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Ruenger v. Soodsma3/31/2005
er or driver of an 'underinsured motor vehicle'" if the damages "result from 'bodily injury' sustained by the 'insured' caused by an 'accident'" and if " he owner's or driver's liability for these damages ... result from the ownership, maintenance or use of the 'underinsured motor vehicle.'"
The occupancy exclusion on which Rural relies is contained in paragraph C(3)(a) of the endorsement: "This insurance does not apply to ... ' odily injury' sustained by ... ou while 'occupying' or when struck by any vehicle owned by you that is not a covered 'auto' for Underinsured Motorists Coverage under this Coverage Form."
We agree with Ruenger that the coverage section of the UIM endorsement, when read alone, provides coverage for her injuries because they were caused by an accident and she is legally entitled to recover compensatory damages for them from the driver of an underinsured motor vehicle whose liability results from the use of the underinsured motor vehicle. We also agree with Ruenger that the declarations do not unambiguously provide that there is UIM coverage for the named insured only if that insured is occupying the covered auto. Item Two of the declarations plainly tells the insured that UIM coverage applies only to an auto that is a covered auto. However, it is clear from the definition of "auto" that a skid loader is not an auto. Item Two does not plainly tell a named insured that he or she does not have UIM coverage if he or she is not occupying any auto when injured by an underinsured motorist. Thus, when Item Two is read in conjunction with the coverage section of the UIM endorsement, a reasonable named insured could understand that he or she would have UIM coverage for injuries caused by an underinsured motor vehicle while the named insured is operating his or her skid loader.
Tuning next to the introductory language in the UIM endorsement, we consider first Rural's argument that we construed this language in Crandall, 269 Wis. 2d 765, to require either that the accident involve a covered auto or that the insured be engaged in garage operations at the time of the accident. In Crandall, the issue was whether the UIM endorsement to a Garage Business Owner's policy provided coverage for injuries sustained by the named insured's daughter while a passenger in a car driven by her boyfriend. The parties agreed that the accident did not involve a covered auto and did not occur while anyone was engaged in garage operations, but the daughter argued that there was coverage because the garage operations were located in Wisconsin. Id., . We agreed with the insurer's argument that the introductory language of that UIM endorsement required that "the accident occur while the insured is in the course of garage operations." Id., . We reasoned that the policy was issued for the father's business, not for him as an individual, and was described in various places as a "business owner's policy" and "a garage policy." Id., . We concluded it would be "unexpected for this kind of policy to cover Crandall and his family under circumstances wholly unrelated to Crandall's business." Id., . At a later point in the opinion, we stated: "Here, there is no UIM coverage unless an accident involves a covered auto or the insured is engaged in garage operations at the time of the accident. Neither is the case here. There is no coverage so the UIM endorsement cannot apply." Id., .
Ruenger presents two primary reasons why Crandall does not compel the construction of the introductory language that Rural advocates. First, Ruenger contends that the introductory language does not attempt to define or limit the circumstances under which UIM coverage will apply, but simply states that the
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