Three underinsured motorist cases remanded to appeals court.

• Date: 24 September 2003
• Author: Ziemer, David

Byline: David Ziemer

The Wisconsin Supreme Court on Sept. 15 vacated three recently published decisions of the court of appeals, all concerning underinsured motorist (UIM) coverage: Gohde v. MSI Ins. Co., 2003 WI 69, 261 Wis.2d 710, 661 N.W.2d 470; Dowhower v. Marquez, 2003 WI App 23, 260 Wis.2d 192, 659 N.W.2d 57; and Van Erden v. Sobczak, 2003 WI App 57, 260 Wis.2d 881, 659 N.W.2d 896.

In each case, the court granted the petition for review, and summarily vacated for further consideration in light of the Supreme Court's decision in Folkman v. Quamme, 2003 WI 116 (opinion issued July 16, 2003).

Gohde

In Gohde, the court of appeals held that the reducing clause in a UIM policy was ambiguous, relying on the Wisconsin Supreme Court's decision in Badger Mut. Ins. Co. v. Schmitz, 2002 WI 98, 255 Wis.2d 61, 647 N.W.2d 223.

The court acknowledged that the policy "does not suffer from the same organizational complexity as the Schmitz policy." Gohde, 261 Wis.2d at 718. It also acknowledged that, unlike the policy in Schmitz, "the Gohdes' policy's index refers to UIM coverage and easily directs the insured to its terms." Id. at 720.

Nevertheless, the court held the policy ambiguous, quoting language in Schmitz that a reducing clause's effects must be "crystal clear in the context of the whole policy." Id. at 714. Because neither the declarations page nor the index contained the reducing clause, the court held the policy not "crystal clear."

Dowhower

In Dowhower, the court also held a reducing clause in a UIM policy to be ambiguous, also invoking the Supreme Court's "crystal clear" requirement from Schmitz. Dowhower, 260 Wis.2d at 199.

Unlike the policy in Gohde, which the court found easily directs the insured to the relevant terms, here, the court not only found the policy to not be "crystal clear," but found that the policy does not readily direct the insured to the reducing clause. On the contrary, the index did not even reference UIM coverage. Id., 260 Wis.2d at 206.

Van Erden

In contrast, in the Van Erden decision, the court held that a reducing clause and the UIM coverage was unambiguous, and upheld a trial court's grant of summary judgment in favor of the insurer.

There, the court acknowledged the "crystal clear" language from the decision in Schmitz, but did not discuss Schmitz at length, basing its decision primarily on the fact that the policy language was identical to the policy language approved by the Wisconsin Supreme Court in Taylor v. Greatway...