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Ruenger v. Soodsma3/31/2005
cate payment' would be one where both a tortfeasor and an insurer compensate the insured for the same element of loss. Subsection D guards against profiting beyond the damages actually incurred." Fischer v. Midwest Sec. Ins. Co., 2003 WI App 246, , 268 Wis. 2d 519, 532, 673 N.W.2d 297. Thus, subsection D plainly serves a purpose distinct from that of the reducing clause: it prevents a double recovery by the insured for the same loss in cases when the UIM insurer has not yet paid the limit of its UIM liability as reduced by the reducing clause. The two provisions are not inconsistent. We are satisfied that a reasonable insured would not be misled by subsection D to believe that if there is no duplication under that subsection, there is no reduction under the reducing clause.
We conclude the circuit court correctly decided that the reducing clause is not ambiguous when read in the context of the entire policy. Because the clause also complies with WIS. STAT.§ 632.32(5)(i), it is a valid reducing clause.
II. Business Policy
A. UIM Coverage
The parties dispute whether there is UIM coverage for Ruenger under the business policy. Rural contends that, although Ruenger is the named insured, there is no UIM coverage because she was in a vehicle she owned that was not a covered auto when she was injured by an underinsured motor vehicle. Rural relies on: (1) the references to "covered auto" in the declarations; (2) the introductory language in the UIM endorsement and this court's construction of that language in Crandall v. Society Ins., 2004 WI App 34, 269 Wis. 2d 765, 676 N.W.2d 174; and (3) the occupancy exclusion. Ruenger responds that the references in the declarations to "covered auto" are ambiguous, as is the introductory language in the UIM form, when read with the general section on coverage in the UIM endorsement. According to Ruenger, Crandall is not controlling and the construction of the introductory language that Rural proposes, as well as the occupancy exclusion, violates WIS. STAT.§ 632.32(6)(b)2.a. and (5)(j).
The portion of the declarations on which Rural relies states:
Item Two - Schedule Of Coverages And Covered Autos: This policy provides only those coverages where a charge is shown in the premium column below. Each of these coverages will apply only to those "autos" shown as covered "autos."
There follows a column entitled "Coverages," under which "Underinsured Motorists" appears, and a column entitled "Covered Autos (Entry of one or more of the symbols from the Covered Autos Section of the Business Auto Coverage Form shows which autos are covered autos)"; in this latter column there is a "2" next to "Underinsured Motorists." Numeral "2" is described as "Owned 'Autos' Only" in the Business Auto Coverage Form. A "Schedule Of Covered Autos You Own," also part of the declarations, lists a Chevrolet pickup.
The introductory language in the UIM endorsement on which Rural relies provides:
For a covered "auto" licensed or principally garaged, or "garage operations" conducted in, Wisconsin, this endorsement modifies insurance provided under the following:
Business Auto Coverage Form
Garage Coverage Form
Motor Carrier Coverage Form
Truckers Coverage Form
There follows this sentence: "With respect to coverage provided by this endorsement, the provisions of the Coverage Form apply unless they are modified by this endorsement."
Section A of the UIM endorsement, entitled "Coverage," provides that Rural "will pay all sums the 'insured' is legally entitled to recover as compensatory damages from the own
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