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Ruenger v. Soodsma3/31/2005
points of ambiguity, but we have resolved them against her in the context of the personal policy. Specifically, the reducing clause is not inconsistent with the first subsection of the "Limit of Insurance," which provides (in summary) that the limit in the declarations for UIM is the maximum the insurer will pay for any one accident: a reasonable insured would understand that the reducing clause qualifies the first subsection. See paragraph 23. Similarly, the duplicate payment provision would not mislead a reasonable insured as to the meaning of the reducing clause. See paragraph 24.
Because we conclude the reducing clause in the UIM endorsement of the business policy is not ambiguous when read in the context of the entire policy, and because it also complies with WIS. STAT.§ 632.32(5)(i), it is valid.
III. Applicable Limits of Rural's UIM Liability
The parties dispute the limits of Rural's UIM liability under the business policy if we conclude that there is coverage and the reducing clause is valid. This dispute also implicates the personal policy.
In the circuit court, Rural argued in its initial brief in support of its motion for a declaratory judgment that, if there were UIM coverage and the reducing clause were valid, the limit of its liability would be $200,000. Rural arrived at this figure by subtracting from $500,000 the tortfeasor's payment of $250,000 and its own UIM payment of $50,000 to Ruenger under her personal policy. In that brief Rural acknowledged that " f the reducing clause were not given effect, the full $500,000 would be available." Ruenger responded in her brief that, according to Janssen v. State Farm Mut. Auto. Ins. Co., 2002 WI App 72, 251 Wis. 2d 660, 643 N.W.2d 857, WIS. STAT.§ 632.32(5)(i) does not permit an insurer to reduce the limit of its UIM liability by the amount the insured receives from her own UM or UIM insurer. In Janssen, Ruenger pointed out, we held that the statutory language "any person or organization that may be legally responsible for the bodily injury or death for which the payment is made" refers to payments made by or on behalf of tortfeasors and not to payments made pursuant to the insured's own uninsured motorist coverage. Id. at . Ruenger also argued that Rural could not reduce its UIM limit of $500,000 under the business policy by the $250,000 Ruenger had received from the tortfeasor because that had already reduced Rural's limit of UIM liability under her personal policy.
In Rural's reply brief in the circuit court it made a new argument, which relied on the "Two or More Coverage Forms or Policies Issued by Us" contained in the Business Auto Coverage Form:
If this Coverage Form and any other Coverage Form or policy issued to you by us or any company affiliated with us apply to the same "accident" the aggregate maximum Limit of Insurance under all the Coverage Forms or policies shall not exceed the highest applicable Limit of Insurance under any one Coverage Form or policy. This condition does not apply to any Coverage Form or policy issued by us or any affiliated company specifically to apply as excess insurance over this Coverage Form.
Rural argued that it had not known of the business policy when it paid Ruenger the $50,000 under the personal policy; had it known, it would have invoked this "other coverage" clause and would not have paid Ruenger anything under the personal policy. Under this clause, Rural asserted, only the higher UIM coverage in the business policy is available to Ruenger for this accident. According to Rural, if there were UIM coverage under the business policy and the reducing clause were valid, then the reduced limit of its liability would b
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