Jessica Pierce, Brenden Pepper, a minor by his Guardian ad Litem, James P. Scoptur and Zachary Pierce, a minor by his Guardian ad Litem, James P. Scoptur, Plaintiffs-Appellants,
Mid-Century Insurance Company, Defendant-Respondent, Amanda Swedlund, Defendant, Mid-Century Insurance Company, Third-Party Plaintiff,
Briliey Swedlund, Mason Swedlund, Christopher Swedlund, Wendy Burris, George Burris, Wilson Mutual Insurance Company and Sylvia Mathews Burwell, Third-Party Defendants. JOANN K. KOHN, INDIVIDUALLY, AND AS THE EXECUTOR OF THE ESTATE OF JOHN G. KOHN, DECEASED, PLAINTIFF,
FARMERS UNION MUTUAL INSURANCE COMPANY, MID-CENTURY INSURANCE COMPANY AND AMANDA SWEDLUND, DEFENDANTS.
from an order of the circuit court for Green County: Nos.
2014CV68, 2014CV71, THOMAS J. VALE, Judge.
Lundsten, Sherman and Blanchard, JJ.
This appeal relates to the enforceability of an automobile
insurance policy provision that is part of the policy's
definition of an underinsured motor vehicle. As pertinent
here, this provision has the effect of excluding passengers
of an insured's vehicle from the policy's
underinsured motorist (UIM) coverage when the insured driver
was at fault and was operating a vehicle insured by the
policy's liability coverage. The main purpose of this
exclusion, as explained below, is to prevent a policy's
UIM coverage from acting as supplementary liability coverage
under the same policy.
The appellants here were injured while passengers in a
vehicle insured by a policy containing this exclusion. The
insurer, Mid-Century Insurance Company, denied UIM coverage
based on the exclusion. The issue here is whether provisions
in Wisconsin's omnibus automobile insurance statute, WIS.
STAT. § 632.32(5)(e) and (6)(b)2.a., prohibit or allow
the exclusion. Like the circuit court, we resolve this
issue against the appellant passengers. Accordingly, we
affirm the court's order dismissing the passengers'
claims for UIM coverage.
The pertinent facts are not in dispute. Appellants Jessica
Pierce, Zachary Pierce, and Brenden Pepper (collectively
"the passengers") were passengers in a vehicle
driven by Amanda Swedlund. The vehicle was involved in a
multi-vehicle accident resulting in a fatality and serious
injuries to numerous individuals, including the passengers.
Swedlund was insured under an automobile policy underwritten
by Mid-Century Insurance Company. The policy included
liability coverage and UIM coverage, with limits of $500, 000
The passengers filed a lawsuit against Swedlund and
Mid-Century, alleging that Swedlund's negligence played a
role in the accident and seeking coverage under her policy.
Others involved in the accident also made claims against
Swedlund and Mid-Century.
Mid-Century paid out the $500, 000 liability limit, which was
apportioned among the passengers and others. The
passengers' share of the $500, 000 liability payment was
insufficient to compensate them for all of their alleged
injuries, however, so they made additional claims for UIM
coverage under Swedlund's policy. Looking solely to the
policy's grant of UIM coverage, the passengers appeared
to be eligible for UIM coverage:
We will pay all sums which an insured person is legally
entitled to recover as damages from the owner or operator of
an underinsured motor vehicle because of bodily injury
sustained by the insured person.
(Bold type in policy.)
Mid-Century, however, contended that the exclusion at issue
here barred the passengers' UIM coverage claims. The
exclusion is part of the policy definition of an underinsured
motor vehicle. The definition provides, as most pertinent
An underinsured motor vehicle does not include a land motor