Progressive Northern Insurance Company v. Richard P. Romanshek

Annotate this Case

Download PDF

2005 WI 67 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 2004AP0740 Progressive Northern Insurance Company, Plaintiff-Respondent, v. Richard P. Romanshek, Defendant-Appellant, Blue Cross Blue Shield United of Wisconsin, Defendant. ON BYPASS FROM THE COURT OF APPEALS OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: February 4, 2005 SOURCE OF APPEAL: COURT: COUNTY: JUDGE: Circuit Waukesha Lee S. Dreyfus JUSTICES: CONCURRED: DISSENTED: NOT PARTICIPATING: June 7, 2005 ABRAHAMSON, C.J., dissents (opinion filed). ATTORNEYS: For the defendant-appellant there was a brief (in the court of appeals) by Charles H. Bohl, Michael R. Sarner and Whyte, Hirschboeck Dudek S.C., Milwaukee, and oral argument by Tamara Hayes O Brien. For the plaintiff-respondent there was a brief (in the court of appeals) by Robert J. Lauer, Patti J. Kurth, and Kasdorf, Lewis & Swietlik, S.C., Milwaukee, and oral argument by Robert J. Lauer. An amicus curiae brief was filed by Michael Riley and Axley Brynelson, LLP, Madison, on behalf of Wisconsin Academy of Trial Lawyers. An amicus curiae brief was filed by Noreen J. Parrett, James A. Friedman and LaFollette Godfrey & Kahn, Madison, on behalf of the Wisconsin Insurance Alliance. 2 2005 WI 67 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2004AP740 (L.C. No. 03 CV 1265) STATE OF WISCONSIN : IN SUPREME COURT Progressive Northern Insurance Company, Plaintiff-Respondent, FILED v. Richard P. Romanshek, JUN 7, 2005 Defendant-Appellant, Cornelia G. Clark Clerk of Supreme Court Blue Cross Blue Shield United of Wisconsin, Defendant. APPEAL from an order of County, Lee S. Dreyfus, Judge. ¶1 JON P. WILCOX, J. the Circuit Court for Waukesha Affirmed. This case is before the court on a motion to bypass, pursuant to Wis. Stat. § 808.05 (2001-02)1 and Wis. Stat. § (Rule) 809.60. We are once again called upon to determine whether the phrase "hit-and-run" within the definition of "uninsured 1 motor vehicle" in Wis. Stat. § 632.32(4)(a)2.b. All subsequent references to the Wisconsin Statutes are to the 2001-02 version unless otherwise indicated. No. 2004AP740 requires an insurer to provide uninsured motorist (UM) coverage when its insured is the victim of a "miss-and-run" accident. decline to overrule our long line of precedent We requiring physical contact in an accident involving an unknown vehicle in order for there to be a "hit-and-run" within the meaning of § 632.32(4)(a)2.b. Therefore, we affirm the order of the circuit court. I ¶2 On May 28, 2003, Progressive Northern Insurance Company (Progressive) filed a complaint for declaratory judgment against its insured, Richard P. Romanshek (Romanshek), seeking a declaration of the rights of the parties under its insurance policy. The following facts were alleged in Progressive's complaint and admitted in Romanshek's answer. ¶3 Progressive is a domestic insurance company licensed to do business in Wisconsin. Wisconsin. Romanshek had Romanshek is an adult resident of a Progressive motorcycle liability insurance policy in full force and effect at all relevant times. The policy December contained 28, motorcycle in 2002, a provision Romanshek Naples, was Florida, providing driving and was UM his coverage. On Harley-Davidson involved in a motor vehicle accident.2 The accident involved an unidentified vehicle that front turned in of Romanshek's motorcycle, causing Romanshek to lose control of his machine, fall to the ground, 2 Progressive's policy contained a clause requiring all disputes to be settled according to the law of the state in which the insured resides. 2 No. 2004AP740 and suffer injuries. Romanshek's motorcycle never came into physical contact with the unidentified vehicle or any part of said vehicle. The unknown vehicle drove away and has never been identified.3 ¶4 Romanshek subsequently made a claim with Progressive under the UM portion of his policy. Progressive denied his claim in a letter dated February 3, 2003, on the ground that the unknown vehicle was not an "uninsured motor vehicle" as defined in the policy. Progressive's policy provides, in pertinent part: INSURING AGREEMENT-UNINSURED MOTORIST COVERAGE . . . . ADDITIONAL DEFINITIONS . . . . 3. "Uninsured motor vehicle" means a land motor vehicle of any type or a trailer while used with a land motor vehicle: . . . . c. that is a hit-and-run vehicle whose operator or owner cannot be identified and which strikes i. you or a relative; ii. a vehicle that you or a relative are occupying; or iii. a covered vehicle; 3 Progressive version of events. apparently does 3 not contest Romanshek's No. 2004AP740 provided that the insured person, or someone on his or her behalf, reports the accident to the police or civil authority as soon as practicable after the accident. (Underscoring added.) Progressive subsequently commenced the present action, seeking a declaration that no UM coverage is provided under the policy for a miss-and-run accident. ¶5 On October 22, 2003, Progressive filed a motion for declaratory/summary judgment, arguing that its policy did not provide UM coverage because the unknown vehicle did not strike Romanshek's motorcycle and thus was vehicle" as defined in its policy. not an "uninsured motor In its brief in opposition to Progressive's motion for summary judgment, Romanshek did not contest that Progressive's policy requires physical contact in order for an unidentified vehicle to qualify as an "uninsured motor vehicle" Romanshek under argued the that "hit-and-run" by definition. requiring Rather, physical contact, Progressive's policy impermissibly attempts to narrow the scope of UM coverage mandated by § 632.32(4)(a)2.b., which, according to Romanshek, should contact requirement. v. Progressive N.W.2d 588 not read as containing a physical Specifically, Romanshek argued that Hayne Northern (1983), be which Insurance Co., interpreted 115 Wis. 2d 68, § 632.32(4)(a)2.b. 339 to require physical contact, "has been eroded to the point that it has no meaning." ¶6 At the hearing on the motion, the circuit court noted that "it seems to me it would be appropriate to include [a missand-run] in the definition for uninsured motorist coverage at 4 No. 2004AP740 this point in time. But at least right now that's not the definition as it exists in the State of Wisconsin." ruled: The court "The State of Wisconsin clearly requires that there be a physical contact component, if you will, between the vehicle or the injured party and what is the uninsured vehicle . . . . And, quite clearly, that has been the law for the past twenty years." ¶7 an Thus, on January 28, 2004, the circuit court entered order for Progressive. declaratory/summary judgment in favor of Romanshek appealed, and this court granted his petition to bypass on October 19, 2004. II ¶8 The sole question presented on this appeal is whether § 632.32(4)(a)2.b. mandates UM coverage for an accident involving an unidentified motor vehicle and an insured's vehicle when there is no physical contact. In other words, we must determine whether the phrase "hit-and-run" within the definition of "uninsured motor vehicle" in § 632.32(4)(a)2.b. requires an insurer to provide UM coverage when its insured is the victim of a "miss-and-run" accident. Statutory interpretation is an issue of law, reviewed de novo by this court. State v. Waushara County Bd. of Adjustment, 2004 WI 56, ¶14, 271 Wis. 2d 547, 679 N.W.2d 514. Further: In a declaratory judgment action, the granting or denying of relief is a matter within the discretion of the circuit court. This court reviews such decisions to determine whether the circuit court erroneously exercised its discretion. If the circuit court 5 No. 2004AP740 proceeds on an erroneous interpretation of the law, the exercise of discretion is erroneous. Theis v. Midwest Sec. Ins. Co., 2000 WI 15, ¶8, 232 Wis. 2d 749, 606 N.W.2d 162(citations omitted). ¶9 The standards for granting summary judgment are well known and need not Wis. Stat. § 802.08. interpretation and be set When the application of forth facts a in are full. See undisputed, statute to these the facts present a question of law appropriate for summary judgment. See Tri-Tech Corp. of Am. v. Americomp Servs., Inc., 2002 WI 88, ¶19, 254 Wis. 2d 418, 646 N.W.2d 822; Fore Way Express, Inc. v. Bast, 178 Wis. 2d 693, 701, 505 N.W.2d 408 (Ct. App. 1993); Hake v. Zimmerlee, 178 Wis. 2d 417, 421, 504 N.W.2d 411 (Ct. App. 1993). III ¶10 of Wisconsin Stat. § 632.32(1) provides that every policy insurance provisions. issued in Among Wis. Stat. § 632.32(4), Wisconsin these which must contain mandatory requires provisions insurance policies provide UM coverage and medical payments coverage. Stat. § 632.32(4)(a) governs UM coverage certain and to Wisconsin provides insurance policies must contain a provision: 1. For the protection of persons injured who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death resulting therefrom, in limits of at least $25,000 per person and $50,000 per accident. 2. In this paragraph "uninsured motor vehicle" also includes: 6 is that No. 2004AP740 a. An insured motor vehicle if before or after the accident the liability insurer of the motor vehicle is declared insolvent by a court of competent jurisdiction. b. An unidentified motor vehicle involved in a hit-and-run accident. 3. Insurers making payments under the uninsured motorists' coverage shall, to the extent of payment, be subrogated to the rights of their insureds. (Emphasis added.) ¶11 Romanshek argues that Wisconsin courts have eroded the physical contact requirement set forth in Hayne and that this court should therefore abandon contact it. He contravenes also the argues intent that requiring physical of UM coverage. Finally, he asserts that a majority of other states have held that requiring physical contact in order for there to be a hit-and-run is against public policy. ¶12 In contrast, interpreting Progressive § 632.32(4)(a)2.b. argues has that case consistently law required physical contact in order for UM coverage to be required. It also argues that because the court has consistently interpreted the statute, any change in the statutory requirements must come from the legislature. Moreover, Progressive states that because its policy clearly requires physical contact in order for there to be a coverage states hit-and-run, where that there the Romanshek was parties no could physical are bound not reasonably expect contact. Progressive by contractual their agreement, and the court cannot rewrite the insurance contract to eliminate the physical contact requirement. 7 No. 2004AP740 ¶13 is the We begin by emphasizing that the sole issue on appeal proper construction of § 632.32(4)(a)2.b. Therefore, "[t]he question to be decided here . . . is not the construction of the policy, but what the law requires. Thus, the reasonable expectation of the insured regarding the language of the policy is not relevant to Wis. Stat. § 632.32(4)(a)2.b." our Smith v. analysis Gen. Cas. 2000 WI 127, ¶27, 239 Wis. 2d 646, 619 N.W.2d 882. of Ins. Co., "[C]overages omitted from an insurance contract may nevertheless be compelled and enforced as though a part thereof where the inclusion of such coverage is required by a properly enacted statute." Amidzich v. Charter Oak Fire Ins. Co., 44 Wis. 2d 45, 53, 170 N.W.2d 813 (1969). ¶14 The first case relevant to our discussion meaning of the term "hit-and-run" is Amidzich. decided prior to the enactment of § 632.32. Laws of 1979. In Amidzich, the of the Amidzich was See § 171, ch. 102, insurance policy at issue provided coverage for damages caused by a hit-and-run vehicle, which was defined as an automobile that "'causes bodily injury to an insured arising automobile . . . .'" out of physical Amidzich, 44 contended that contact Wis. 2d at of such 48 (emphasis phrase "physical supplied by Amidzich). ¶15 The insured the contact" should be interpreted so as to provide coverage where a vehicle forces an insured off the road without actually striking the insured's vehicle. Id. at 49. The insured also argued that "the only justification for the 'physical contact' requirement 8 No. 2004AP740 is the prevention of fraudulent claims" and that because there was no evidence of fraud, the requirement was inapplicable. ¶16 Id. The court rejected the insured's argument, ruling: We are satisfied that the phrase in the policy, "physical contact," is intended to express no other meaning than that which is plainly apparent on its face. Despite the forceful arguments of the appellants, we conclude that there is no reasonable construction to this phrase that supports other than the requirement that there be an actual striking between the "hit-and-run automobile" and the insured's vehicle, at least in a situation where only two vehicles are involved. The very term, "hit-and-run," contained in the policy itself supports the plain meaning that we attribute to the term "physical contact." The word, "hit," is defined in Webster's Third New International Dictionary as: "1a: a blow striking an object aimed at contrasted with miss . . . b: an impact of one thing against another: collision . . . ." Id. at 51 (first emphasis added). ¶17 In closing, the court noted that "[p]ersuasive arguments could be made that statutory requirements to afford coverage to the plaintiff should be provided. The present statute, however, does not require such coverage, nor does the policy as written provide for it." ¶18 Id. at 54. Subsequently, the legislature enacted § 632.32, which included in the definition of uninsured motor vehicle, "[a]n unidentified motor vehicle involved in a hit-and-run accident." § 171, ch. 102, Laws of 1979. The Legislative Council Note to this section stated, in pertinent part: "A precise definition of hit-and-run is not necessary for in the rare case where a 9 No. 2004AP740 question arises the court can draw the line." Legislative Council Note, 1979, § 632.32, Stats. ¶19 Following the court decided Hayne. "whether sec. enactment of this new statute, this "The sole issue on appeal" in Hayne was 632.32(4)(a)2.b., Stats., requires uninsured motorist coverage for an accident involving an insured's vehicle and an unidentified motor vehicle when there was no physical contact between the two vehicles." Hayne, 115 Wis. 2d at 69. The relevant facts of Hayne were almost identical to the facts presented in the present case. Id. The precise question in Hayne was "whether the term 'hit-and-run' includes 'miss-andrun' or whether it requires an actual physical striking." Id. at 73. ¶20 We "hit-and-run" examined and a variety concluded of dictionary "[t]hese definitions definitions of clearly indicate that the plain meaning of 'hit-and-run' consists of two elements: a 'hit' or striking, and a 'run', or fleeing from the scene of an accident." Id. at 73-74. Thus, we concluded: [T]he statutory language of sec. 632.32(4)(a)2.b., Stats., is unambiguous. We therefore arrive at the legislature's intent by according the language its common and accepted meaning. As previously noted, the common and accepted meaning of the term "hit-and-run" includes an element of physical contact. Section 632.32(4)(a)2.b. mandates coverage only for "hit-andrun" accidents involving an unidentified motor vehicle. The clear statutory language of sec. 632.32(4)(a)2.b. reflects a legislative intent that the statute apply only to accidents in which there has been physical contact. Because there was no physical contact under the circumstances of this case, sec. 632.32(4)(a)2.b. does not support Hayne's claim for coverage. 10 No. 2004AP740 Id. at 74 (citation omitted). ¶21 Further, we reasoned: If the legislature had intended its mandated uninsured motorist coverage to apply to any accident involving an unidentified motorist, as Hayne asserts, that result could have been reached merely by deleting the term "hit-and-run" from the language in [the statute], and having that provision read: "an unidentified motor vehicle involved in an accident." The legislature did not, however, omit the term "hit-andrun". Therefore, to define "hit-and-run" in sec. 632.32(4)(a)2.b. to include the type of accident Hayne was involved in or any other accident involving an unidentified motor vehicle where there is no physical contact would be to render the term "hit-and-run" in the statute mere surplusage. That we cannot do. Id. at 76. ¶22 We also rejected Hayne's argument that we should interpret the phrase "hit-and-run" to include a "miss-and-run" because other jurisdictions had reached a similar conclusion: We also note that courts in other states have concluded that the term "hit-and-run" in their uninsured motorist statutes does not connote physical contact. This conclusion is based, in part, on other statutes imposing a duty on a driver involved in an accident to stop, provide certain information, and render aid. . . . Wisconsin's version of these statutes, however, is entitled "Duty upon striking person or attended or occupied vehicle." Section 346.67, Stats. (Emphasis added.) Section 346.67(1)(a) provides, in part: " . . . he shall give his name, address and the registration number of the vehicle he is driving to the person struck . . . ." The reference to "striking" in sec. 346.67 supports our conclusion that the plain meaning of "hit-and-run" in sec. 632.32(4)(a)2.b. includes a physical contact element. Id. at 75 (footnote omitted). 11 No. 2004AP740 ¶23 We also rejected Hayne's argument that the legislature intended to overturn the result we reached in Amidzich when it enacted § 632.32(4)(a)2.b. Id. at 76-79. As noted previously, in Amidzich, we specifically stated that the legislature could mandate UM coverage for miss-and-run Amidzich, 44 Wis. 2d at 54. accidents by statute. In Hayne, we concluded: If, in fact, the legislature had that statement from Amidzich in mind when it enacted sec. 632.32(4)(a)2.b., then it also was aware of the discussion in Amidzich of the term "hit and run". Had the legislature intended Hayne's assertion, the clearest way to effectuate that intent was simply to not include the term "hit-and-run", thereby mandating coverage for "miss-and-run accidents" as well. The legislature did not do that, but instead deliberately included in sec. 632.32(4)(a)2.b. the term "hit-andrun". The unambiguous meaning of the term includes a physical contact element. . . . . The legislature presumably was aware of the discussion in Amidzich concerning the literal meaning of "hitand-run", and certain policy arguments favoring inclusion within the statutory uninsured motorists provision of coverage for "miss-and-run" accidents. Hayne, 115 Wis. 2d at 79, 84. ¶24 of Furthermore, we concluded that the legislative history § 632.32(4)(a)2.b. supported hit-and-run included Legislative Council that responsible those a the physical report for to contact the the conclusion the requirement: legislature revision that indicate adding term "[The] [sic] 'hit-and-run' accidents as a category to be included in required uninsured motorist coverage were simply incorporating a category of coverage into the statute that most standard insurance policies 12 No. 2004AP740 already contained." Id. at 83. We also stated that miss-and- run accidents were not among the "rare" cases referred to in the Legislative Council Note to § 632.32. Id. at 82-83 n.8. In sum, we concluded: [T]he legislature was confronted with two distinct policy choices: One, it could define uninsured motor vehicle to include an unidentified motor vehicle involved in an accident, regardless of whether physical contact occurred; or two, it could define uninsured motor vehicle to include an unidentified motor vehicle involved in a "hit-and-run" accident. The legislature chose the second alternative. Id. at 84. ¶25 Then Justice Shirley S. Abrahamson dissented from the majority opinion, arguing supported including miss-and-run for hit-and-run accidents. that several accidents policy within Id. at 85-99. arguments UM coverage In response, the majority noted: Many of the policy arguments favoring uninsured motorist coverage for "miss-and-run" accidents involving unidentified motor vehicles are addressed in the dissent. We cannot, however, change the wording of a statute by liberal construction to mean something that the legislature did not intend, or that the plain language of the statute will not support. The legislature can, if it so desires, amend the uninsured motorist statute to reflect those policy arguments. Id. at 85 n.11 (citation omitted)(emphasis added). ¶26 decided Following our decision in Hayne, the court of appeals Wegner v. Heritage Mutual Insurance Co., 173 Wis. 2d 118, 496 N.W.2d 140 (Ct. App. 1992), and Dehnel v. State Farm Mutual Automobile Insurance N.W.2d 575 (Ct. App. 1999). Co., 231 Wis. 2d 14, 604 The issue in Wegner was whether 13 No. 2004AP740 § 632.32(4)(a)2.b. mandated UM coverage in an accident involving three vehicles where the first car swerved into the lane of the second car, causing the second car to swerve into the lane of the insured's car, resulting forced off the road. appeals, relying in the insured's vehicle Wegner, 173 Wis. 2d at 121. on Hayne, concluded that being The court of "the uninsured motorist insurance laws do not provide coverage for a hit-andrun driver that does not 'hit' another vehicle[.]" ¶27 In Dehnel, the insured's vehicle Id. at 120. was damaged as a result of a piece of ice that fell off of a passing semitrailer. Dehnel, 231 Wis. 2d at 15. The court of appeals held that UM coverage by facts was because vehicle was not a not mandated piece a of § 632.32(4)(a)2.b. ice falling hit-and-run from accident. an under these unidentified Id. The court reasoned: The type of physical contact which is required under § 632.32(4)(a)2.b. has been described by the supreme court as a "touching between the vehicles." See Hayne, 115 Wis. 2d at 78. However, the physical contact that occurred here was not between any part of the semi and Dehnel's vehicle. Rather, it was an indirect touching, in that the ice was not even an integral part of the unidentified vehicle, such as a tire that had become unattached. We also note that enlarging the statutory interpretation established by the supreme court to cover extraneous objects that may be carried by vehicles would have no reasonable ending point for coverage. Id. at 21-22. ¶28 The next § 632.32(4)(a)2.b. occasion was in this Theis. 14 court In had to interpret Theis, the insured's No. 2004AP740 vehicle was struck by a leaf spring, a part of a semi-tractor, although it was unclear whether the object fell off a passing semi-tractor or came from another vehicle propelled by the passing semi-tractor. and merely was Theis, 232 Wis. 2d 749, ¶¶4-5. ¶29 In analyzing whether § 632.32(4)(a)2.b. mandated coverage for this type of accident, we noted that "[o]ur court and the court of appeals motorist claims . . . ." have 'drawn Id., ¶19. a line' on uninsured However, we stated: Although the Wisconsin cases have interpreted the hitand-run provision of Wis. Stat. § 632.32(4) to require physical contact between an insured's motor vehicle and an unidentified motor vehicle, they have not interpreted the statute to negate "physical contact" between the insured's motor vehicle and a part of an unidentified motor vehicle. Id., ¶26. In addition, we distinguished Dehnel, noting "[i]n the present case, unlike in Dehnel, a piece detached from an unidentified motor vehicle was propelled into the plaintiff's motor vehicle by an unidentified motor vehicle." Id., ¶25. Finally, we concluded that mandating coverage for this type of accident statute. would be consistent Id., "Wis. Stat. § 632.32(4) with ¶¶28-31. the requires purposes of Thus, that we the uninsured the UM concluded: motorist clauses of an insurance policy provide coverage when a detached piece of an unidentified motor vehicle is propelled into the insured's motor vehicle by an unidentified motor vehicle." ¶11. 15 Id., No. 2004AP740 ¶30 Finally, in Smith, this court was presented with a variation of the facts in Wegner. Smith involved a three-car accident that began when an unidentified car in the left lane of the interstate struck a tractor-double trailer in the center lane, which, in turn, struck the insured's vehicle in the right lane. Smith, 239 Wis. 2d 646, ¶3. The question presented was "whether this chain reaction collision is a 'hit' within the meaning of the statute." ¶31 occurs Id., ¶8. We began our analysis by noting that "[a] hit-and-run when three unidentified elements motor vehicle; are satisfied: (2) the (1) there an vehicle unidentified is is involved in a hit; and (3) the unidentified motor vehicle 'runs' Id., ¶10 (citing Theis, 232 from the scene of the accident." Wis. 2d 749, ¶¶14-16). have previously held In addition, we reiterated that "[w]e that the phrase hit-and-run in Wis. Stat. § 632.32(4)(a)2.b. unambiguously 'includes a physical contact element.'" We stated contact that the Id., ¶11 (quoting Hayne, 115 Wis. 2d at 79). issue involved requirement was satisfied Examining the plain was under whether the the facts physical presented. Id. ¶32 language of the statute, reasoned: Wisconsin Stat. § 632.32(4)(a)2.b. defines an uninsured motor vehicle as "an unidentified" vehicle "involved in a hit and run accident." The use of the word "involved" does not strike us as a word that should be narrowly applied only to a hit-and-run accident involving a direct hit to the insured vehicle. Here, the unidentified vehicle was clearly 16 we No. 2004AP740 "involved": it precipitated the accident contact with the intermediate vehicle. through Id., ¶12. ¶33 Next, we examined our UM jurisprudence and stated that our prior cases fell within two categories: cases involving miss-and-runs and cases involving flying objects. Id., ¶14. We stated that both lines of cases involved the physical contact requirement: "While the miss-and-run cases establish the physical contact requirement, the second line of cases presents examples of where the court was required to consider whether that requirement was satisfied." Id., ¶22. We distinguished the miss-and-run cases because "in the instant case there was a contact; the unidentified vehicle had contact with the intermediate vehicle, which in turn had contact with the insured vehicle. The miss-and-run cases do not foreclose interpreting Wis. Stat. § 632.32(4) as mandating coverage in this case." Id., ¶21. ¶34 and Finally, we examined the policies underlying § 632.32 concluded that "the public policy concern of preventing fraudulent claims" would be satisfied by mandating coverage in this type of accident and that mandating such coverage would further the policy of providing an injured motorist the same compensation as if the uninsured motorist were insured. ¶28. Id., Thus, we concluded that "when an unidentified driver is involved in a chain reaction collision, the physical contact requirement for a 'hit-and-run' is satisfied and coverage is mandated under Wis. Stat. § 632.32(4)(a)2.b." 17 Id. No. 2004AP740 ¶35 Romanshek's principal argument on this appeal is that we should overrule Hayne because our cases subsequent to that decision have eroded the physical contact requirement to the point where it has no meaning. We reject this argument because, as the above discussion demonstrates, both our cases and the court of appeals' decisions have consistently adhered to the interpretation of § 632.32(4)(a)2.b. set forth in Hayne, which requires physical contact in accidents involving an unidentified vehicle in for there to be a hit-and-run under the Smith, 239 Wis. 2d 646, ¶11 ("We have previously held statute. that order the phrase hit-and-run in Wis. Stat. § 632.32(4)(a)2.b. unambiguously 'includes a physical contact element.'")(quoting Hayne, 115 Wis. 2d at 79); Theis, 232 Wis. 2d 749, ¶26 (accord); Dehnel, 231 Wis. 2d at 21 (accord); Wegner, 173 Wis. 2d at 121 ("[T]he uninsured motorist insurance laws do not provide coverage for a hit-and-run driver that does not 'hit' another vehicle[.]"). ¶36 Further, undermined objects" the the results physical cases, such contact as Theis in these cases requirement. and Dehnel, have The not "flying reaffirmed the physical contact requirement and simply applied that rule to unusual factual scenarios. See Smith, 239 Wis. 2d 646, ¶22 ("While the miss-and-run cases establish the physical contact requirement, where the the [flying court was objects] required requirement was satisfied."). 18 cases to presents consider examples whether of that No. 2004AP740 ¶37 foreign Dehnel found that UM coverage was not mandated when a object, a piece of ice, fell vehicle onto the insured's vehicle. from an unidentified Dehnel, 231 Wis. 2d at 21. In contrast, Theis found that the physical contact requirement was satisfied because a part of an unidentified vehicle made physical contact Wis. 2d 749, with ¶25. the Both insured's cases vehicle. are Theis, 232 with the consistent requirement set forth in Hayne that physical contact "requires a hit or touching between the vehicles." Hayne, 115 Wis. 2d at 78. ¶38 Cases subsequent to Hayne not involving flying objects have consistently adhered to the physical contact requirement. In Wegner, the court of appeals concluded that UM coverage was not mandated because a car that was forced off the road as another swerved into its lane was not involved in a hit-and-run accident due to the fact that there was no physical contact between the vehicles. Wegner, 173 Wis. 2d at 120. "[T]he uninsured motorist insurance laws do not provide coverage for a hit-and-run driver that does not 'hit' another vehicle[.]" Id. In contrast, Smith found UM coverage was mandated in a chain reaction accident because the uninsured vehicle struck another vehicle, which, in turn, struck the insured's vehicle and because § 632.32(4)(a)2.b. explicitly covers vehicles "involved" in a hit-and-run accident. Smith, 239 Wis. 2d 646, ¶¶12, 28. Thus, the Smith did not erode holding of Hayne; it merely applied that holding to a new set of facts that implicated the additional statutory language "involved." 19 As such, both Wegner No. 2004AP740 and Smith were perfectly consistent with Hayne, 115 Wis. 2d at 74, which concluded that "[t]he clear statutory language of sec. 632.32(4)(a)2.b. reflects a legislative intent that the statute apply only to accidents in which there has been physical contact." ¶39 Thus, for over 20 years this court has consistently adhered to the plain, unambiguous meaning of § 632.32(4)(a)2.b., as set forth in Hayne. We have consistently ruled that UM coverage was not mandated under § 632.32(4)(a)2.b. in miss-andrun accidents. The cases in which we found that UM coverage was mandated by § 632.32(4)(a)2.b. all involved circumstances where an unidentified vehicle, or part thereof, made contact with the insured's vehicle or where an unidentified vehicle was "involved" in an accident in which there was physical contact. In short, as we recognized in 232 Theis, Wis. 2d 749, ¶19, "[o]ur court and the court of appeals have 'drawn a line' on uninsured motorist claims[,]" by requiring physical contact in order to fall within § 632.32(4)(a)2.b. the mandated UM coverage in We simply have not deviated from that line when it comes to miss-and-run cases. ¶40 Romanshek next argues that we should abandon our holding in Hayne because a majority of other states (27) have held that physical contact "is an impermissible limitation on uninsured or unknown motorist statutes and is against public policy." Pet'r Br. requiring physical at 5. contact In addition, contravenes 20 the he asserts intent of that UM No. 2004AP740 coverage. We are not persuaded by these arguments for several reasons. ¶41 we Any time this court is asked to overturn a prior case, must thoroughly consider the doctrine of stare decisis. "This court follows the doctrine of stare decisis scrupulously because of our abiding respect for the rule of law." Johnson Controls v. Employers Ins. of Wausau, 2003 WI 108, ¶94, 264 Wis. 2d 60, 665 N.W.2d 257. It is a "longstanding rule that this court 'is bound by its own precedent.'" State v. Hansen, 2001 WI 53, ¶52, 243 Wis. 2d 328, 627 N.W.2d 195 (Wilcox, J., dissenting)(quoting Rose Manor Realty Co. v. City of Milwaukee, 272 Wis. 339, 346, 75 N.W.2d 274 (1956)). ¶42 not be "Fidelity to precedent ensures that existing law will abandoned lightly. When existing law 'is open to revision in every case, "deciding cases becomes a mere exercise of judicial will, with arbitrary and unpredictable results."'" Schultz v. N.W.2d 266 decisis Natwick, 2002 (footnotes raises WI 125, omitted). serious concerns ¶37, 257 Failing as to to Wis. 2d 19, abide whether the by 653 stare court is "implementing 'principles . . . founded in the law rather than in the proclivities of individuals.'" Payne v. Tennessee, 501 U.S. 808, 853 (1991)(Marshall, J., dissenting)(quoting Vasquez v. Hillery, 474 U.S. 254, 265 (1986)). ¶43 precedent "[F]requent undermines decisions." and careless confidence in departure the from prior reliability Johnson Controls, 264 Wis. 2d 60, ¶95. of case court "'Stare decisis is the preferred course of judicial action because it 21 No. 2004AP740 promotes evenhanded, predictable, and consistent development of legal principles . . . and perceived integrity of contributes the judicial to the actual and Id., ¶95 process.'" (quoting State v. Ferron, 219 Wis. 2d 481, 504, 579 N.W.2d 654 (1998)(quoting Payne, 501 U.S. at 827)). Thus, "'the doctrine of stare decisis is of fundamental importance to the rule of law.'" Hilton v. S.C. Pub. Rys. Comm'n, 502 U.S. 197, 202 (1991)(quoting Welch v. Tex. Dept. of Highways and Pub. Transp., 483 U.S. 468, 494 (1987)). ¶44 Additionally, [O]ne of the fundamental justifications for the rule of stare decisis is to provide a consistent predictable rule of law upon which society . . . may properly order [its] affairs, i.e., engage in rational business decision-making, without the continuous[,] ominous threat of the legal bases for those decisions being changed. Johnson Controls, 264 Wis. 2d 60, ¶149 (Wilcox, J., dissenting). Thus, stare decisis is particularly controlling where the legal rule impacts contractual relationships, Antoniewicz v. Reszcynski, 70 Wis. 2d 836, 869, 236 N.W.2d 1 (1975), and has been relied upon by industry, Quill Corp. v. North Dakota, 504 U.S. 298, 317 (1992). of stare decisis As such, proper respect for the doctrine means that this rarely overturn prior decisions and only when certain criteria are met. Johnson Controls, 264 Wis. 2d 60, ¶¶98-99. court will "The decision to overturn a prior case must not be undertaken merely because the composition of the court has changed." Id., ¶95 (citing State v. Stevens, 22 No. 2004AP740 181 Wis. 2d 410, 442, 511 N.W.2d 591 (1994)(Abrahamson, J. concurring)). ¶45 court Moreover, stare decisis concerns are paramount where a has authoritatively interpreted a statute because legislature remains free to alter its construction. U.S. at 202. the Hilton, 502 When a party asks this court to overturn a prior interpretation of a statute, it is his "burden . . . to show not only that [the decision] was mistaken but also that it was objectively wrong, so that the court has a compelling reason to overrule it." Wenke v. Gehl 2004 Co., WI 103, ¶21, 274 Wis. 2d 220, 682 N.W.2d 405. ¶46 Thus, the function of this interpret § 632.32(4)(a)2.b. de novo. basis to overrule rationale. Hayne that this court today is not to It is not a sufficient court disagrees Johnson Controls, 264 Wis. 2d 60, ¶93. with its Rather, we must determine whether Romanshek has met his burden and provided sufficient justification to overturn 20 years of jurisprudence construing a statute. ¶47 Our We conclude he has not done so. interpretation of § 632.32(4) in Hayne clearly involves contracts and implicates reliance interests. 632.32(4) governs insurance policies insurance provide contracts certain types and of Section mandates coverage. that This court has consistently ruled that UM coverage is not mandated under § 632.32(4)(a)2.b. where there is no physical contact. Insurers, like Progressive, have no doubt relied on these cases and retained a physical contact requirement in their UM policy provisions. "It is more than likely that some of the companies 23 No. 2004AP740 utilizing such [a clause] have established premium rates in reliance upon the validity of such a clause being upheld by the decisions of this court." Bauman v. Gilbertson, 7 Wis. 2d 467, 469, 96 N.W.2d 854 (1959). Moreover, the reliance interests of other parties aside, Progressive was the very insurer whose policy was implicated in Hayne. ¶48 Romanshek's reliance on foreign jurisprudence is also not a sufficient reason to depart from our ruling in Hayne. "It is its not a sufficient reason for this court to overrule precedent that a large majority of other jurisdictions, with no binding authority conclusions." on this Johnson court, Controls, have 264 reached Wis. 2d 60, opposing ¶100. As noted, the physical contact requirement derives from the plain meaning of the found in Hayne. phrase "hit-and-run" in § 632.32(4)(a)2.b. as Romanshek merely cites to broad statements from foreign cases concerning the purpose of UM statutes generally; he has not offered any textually-based arguments not considered in Hayne that undercut the rationale of that decision. The fact that some states have reached a different conclusion involving their statutes is not germane to the legitimacy of our interpretation of Wisconsin's UM statute. ¶49 states In had addition, rejected Hayne a itself physical coverage in hit-and-run accidents. was contact cognizant that requirement other for UM As discussed supra, Hayne noted that these states have statutes requiring motorists to stop and render aid when involved in an accident and that courts in these states have construed these statutes to apply to all 24 No. 2004AP740 accidents, not simply those involving physical contact. Hayne, 115 Wis. 2d at 75. In declining to follow these jurisdictions, Hayne "Wisconsin's reasoned: version of these statutes, however, is entitled 'Duty upon striking person or attended or occupied vehicle.' Section 346.67 Stats. . . . The reference to 'striking' in sec. 346.67 supports our conclusion that the plain meaning of 'hit-and-run' in 632.32(4)(a)2.b. includes a Id.4 physical contact element." ¶50 sec. Further, many of the general policy statements from the cases upon which Romanshek relies were articulated in the dissent in Hayne and rejected by the majority. 95 ("[I]t is inconsistent with the remedial Compare id. at purpose of the uninsured motorist statute to permit the insurance company to evade coverage arbitrary by using the distinction between fraud argument accidents with and erecting physical an contact and those without.") (Abrahamson, J., dissenting) with id. at 85 n.11 (rejecting these policy arguments). Moreover, even if this court were now persuaded by those policy arguments rejected in Hayne, that is not a sufficient reason to overturn the decision. ¶51 Romanshek has not demonstrated that our interpretation of § 632.32(4)(a)2.b. in Hayne has failed "to provide suitable direction and consistency to this area of the law." Controls, 263 Wis. 2d 60, ¶106. 4 All he has Johnson presented is a Hayne also noted that "[s]ection 346.67(1)(a) provides, in part: '. . . he shall give his name, address and the registration number of the vehicle he is driving to the person struck . . . '." Hayne v. Progressive N. Ins. Co., 115 Wis. 2d 68, 75, 339 N.W.2d 588 (1983). 25 No. 2004AP740 string of foreign cases and generalized statements about the underlying purposes of statutes that mandate UM coverage. He has not presented any new facts that undermine Hayne's analysis of § 632.32(4)(a)2.b. Romanshek has not See id., demonstrated ¶98. that As our discussed cases supra, subsequent to Hayne have undermined the rationale behind that decision, which rationale was based on the plain language of § 632.32(4)(a)2.b. See id. He has not shown that our interpretation § 632.32(4)(a)2.b. in Hayne is unworkable in practice. ¶99. of See id., As noted, our courts have regularly applied the physical contact requirement to miss-and-run accidents and other types of cases in a presented consistent us application Romanshek with of a the simply manner. In compelling plain short, reason language disagrees with Romanshek to overrule of has not Hayne's § 632.32(4)(a)2.b. our interpretation of § 632.32(4)(a)2.b. in Hayne. ¶52 Furthermore, unlike Johnson Controls, Romanshek does not simply ask us to reconsider a recent interpretation of a contractual provision. common-law doctrine; interpretation of He does not merely ask us to abandon a rather, he a particular stood for over 20 years. asks phrase in us a to change statute that our has "This court has long been committed to the principle that a construction given to a statute by the court becomes a part thereof, unless the legislature subsequently amends the statute to effect a change." 26 City of No. 2004AP740 Sun Prairie v. PSC, 37 Wis. 2d 96, 100, 154 N.W.2d 360 (1967).5 "Legislative inaction following judicial construction of a statute, while not conclusive, evinces legislative approval of the interpretation." State v. Eichman, 155 Wis. 2d 552, 566, 455 N.W.2d 143 (1990). Thus, generally, "[l]egislative silence with regard to new court-made decisions indicates legislative acquiescence in those decisions." State Wis. 2d 628, 641, 498 N.W.2d 661 (1993). v. Olson, 175 See also Bauman, 7 Wis. 2d at 469-70 (holding that it was not proper to depart from stare decisis where court had previously ruled that policy exclusion did not violate omnibus insurance coverage statute and legislature had not amended statute in the 11 years since the prior decision). ¶53 Romanshek contends that this doctrine is not applicable because, according to a Legislative Council Note, the legislature explicitly § 632.32(4)(a)2.b. left it We disagree. up to the court to construe The Legislative Council Note to which he refers provides, in pertinent part: "A precise definition of hit-and-run is not necessary for in the rare case where a question arises the court can draw the line." Legislative Council Note, 1979, § 632.32, Stats. ¶54 However, this case is not one of the "rare" cases to which the Note refers. Unlike our flying objects cases or the 5 See also State v. Rosenburg, 208 Wis. 2d 191, 198, 560 N.W.2d 266 (1997)("The court's construction of a statute will stand unless the legislature specifically changes the particular holding."); State ex rel. LaFollette v. Brown County Cir. Ct., 37 Wis. 2d 329, 341, 155 N.W.2d 141 (1967)(accord). 27 No. 2004AP740 chain-reaction collision miss-and-run case. in Smith, this is a run-of-the-mill Unlike the aforementioned difficult cases where reasonable arguments can be made as to whether there may have been a "hit" involving an unidentified vehicle, a miss-andrun case clearly falls within the core of what is obviously not a hit-and-run. Indeed, we rejected the argument that miss-and- run cases are of the type to which the Note refers in Hayne: The dissent argues . . . that "miss-and-run" cases are the kind of "rare" cases referred to in the above note. Given the voluminous number of reported cases involving "miss-and-run" accidents cited by the dissent, it is difficult to see how "miss-and-run" cases can be considered rare. Hayne, 115 Wis. 2d at 82 n.8. ¶55 wholly Thus, it is delegated to § 632.32(4)(a)2.b. incorrect in any say courts the to the manner they that the power saw legislature to fit. construe While the aforementioned Note clearly indicates that the legislature left it up to the involving the courts to decide application of the the difficult phrase "rare" cases "hit-and-run," the existence of said Note does not provide the courts with carte blanche to completely rewrite the phrase "hit-and-run" to include that which is its very antithesis. ¶56 Therefore, we conclude that legislative acquiescence is applicable here. is not an immutable rule, because both the majority invited the legislature it is opinion to amend the the relevant dissent in § 632.32(4)(a)2.b. disagreed with our interpretation of the statute. 28 of While the doctrine particularly and doctrine here Hayne if it See Hayne, No. 2004AP740 115 Wis. 2d at 85 n.11 ("The legislature can, if it so desires, amend the [UM] statute to reflect [the dissent's] policy arguments."); Id. at 99 ("Fortunately the Wisconsin legislature can amend sec. 632.32(4)(a) and disavow the interpretation set forth in the majority opinion.")(Abrahamson, J., dissenting). Moreover, the majority even instructed the legislature how to alter the statute to mandate coverage for miss-and-run accidents: If the legislature had intended its mandated uninsured motorist coverage to apply to any accident involving an unidentified motorist . . . that result could have been reached merely by deleting the term "hit-and-run" from the language in sec. 632.32(4)(a)2.b., Stats., and having that provision read: an unidentified motor vehicle involved in an accident." Id. at 76. ¶57 Although the legislature has amended another provision of the mandatory UM law since Hayne, 1995 Wis. Act 21, § 2 (amending § 632.32(4)(a)1.), it has not seen fit to make any change to § 632.32(4)(a)2.b. and overturn interpretation of the phrase "hit-and-run." this court's The fact that the legislature made changes to the same statutory subdivision at issue here, but chose not to amend the phrase "hit-and-run" is a strong indication it intended our interpretation of that phrase in Hayne to remain law. ¶58 As the doctrine particularly applicable here, of legislative Romanshek must acquiescence demonstrate is that our holding in Hayne was objectively wrong, not merely mistaken. Wenke, 274 Wis. 2d 220, ¶21. This he has not done. 29 While No. 2004AP740 Romanshek argues at underlying length mandatory UM about coverage, the he supposed has not policies presented a compelling textual argument that indicates our interpretation of the phrase "hit-and-run" in Hayne was objectively wrong. ¶59 Furthermore, we reject Romanshek's argument that requiring physical contact to meet the definition of hit-and-run contravenes the intent of § 632.32. The ruling of Hayne was based on the clear, unambiguous statutory language contained in Hayne, 115 Wis. 2d at 74-76. § 632.32(4)(a)2.b. statutory language of sec. "The clear 632.2(4)(a)2.b. reflects a legislative intent that the statute apply only to accidents in which there has been physical contact." Id. at 74. This court "assume[s] that the legislature's intent is expressed in the statutory language. . . . It is the enacted unenacted intent, that is binding on the public." law, not the State ex rel. Kalal v. Dane County Cir. Ct., 2004 WI 58, ¶44, 271 Wis. 2d 633, 681 N.W.2d 110. from the As the physical contact requirement derives plain meaning of the term "hit-and-run" in § 632.32(4)(a)2.b., it cannot contravene the legislative intent; it is the legislative intent. ¶60 physical Likewise, contact we reject requirement Romanshek's suggestion may contravene that public the policy. "Public policy on a given subject is determined either by the constitution itself or by statutes passed within constitutional limitations. . . . limitations, the When legislature acting settles policy of a state, and not the court." 30 within and constitutional declares the public Borgnis v. Falk Co., 147 No. 2004AP740 Wis. 327, 351, 133 N.W. 209 (1911).6 Thus, when the legislature has acted, "the judiciary is limited to applying the policy the legislature has chosen to enact, and may not impose its own policy choices." Fandrey v. Am. Family Mut. Ins. Co., 2004 WI 62, ¶16, 272 Wis. 2d 46, 680 N.W.2d 345.7 Therefore, as Hayne concluded that the physical contact requirement is part of the UM statute, it cannot contravene public policy; it is public policy. ¶61 Romanshek's final argument is that we should refuse to follow Hayne because Progressive, he asserts, has conceded that he is not attempting to perpetrate a fraud. Romanshek argues that the sole reason for the physical contact requirement is to avoid fraudulent claims and the rule should not apply here because Progressive does not contend his claim is fraudulent. We reject justified this simply argument by a because 'case "no with change more in the egregious law is facts.'" Schultz, 257 Wis. 2d 19, ¶38 (quoting Stevens, 181 Wis. 2d at 442 (Abrahamson, J., concurring)). In addition, counsel for Romanshek admitted during oral argument that many of our prior 6 See also Flynn v. DOA, 216 Wis. 2d 521, 539, 576 N.W.2d 245 (1998)("This court has long held that it is the province of the legislature, not the courts, to determine public policy."). 7 See also Wood v. City of Madison, 2003 WI 24, ¶38, 260 Wis. 2d 71, 659 N.W.2d 31 ("The Woods and the amici argue that such a conclusion is bad policy. The remedy for change of this policy, however, lies with the legislature. The courts should not rewrite the clear language of the statute."). 31 No. 2004AP740 hit-and-run cases involved factual allegations whose veracity was not contested on appeal. ¶62 Further, the fact that insurance policies may contain provisions excluding UM coverage when there is no physical contact in order to avoid fraudulent claims is no justification for altering our interpretation of § 632.32(4)(a)2.b. when fraud is present.8 not Hayne set forth the physical contact requirement for mandatory UM coverage under § 632.32(4)(a)2.b. because that is what the plain meaning of the text dictated, not because the court sought to prevent fraud or because it believed such a requirement was "good policy" generally. Hayne, 115 Wis. 2d at 84-85. ¶63 While this court may mold and develop common-law doctrines to best effectuate the purpose for which they were designed, when applying statutes we do not carve out exceptions to a clear, unambiguous provision anytime a party argues that a particular result does not comport with what they assert to be the subjective intentions of the legislators in enacting the overall statutory scheme. See Columbus Park Hous. Corp. v. City of Kenosha, 2003 WI 143, ¶¶33-34, 267 Wis. 2d 59, 671 N.W.2d 633 (refusing to carve out an exception to a tax exemption statute governing charitable organizations for a benevolent organization that did not meet the statutory 8 requirements despite its We also note that Amidzich v. Charter Oak Fire Ins. Co., 44 Wis. 2d 45, 49-51, 170 N.W.2d 813 (1969), rejected the argument that the plain language of a hit-and-run policy provision should not govern simply because the insured contended that there was no evidence of fraud. 32 No. 2004AP740 undisputed charitable purpose and activities). Having authoritatively determined the plain meaning of the statute in Hayne, we apply that impose our own policy choices. Id. ¶64 of must simply plain meaning and may not Unlike Theis and Smith, which involved the application the phrase hit-and-run to difficult facts and required consideration of the "purposes" of § 632.32,9 this case involves the very essence of the plain meaning of "hit-and-run." cannot, however, change the construction intend, or support." ¶65 to mean that the wording something plain of that language the of a statute by legislature the statute "We liberal did not will not Hayne, 115 Wis. 2d at 85 n.11. As we stated in Hayne, the legislature is free to change our interpretation of § 632.32(4)(a)2.b. if it deems our interpretation to be incorrect. It may very well be good public policy to mandate UM coverage for an insured injured in a missand-run accident. However, Romanshek's policy arguments are best addressed to the body charged with developing this state's public policy. 9 Moreover, we note that the "purposes" of the UM statute to which Romanshek refers are not textually manifest in the statute itself. See State ex rel. Kalal v. Dane County Cir. Ct., 2004 WI 58, ¶49 & n.8, 271 Wis. 2d 633, 681 N.W.2d 110. Rather, these "purposes" were first constructed by the dissent in Hayne, which relied on statements from other courts and commentators addressing the rationale underlying UM statutes generally. Hayne, 115 Wis. 2d at 93-94 (Abrahamson, J., dissenting). 33 No. 2004AP740 IV ¶66 In conclusion, we decline to overrule our long line of precedent requiring physical contact in an accident involving an unknown vehicle in order for there to be a "hit-and-run" within the meaning of § 632.32(4)(a)2.b. Our cases have consistently affirmed the physical contact requirement and held that missand-runs do not qualify as hit-and-runs. Romanshek has offered no compelling reason to depart from Hayne's interpretation of the plain language of § 632.32(4)(a)2.b. demonstrated that objectively wrong. As interpretation Hayne's doctrine of stare such, decisis, Further, the of the to refuse particularly Hayne concerns contractual interests. we that the has depart since provisions and fact He not statute the was from the ruling in implicates legislature reliance has not amended § 632.32(4)(a)2.b. in the 20 years since Hayne, despite our invitation to do so and its amendment of § 632.32(4)(a)1., is strong reason to adhere to stare decisis. reaffirm that requires phrase physical unidentified accidents. the vehicle "hit-and-run" contact and in does an not Therefore, we in § 632.32(4)(a)2.b. accident involving apply to miss-and-run As such, we affirm the order of the circuit court. By the Court. The order of the circuit court is affirmed. 34 an No. ¶67 SHIRLEY S. ABRAHAMSON, C.J. 2004AP740.ssa I (dissenting). have carefully read the lengthy majority opinion in the instant case and have reread the majority and dissenting opinions in Hayne v. Progressive Northern N.W.2d 588 (1983). Hayne is correct. Insurance Co., 115 Wis. 2d 68, 339 I continue to believe that my dissent in Indeed in the intervening years I have become more persuaded of its correctness. ¶68 Many states have either adopted or reaffirmed the position set forth in the Hayne dissent. ¶69 The Hayne majority opinion has been eroded since Hayne was decided. This erosion has taken place because the Hayne majority opinion is not in keeping with the objectives of the statute. In an effort to conform with the statutory objectives, this court has pinned the outcome of uninsured motorist cases in Wisconsin on such artificial distinctions as whether a plaintiff can show that physical contact with a third vehicle was indirect,10 or that a flying object from one vehicle touches the other.11 ¶70 not That the legislature has not amended the statute does dissuade argument often in me. "Legislative statutory vulnerable to acquiescence construction is a cases. . . . [But rebuttal. . . . Numerous 10 Smith v. Gen. Cas. Wis. 2d 646, 619 N.W.2d 882. Ins. 11 Theis v. Midwest Sec. Wis. 2d 749, 606 N.W.2d 162. Ins. 1 familiar Co., Co., 2000 2000 it] is variables, WI WI 127, 239 15, 232 No. unrelated to conscious interpretation, inaction. . . . The may endorsement explain doctrine of or a of cause legislative 2004AP740.ssa statutory legislative acquiescence is merely a presumption to aid in statutory construction."12 ¶71 For the reasons explained fully in my Hayne dissent and because our subsequent cases have backed away from the Hayne majority opinion, I dissent. 12 Wenke v. Gehl Co., 2004 WI 103, ¶¶32, 33, 35, 274 Wis. 2d 220, 682 N.W.2d 405. See also State v. Hansen, 2001 WI 53, ¶38, 243 Wis. 2d 328, 627 N.W.2d 195. 2 No. 1 2004AP740.ssa

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.