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Ruenger v. Soodsma3/31/2005
endorsement modifies insurance provided under the four specified coverages for a covered auto licensed or principally garaged in Wisconsin and for garage operations conducted in Wisconsin. A reasonable insured, according to Ruenger, would look to the coverage section of the endorsement, not that introductory language, for an understanding of the scope of UIM coverage, and the coverage section does not mention a covered auto. Moreover, Ruenger points out, if the introductory language required occupancy of a covered auto for all UIM coverage, there would be no need for the occupancy exclusion. Thus, at best, Ruenger concludes, the introductory language creates an ambiguity when read in conjunction with the coverage section of the endorsement.
We acknowledge that Ruenger's proposed construction of the introductory language has merit. However, it is flatly inconsistent with our construction of that same language in Crandall, and we may not modify, overrule, or withdraw language from our prior decision. Cook v. Cook, 208 Wis. 2d 166, 189, 560 N.W.2d 246 (1997). Thus we conclude, based on Crandall, that the introductory language limits UIM coverage to one of two situations: "an accident involves a covered auto or the insured is engaged in garage operations at the time of the accident." 269 Wis. 2d 765, . Ruenger's argument that this is not a reasonable construction of the introductory language or that the language is ambiguous must be directed to the supreme court.
However, we do agree with Ruenger's second reason why Crandall is not dispositive: Crandall did not address the issue whether the introductory language is valid if construed to preclude coverage for a named insured unless the named insured is occupying a covered auto. There was no reason to address this issue in Crandall because the injured party seeking UIM coverage was not the named insured. We therefore turn to the question whether WIS. STAT.§ 632.32(6)(b)2. prohibits requiring that a named insured be occupying a covered auto in order to have UIM coverage.
WISCONSIN STAT.§ 632.32(6)(b)2. provides that "no policy may exclude from the coverage afforded or benefits provided: ... any person who is a named insured or passenger in or on the insured vehicle, with respect to bodily injury, sickness or disease, including death resulting therefrom to that person." Relying on Mau, 248 Wis. 2d 1031, Ruenger argues that the introductory language as we construed it in Crandall violates this prohibition.
In Mau, the court addressed an issue certified by the supreme court of North Dakota: "whether ... an underinsured motorist's policy can define a named insured by requiring occupancy of a specific vehicle." Id., . There the driver of a rented vehicle, which had gone off the road, was injured while sitting in a police squad car that was struck by an underinsured motor vehicle. Id., -5. The injured person had purchased an option from the rental agency that made UIM coverage available to him. Id., . The policy defined an insured to require occupancy of the rented vehicle. Id., . After deciding that the injured person was a named insured under the relevant policy, the court next considered whether it was permissible under WIS. STAT.§ 632.32(6)(b)2.a. for the policy to define a named insured by requiring occupancy of a particular vehicle. At the outset, the court recognized that the occupancy requirement was not "couched as an exclusion," but the court decided to treat it as an exclusion because it had the same result as an exclusion: "exclude coverage for persons not occupying the ... rental car." Id., . The court then concluded that, if the occupancy requirement were applied to the named insured, it would exclude co
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