UIM Limits Case Analysis

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The decision obviously places lower courts and attorneys in a difficult position, unable to settle any cases in which this issue is present, pending the Publications Committee’s decision whether to publish this and/or the Bailey opinion, and pending a decision by the Supreme Court whether to grant review in either or both of these cases.

The law in Wisconsin is clear that the court of appeals may not overrule, modify, or withdraw language from a previously published decision of the court of appeals. Cook v. Cook, 208 Wis.2d 166, 560 N.W.2d 246 (1997).

Had the decision in Bailey already been published, the court of appeals would have been bound to follow it, even though it was incorrectly decided in this panel’s opinion. However, Bailey hasn’t been published yet, so the court’s decision does not run afoul of the rule in Cook.

The Publication Committee meets monthly, and will be placed in a quandary when it gets to these two cases. If it were to order both published at the same time, it would, presumably, force the Supreme Court into reviewing the issue.

In the interim, an interesting question would arise as to what law other courts should follow. It would be arguable that Bailey is binding precedent, and the decision in the case at bar is not.

The court of appeals has interpreted the Supreme Court’s decision in Cook to mean that, if two court of appeals’ decisions conflict, the first governs. State v. Bolden, 2003 WI App 155, 265 Wis.2d 853, 667 N.W.2d 364; State v. Swiams, 2004 WI App 217, 277 Wis.2d 400, 690 N.W.2d 452, 462.

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However, this rule is premised upon the holding in Cook that the court of appeals has no authority to overrule a previously published decision; the premise that underlies the assumption in Swiams does not apply to the situation that would exist if both these two decisions were published.

Thus, given the unique procedural posture of these cases, a strong argument could be made that Bailey need not be followed if both are published, notwithstanding the general rule.

Furthermore, of the five judges who have considered this issue, three of the judges are of the view that reducing clauses may allow for reduction of the limits for amounts received from tortfeasors who are not underinsured.

An attorney could reasonably argue that, in this situation, a lower court should apply the rule favored by a majority of the court of appeals judges who have considered the issue.

– David Ziemer

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David Ziemer can be reached by email.