 'discretion' contemplates a process of reasoning which depends on facts that are in the record or reasonably derived by inference from the record and yields a conclusion based on logic and founded on proper legal standards." Id.

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Related

Sukala v. Heritage Mutual Insurance
2005 WI 83 (Wisconsin Supreme Court, 2005)
MORTERS v. Barr
691 N.W.2d 926 (Court of Appeals of Wisconsin, 2004)
Sukala v. Heritage Mutual Insurance
2004 WI App 128 (Court of Appeals of Wisconsin, 2004)

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Bluebook (online)
2004 WI App 128, 685 N.W.2d 809, 275 Wis. 2d 469, 2004 Wisc. App. LEXIS 506, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sukala-v-heritage-mutual-insurance-wisctapp-2004.