00-1369 Mau v. North Dakota Insurance Reserve Fund

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This is so because plaintiff falls within the first definition of named insured found in Endorsement #1, as a renter who purchased the additional IEP option and signed the rental documents on the line indicated, “renter’s signature.” We conclude that the IEP option, therefore, provides plaintiff with underinsured motorist coverage.

And, because we have determined that plaintiff is a named insured under the excess policy, the occupancy requirement violates Wis. Stat. sec. 632.32(6)(b) because, if the occupancy requirement was applied to plaintiff, it would totally exclude coverage for a named insured.

“Applying Wis. Stat. § 632.32(5)(j) to Endorsement #1, we find that the occupancy requirement is invalid. Limiting coverage for a named insured ‘only while occupying the Alamo rental vehicle’ amounts to a ‘drive other car’ exclusion. And just like the emergency vehicle exclusion in Blazekovic, the occupancy requirement is directed to a non-owned vehicle. The occupancy requirement, therefore, fails the first condition of § 632.32(5)(j) and is invalid because it is a ‘drive other car’ exclusion that fails to meet all three conditions in § 632.32(5)(j).”

Certified question answered and cause remanded to the Supreme Court of North Dakota.

DISSENTING OPINION: Wilcox, J. “Although I join Justice Sykes’ dissent, which would hold that Mau was an occupancy insured rather than a named insured under Wisconsin law, I write separately because I think the court should go on to decide the question of whether Mau was ‘occupying’ the rental vehicle when the collision occurred.”

DISSENTING OPINION: Sykes, J. “The majority’s invalidation of the occupancy restriction in the insurance policy in question in this case is based upon its conclusion that the plaintiff, Wolfgang Mau, is a ‘named insured’ under the policy. I conclude that Mau is an occupancy insured, not a named insured.”

On Certification of the Supreme Court of North Dakota, Crooks, J.

Attorneys:

For Appellant: Duane A. Lillehaug, Fargo, North Dakota, Dana J. Weis, Rhinelander

For Respondent: William P. Harrie, Fargo, North Dakota, Frank L. Steeves, Milwaukee