Joseph Mullen v. Douglas J. Walczak
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2003 WI 75 SUPREME COURT CASE NO.: OF WISCONSIN 02-0129 COMPLETE TITLE: Joseph Mullen and Estate of Renee K. Petit, by Joseph Mullen, Special Administrator, Plaintiffs-Appellants-Petitioners, v. Douglas J. Walczak, ABC Insurance Company, Daniel Wheeler, DEF Insurance Company and Primax Recoveries Company, Defendants, American Family Mutual Insurance Company, Defendant-Respondent. REVIEW OF A DECISION OF THE COURT OF APPEALS 2002 WI App 254 Reported at: 257 Wis. 2d 928, 653 N.W.2d 529 (Ct. App. 2002-Published) OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: April 8, 2003 SOURCE OF APPEAL: COURT: COUNTY: JUDGE: Circuit Lincoln J.M. Nolan July 1, 2003 JUSTICES: CONCURRED: DISSENTED: NOT PARTICIPATING: ATTORNEYS: For the plaintiffs-appellants-petitioners there were briefs by D. James Weis and Habush Habush & Rottier, S.C., Rhinelander, and oral argument by D. James Weis. For the defendant-respondent there was a brief by John A. Kramer, Michael J. Roman, and Zalewski, Klinner & Kramer, LLP, Wausau, and oral argument by John A. Kramer. An amicus curiae brief was filed by William C. Gleisner, III, Milwaukee, on behalf of the Wisconsin Academy of Trial Lawyers. 2003 WI 75 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 02-0129 (L.C. No. 99-CV-95) STATE OF WISCONSIN : IN SUPREME COURT Joseph Mullen and Estate of Renee K. Petit, by Joseph Mullen, Special Administrator, Plaintiffs-AppellantsPetitioners, FILED v. JULY 1, 2003 Douglas J. Walczak, ABC Insurance Company, Daniel Wheeler, DEF Insurance Company and Primax Recoveries Company, Cornelia G. Clark Clerk of Supreme Court Defendants, American Family Mutual Insurance Company, Defendant-Respondent. REVIEW of a decision of the Court of Appeals. ¶1 WILLIAM A. BABLITCH, J. Joseph Affirmed. Mullen (Mullen) petitions this court for review of a court of appeals' decision, which held that Mullen's claim for emotional distress, resulting solely from witnessing the death of his wife, should be paid out of his wife's "per person" liability limit under their American No. Family insurance policy. 02-0129 Mullen v. Walczak, 2002 WI App 254, 257 Wis. 2d 928, 653 N.W.2d 529. We agree. Based on the parties' stipulation that Mullen's claim for emotional distress is solely the result of witnessing his wife's death and on the plain language conclude of the that Mullen's American claim Family must be wife's "per person" liability limit. insurance compensated policy, out of we his Accordingly, we uphold the decision of the court of appeals. FACTS AND PROCEDURAL HISTORY ¶2 The relevant facts are undisputed. On May 31, 1996, Mullen and his wife, Renee Petit (Petit), were involved in an automobile uninsured accident that motorist. was Petit caused died in suffered serious physical injuries. by the Douglas Walczak, accident, and an Mullen Mullen witnessed the death of his wife at the scene. ¶3 In 1999, Mullen commenced an action both personally, and as the administrator of Petit's estate, for the wrongful death of Petit and Mullen's personal injuries. recover under their automobile American Family, which insurance provided uninsured Mullen sought to policy issued motorists by coverage. Mullen sued for: (1) the wrongful death of Petit; (2) his own physical injuries; and (3) the emotional distress he suffered as the result of witnessing Petit's death. Only the emotional distress injury is at issue in this case. ¶4 Under the American Family policy, the "Limits of Liability" for uninsured motorists coverage provided that the "limit for 'each person' is the 2 maximum for all damages No. 02-0129 sustained by all persons as the result of bodily injury to one person in any motorist one limits accident." of The $100,000 per policy provided person and uninsured $300,000 per accident. ¶5 claim Mullen and American Family settled the wrongful death arising out of Petit's death for $100,000, exhausting Petit's "per person" liability limit. American Family also physical injuries stipulated totaled that $50,000. Mullen's thereby Mullen and claim his Mullen Additionally, for and American Family stipulated that Mullen "sustained and continues to suffer from emotional distress witnessing his wife's death." ¶6 cover resulted solely from (Emphasis added.) Based on the stipulation, American Family refused to Mullen's death. that emotional injuries resulting from his wife's American Family filed a motion for summary judgment, arguing that since Mullen's emotional distress arose from his wife's death, those damages would have to be paid out of Petit's "per person" limit, which had wrongful death settlement. already been exhausted by the Mullen responded that his emotional injuries were part of his own bodily injuries, and were thus payable out of his own "per person" limit, of which $50,000 remained. ¶7 The circuit court for Lincoln County, Judge J. Michael Nolan presiding, agreed with American Family and granted its motion for summary judgment. Mullen's damages for his witnessing his wife's The circuit court concluded that emotional death, was 3 distress, subject as to a result Petit's of "each No. 02-0129 person" limit since Mullen's emotional distress was the result of Petit's bodily injuries, citing Estate of Gocha v. Shimon, 215 Wis. 2d 586, 573 N.W.2d 218 (Ct. App. 1997). Mullen filed a motion for reconsideration, which was denied. ¶8 Mullen applicable appealed because family members. that and case argued that involved Gocha was claims "bystander" not of Unlike the facts in Gocha, Mullen emphasized that he was involved in the accident with his wife, and was physically injured as a result. Mullen contended that since there were two physically injured persons in the accident, two "per person" liability limits should be available. Mullen asserted that all damages sustained by him were his own bodily injuries in the accident. As such, he claimed that these injuries should be properly compensated from his "per person" limit. ¶9 case law The court of appeals disagreed. and reviewing the decision in After surveying the Gocha, the court of appeals stated that "but for the death of his wife, Mullen would not have an emotional distress claim based on witnessing her death." Mullen, 257 Wis. 2d 928, ¶9. The court concluded, "[t]he parties settled Mullen's claim for his physical injuries and any emotional distress that arose from them for $50,000. The only claim at issue is Mullen's distress from witnessing his wife's death. Under the policy, that damage is subject to her 'each person' limit." ¶10 Mullen Id., ¶12. petitioned this granted on December 10, 2002. 4 court for review, which was No. 02-0129 STANDARDS OF REVIEW ¶11 A grant of summary judgment is reviewed de novo using the same methodology as the circuit court. Fulton, 2002 Summary WI 29, judgment ¶15, shall 251 Ahrens v. Town of Wis. 2d 135, be granted 641 the "if N.W.2d 423. pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits . . . show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Wis. Stat. § 802.08(2) (2001-02). ¶12 The interpretation of an insurance contract question of law that this court reviews de novo. is a Danbeck v. Am. Family Mut. Ins. Co., 2001 WI 91, ¶10, 245 Wis. 2d 186, 629 N.W.2d 150. An insurance policy is construed to give effect to the intent of the parties, as expressed by the language of the policy itself, which is interpreted as a reasonable person in the position of the insured would understand it. Garriguenc v. Love, 67 Wis. 2d 130, 134-35, 226 N.W.2d 414 (1975). of an insurance meaning. policy Henderson v. are given State Farm their Mut. Wis. 2d 451, 457-59, 208 N.W.2d 423 (1973). The words common and Auto. Ins. ordinary Co., 59 "When a policy is clear and unambiguous on its face, the terms of that policy should not be rewritten by construction to bind an insurer to a risk it never contemplated or was willing to cover, and for which it was never paid." Wis. 2d 109, 122, 403 Gonzalez v. City of Franklin, 137 N.W.2d 747 (1987) (citing Smith, 56 Wis. 2d 632, 640, 203 N.W.2d 29 (1973)). 5 Limpert v. No. ¶13 02-0129 Applying these standards of review, we address whether Mullen's claim for emotional distress, solely as the result of witnessing his wife's death, must be paid out of his wife's "per person" uninsured motorists liability limit. ANALYSIS ¶14 Mullen argues that his claim for emotional distress should be covered by his "each person" limit because all of his injuries, both physical and emotional, from should be covered by his "per person" limit. whatever source, Mullen also argues that Gocha does not control the outcome of this case because it dealt with "bystander" claims that are not present in this case. Mullen maintains that because he suffered a physical injury, he is entitled to collect for all the damages he sustained in the accident, including the emotional distress he suffered from witnessing his wife's death. ¶15 "each In Gocha, the court of appeals addressed whether the person" or "each accident" liability limit applied to emotional distress claims of family members who witnessed an accident involving Kyle Gocha. Gocha, 215 Wis. 2d at 589. Kyle was fatally injured while riding his bicycle when he was struck by an automobile. Id. The plaintiffs were four members of Kyle's family none of whom were involved in the accident or physically injured. Id. The insurance policy in the case had "limits of liability" language similar to the American Family policy in this case, with limits of $100,000 for "each person" and $300,000 for "each accident." Id. The insurance company paid $100,000 to the Gochas for Kyle's death pursuant to the 6 No. "each person" liability limit. Id. at 590. 02-0129 The Gochas contended that their emotional distress claims from witnessing Kyle's death entitled them to an additional $200,000 under the "each accident" limit. The Gochas argued that the "emotional injuries suffered by family members who witness the death of another family action member entitling the are a separate emotionally and injured independent family direct members to liability coverage under the 'each accident' limit of $300,000 and not the 'each person' limit of $100,000." ¶16 The court of appeals disagreed Id. at 588. with the Gochas, reasoning that: The bodily injury to Kyle includes all injury and damages to others resulting from Kyle s bodily injury. But for the bodily injury to Kyle, the Gochas would not have suffered any emotional injuries. Their injuries are the natural and probable consequence of witnessing the accident that killed Kyle. Id. at 592-93 (emphasis in original). in Gocha held that the emotional Consequently, the court distress claims of Kyle's family members were only compensable out of Kyle's "per person" limit because injuries. their Id. at 594. emotional distress resulted from Kyle's In other words, "[t]he injuries suffered by the Gochas [arose] out of Kyle s bodily injury, not their own." Id. at 593. ¶17 In this case, the court of appeals analogized between the claims of the family members in Gocha and Mullen's claim: The focus of our decision in Gocha was that, but for Kyle s bodily injuries, the family members would not have suffered emotional distress and, under the terms of the policy, that distress was compensable only from 7 No. 02-0129 the "each person" limit. Similarly, but for the death of his wife, Mullen would not have an emotional distress claim based on witnessing her death. That he suffered his own injuries is irrelevant to the issue of how the policy covers claims that result from bodily injury to another person. Mullen, 257 Wis. 2d 928, ¶9 (emphasis added) (citation omitted). ¶18 Mullen argues that the court of appeals erred in relying on Gocha since he was not a "bystander" in the auto accident that killed his wife. "bodily injury" should be Furthermore, Mullen argues that interpreted as including emotional distress, as well as physical injuries (citing Doyle v. Engelke, 219 Wis. 2d 277, 580 N.W.2d 245 (1998)). ¶19 We agree with Mullen that he was not a "bystander," as that term is used in Gocha, since he was physically injured in the accident in which Petit was killed. We also agree with Mullen emotional that bodily injury Doyle, 219 Wis. 2d at 288. may include distress. However, even though we agree with Mullen on these points, they are not dispositive for determining whose "per person" limit applies to Mullen's claim for emotional distress, wife. resulting solely from witnessing the death of his Rather, we must look to the relevant policy language and apply the limits of liability as provided in the policy. ¶20 liability Under for the the American uninsured Family motorists policy, coverage the limits provided of that "[t]he limit for 'each person' is the maximum for all damages sustained by all persons as the result of bodily injury to one person in any one accident." Thus in this case, Petit's "each person" limit includes all damages sustained by all persons as 8 No. the result of her bodily injury in the accident. 02-0129 Although Mullen suffered physical injuries in the accident, he stipulated that his claim for emotional distress was solely from witnessing his wife's death. In other words, the stipulation established that Mullen's emotional distress was the result of his wife's death. ¶21 not a As previously noted, we acknowledge that Mullen was bystander; however, since the only claim at issue is Mullen's emotional distress from witnessing his wife's death, we find the reasoning in bystander cases instructive. In a case involving a husband's claim for the loss of his wife's services and her medical expenses, this court reasoned: While it is true that Herbert Bulman sustained damages by reason of the injury to his wife, quite separate and distinct in nature from those sustained by the wife, the insurance contract under which he seeks recovery includes his damages in those to which the limit of $5,000 applies. The measure of his recovery is not governed by the fact that his separate damages arose out of the same accident, but by the fact that they arose out of the same bodily injury. Bulman v. Bulman, 271 Wis. 286, 291, 73 N.W.2d 599 (1955). another bystander case, the court of appeals stated: How the law defines particular claims is immaterial. At issue is how the policy treats them, which is determined by the language of the policy. That is, the language of the policy controls which limits apply because whether a claim is derivative does not affect the applicable limits. Here, as shown below, the policy language ties the Krumms' claims to the "each person" limit. . . . . 9 In No. 02-0129 The policy here limits the recovery for all claims arising out of the injury of one person. Although those claims, such as emotional distress, may be independent and non-derivative and constitute "bodily injury," they arise out of the injury one person sustained. Here, Kyle sustained the injuries. But for Kyle's injuries, the rest of the Krumms would not have injuries or claims. Therefore, the "each person" limit applies and limits the Krumms' total recovery under the settlement agreement to $50,000. Kosieradzki v. Mathys, 2002 WI App 191, ¶¶10, Wis. 2d 839, 649 N.W.2d 717 (citation omitted). court of appeals declared in Gocha, "[t]hat 13-14, 256 Finally, as the the Gochas have suffered Bowen-type emotional injuries is not really contested; it however begs the real controversy [at issue]. What is at issue here is whether State Farm's policy limits the Gochas' otherwise compensable injuries. We conclude that it does." Gocha, 215 Wis. 2d at 591. ¶22 In this case, even though Mullen was himself physically injured, his claim for emotional distress resulted from his wife's injury. Under the terms of the policy, any damages sustained by all persons as the result of Petit's death are covered by her "per person" limit. Consequently, the emotional distress suffered by Mullen, solely as the result of witnessing his wife's death, must be compensated out of her "per person" limit, not Mullen's. ¶23 We note that our holding relies on the stipulation between Mullen and American Family, which stated that Mullen's claim for emotional distress "resulted solely from witnessing his wife's death." (Emphasis added.) 10 We have previously held No. that it may be impossible to separate for damages distress that stem from different sources. 02-0129 emotional Redepenning v. Dore, 56 Wis. 2d 129, 143, 201 N.W.2d 580 (1972). In Redepenning, a mother sustained sought recovery automobile accident. mother's claims for injuries she in an Her daughter died in the accident, and the included one for emotional distress. In upholding a jury's damage award, we determined that the mother's emotional distress was caused both by her own physical injuries as well as witnessing her daughter's death. Id. Ultimately, we concluded that it was impossible to adequately separate the two. Id. In contrast, the court of appeals aptly pointed out a crucial distinction present in this case: "While the Redepenning court did note [that] it could not separate the causes of the mother's emotional distress, able to do it in this case." ¶24 and American Family were Mullen, 257 Wis. 2d 928, ¶12. In sum, we conclude that Mullen's claim for emotional distress, wife, Mullen resulting must liability be solely from compensated out limit based on the witnessing of terms his of the death of wife's "per person" insurance policy. the his Accordingly, we affirm the decision of the court of appeals. By the Court. The decision affirmed. 11 of the court of appeals is No. 1 02-0129
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