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Court of Appeals Digest

By Prof. Daniel D. Blinka & Prof. Thomas J. Hammer

| Administrative Law | Civil Procedure | Commercial Law |
| Contracts | Criminal Law | Criminal Procedure | Employee Benefits |
| Insurance | Municipal Law | Torts |

UIM Coverage - Stacking - Business Policies

Reed v. General Casualty Co., No. 96-2371 (filed 23 Dec. 1998) (ordered published 25 Feb. 1998)

Douglas Reed was killed by a negligent driver who carried only $25,000 in liability coverage. Reed's car carried $500,000 in UIM coverage under a business auto policy issued to Software Resources, a company for which he worked and in which he held 10 percent of the stock. The coverage also extended to four other vehicles. The plaintiffs (Mrs. Reed and her two young children) sought to "stack" the UIM coverage on the other vehicles. The trial judge ruled that Reed was not a named insured but rather an "occupancy" insured and refused to permit stacking.

The court of appeals, in an opinion written by Judge Wedemeyer, affirmed. The court framed the issue as follows: "whether a corporate officer/director/shareholder in a small corporation should be included under the definition of 'you' or 'family member' as those terms are used in a business auto insurance policy that identifies only the corporation as the 'named insured' so that the officer/director/ shareholder would qualify as a 'named insured' rather than an 'occupancy insured.'" The court distinguished Carrington v. St. Paul Fire & Marine Ins. Co., 169 Wis. 2d 211 (1992), based on its unique facts (a corporation acting in loco parentis to children in its care) and differences in policy language, which clarified that "coverage will extend to a family member only if you [that is, the insured] are an individual."

Named Insureds - Coverage - Business Auto and Umbrella Coverage

Greene v. General Casualty Co., No. 96-2578 (filed 19 Nov. 1997) (ordered published 25 Feb. 1998)

Michael Riekkoff seriously injured three girls when his Ford Bronco jumped a curb. Michael was working for a family business, Riekkoff Installation Services Inc., at the time of the accident. Riekkoff Installation carried a business auto policy and a comprehensive liability policy (umbrella) with General Casualty under which it was the sole named insured. The circuit court ruled that coverage existed for Michael under both policies.

The court of appeals, in a decision authored by Judge Anderson, affirmed. First, the court concluded "that the business auto policy has been modified to provide insurance to two named additional interests for any auto that they may drive. The additional interest endorsement amends the policy to include Michael within the class of insured persons. Michael was added to the 'Who Is an Insured' provision which is another class of insured persons in addition to the 'you' class, which is the named insured, Riekkoff Installation." Moreover, "[w]hen the named insured is a corporation, but the insurer knows that the covered vehicles are owned by individuals and used by family members, section 632.32 [the omnibus statute] does not distinguish between the owner of the vehicle and the named insured for purposes of determining coverage." The coverage also extended to "any" vehicle driven by Michael. This construction furthered the state's public policy that protects injured third parties, especially where General Casualty accepted premiums knowing that the policy covered "vehicles owned by the corporation's employees which were also used for non-business purposes." Finally, since Michael qualified as an insured under the business auto policy, he also was covered under the umbrella policy.

Municipal Board of Review - Receipt of Advice from Municipal Attorney - Due Process

Rite-Hite Corporation v. Brown Deer Board of Review, No. 96-3178 (filed 9 Dec. 1997) (ordered published 25 Feb. 1998)

Rite-Hite Corporation appealed a judgment entered by the trial court upholding, on certiorari review, a determination by the Village of Brown Deer Board of Review sustaining a $4.1 million assessment of property owned by plaintiff White and leased to Rite-Hite Corp. Among the issues on appeal was whether Rite-Hite was denied due process because Brown Deer's village attorney represented both the village and its Board of Review at the board hearing.

In support of its position, Rite-Hite cited authorities for the proposition that it is a violation of due process for a "decisionmaker" to have "previously acted as counsel to any party in the same action or proceeding." But these authorities, said Judge Fine for the court of appeals, were not applicable in this case. First, the village attorney was not a "decisionmaker" - the Board of Review was, and the village attorney was not a member of the board. Second, the plaintiffs pointed to no instance in the transcript where the village attorney's advice to the board was anything other than impartial.

Members of Boards of Review generally are lay persons, without legal or technical backgrounds. Giving the board access to legal advice on technical and procedural matters advances rather than retards the goal of setting a fair tax assessment. Thus, the Manual for Boards of Review published by the Department of Revenue recognizes that the municipal attorney "should act as counsel for the Board of Review," by, among other things, "advising the board on legal matters." Accordingly, the plaintiffs were not denied any statutory or due process rights by the village attorney acting as a legal advisor to the board.

Recreational Immunity - Ice Fishing - "Property" - "Occupier"

Doane v. Helenville Mutual Ins. Co., No. 97-1420 (filed 29 Jan. 1998) (ordered published 25 Feb. 1998)

Ehle invited Doane to go ice fishing in his portable shanty. Ehle's propane heater (lantern?) exploded and injured Doane. Doane sued Ehle and his insurer, who claimed immunity under section 895.52 of the Wisconsin Statutes, the recreational immunity statute. The circuit court granted summary judgment to the defendants.

The court of appeals, in an opinion written by Judge Roggensack, reversed. No one disputed that Doane was engaged in recreational activity at the time of the injury. Rather, the dispute centered on whether the portable shanty on the frozen lake qualified as recreational property or Ehle was an "occupant" of the lake. Although the shanty was a "structure," the court concluded "that structures located completely on water and which are not affixed to the lake bed or to the shore, are not located on real property, and are therefore not themselves 'property' within the meaning of the recreational immunity statute." Nor was Ehle an "occupier" because "the shanty could be more fully analogized to a fishing boat which is anchored for a time on a lake." One does not "occupy" a lake by dropping anchor; rather, Ehle was a "user of the lake."

This column summarizes all decisions of the Wisconsin Court of Appeals. Prof. Daniel D. Blinka and Prof. Thomas J. Hammer invite comments and questions about the digests. They can be reached at the Marquette University Law School, 1103 W. Wisconsin Ave., Milwaukee, WI 53233, (414) 288-7090.