Opinion by Justice Bradley, with Chief Justice Abrahamson and Justices Crooks and Prosser
¶2 Relying on precedent, we conclude that by failing to provide the Stones with notice of the availability of UIM coverage as part of their umbrella insurance, Acuity violated the notice provision of § 632.32(4m). We further determine that where an insurer fails to provide notice of the availability of UIM coverage as part of an insurance policy, the appropriate remedy is to read in the level of coverage necessary for the policy to conform to § 632.32(4m)(d)——$50,000 per person and $100,000 per accident.
¶3 In the present case, however, the Stones' recovery is set [at $500,000] by a stipulation between the parties, and we honor their agreement.
Justice Roggensack concurred in part and dissented in part
¶80 I respectfully dissent from the majority opinion's discussion and conclusions relative to the stipulation for three reasons: (1) the stipulation is ambiguous as to the parties' intent; (2) the majority opinion unreasonably interprets the parties' stipulation to effect an unwarranted penalty against Acuity; and (3) in the alternative, even were I to agree with the majority opinion's interpretation of the stipulation, fairness requires that the penalty to which Acuity should be subjected for failing to comply with Wis. Stat. § 632.32(4m)(a)1 be referred to the circuit court so that Acuity can bring a motion pursuant to Wis. Stat. § 806.07(1), to request relief from the stipulation, in order that Acuity be treated the same as would any other insurer who did not give the notice required by § 632.32(4m)(a)1.
Justice Butler concurred in part and dissented in part
¶103 ...I dissent from that part of the majority opinion establishing the remedy for other cases in which Wis. Stat. § 632.32(4m) is violated but where, unlike this case, a stipulation does not set the remedy for the parties.
¶120 ...What is necessary is a remand to determine whether the stipulation should take effect. Even if this case were not resolved through the application of the stipulation, however, I still disagree with the majority's new rule adopting the statutory minimum coverage for primary insurance policies as the required statutory minimum for umbrella insurance policies as well, where there is a violation of § 632.32(4m)(d), particularly where the finder of fact has not determined whether and at what amount umbrella UIM coverage would have even been purchased, and in light of the minimum umbrella insurance amount of $1,000,000.
Analysis from "Insurance Coverage Decisions that Will Impact Your Clients - 2008", by Terry J. Booth, Civil Trial of Wisconsin Summer Conference, August 14, 2008, Wisconsin Dells
Insurance: UIM Coverage - Umbrella Policies - Notice - Remedy, Supreme Court Digest, by Prof. Daniel D. Blinka and Prof. Thomas J. Hammer, Wisconsin Lawyer, June 2008
Take care when entering stipulations, by David Ziemer, Wisconsin Law Journal, April 18, 2008
Insurance payment ruled valid: High court finds bicyclist hurt in crash entitled to $500,000, by Marie Rohde, Milwaukee Journal Sentinel, April 13, 2008