Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Shugarts v. Mohr

Court of Appeals of Wisconsin, District III

March 14, 2017

Robert H. Shugarts, II and Judith Lynn Shugarts, Plaintiffs-Appellants,
v.
Dennis M. Mohr, Progressive Casualty Insurance Company/Artisan, Truckers Casualty Company and Wisconsin Municipal Mutual Insurance Company, Defendants, Allstate Property and Casualty Insurance Company, Defendant-Respondent.

         APPEAL from a judgment of the circuit court for Eau Claire County Cir. Ct. No. 2013CV377: MICHAEL A. SCHUMACHER, Judge. Affirmed.

          Before Stark, P. J., Hruz and Seidl, JJ.

          STARK, P.J.

         ¶1 Robert H. Shugarts, II, was injured in an automobile accident. More than four years after the accident and over one year after commencing a lawsuit against the other driver and that driver's insurer, Shugarts wrote to his underinsured motorist (UIM) carrier, Allstate Property and Casualty Insurance Company, notifying it of an underinsured motorist claim arising from the accident. The circuit court ultimately granted Allstate summary judgment, concluding as a matter of law that Shugarts failed to provide Allstate with timely notice of his UIM claim, and that Shugarts had not rebutted the presumption that Allstate was prejudiced by the untimely notice. We agree with the circuit court's conclusions. We therefore affirm the judgment dismissing Shugarts' UIM claim against Allstate.

         BACKGROUND

         ¶2 Shugarts was employed as a deputy sheriff in Eau Claire County. On October 11, 2010, Shugarts was injured when his squad car was struck by a vehicle driven by Dennis Mohr. At the time of the accident, Mohr's vehicle was insured by Progressive Casualty Insurance Company. Shugarts' county-owned squad car was insured under a policy issued by Wisconsin Municipal Mutual Insurance Company (WMMIC), which included UIM coverage. Shugarts and his wife, Judith Shugarts, had a personal automobile insurance policy through Allstate, which also included UIM coverage.[1]

         ¶3 In November 2011, Shugarts retained an attorney and sent a notice of retainer to Progressive. Progressive denied coverage in January 2012, asserting its policy excluded coverage for Shugarts' claim because Mohr intentionally struck Shugarts' vehicle. In April 2013, through new counsel, Shugarts wrote to Progressive and offered to settle the case for $600, 000. In response, Progressive continued to assert that its policy excluded coverage for Shugarts' claim.

         ¶4 As a result, Shugarts commenced the instant lawsuit against Mohr and Progressive in June 2013. Although Progressive continued to deny coverage, in August 2013, it offered Shugarts $10, 000 to settle the case. At that point, Progressive also provided a Declarations Page indicating Mohr's policy had a bodily injury liability limit of $50, 000 per person.

         ¶5 In July 2014, Shugarts filed a second amended summons and third amended complaint, naming WMMIC as a defendant. Shugarts alleged WMMIC was "liable for ... underinsured motorist coverage arising out of the operation of Shugarts' squad car. WMMIC moved to dismiss, and later moved for summary judgment, arguing Shugarts was not an insured under its policy for purposes of UIM coverage.

         ¶6 Progressive subsequently changed its coverage position. On October 13, 2014, it offered to settle Shugarts' claim for its full bodily injury liability limit of $50, 000. Approximately two weeks later, on October 28, 2014, Shugarts' attorney's firm sent a notice of retainer to Allstate, advising it Shugarts had retained counsel to represent him "with regard to injuries he sustained in an automobile accident which occurred on October 11, 2010." During the ensuing months, staff from Shugarts' attorney's firm continued to correspond with Allstate regarding Shugarts' UIM claim. On February 9, 2015, counsel sent Allstate a notice, pursuant to Vogt v. Schroeder, 129 Wis.2d 3, 383 N.W.2d 876');">383 N.W.2d 876 (1986), that Progressive had offered to settle Shugarts' claim for its $50, 000 bodily injury liability limit.

         ¶7 In March 2015, Shugarts filed a third amended summons and fourth amended complaint, naming Allstate as a defendant and asserting it was required to provide him with UIM coverage. Allstate answered the complaint in April 2015, asserting as an affirmative defense that "[t]here is no coverage available to the plaintiffs under the Allstate policy given the failure of the plaintiffs to provide timely notice of their intention to make a claim as a result of the subject accident as required under the Allstate policy." Allstate subsequently moved for summary judgment on the same ground.

         ¶8 The circuit court granted Allstate's motion, concluding, as a matter of law, that Shugarts "failed to provide timely notice to Allstate of the accident ... whether the notice requirement comes under the liability section of the policy, the UIM section of the policy or the statutory provisions." The court further concluded the case law cited by Shugarts "did not declare that providing notice of an accident in an underinsured motorist claim is not necessary ...." The court acknowledged Shugarts may have failed to notify Allstate sooner because he believed there was "no need to resort to this policy." However, the court stated any failure to provide notice for that reason was "not reasonable." Finally, the court concluded Shugarts had failed to rebut the presumption that Allstate was prejudiced by the untimely notice. Shugarts now appeals.[2]

         STANDARDS OF REVIEW

         ¶9 We independently review a grant of summary judgment, using the same methodology as the circuit court. Hardy v. Hoefferle, 2007 WI.App. 264, ¶6, 306 Wis.2d 513, 743 N.W.2d 843. Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. WIS. STAT. § 802.08(2) (2009-10).[3]

         ¶10 Our goal in interpreting an insurance policy is to give effect to the parties' intent. American Family Mut. Ins. Co. v. American Girl, Inc., 2004 WI 2, ¶23, 268 Wis.2d 16, 673 N.W.2d 65. We construe a policy as it would be understood by a reasonable person in the position of the insured. Id. Unambiguous policy language is enforced as written. Marnholtz v. Church Mut. Ins. Co., 2012 WI.App. 53, ¶10, 341 Wis.2d 478, 815 N.W.2d 708. However, we construe ambiguous policy language against the insurer and in favor of coverage. Id. Policy language is ambiguous if it is reasonably susceptible to more than one interpretation. Id.

         ¶11 Here, the circuit court determined Allstate was entitled to summary judgment because: (1) Shugarts did not provide timely notice of his UIM claim; and (2) Shugarts failed to rebut the presumption that Allstate was prejudiced by the lack of timely notice. Whether an insured provided timely notice to its insurer is typically a question of fact, but it may be decided as a matter of law under circumstances where "no judge or jury could reasonably find that notice was timely, or conversely, untimely." Neffv. Pierzina, 2001 WI 95, ¶40, 245 Wis.2d 285, 629 N.W.2d 177; see also RTE Corp. v. Maryland Cas. Co., 74 Wis.2d 614, 629, 247 N.W.2d 171 (1976). Similarly, whether an insurer was prejudiced by untimely notice generally presents a factual question, but it may be resolved as a matter of law where the facts are not in dispute. Neff, 245 Wis.2d 285, ¶¶47-48.

         DISCUSSION

         ¶12 In support of its position that Shugarts failed to provide timely notice of his UIM claim, Allstate first cites a notice provision that appears in "Part I" ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.