Gohde v. MSI Insurance Co.3/4/2003
. This appeal comes to us on remand from our supreme court. Bobbie and Rick Gohde appealed a summary judgment granted in favor of MSI Insurance Company after the circuit court determined the reducing clause in the Gohdes' underinsured motorist (UIM) policy, issued by MSI, was unambiguous. We summarily affirmed, Gohde v. MSI Ins. Co., No. 01-2121, unpublished slip op. (WI App March 26, 2002). The supreme court summarily reversed and ordered the parties to rebrief in light of its decision in Badger Mut. Ins. Co. v. Schmitz, 2002 WI 98, 255 Wis. 2d 61, 647 N.W.2d 223.
. On remand, the Gohdes argue the reducing clause in their UIM coverage is ambiguous under Schmitz's standards and therefore is unenforceable. We agree and reverse the circuit court's judgment.
BACKGROUND
. In November 1996, the Gohdes were injured in an automobile accident in Chetek when Jamie Lemke lost control of her vehicle and struck the Gohdes' automobile. Several passengers in Lemke's vehicle were also injured. The Gohdes sued Lemke, and the parties agreed Lemke was 100% causally negligent. Lemke's two State Farm liability policies had limits of $50,000 per person and $100,000 per accident. State Farm paid these limits in varying amounts to the injured parties; Bobbie received $100,000 and Rick, $35,000. Bobbie's stipulated damages, however, were $200,000 and Rick's were $135,000.
. The Gohdes sought to recover the difference between their recovery from Lemke and their actual damages under their MSI issued UIM policy. The UIM policy provides $100,000 per person and $300,000 per accident limits. Prior to summary judgment, MSI paid Rick $65,000 and claimed it owed no more to Rick and nothing to Bobbie because of a reducing clause in the UIM policy. The parties filed cross-motions for summary judgment. The Gohdes maintained the reducing clause was ambiguous and unenforceable and, therefore, MSI should pay Bobbie $100,000 and Rick an additional $35,000. MSI argued the reducing clause was unambiguous and claimed it paid all it was obligated to under the policy.
. The trial court agreed with MSI and the Gohdes appealed. We summarily affirmed, based on our decision in Sukala v. Heritage Mut. Ins. Co., 2000 WI App 266, 240 Wis. 2d 65, 622 N.W.2d 457. In Sukala, we held a reducing clause that complied with Wis. Stat. § 632.32(5)(i) was valid, enforceable and could not be deemed illusory. See id. at -19. We affirmed because the MSI reducing clause complied with this statute. Gohde, No. 01-2121, unpublished slip op. at 2.
. After our summary affirmance, the supreme court decided Schmitz. There, the court determined it was not enough for a reducing clause to comply with Wis. Stat. § 632.32(5)(i), but rather the clause's effects must be "crystal clear in the context of the whole policy." Schmitz, 2002 WI 98 at -49. Subsequently, the supreme court granted the Gohdes' petition for review and summarily reversed and remanded for further consideration in light of Schmitz.
DISCUSSION
. We review a trial court's grant of summary judgment de novo, using the same methodology as the trial court. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816 (1987). A party is entitled to summary judgment if there are no disputed issues of fact and that party is entitled to judgment as a matter of law. Wis. Stat. § 802.08(2). The construction or interpretation of an insurance policy is a question of law we review de novo. Hull v. State Farm Mut. Auto. Ins. Co., 222 Wis. 2d 627, 636, 586 N.W.2d 863 (1998). If the language in a policy is unambiguous, we must not rewrite it by construction. Smith v. Atlantic Mut. Ins. Co., 155 Wis. 2d 808, 811, 456 N.W
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