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Ruenger v. Soodsma3/31/2005
by or on behalf of persons or organizations who may be legally responsible" does not expressly require that the legal responsibility be for the bodily injury, as does the statute; and (3) the second declarations page provides for reduction "as a result of your receiving amounts from other sources ...," instead of limiting sources to the three mentioned in the statute.
We have specifically rejected the first argument in Van Erden, 271 Wis. 2d 163, and our reasoning in Remiszewski v. American Family Ins. Co., 2004 WI App 175, 276 Wis. 2d 167, 687 N.W.2d 809, resolves all three arguments against Ruenger. In Van Erden, we concluded that the phrase "or any similar law" following the words "workers' compensation or disability benefits law" in that reducing clause was not an impermissible broadening of the statute, but was simply a "catchall phrase for jurisdictions that may call their disability benefits law by another name." 271 Wis. 2d 163, -25. We also observed that the challenged phrase did not affect the insured, because the insured had received worker's compensation benefits, not disability benefits. Id., .
We reaffirmed this latter principle in Remiszewski, where the insured challenged the phrase " payment made or amount payable" in that reducing clause because the statute permitted a reduction only for " mounts paid." 276 Wis. 2d 167, , 15. The insurer had attempted to reduce the UIM limit based only on the amount actually paid and argued, citing Folkman, that "'inconsistencies in the context of the policy must be material to the issue in dispute and be of such a nature that a reasonable insured would find an alternative meaning.'" Id., (citing Folkman, 264 Wis. 2d 617, ). We agreed with the insurer:
Here, [the insured] is challenging American Family's right to reduce her payment by the amount already paid to her from [the tortfeasor's] policy. While the "amount payable" provision would arguably permit further reductions, it would not cause a reasonable insured to believe that reductions would not be made for actual payments made from other sources.... The fact that an insurance policy may include arguably ambiguous language upon which the insurer has not relied is of no consequence and will not defeat the right of an insurer to reduce its limits liability under a valid provision.
Id., (citing Van Erden, 271 Wis. 2d 163, ).
Ruenger argues that Van Erden and Remiszewski are not controlling because they are both inconsistent with Hanson v. Prudential Prop. & Cas. Ins. Co., 2002 WI App 275, 258 Wis. 2d 709, 653 N.W.2d 915. In Hanson, we first concluded that the reducing clause there did not comply with WIS. STAT.ยง 632.32(5)(i) because, in addition to providing that the UIM limit would be reduced by "any amounts paid by the person responsible for the accident," it provided for reduction "by an amount paid under any other source." Id., , 17. We then went on to decide that, even if the clause did conform to the statute, it was ambiguous in the context of the entire policy. Id., .
Ruenger asserts that Hanson supports her position that, if a reducing clause attempts to reduce a UIM limit by an impermissible source, the entire clause is unenforceable under any circumstances. We do not agree with Ruenger that we should follow Hanson rather than Van Erden and Remiszewski. First, Hanson did not directly address the issue whether the lack of conformity with the statute of one reducing clause provision that was not applied to the insured precluded the application to the insured of another provision in the clause that did comply with the statute. Instead, we went on to conclude that the reducing clause was ambiguous in the cont
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