West Bend Mutual Ins. v. Stegner

2000 WI App 91, 610 N.W.2d 150, 234 Wis. 2d 364, 2000 Wisc. App. LEXIS 239
CourtCourt of Appeals of Wisconsin
DecidedMarch 16, 2000
DocketNo. 99-1859
StatusPublished

This text of 2000 WI App 91 (West Bend Mutual Ins. v. Stegner) 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
West Bend Mutual Ins. v. Stegner, 2000 WI App 91, 610 N.W.2d 150, 234 Wis. 2d 364, 2000 Wisc. App. LEXIS 239 (Wis. Ct. App. 2000).

Opinion

DEININGER, J.

¶1. West Bend Mutual Insurance Company appeals a judgment dismissing its subrogation claim against Progressive Casualty Company. West Bend's insured died as a result of an automobile accident involving Progressive's insured, and West Bend sued to recover a portion of the benefits it paid to its insured's estate. West Bend claims the trial court erred in dismissing its claim against Progressive because, under the Florida "personal injury protection" insurance policy that Progressive issued, Progressive must provide the amount of bodily injury liability coverage required by Wisconsin's financial responsibility law. We conclude, however, that because Wisconsin does not compel drivers to carry bodily injury liability coverage, and because the Progressive policy provided no bodily injury liability coverage to its insured, Progressive incurred no liability under its policy to West Bend. Accordingly, we affirm the judgment dismissing Progressive from this litigation.

[367]*367BACKGROUND

¶ 2. Mary Rasmussen died from injuries she sustained when her vehicle collided with one owned and operated by Stacy Stegner. Rasmussen's insurer, West Bend Mutual Insurance Company, paid benefits under its policy to Rasmussen's estate. West Bend then filed this action to recover its outlay from Stacy Stegner and her insurer, Progressive Casualty Company.1

¶ 3. Stegner was living in Florida at the time she purchased automobile insurance from Progressive. The policy complied with a Florida law requiring motor vehicle owners to purchase a "personal injury protection" plan, which covers the operator and occupants of the insured vehicle, as well as pedestrians, for bodily injuries sustained in an automobile accident.2 See Fla. Stat. Ann. § 627.736(1) (West 1996). The policy Stegner purchased from Progressive also included property damage liability coverage, as well as comprehensive and collision insurance, and it included provisions for third-party bodily injury liability coverage, which would have been in force if Stegner had paid premiums for that type of coverage. Florida law in effect at the time did not require motor vehicle owners to purchase liability coverage for bodily injuries sustained by occupants of other vehicles, and Stegner chose not to purchase third-party bodily injury liability coverage.

[368]*368¶ 4. Stegner's policy from Progressive, however, contains an "extraterritorial" clause, which potentially provides coverage for bodily injuries incurred by third parties, under certain circumstances, when an insured vehicle is involved in an accident outside of Florida. The provisions, captioned "Out-of-State Coverage," read as follows:

If an accident to which, this policy applies occurs in any state . . . other than the one in which a covered vehicle is principally garaged, and the state ... has:
1. a financial responsibility or similar law requiring limits of liability for bodily injury . .. higher than the Limits shown on the Declarations Page, this policy will provide the higher limit; or
2. a compulsory insurance or similar law requiring a non-resident to maintain insurance whenever the non-resident uses a vehicle in that state or province, this policy will provide:
a. the required minimum amounts and types of coverage; or
b. any higher limit you have elected, provided you have paid the premium for higher limits.

¶ 5. West Bend alleged in its complaint that, under this policy language and the applicable Wisconsin statutes, Progressive is liable to West Bend for at least $25,000 of the benefits it paid to Rasmussen's estate. Progressive denied all liability and moved the circuit court to enter a judgment declaring that Progressive's policy did not provide bodily injury liability coverage for the accident which resulted in Rasmussen's death. The court granted Progressive's motion [369]*369and dismissed Progressive from the lawsuit. West Bend appeals.

ANALYSIS

¶ 6. To resolve the present dispute between these insurers, we must interpret the extraterritorial clause in the Progressive policy, as well as the Wisconsin statutes implicated by the policy language. Both interpretations are questions of law which we decide de novo. See Ledman v. State Farm Mut. Auto. Ins. Co., 230 Wis. 2d 56, 61, 601 N.W.2d 312 (1999); State v. Setagord, 211 Wis. 2d 397, 405-06, 565 N.W.2d 506 (1997).

¶ 7. There is no dispute that had the fatal accident occurred in Florida, Progressive would have incurred no liability for Rasmussen's death under its policy with Stegner. The result for an accident occurring in Wisconsin is governed by the policy's extraterritorial clause, quoted above, which describes two circumstances under which Progressive may incur financial liability for bodily injuries sustained by a third party in a non-Florida accident involving the insured vehicle. The second circumstance does not apply because Wisconsin does not compel drivers, resident or non-resident, to maintain any kind or amount of automobile insurance. See Keane v. Auto-Owners Ins. Co., 159 Wis. 2d 539, 554, 464 N.W.2d 830 (1991) ("Wisconsin does not require drivers to carry automobile insurance. . . . Ours is not a compulsory insurance state."). Thus, West Bend cannot recover under the "compulsory insurance" provision of the policy's extraterritorial clause, and we do not understand West Bend to argue otherwise.

[370]*370¶ 8. Thus, if Progressive faces exposure for bodily injury liability resulting from the Stegner-Rasmussen collision, it must derive from the first circumstance described in the policy's extraterritorial clause. Under that provision, in order for West Bend to prevail, there must exist in Wisconsin "a financial responsibility or similar law requiring limits of liability for bodily injury . . . higher than the Limits shown on the Declarations Page" of the Progressive policy. Wisconsin's financial responsibility law is set forth in Wis. STAT. ch. 344 (1997-98),3 which provides for a minimum limit of "$25,000 because of bodily injury to or death of one person in any one accident...." WlS. STAT. §§ 344.15(1) and 344.33(2).4 West Bend argues that Progressive is liable under the "financial responsibility" provision of the policy because Wisconsin's financial responsibility law establishes a minimum amount of bodily injury liability coverage ($25,000) which exceeds the "zero" limit for this coverage in Stegner's policy. We disagree.

¶ 9. West Bend's argument assumes that the extraterritorial financial responsibility provision in the policy applies regardless of whether the policy-holder has elected to obtain bodily injury liability coverage under the policy. We agree with Progressive, however, that (1) its policy can reasonably be read as providing [371]

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Related

State v. Setagord
565 N.W.2d 506 (Wisconsin Supreme Court, 1997)
Keane v. Auto-Owners Insurance Co.
464 N.W.2d 830 (Wisconsin Supreme Court, 1991)
Ledman v. State Farm Mutual Automobile Ins.
601 N.W.2d 312 (Court of Appeals of Wisconsin, 1999)

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Bluebook (online)
2000 WI App 91, 610 N.W.2d 150, 234 Wis. 2d 364, 2000 Wisc. App. LEXIS 239, Counsel Stack Legal Research, https://law.counselstack.com/opinion/west-bend-mutual-ins-v-stegner-wisctapp-2000.