Wisconsin Court Sides with Insurer on Underinsured Motorist Coverage

The Wisconsin Supreme Court has ruled in favor of the insurance company in a closely-watched case involving a farmer’s business auto policy and whether its underinsured motorists endorsement applies to a family member hurt while driving in a different vehicle.

Jonathan Lisowski was injured in 2004 when an underinsured driver hit his family’s Dodge Avenger. He claimed he should be covered under the underinsured motorists clause of a Hastings Mutual Insurance Co. insurance policy on his father’s Mack semi-tractor.

Hastings Mutual disagreed and dismissed the claim. Now five justices have endorsed the insurer’s view and upheld a lower court ruling that the Dodge was not covered under the tractor policy. The opinion was written by Justice N. Patrick Crooks.

Justice Ann Walsh Bradley dissented, maintaining that underinsured motorist coverage has always applied to family members regardless of which vehicle they were in during an accident.

This case involves a family with multiple personal and business vehicles insured under policies purchased from three companies. Dennis Lisowski, a farmer, owned a Chevy Lumina, a Chevy pickup, a Dodge Avenger, and a Mack semi tractor. He bought insurance policies for the Lumina and the pickup from First Community Insurance Company but allowed the policies to lapse. He had purchased the Avenger for his son, Jonathan Lisowski, who bought insurance for the car from Northern Progressive Insurance Co. but bought no UIM coverage with that policy. The Mack semi tractor, which Dennis Lisowski used exclusively for farming, was covered by a business auto policy issued by Hastings Mutual Insurance Co., which included a UIM endorsement.

The claim as made against that Hastings Mutual business auto policy. Jonathan Lisowski was a passenger in the car accident involving the Avenger, and a friend of his was driving at the time of the accident.

Jonathan Lisowski sued Hastings Mutual, claiming coverage under the UIM endorsement to the business auto policy on his father’s semi tractor. He claimed coverage on the grounds that, as a family member of the named insured, he was entitled to coverage for any injury caused by an underinsured motorist.

Hastings Mutual denied coverage on the grounds that the UIM policy applied to covered autos only.

The Buffalo County Circuit Court dismissed the complaint. The circuit court found that the Avenger was not a covered auto in the Hastings Mutual policy and concluded that the UIM endorsement required Jonathan Lisowski to be an occupant of a covered auto in order to trigger UIM coverage under the Hastings Mutual policy.

Jonathan Lisowski appealed. On August 23, 2007, the court of appeals, in an unpublished per curiam opinion, affirmed the circuit court’s decision, on the same grounds.

Jonathan Lisowski then took his case to the state Supreme Court. But his result was no different.

The Supreme Court found there was no dispute that the vehicle involved in the accident was not a covered vehicle under the Hastings Mutual business auto policy. Nor was there any dispute that Jonathan Lisowski was an insured as a family member of the named insured, Dennis Lisowski. What the parties disputed was whether Jonathan Lisowski was entitled to coverage as an insured regardless of where he was at the time he was injured by the underinsured motorist.

Jonathan Lisowski advanced a half-dozen reasons the business auto policy his father held on the 1985 Mack semi tractor should provide coverage for the injuries he sustained as a passenger in the Avenger, even though it was not a covered vehicle., including that the language “for a covered auto” is merely introductory language and not part of the policy.

However the court ruled that the language is part of the policy, and an important part.

“The ‘for a covered auto’ language on which this case turns is substantive language that appears in several places in the policy, including the endorsement page. When the provisions of the policy are read together, the language is not ambiguous,” the decision states.