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2004AP1513 Welin v. Opichka

By: dmc-admin//July 3, 2006//

2004AP1513 Welin v. Opichka

By: dmc-admin//July 3, 2006//

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“[T]he underlying purpose of the underinsured motorist statute is not to permit limits-to-limits coverage as such, but rather, to allow UIM policies that furnish an insured a predetermined, fixed level of coverage for an accident from a combination of the tortfeasor’s insurance and the UIM insurance. When only one person is injured by the tortfeasor, comparing the tortfeasor’s limits to the underinsured motorist limits supports this statutory purpose. In Badger Mutual, Dowhower, and Taylor there was only one claimant. Were we to allow the plaintiff, under the circumstances of the present case, to receive a payment from the tortfeasor’s insurer that is less than the plaintiff’s UIM coverage and not have the plaintiff’s UIM coverage be triggered, the plaintiff would not have purchased a predetermined, fixed level of $300,000 coverage from some combination of sources of payment. Furthermore, the plaintiff’s recovery would be reduced by an amount not permitted under Wis. Stat. § 632.32(5)(i).

“Considering that the injured persons had separate UIM policies, and considering the purpose of UIM insurance, the narrow statutorily permitted reducing clauses, and the language of the reducing clause in the plaintiff’s policy, we conclude that this insurance policy defining an underinsured motor vehicle by comparing underinsured motorist coverage limits to the limits of a tortfeasor’s liability policy without considering the amount actually available to the insured from the tortfeasor’s liability policy contravenes the concept that the UIM insured purchases a predetermined, fixed amount of coverage and operates as a hidden reducing clause.”

Reversed and Remanded.

Court of Appeals, Abrahamson, C.J.

For Appellant: Hart, Webster A., Eau Claire; Sullivan, Dennis M., Eau Claire; Finn, Stephanie L., Eau Claire

For Respondent: Kramer, John A., Wausau; Roman, Michael J., Wausau

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