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Ruenger v. Soodsma3/31/2005
e $250,000 (the $500,000 limit reduced by the tortfeasor's payment), but Rural would owe Ruenger no more than $200,000 because it had already paid her $50,000.
At the hearing in the circuit court, Rural's counsel referred briefly to the argument in its reply brief on the "other coverage" clause; in response, Ruenger's counsel pointed to Rural's statements in its first brief that were inconsistent with its later position. This point was not discussed further and the court ultimately did not have to address it because of its ruling that there was no UIM coverage under the business policy.
On appeal, Rural asks that, if we decide there is UIM coverage under the business policy and the reducing clause is valid, we remand to the circuit court for a determination of Rural's "potential monetary liability." Ruenger objects to a remand. She contends that Rural waived its argument on the "other coverage" clause by not making it sooner in the circuit court.
We do not agree with Ruenger that Rural has waived the right to raise this issue on appeal. Rural did raise it in the circuit court--in its reply brief. The circuit court did not decide it because that was unnecessary given the ruling the court did make. In any event, we have the authority to decide questions of law even if they were not raised or not decided in the circuit court. Wirth v. Ehly, 73 Wis. 2d 433, 443-44, 287 N.W.2d 140 (1979). We recognize, however, that Ruenger has not yet briefed the issue of the "other coverage" clause, either in the circuit court or before this court. We conclude that, rather than deciding the issue on appeal without benefit of briefing by Ruenger, we should remand to the circuit court for a resolution of this issue.
On remand the court shall provide Ruenger the opportunity to respond to Rural's circuit court reply brief and shall allow such other briefing and argument as the court considers appropriate. The court shall determine, first, whether the "other coverage" clause applies. If the court determines that it does apply, then the only applicable limit of Rural's UIM liability to Ruenger for this accident is the $500,000 limit of the UIM coverage under the business policy. Consistent with our decision that the UIM reducing clause in that policy is valid, that $500,000 limit of liability is reduced by the tortfeasor's payment of $250,000. The court will then need to decide whether the reduced limit of $250,000 shall be further reduced by the $50,000 Rural has already paid Ruenger.
If the circuit court decides that the "other coverage" clause does not apply, then there are two applicable limits of UIM liability: the $300,000 in the personal policy and the $500,000 in the business policy. The court will then need to decide the issues raised by Ruenger in her responsive brief in the circuit court: whether Rural may apply the UIM reducing clause in the business policy to reduce that $500,000 limit by either: (1) the $250,000 the tortfeasor has paid Ruenger, which has already reduced the UIM limits of the personal policy, or (2) the $50,000 that Rural has already paid Ruenger under the UIM coverage of the personal policy.
By the Court.--Order affirmed in part; reversed in part and cause remanded with directions.
Recommended for publication in the official reports.
Ordered published (04-29-2005).
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