author: LUNDSTEN, J.

text:
    Milwaukee County, Plaintiff-Cross-Respondent, v. Juneau County, Defendant, Sauk County, Defendant-Cross-Respondent, Wisconsin County Mutual Insurance Corporation, Third-Party Plaintiff, Juneau County, Third-Party Plaintiff-Appellant, v. Sentry Insurance Company, Third-Party Defendant-Cross-Respondent, Safety National Casualty Corporation, Third-Party Defendant-Respondent-Cross-Appellant.

    Court of Appeals

      No. 02-2880.

      Submitted on briefs August 13, 2003.

      Decided January 22, 2004.

    2004 WI App 23
    (Also reported in 676 N.W.2d 513.)

      On behalf of the third-party plaintiff-appellant Juneau County, the cause was submitted on the briefs of Mark B. Hazelbaker, Madison.
    On behalf of the third-party defendant-respondent-cross-appellant Safety National Casualty Corporation, the cause was submitted on the briefs of Virginia L. Newcomb and Patryk Silver of Borgelt, Powell, Peterson & Frauen, S.C., Madison.
    On behalf of the defendant-cross-respondent Sauk County and the third-party defendant-cross-respondent Sentry Insurance Company, the cause was submitted on the brief of Robert Horowitz of Stafford Rosenbaum LLP, Madison, and Bradway A. Liddle, Jr. and Sarah A. Zylstra of Boardman Law Firm LLP, Madison. The brief was joined in by plaintiff-cross-respondent Milwaukee County.
    Before Dykman, Anderson and Lundsten, JJ.

       Petition to review filed.

   LUNDSTEN, J.

¶ 1. This is a worker's compensation claim case arising out of a fatal helicopter crash in Dodge County that took the lives of two Milwaukee County police officers. Juneau County appeals that part of a summary judgment order which dismissed Juneau County's claim against its worker’s compensation insurance carrier, Safety National Casualty Corporation. Safety National cross-appeals a subsequent summary judgment order that dismissed all claims against Sauk County and required Juneau County to reimburse Milwaukee County for worker's compensation payments made by Milwaukee County. We conclude that the circuit court properly dismissed Sauk County from the suit and properly entered judgment in favor of Milwaukee County against Juneau County. However, we also conclude that the court erred when it dismissed Juneau County's claim against Safety National. Accordingly, we affirm in part, reverse in part, and remand with directions that the circuit court enter judgment consistent with this opinion.

BACKGROUND

¶ 2. The relevant facts are undisputed. Law enforcement officers pursued a murder suspect from Sauk County into Juneau County. Juneau County officers established a command post to coordinate search efforts by law enforcement personnel from multiple jurisdictions, including Sauk and Juneau Counties. At the request of a Juneau County officer, the Sauk County Sheriff used his agency to contact Milwaukee County officials and request the use of a helicopter to assist in the search. A helicopter, manned by two Milwaukee County deputy sheriffs, was sent to Juneau County and participated in the search. On its return trip to Milwaukee County, the helicopter crashed in Dodge County, killing both deputies aboard.

¶ 3. Milwaukee County made worker's compensation payments to the families of the deceased officers and then sought reimbursement from Sauk and Juneau Counties. The circuit court concluded that Juneau County, not Sauk County, was required to reimburse Milwaukee County. The circuit court also concluded that Juneau County's worker's compensation insurance policy with Safety National did not provide coverage.

STANDARD OF REVIEW

¶ 4. This court reviews summary judgment decisions de novo, applying the same methodology employed by the circuit court. Brownelli v. McCaughtry, 182 Wis. 2d 367, 372, 514 N.W.2d 48 (Ct. App. 1994). That methodology is well established and need not be repeated here. See, e.g., Lambrecht v. Estate of Kaczmarczyk, 2001 WI 25, ¶¶ 20-24, 241 Wis. 2d 804, 623 N.W.2d 751.

DISCUSSION

Statutory Liability for Worker's Compensation Payments

¶ 5. We first address Safety National's cross-appeal in which it challenges the summary judgment order dismissing all claims against Sauk County and requiring Juneau County to reimburse Milwaukee County for worker's compensation payments made by Milwaukee County. We agree with Juneau and Sauk Counties that it is Juneau County which bears responsibility for the reimbursement payments.

¶ 6. Wisconsin Stat. § 66.0513 (2001-02) sets forth a worker's compensation scheme for law enforcement personnel who are called upon to perform duties outside of the territorial limits of the municipality where they are regularly employed. It provides:

(1) Any chief of police, sheriff, deputy sheriff, county traffic officer or other peace officer of any city, county, village or town, who is required by command of the governor, sheriff or other superior authority to maintain the peace, or who responds to the request of the authorities of another municipality, to perform police or peace duties outside territorial limits of the city, county, village or town where the officer is employed, is entitled to the same wage, salary, pension, worker's compensation, and all other service rights for this service as for service rendered within the limits of the city, county, village or town where regularly employed.
(2) All wage and disability payments, pension and worker's compensation claims, damage to equipment and clothing, and medical expense arising under sub. (1), shall be paid by the city, county, village or town regularly employing the officer. Upon making the payment the city, county, village or town shall be reimbursed by the state, county or other political subdivision whose officer or agent commanded the services out of which the payments arose.

The parties agree that Milwaukee County was initially required to make worker's compensation payments to the families of the deceased deputy sheriffs. However, Safety National contends that its insured, Juneau County, had no obligation to reimburse Milwaukee County under § 66.0513(2) for two reasons: first, an officer from Sauk County, rather than Juneau County, requested assistance from Milwaukee County; and, second, the services of the Milwaukee County officers were requested, not "commanded" within the meaning of the statute. We reject both of Safety National's arguments.

¶ 7. Appellate review of statutory interpretation is de novo. We apply the following principles:

The purpose of statutory interpretation is to discern the intent of the legislature. To determine this intent, we look first to the plain language of the statute. If the language of the statute clearly and unambiguously sets forth the legislative intent, it is our duty to apply that intent to the case at hand and not look beyond the statutory language to ascertain its meaning.
If the language of the statute is ambiguous and does not clearly set forth the legislative intent, the court will resort to judicial construction. We ascertain legislative intent through judicial construction in relation to a number of extrinsic factors, including the legislative object intended to be accomplished, and the statute's scope, history, context, and subject matter. A statute is ambiguous if it is capable of being understood by a reasonably well-informed person in either of two senses. Depending on the facts of a case, the same statute may be ambiguous in one setting and unambiguous in another.
In addition, although "it is true that statutory interpretation begins with the language of the statute, it is also well established that courts must not look at a single, isolated sentence or portion of a sentence, but at the role of the relevant language in the entire statute." Moreover, in interpreting a statute, courts must attempt to give effect to every word of a statute, so as not to render any portion of the statute superfluous.

Landis v. Physicians Ins. Co. of Wis., 2001 WI 86, ¶¶ 14-16, 245 Wis. 2d 1, 628 N.W.2d 893 (citations omitted).

¶ 8. First, we agree with the circuit court that the undisputed facts establish that it was Juneau County, rather than Sauk County, that requested the services of the Milwaukee County officers. Although it was the Sauk County Sheriff who made contact with Milwaukee County, the sheriff was acting at the request of a Juneau County officer in charge of the command center in Juneau County. It is true that the Sauk County Sheriff suggested that Milwaukee County be contacted, but he nonetheless contacted Milwaukee County at the request of the Juneau County officer. The fact that Sauk County identified itself as the requesting agency on paperwork is immaterial because, in making our legal determination, we independently review the circumstances surrounding the request for assistance.

¶ 9. Accordingly, we conclude that the circuit court properly dismissed Sauk County from the case. If any county "commanded" the services at issue here within the meaning of Wis. Stat. § 66.0513(2), it was Juneau County. We turn our attention to the meaning of the term "commanded."

¶ 10. Safety National's "commanded" argument is straightforward. The insurance company contends that the reimbursement provision in Wis. Stat. § 66.0513(2) only applies when officers from the requesting city, county, village, or town "commanded" — that is compelled — the police services of the assisting city, county, village, or town. Safety National asserts that § 66.0513 distinguishes between compulsory police services required by command and voluntary police services rendered in response to a request. Safety National contends that Juneau County is not entitled to reimbursement under § 66.0513(2) because Juneau County "never ordered that a Milwaukee County helicopter be provided." We disagree with this analysis.

¶ 11. When viewed in isolation, the term "commanded" in Wis. Stat. § 66.0513(2) is ambiguous. "Commanded" has multiple meanings in common usage. The transitive verb "command" is variously defined as "to direct authoritatively," "to have at one's immediate bidding or disposal," "to cause or direct to come or go," and "to order or request to be given." Webster's Third New International Dictionary 455 (unabridged ed. 1993). Thus, the phrase "commanded the services," as used in the statute, could commonly be understood to refer to services that are ordered authoritatively, or that are requested by or performed under the direction of officers of another political subdivision.

¶ 12. Safety National advances a meaning of "commanded" that is divorced from context and that would produce absurd results. Is an officer "commanded" when a sheriff from one county requests assistance and a sheriff from another county dispatches officers to serve the requesting sheriff? Does it matter if the sending sheriff expressly orders his or her officers to go and directs them to follow the orders of the requesting sheriff while in the requesting sheriffs county? Does it matter whether the requesting sheriff puts his or her statements to the assisting officers in the form of requests or orders? We think not. In any event, the legislature could not have intended that liability for worker's compensation claims and other benefits under Wis. Stat. § 66.0513 would depend on subtle distinctions between how requests and directives are uttered. We can conceive of no reason why such distinctions would matter for purposes of worker's compensation liability.

¶ 13. Our conclusion is buttressed by the legislature's use of the word "command" in subsection (1) of Wis. Stat. § 66.0513. The use of the phrase "required by command" in subsection (1) plainly does not mean that officers who volunteer to go to another city, county, village, or town are excluded from worker's compensation and other benefits. For example, if the Milwaukee County Sheriff had requested volunteers to go to Juneau County, and the deceased officers had been volunteers, their families would not be denied worker's compensation benefits under subsection (1) because the officers were not "required by command of the . . . sheriff... to perform police or peace duties outside territorial limits of the .. . county." Such a reading of "command" would be absurd.

¶ 14. We conclude that the most reasonable interpretation of "commanded" in Wis. Stat. § 66.0513(2) is that it encompasses "ordered," "directed," and "requested." It follows that Juneau County is required to reimburse Milwaukee County.

Policy Coverage

¶ 15. We turn next to the question whether Juneau County's liability falls within the scope of its worker's compensation policy. The applicable standard of review and legal principals are as follows:

Insurance contract interpretation presents a question of law that is reviewed de novo. The same rules of construction that govern general contracts are applied to the language in insurance policies. An insurance policy is construed to give effect to the intent of the parties as expressed in the language of the policy.
Therefore, the first issue in construing an insurance policy is to determine whether an ambiguity exists regarding the disputed coverage issue. Insurance policy language is .ambiguous "if it is susceptible to more than one reasonable interpretation." If there is no ambiguity in the language of an insurance policy, it is enforced as written, without resort to rules of construction or applicable principles of case law. If there is an ambiguous clause in an insurance policy, we will construe that clause in favor of the insured.

Folkman v. Quamme, 2003 WI 116, ¶¶ 12-13, 264 Wis. 2d 617, 665 N.W.2d 857 (citations omitted).

¶ 16. We do not find any ambiguity in the insurance policy language at issue here. The Safety National policy provides, in relevant part:

A. Coverage of Agreement
This Agreement applies only to Loss sustained by the EMPLOYER because of liability imposed ... by the Workers' Compensation or Employers' Liability Laws of... [Wisconsin] ... on account of bodily injury by accident... to Employees of the EMPLOYER engaged in the business operations specified in the Declarations . . . including] resulting death.
In no event shall [Safety National] be liable for any Loss voluntarily assumed by the EMPLOYER under any contract or agreement, expressed or implied.
D. Definitions
(1) "Loss" — shall mean actual payments legally made by the EMPLOYER... in satisfaction of: (a) statutory benefits, (b) settlements of suits and claims, and (c) awards and judgments ....
(3) "Exclusions from Loss" —...
(g) Injury sustained by any Employee in, upon, entering, or alighting from any EMPLOYER owned, leased, or regularly chartered aircraft unless coverage is intended by inclusion in Item 6 of the Declarations or by endorsement to this Agreement. Coverage will extend to aircraft purchased, leased, or regularly chartered only if the EMPLOYER notifies [Safety National] within thirty (30) days from the date of the initial exposure. In the event of such notification, however, [Safety National] may modify coverage and/or charge additional premiums.
(6) "Employee" — as respects liability imposed upon the EMPLOYER by the Workers' Compensation Law of [Wisconsin],... shall mean any person performing work which renders the EMPLOYER liable under the Workers' Compensation Law....
L. Good Faith Claims Administration
The EMPLOYER shall use diligence, prudence, and good faith in the investigation, defense, and settlement of all such claims and shall not unreasonably refuse to settle any claim which, in the exercise of sound judgment with respect to the entire claim, should be settled, provided, however, that the EMPLOYER shall not make any payment or agree to any settlement for any sum which would involve the limits of the CORPORATION'S liability hereunder without the approval of the CORPORATION. The EMPLOYER’S failure to exercise diligence, prudence, and good faith may result in the disclaimer of coverage for the particular claim.

Juneau County is designated as the "employer" on the "Declarations" page. Under this language, Safety National must provide coverage because Juneau County has sustained a "loss" imposed by the worker's compensation laws of Wisconsin with respect to "employees." We reject Safety National's several arguments to the contrary.

¶ 17. First, relying on subsection A of the policy, Safety National asserts there is no coverage because the deputies that were killed were not "[e]mployees of the EMPLOYER," Juneau County. Rather, Safety National cites a variety of legal authorities as part of an attempt to establish that, at all times, the Milwaukee County deputies remained employees of Milwaukee County under state law. However, we need not decide whether, under state law, the Milwaukee County deputies were temporarily Juneau County employees when rendering assistance under the mutual aid statutes because we conclude Safety National's policy requires coverage regardless of the deputies' employment status under state law. Safety National's policy defines "employee" as "any person performing work which renders the EMPLOYER liable under the Workers' Compensation Law." Accordingly, the question is not whether the Milwaukee County deputies were employees of Juneau County under state law, but whether Juneau County is liable under Wisconsin worker's compensation law. Addressing this question, Safety National contends that the mutual aid reimbursement statute, Wis. Stat. § 66.0513, is not a worker's compensation law. However, as we explained above, Juneau County was required, under § 66.0513(2), to reimburse Milwaukee County for the worker's compensation payments. Thus, Juneau County was, in the words of the policy, "liable under the Workers' Compensation Law."

¶ 18. The fact that the worker's compensation reimbursement provision at issue here is located in the "mutual aid" statute hardly means it is not part of Wisconsin's worker's compensation law. To the contrary, the provision plainly assigns responsibility for certain worker's compensation payments. Moreover, we agree with Juneau County that if Wis. Stat. § 66.0513 is not a "worker's compensation law" within the meaning of the policy, then Safety National would never be liable for a worker's compensation payment imposed by the statute on an employer — a result that is patently nonsensical and contrary to the statutory scheme.

¶ 19. Next, Safety National contends that use of the helicopter fell within the policy's aircraft exclusion, subsection D(3)(g) of the policy. However, the aircraft exclusion provision is inapplicable because Juneau County did not "own[ ], lease[ ], or regularly charter[ ]" the helicopter flown by the deputies. Rather, Milwaukee County loaned Juneau County the use of the aircraft on a one-time emergency basis — a situation not specified in the aircraft exclusion.

¶ 20. Safety National further asserts there is no coverage because its policy does not cover losses "voluntarily assumed by the EMPLOYER." Safety National contends that Juneau County voluntarily assumed the loss by requesting mutual aid. We disagree. If "voluntarily assumed" had this meaning, Juneau County would voluntarily assume a loss every time it sent even its own officers out to work and injury or death resulted. When officers of a county perform their law enforcement duties, including seeking assistance from other police agencies when the need arises, they are not voluntarily assuming losses in any meaningful sense. Juneau County's responsibility for the worker's compensation payments was a matter of statutory obligation, not a voluntarily assumed liability.

¶ 21. Safety National next asserts that Juneau County forfeited coverage by accepting liability without Safety National's approval and by otherwise failing to engage in good faith claims administration. Safety National relies on policy language providing that it may disclaim coverage if Juneau County fails to exercise diligence, prudence, and good faith in the claim settlement process. There is, however, no exercise of bad faith in Juneau County's acknowledgment of its statutory obligation to reimburse Milwaukee County for the worker's compensation payments.

¶ 22. Finally, Safety National asserts there is no coverage because Juneau County did not pay a premium to cover employees from other counties rendering law enforcement services to Juneau County. Safety National argues that it did not intend to insure multiple jurisdictions against losses for which no premium was paid. This argument adds nothing to the arguments that have come before. We have explained why Juneau County is liable to Milwaukee County and why Safety National's policy provides coverage.

CONCLUSION

¶ 23. Accordingly, the portion of the summary judgment which dismissed Safety National is reversed, and the matter is remanded to allow the circuit court to enter summary judgment in Juneau County's favor on the policy coverage issue. Safety National shall be taxed with the costs of both the appeal and cross-appeal, pursuant to Wis. Stat. Rule 809.25(1). We do not, however, deem the cross-appeal frivolous and, therefore, deny Sauk County's motion for attorney fees and other costs under Rule 809.25(3).

By the Court. — Judgment and orders affirmed in part; reversed in part and cause remanded with directions.

       All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.

       For that matter, we question whether a requesting sheriff has the authority to order assisting deputies from a different county to do any act. The parties have not shed light on this topic, and we need not resolve it. We only observe that law enforcement personnel from one jurisdiction "may assist" another law enforcement agency at that agency's request. State v. Haynes, 2001 WI App 266, ¶ 13, 248 Wis. 2d 724, 638 N.W.2d 82. A separate question is whether such officers must comply with directives from the sheriff of the requesting county.

       WISCONSIN Stat. § 66.0313 reads:
      66.0313 Law enforcement; mutual assistance. (1) In this section, "law enforcement agency" has the meaning given in s. 165.83(l)(b).
      (2) Upon the request of any law enforcement agency, including county law enforcement agencies as provided in s. 69.28(2), the law enforcement personnel of any other law enforcement agency may assist the requesting agency within the latter's jurisdiction, notwithstanding any other jurisdictional provision. For purposes of ss. 895.35 and 895.46, law enforcement personnel, while acting in response to a request for assistance, shall be deemed employees of the requesting agency.
      (3) The provisions of s. 66.0513 apply to this section.


source: Caselaw Access Project

author: SCHUDSON, J.

license: Public Domain

text:
    In re the Commitment of Richard A. Brown: State of Wisconsin, Petitioner-Respondent, v. Richard A. Brown, Respondent-Appellant.

    Court of Appeals

      No. 03-1419.

      Submitted on briefs December 2, 2003.

      Decided January 27, 2004.

    2004 WI App 33
    (Also reported in 676 N.W.2d 555.)

      On behalf of the respondent-appellant, the cause was submitted on the briefs oí Steven P. Weiss, assistant state public defender.
    On behalf of the petitioner-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general, and Sally L. Wellman, assistant attorney general.
    Before Wedemeyer, PJ., Schudson and Curley, JJ.

       Petition to review granted 5-12-04.

   SCHUDSON, J.

¶ 1. Richard A. Brown appeals from the circuit court order denying his petition for supervised release under Wis. Stat. ch. 980. He argues that the court erred in admitting a report of a psychologist who did not testify and, further, that without the report, the State failed to prove by clear and convincing evidence that he should not be granted supervised release. We affirm.

I. BACKGROUND

¶ 2. In 1988, Brown, then sixteen years old, was adjudicated delinquent for sexually assaulting two girls who lived in his neighborhood. The juvenile court ordered his placement at the Homme Home residential treatment center in Wittenburg, Wisconsin, where he remained until March 1990. During his treatment it was discovered that prior to his adjudication for the sexual assaults on his neighbors, Brown had been sexually assaulting his three sisters. In 1993, he was convicted of second-degree sexual assault of a child and incest with a child and sentenced to forty months in prison. In 1995, Brown was convicted of a 1990 sexual assault of a runaway girl, and was placed on probation for five years. In 1995, when Brown reached his mandatory release date, he was placed at the Wisconsin Resource Center's Chapter 980 unit and, on November 5, 1998, he was formally committed under ch. 980.

¶ 3. In April 2002, Brown filed a petition for supervised release. The circuit court appointed a psychologist, Dr. Michael Kotkin, to examine him and file a report as required by Wis. Stat. § 980.08(3) (2001-02). Pursuant to the court's order, Dr. Kotkin examined Brown on May 15, 2002, and prepared a report on August 26, 2002. The report summarized the May 15 examination and also noted "significant progress" in Brown's treatment since that time. It concluded that if Brown "stays on the track he seems to have developed, his request for supervised release would be considered to be quite appropriate and supported by this evaluator in the future." Dr. Kotkin provided his August 26 report to Brown's attorney (who, appellate counsel implicitly acknowledges, withdrew the petition when the report did not recommend supervised release at that time). Dr. Kotkin, however, failed to file his report with the court as required by § 980.08(3).

¶ 4. Approximately one month later, Dr. David Warner, a psychologist employed at the Sand Ridge Secure Treatment Center Evaluation Unit of the Men-dota Mental Health Institution filed a reexamination report with the court pursuant to Wis. Stat. § 980.07. Dr. Warner's report stated that Brown had "reduced his risk for sexually violent behavior to the point that he could be considered for a supervised release." Consequently, on December 5, 2002, Brown petitioned for supervised release. The court, pursuant to Wis. Stat. § 980.08(3), then ordered an updated report advising whether Brown should be granted supervised release. Dr. Warner prepared that report, which stated that Brown "ha[d] completed sufficient [sexually violent person] treatment at [Sand Ridge] to reduce his risk for sexually violent behavior to the point that he has become an appropriate subject for supervised release."

¶ 5. Prior to the hearing on Brown's petition, the State asked the court to order Dr. Kotkin to file his August 26 report, as required by statute. Over Brown's objection, the court did so. The court also commented that while the passage of time might reduce the weight Dr. Kotkin's report would carry, its tardy filing did not necessarily eliminate its evidentiary value given the ongoing nature of the case and the continuing evaluation of Brown's condition.

¶ 6. On January 30, 2003, the court held the hearing on Brown's petition. Dr. Warner's original and updated reports were admitted. Dr. Warner was the only witness. He recommended supervised release with restrictions, including residence in a supervised setting, anti-depressant medication, continued sex offender and substance abuse treatment, and regular monitoring with drug testing and polygraph examinations.

¶ 7. At the State's request, the court also reviewed Dr. Kotkin's August 26 report. Brown objected, arguing that the report was irrelevant to his current mental condition, and that its introduction violated his right of confrontation. One month later, at the hearing set for the court's decision, Brown also argued that the report was hearsay. Overruling Brown's objection, the court acknowledged that the report was hearsay, expressed some doubt about its admissibility, but concluded that: (1) the report was relevant; (2) the fair and prompt administration of justice allowed its introduction, see Wis. Stat. § 901.02; and (3) "confrontation rights [did] not require" Dr. Kotkin's presence, given the nature of the proceeding and the implicit recognition that the court's appointment of Dr. Kotkin, to which neither party objected, established his qualifications to provide his report and opinion.

¶ 8. In its decision denying Brown's petition, the court briefly discussed Dr. Kotkin's report. Noting, however, that it had been prepared several months prior to the hearing, the court stated that the report was "not very helpful in deciding where Mr. Brown is today." The court concluded that the State had proven by "clear and convincing evidence" that "it remains much more likely than not that [Brown] would re-offend at some point over the course of the rest of his life even while supervised in the community." See Wis. Stat. § 980.08(4).

¶ 9. Brown argues that Dr. Kotkin's report was inadmissible hearsay and, without it, the evidence was insufficient to support the court's conclusion. The State responds that the report was admissible as residual hearsay under § 908.03(24), and, with or without the report, that the evidence was sufficient. We conclude that although, as the State argues, the report also may have been admissible as residual hearsay, it was admissible "by statute" under Wis. Stat. §§ 908.02 and 980.08(3). We also conclude that the evidence was sufficient to support the circuit court's conclusion.

II. DISCUSSION

A. Dr. Kotkin's Report

¶ 10. At the hearing, Brown acknowledged Dr. Kotkin's expertise to render opinions related to the ultimate issue and conceded that either party could have called him to testify. And although, at the hearing, Brown objected to the introduction of Dr. Kotkin's report, on appeal he does not dispute that, under Wis. Stat. § 980.08(3), Dr. Kotkin was required to file it with the court. Brown argues, however, that, without Dr. Kotkin testifying, the report was inadmissible hearsay and its admission violated his confrontation rights under both the United States and Wisconsin Constitutions.

¶ 11. The parties agree that Dr. Kotkin's report was hearsay. See Wis. Stat. § 908.01(3) (" 'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted."). "The general rule is that when there is an objection, hearsay evidence is inadmissible unless it comes within an exception to the rule." R.S. v. Milwaukee County, 162 Wis. 2d 197, 204, 470 N.W.2d 260 (1991); sec Wis. Stat. § 908.02 ("Hearsay is not admissible except as provided by these rules or by other rules adopted by the supreme court or by statute."). Whether a hearsay statement comes within an exception and is admissible (assuming its relevance and admissibility in other respects) is a legal issue we review de novo. See State v. Joyner, 2002 WI App 250, ¶ 16, 258 Wis. 2d 249, 653 N.W.2d 290. We conclude that Dr. Kotkin's report was admissible " 'as provided ... by statute.'" See R.S., 162 Wis. 2d at 206 (citation and emphasis omitted).

¶ 12. On appeal, Brown anchors his argument in R.S., where the supreme court decided whether, in a contested guardianship proceeding, a psychologist's "written statement," under Wis. Stat. § 880.33 (1987-88), "may be introduced as evidence without the in-person testimony of the psychologist." Id. at 199. Concluding that the psychologist's report could not be introduced, the supreme court rejected this court's determination that it was admissible "as provided.. . by statute." Id. at 206 (citation and emphasis omitted). Understandably, therefore, Brown contends that R.S. controls. Carefully studied, however, R.S. actually undermines Brown's argument.

¶ 13. In R.S., the supreme court rejected this court's conclusion that Wis. Stat. § 880.33 provided for the admissibility of the psychologist's report. Id. at 205-06. The supreme court emphasized that § 880.33 was "silent about who retains the licensed professional to evaluate the proposed ward . . . [and] about whether the report must be furnished to or filed with the circuit court." Id. at 206-07 (emphases added). On both bases, Wis. Stat. § 980.08(3) is significantly different. Unlike § 880.33, § 980.08(3) specifies that only "the court shall appoint" the licensed professional. And unlike § 880.33, § 980.08(3) requires that the professional "furnish a written report of the examination to the court."

¶ 14. These distinctions, we conclude, make all the difference. Generally, where a party secures the services of a psychologist or other professional in support of an action, that party knows that the professional will be subject to scrutiny through the adversarial process. But where, as we see in Wis. Stat. § 980.08(3), the court "shall appoint" a professional to "furnish a written report" providing guidance for the court's consideration of the ultimate issue, it would be absurd to conclude that admissibility was not "provided... by statute." Wis. Stat. § 908.02; see State ex rel. Sielen v. Circuit Court for Milwaukee County, 176 Wis. 2d 101, 109, 499 N.W.2d 657, 660 (1993) (court should interpret a statute to avoid an absurd result). The report and its author, of course, still may be subjected to adversarial testing (and here, as Brown concedes, he could have called Dr. Kotkin as a witness). But the fact that a party may decline to call a witness should not deprive the court of the very advice the statute required it to obtain. Accordingly, we conclude that Dr. Kotkin's report was admissible hearsay "as provided ... by statute," under §§ 908.02 and 980.08(3).

B. The Sufficiency of the Evidence

¶ 15. Brown next argues that the State failed to prove, by clear and convincing evidence, that he should not be granted supervised release. He maintains that because the State's only witness recommended supervised release, the court erroneously exercised discretion in denying his petition. We disagree.

¶ 16. A circuit court exercises discretion in determining whether to grant or deny a petition for supervised release under Wis. Stat. § 980.08(4). We will uphold the circuit court's decision if it was based on a logical interpretation of the facts and a correct application of the proper legal standards. State v. Seibert, 220 Wis. 2d 308, 314, 582 N.W.2d 745 (Ct. App. 1998).

¶ 17. Wisconsin Stat. § 980.08(4) provides, in part:

The court shall grant the petition [for supervised release] unless the state proves by clear and convincing evidence that the person is still a sexually violent person and that it is still substantially probable that the person will engage in acts of sexual violence if the person is not continued in institutional care. In making a decision under this subsection, the court may consider, without limitation because of enumeration, the nature and circumstances of the behavior that was the basis of the allegation in the petition [alleging that a person is a sexually violent person] under s. 980.02(2)(a), the person's mental history and present mental condition, where the person will live, how the person will support himself or herself and what arrangements are available to ensure that the person has access to and will participate in necessary treatment, including pharmacological treatment....

Explicitly, therefore, the statute anticipates that a circuit court may base its decision on factors beyond those addressed by the testimony of witnesses at the hearing. Most obviously, for example, even if no witness at the hearing provided details of a petitioner's sex offenses, a careful court would consider "the nature and circumstances" of the petitioner's behavior leading to the commitment. See id.

¶ 18. Moreover, a circuit court is not required to accept the opinion of an expert witness who testifies at the hearing; instead, the court exercises discretion in accepting or rejecting the expert's testimony as it deems appropriate. State v. Kienitz, 227 Wis. 2d 423, 438, 597 N.W.2d 712 (1999). The court determines the credibility of the expert and the weight of his or her opinion. Id. at 440. If the record supports more than one reasonable inference, we must accept the circuit court's inference unless it is without support as a matter of law. State v. King, 187 Wis. 2d 548, 562, 523 N.W.2d 159 (Ct. App. 1994).

¶ 19. Brown does not identify any clearly erroneous factual findings. He does not contend that the court's inferences were unsupportable as a matter of law. He does not claim that the circuit court failed to apply the correct legal standards. Instead, he asks us to disregard Dr. Kotkin's report (a request we have just rejected) and draw different inferences based, essentially, if not entirely, on Dr. Warner's opinion that he is ready for supervised release. We conclude, however, that the record supports the circuit court's conclusion.

¶ 20. Dr. Warner's testimony provided information from Brown's treatment records. Those records established, among other things, that Brown was diagnosed as suffering from pedophilia, alcohol abuse, and an "Axis II. . . personality disorder with anti-social features." In Dr. Warner's opinion, these problems "caused Mr. Brown to experience serious difficulty controlling his sexually violent behavior." Based on three actuarial instruments used to rate Brown's risk of re-offending, Dr. Warner explained that, at the time Brown was committed, he was a high risk to re-offend. Dr. Warner added that the actuarial ratings are "based on factors that don't change."

¶ 21. Dr. Warner opined that, because of the treatment he had completed, Brown did not remain "as high a risk" as when he was committed. Dr. Warner warned, however, that Brown should continue treatment, alcohol abuse counseling, and Zoloft, an anti-depressant, "to reduce his sex drive." Dr. Warner testified that Brown need not be "in a secure setting," but also warned that his supervised group home or halfway house placement should initially be supported by "electronic monitoring" and unscheduled monitoring visits, and that throughout his placement he should receive "drug testing, polygraph examinations, [and] whatever the supervisory people think is appropriate." Dr. Warner also provided some information about Brown's behavior, including his molestation of all three of his sisters for about two years and, later, of the thirteen-year-old runaway. Dr. Warner cautioned against Brown having any unsupervised contact with his family.

¶ 22. Clearly, therefore, while recommending supervised release, Dr. Warner's opinion was heavily veiled with qualifications and reservations. It neither required nor compelled the conclusion that Brown should be granted supervised release. Logically, a court could infer that Brown remained a sexually violent person and, particularly given all the restrictions that Dr. Warner said would have to accompany his release, a court could also infer that Brown was "still substantially probable" to "engage in acts of sexual violence if. . . not continued in institutional care." See Wis. Stat. § 980.08(4). Although the court struggled to articulate the exact basis on which it reached this apparently close call, we see nothing illogical in its assessment of the facts and nothing improper in its application of the law.

By the Court. — Order affirmed.

       All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted. Wisoonsin Stat. § 980.08(3) provides, in part:
      Within 20 days after receipt of the petition [for supervised release], the court shall appoint one or more examiners having the specialized knowledge determined by the court to be appropriate, who shall examine the person and furnish a written report of the examination to the court within 30 days after appointment. The examiners shall have reasonable access to the person for purposes of examination and to the person's past and present treatment records,.. . and patient health care records .... If any such examiner believes that the person is appropriate for supervised release . .., the examiner shall report on the type of treatment and services that the person may need while in the community on supervised release.

       WISCONSIN Stat. § 980.07 provides:
      Periodic reexamination; report. (1) If a person has been committed under s. 980.06 and has not been discharged under s. 980.09, the department shall conduct an examination of his or her mental condition within 6 months after an initial commitment under s. 980.06 and again thereafter at least once each 12 months for the purpose of determining whether the person has made sufficient progress for the court to consider whether the person should be placed on supervised release or discharged. At the time of a reexamination under this section, the person who has been committed may retain or seek to have the court appoint an examiner as provided under s. 980.03 (4).
      (2) Any examiner conducting an examination under this section shall prepare a written report of the examination no later than 30 days after the date of the examination. The examiner shall place copy of the report in the person's medical records and shall provide a copy of the report to the court that committed the person under s. 980.06.
      (3) Notwithstanding sub. (1), the court that committed a person under s. 980.06 may order a reexamination of the person at any time during the period in which the person is subject to the commitment order.

       The court, at this point, while mentioning only Wis. Stat. § 980.08(5), actually paraphrased portions of Wis. Stat. § 901.02, which provides: "Purpose and construction. Chapters 901 to 911 shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined."

       Wisconsin Stat. § 908.03(24) provides: "Hearsay exceptions; availability of declarant immaterial. The following are not excluded by the hearsay rule, even though the declarant is available as a witness: (24) OtheR exceptions. A statement not specifically covered by any of the foregoing exceptions but having comparable circumstantial guarantees of trustworthiness."

       WISCONSIN Stat. § 880.33 (1987-88) provided, in part:
      Incompetency; appointment of guardian. (1) Whenever it is proposed to appoint a guardian on the ground of incompetency, a licensed physician or licensed psychologist, or both, shall furnish a written statement concerning the mental condition of the proposed ward, based upon examination .... A copy of the statement shall he provided to the proposed ward, guardian ad litem and attorney....

       The State also contends that the report qualifies as residual hearsay under Wis. Stat. § 908.03(24), which provides for the admissibility of "[a] statement not specifically covered by any of the foregoing exceptions but having comparable circumstantial guarantees of trustworthiness." While we see no flaw in the State's theory, we need not decide whether the report also would be admissible on this basis. See State v. Blalock, 150 Wis. 2d 688, 703, 442 N.W.2d 514 (Ct. App. 1989) (cases are decided on narrowest grounds).
      Brown also contends that the introduction of the report violated his right of confrontation under both the United States and Wisconsin Constitutions. He barely develops his argument, however, see Barakat v. DHSS, 191 Wis. 2d 769, 786, 530 N.W.2d 392 (Ct. App. 1995) (appellate court need not consider "amorphous and insufficiently developed" arguments); thus, we need not address it. More importantly, Brown ignores the obvious: he concedes that he could have called Dr. Kotkin as a witness, thus assuring confrontation. See Salveson v. Douglas County, 2001 WI 100, ¶¶ 37-38, 245 Wis. 2d 497, 630 N.W.2d 182 (under the rule of judicial estoppel, a party may not knowingly relinquish a right at trial and then base a claim of error on its loss).

       The court, while not giving Dr. Kotkin's report much weight, did observe that Dr. Kotkin had concluded that, in the court's words, "[t]he total time frame for the new and betterH invested Mr. Brown was not sufficiently long to allow for, nor to support the conclusion that the level of risk ha[d] now dropped below that standard" for continued commitment.


author: PETERSON, J.

text:
    Dana Crandall, by her Guardian ad Litem, James R. Johnson, Jack Crandall and Linda Crandall, Plaintiffs-Appellants, v. Society Insurance, a mutual company, Defendant-Respondent.
    Court of Appeals

      No. 03-1453.

      Submitted on briefs December 23, 2003.

      Decided January 27, 2004.

    2004 WI App 34
    (Also reported in 676 N.W.2d 174.)

      On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Ardell W. Skow and Martha H. Heidt of Doar, Drill & Skow, S.C., Baldwin.
    On behalf of the defendant-respondent, the cause was submitted on the brief of Arthur P. Simpson and Gary D. Lippow of Simpson & Deardorff S.C., Milwaukee.
    Before Cane, C.J., Hoover, PJ., and Peterson, J.

       Petition to review denied 4-20-04.

   PETERSON, J.

¶ 1. Dana, Jack and Linda Cran-dall appeal a summary judgment dismissing their claims against Society Insurance. The court concluded that the Society policy did not provide underinsured motorist (UIM) coverage for injuries Dana suffered in an automobile accident. The Crandalls argue that (1) the policy provides UIM coverage because Jack's garage operations are located in Wisconsin, and (2) the accident meets all the policy's requirements for UIM coverage. We disagree and affirm the order.

BACKGROUND

¶ 2. Jack Crandall owns Crandall Auto Body, located in Spring Valley. He has a Garage Business Owners policy issued by Society that contains UIM coverage. The policy's coverage has a $300,000 limit per accident. The introductory language to the UIM endorsement states:

For a covered "auto" licensed or principally garaged, or "garage operations" conducted in Wisconsin, this endorsement modifies insurance....

¶ 3. On May 5, 2001, Crandall's daughter, Dana, was injured in an automobile accident. She was a passenger in the car, which was driven by her boyfriend, Casey Green. Green's liability insurance company paid Dana its limit of $50,000. Dana's personal policy paid an additional $100,000 under its UIM coverage. Dana then sought additional recovery from Society's UIM coverage.

¶ 4. Society moved for summary judgment, claiming the UIM endorsement precluded coverage unless the accident involved a covered auto or occurred while the insured was engaged in garage operations. The parties agree that the accident did not involve a covered auto nor did it occur while anyone was engaged in garage operations. The Crandalls argued, however, that the policy does not require the insured to be engaged in garage operations at the time of the accident. Instead, they argue the policy applied because Jack's garage operations are located in Wisconsin.

¶ 5. The trial court held that the terms "covered auto" and "garage operations" were unambiguous. Because the vehicle involved in the accident was not a covered vehicle and because no one was engaged in garage operations at the time of the accident, the court concluded Society's UIM coverage did not apply. The court granted summary judgment in favor of Society.

DISCUSSION

¶ 6. This appeal involves the interpretation of an insurance policy and, therefore, presents a question of law that we review independently. Smith v. Atlantic Mut. Ins. Co., 155 Wis. 2d 808, 810, 456 N.W.2d 597 (1990). We construe the language of an insurance policy using rules of construction similar to those applied to other contracts. See Vogel v. Russo, 2000 WI 85, ¶ 14, 236 Wis. 2d 504, 613 N.W.2d 177. If words or phrases in a policy are susceptible to more than one reasonable construction, they are ambiguous, Smith, 155 Wis. 2d at 810-11, and we will construe the policy as it would be interpreted by a reasonable insured. Holsum Foods v. Home Ins. Co., 162 Wis. 2d 563, 568-69, 469 N.W.2d 918 (Ct. App. 1991). However, if the policy is not ambiguous, we will not rewrite it by construction to impose liability for a risk the insurer did not contemplate. Taylor v. Greatway Ins. Co., 2001 WI 93, ¶ 10, 245 Wis. 2d 134, 628 N.W.2d 916.

¶ 7. The Crandalls argue the Society policy is ambiguous but do not state specifically what language in the policy is ambiguous. They merely state that ambiguous policy exclusions must be construed in favor of coverage. They do not contend that the accident involved a covered auto. We therefore focus on the language for garage operations. The Crandalls argue this means that because Jack's garage operations are located in Wisconsin the policy provides coverage. Society argues the policy only provides coverage when the insured is involved in garage operations at the time of the accident.

¶ 8. We agree with Society's interpretation and conclude that the policy language is unambiguous and requires that the accident occur while the insured is in the course of garage operations. We find support for our conclusion in the policy's use of the word "for." The policy states that the UIM coverage is "For ... 'garage operations' conducted in Wisconsin." Thus, the policy affords coverage when an accident occurs when an insured is participating in garage operations. Dana's accident did not involve garage operations.

¶ 9. This interpretation is consistent with the fact that this is a policy for Crandall's business, not for him as an individual. It is issued to Jack Crandall doing business as Crandall Auto Body. The policy is described in various places within the policy as a businessowner's policy and a garage policy. It would be unexpected for this kind of policy to cover Crandall and his family under circumstances wholly unrelated to Crandall's business.

¶ 10. "Courts must read contracts to give a reasonable meaning to each provision and avoid a construction that renders portions of a contract meaningless." Isermann v. MBL Life Assur. Corp., 231 Wis. 2d 136, 153, 605 N.W.2d 210 (Ct. App. 1999). Under the Crandalls' interpretation, the provision regarding covered autos would be rendered meaningless because the presence of Crandall's garage operations in Wisconsin would provide coverage in all instances. We cannot conclude that the parties intended that there be coverage under any circumstances simply because the Cran-dalls' business is located in Wisconsin. If they had, the addition of the covered auto language would have been unnecessary and superfluous.

¶ 11. The Crandalls improperly rely on Society's underwriting file for support of their interpretation of the policy. The underwriting file directs the parties to specific state supplements to determine which law to use in certain circumstances. However, we are only to construe the contract language, and not other sources such as underwriting files. See Grotelueschen v. American Family Mut. Ins. Co., 171 Wis. 2d 437, 447, 492 N.W.2d 131 (1992). The Crandalls point us to no authority that would authorize us to look beyond the four corners of the contract. Further, we see no connection between Society's underwriting file and the introductory language in the UIM policy.

¶ 12. The Crandalls argue that Society's interpretation is unreasonable. First, they claim that the introductory language to the UIM endorsement is simply a choice of law provision. However, the clause does not simply state that Wisconsin law applies. Indeed, there would be no reason for a policy to state that Wisconsin law applies to accidents or garage operations occurring in Wisconsin. Rather, the statement indicates when the UIM coverage applies and when it does not apply.

¶ 13. Second, the Crandalls argue that Society's position conflicts with the policy declarations, which state the UIM endorsement is "applicable to all premises and coverages." However, the Crandalls read this phrase in isolation. Looking at this phrase alone, it would appear that the policy applies in every situation with no exceptions. This is not the case as the policy is subject to various exclusions and definitions. We review the provisions of an insurance contract in the context of the entire policy. Tara N. v. Economy Fire & Cas. Ins. Co., 197 Wis. 2d 77, 90-91, 540 N.W.2d 26 (Ct. App. 1995). Here, there is no UIM coverage unless an accident involves a covered auto or the insured is engaged in garage operations at the time of the accident. Neither is the case here. There is no coverage so the UIM endorsement cannot apply.

¶ 14. Third, the Crandalls argue that under Society's interpretation, accidents occurring outside Wisconsin would be excluded from UIM coverage. They argue this would violate Wis. Stat. § 344.33(2) because the policy would improperly put territorial limits on UIM coverage. We note that it is irrelevant whether the policy applies to out-of-state accidents because the accident in fact occurred in Wisconsin. Further, the UIM policy does provide coverage for out-of-state accidents in certain circumstances. For example, there would be coverage for an accident occurring in another state involving a covered auto principally garaged in Wisconsin.

¶ 15. However, even if coverage had been denied due to a territorial exclusion, the exclusion does not violate Wis. Stat. § 344.33(2). The statute states:

Motor vehicle liability policy. A motor vehicle policy of liability insurance shall insure the person named therein using any motor vehicle with the express or implied permission of the owner, or shall insure any motor vehicle owned by the named insured and any person using such motor vehicle with the'express or implied permission of the named insured, against loss from the liability imposed by law for damages arising out of the maintenance or use of the motor vehicle within the United States of America or the Dominion of Canada....

This statute does not support the Crandalls' argument because it applies only to liability policies, not UIM coverage. The statute is therefore inapplicable in this case. Furthermore, Wisconsin law does not prohibit territorial requirements for UIM coverage. In Clark v. American Family Mut. Ins. Co., 218 Wis. 2d 169, 176, 577 N.W.2d 790 (1998), our supreme court stated, "We . . . discern no case law which prohibits territorial exclusions for uninsured motorist coverage." The court specifically concluded that the language of Wis. Stat. § 344.33(2) does not apply to uninsured motorist coverage. Id. at 175-76. Likewise, we come to the same conclusion regarding territorial exclusions for underin-sured motorist coverage. The law expressly allows exclusions not otherwise prohibited by law. Id. at 171.

¶ 16. Finally, the Crandalls cite a number of out-of-state cases for the proposition that family members of an insured are covered even if the accident is not business related. See Bushey v. Northern Assur. Co., 766 A.2d 598 (Md. 2001); Stoddard v. Citizens Ins. Co. of Am., 643 N.W.2d 265 (Mich. App. 2002); Reisig v. Allstate Ins. Co., 645 N.W.2d 544 (Neb. 2002). However, none of these cases discusses the application of "garage operations" within a UIM policy. Consequently they do not aid us in our determination in this case.

By the Court. — Order affirmed.

       All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.

       The Crandalls raise additional arguments to establish that Dana is an insured and that none of the UIM exclusions applies. However, those arguments do not create coverage, contrary to what the Crandalls seem to suggest. Rather, coverage must first be established. Then, if the policy provides coverage we would, for example, analyze whether any exclusions apply. However, because we have concluded there is no coverage, we do no address the Crandalls' additional arguments.


author: SNYDER, J.

text:
    Landshire Fast Foods of Milwaukee, Inc., d/b/a Granny's Homestyle Foods, Plaintiff-Appellant, v. Employers Mutual Casualty Company, DefendantRespondent.
    Court of Appeals

      No. 03-0896.

      Submitted on briefs September 25, 2003.

      Decided January 28, 2004.

    2004 WI App 29
    (Also reported in 676 N.W.2d 528.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Burton A. Strnad of Burton A. Strnad, S.C., of Milwaukee.
    On behalf of the defendant-respondent, the cause was submitted on the brief of Jeffrey A. Schmeckpeper of Kasdorf Lewis & Swietlik, S.C., of Milwaukee.
    Before Anderson, PJ., Brown and Snyder, JJ.

       Petition to review denied 4-20-04.

   SNYDER, J.

¶ 1. Landshire Fast Foods of Milwaukee, Inc., d/b/a Granny's Homestyle Foods, appeals a summary judgment in favor of Employers Mutual Casualty Company. Landshire contends that the circuit court erred when it concluded that coverage for losses resulting from a bacterial outbreak was excluded under the Employers policy. We disagree and affirm the summary judgment.

FACTS

¶ 2. Landshire prepares sandwiches and other foods for sale to businesses and institutions. In 1999, Landshire began delivering sandwiches to Great Lakes Naval Training Station commissary. On May 31, 2000, Great Lakes reported it had found bacteria, specifically Listeria monocytogenes, on some of Landshire's product. This form of Listeria can cause mild flu-like symptoms in healthy adults; however, in more vulnerable populations such as the elderly, this bacteria can produce a life-threatening illness with a twenty-five percent mortality rate. Great Lakes returned all of the food to Landshire and refused to accept any additional Landshire product.

¶ 3. The Wisconsin Department of Agriculture, Trade & Consumer Protection's Division of Food Safety (WDATC) and the Food and Drug Administration (FDA) began monitoring Landshire. The FDA conducted on-site inspections of Landshire's facilities in June 2000. Subsequently, Landshire entered into two voluntary compliance agreements requiring further recalls of Landshire's product from the marketplace.

¶ 4. Landshire retained Jeffrey Kornacki, a food microbiologist, to observe cleaning and sanitation practices and to test for possible sources of the Listeria. Kornacki concluded that the Berkel slicer used by Landshire to cut meats was the "sole source of the Listeria contamination to the products."

¶ 5. On August 31, 2000, Landshire submitted a "Corrective Action Plan" to the FDA. Landshire declared that it would no longer use the Berkel slicer, but would buy presliced meat from outside venders. The plan also included new sanitizing practices, employee training sessions, and random testing of the products.

¶ 6. During this time, Landshire held a commercial property insurance policy issued by Employers. Landshire submitted claims for loss of income, loss of product, sanitizing expenses, and costs related to investigating the source of the bacteria. Employers denied all of Landshire's claims because they were not the result of a "covered cause of loss."

¶ 7. Landshire sought a declaratory judgment against Employers to compel coverage. Employers moved for summary judgment, and Landshire responded with its own motion for partial summary judgment. The circuit court determined that none of Landshire's claims for damages were compensable under the insurance policy and dismissed the complaint on the merits. Landshire appeals.

DISCUSSION

Standard of Review

¶ 8. We review summary judgment motions de novo. Blazekovic v. City of Milwaukee, 225 Wis. 2d 837, 840, 593 N.W.2d 809 (Ct. App. 1999). Summary judgment is proper when no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. Wis. Stat. § 802.08(2). We will reverse a decision granting summary judgment if either (1) the trial court incorrectly decided legal issues or (2) material facts are in dispute. Coopman v. State Farm Fire & Cas. Co., 179 Wis. 2d 548, 555, 508 N.W.2d 610 (Ct. App. 1993). Because both Landshire and Employers moved for summary judgment, we may assume the relevant facts regarding coverage are undisputed. See Powalka v. State Mut. Life Assurance Co. of Am., 53 Wis. 2d 513, 518, 192 N.W.2d 852 (1972). The only dispute before us, therefore, involves interpretation of the Employers insurance policy.

¶ 9. The interpretation of an insurance contract is a question of law that this court decides without deference to the trial court. Meyer v. Mich. Mut. Ins. Co., 2000 WI App 37, ¶ 8, 233 Wis. 2d 221, 607 N.W.2d 333. Summary judgment is proper and will be upheld on review when only a question of law is presented. Hubbard v. Messer, 2003 WI 145, ¶ 7, 267 Wis. 2d 92, 673 N.W.2d 676. Having determined that only a question of law remains, we turn our attention to whether the trial court correctly decided the legal issues.

Interpretation and Application of Policy Provisions

¶ 10. Landshire raises three issues on appeal. First, Landshire asserts that the pollution exclusion in the Employers policy does not include bacteria and therefore cannot be invoked to exclude coverage for the Listeria outbreak. Landshire further argues that although Employers' policy excludes losses caused by faulty maintenance, government order, or loss of market, these policy exclusions do not apply to Landshire's claim. Finally, if we determine that none of the policy exclusions apply and that Landshire's losses resulted from a covered cause, Landshire asks us to address whether the cost of identifying and eradicating the source of the Listeria should be covered under Employers' extra expense provision.

¶ 11. We examine the language of the policy and employ specific principles to determine whether coverage exists.

In Wisconsin, the construction of contracts of insurance should be made with an aim toward effecting the true intent of the parties and the extent of policy coverage. The test "is not what the insurer intended the words to mean but what a reasonable person in the position of the insured would have understood them to mean." 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. However, when the terms of the policy are ambiguous or obscure, the policy must be strictly construed against the drafter of the policy, the insurance company. Words or phrases in a contract are ambiguous when they are "reasonably or fairly susceptible to more than one construction."

Richland Valley Prods., Inc. v. St. Paul Fire Cas. Co., 201 Wis. 2d 161, 167-68, 548 N.W.2d 127 (Ct. App. 1996) (citations omitted). With these principles in mind, we will address the pollution exclusion first.

¶ 12. Employers' Building and Personal Property Coverage provisions state that the insurer will provide coverage for "direct physical loss of or damage to Covered Property . . . caused by or resulting from any Covered Cause of Loss." The policy thus requires both a covered cause of loss and direct physical loss or damage to Landshire's property. The policy includes a Causes of Loss — Special Form, which states:

A. COVERED CAUSES OF LOSS
. .. Covered Causes of Loss means RISKS OF DIRECT PHYSICAL LOSS unless the loss is:
1. Excluded in Section B., Exclusions; or
2. Limited in Section C., Limitations; that follow.
B. EXCLUSIONS
1. We will not pay for loss or damage caused directly or indirectly by any of the following. Such loss or damage is excluded regardless of any other cause or event that contributes concurrently or in any sequence to the loss.
2. Discharge, dispersal, seepage, migration, release or escape of "pollutants" unless the discharge, dispersal, seepage, migration, release or escape is itself caused by any of the "specified causes of loss ... ."

¶ 13. The policy defines pollutants as "any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste." The parties disagree on the scope of the term "contaminant." While Landshire concedes that Listeria is a contaminant, it denies that Listeria is the "kind of contaminant Employers' policy excludes from coverage." Asserting that Employers' policy language "only excludes inorganic matter," Landshire seems to invoke ejusdem generis, a rule of statutory construction that limits nonenumerated losses to those of the same kind, class, character, or nature as the given examples. See State v. Ambrose, 196 Wis. 2d 768, 777, 540 N.W.2d 208 (Ct. App. 1995). Landshire further argues that all provisions tending to limit coverage must be most strongly construed against the insurer. Hartland Cicero Mut. Ins. Co. v. Elmer, 122 Wis. 2d 481, 487, 363 N.W.2d 252 (Ct. App. 1984).

¶ 14. However, rules of construction are not used when a contract is unambiguous, but only when ambiguous. See Jones v. Sears Roebuck Co., 80 Wis. 2d 321, 329-30, 259 N.W.2d 70 (1977). Ambiguity exists if the words or phrases of the policy are susceptible to more than one reasonable interpretation. Meyer, 233 Wis. 2d 221, ¶ 9. We determine whether Employers' policy language is ambiguous by considering what a reasonable insured in the position of Landshire would have understood the policy to mean. See id., ¶ 8.

¶ 15. The dispositive issue is whether there is more than one reasonable interpretation of the term "contaminant" as used in Employers' pollution exclusion. Employers points to this court's previous determination that the essence of a pollution exclusion is that "there is no coverage for the contamination of [a company's products] by any substance foreign to those products." U.S. Fire Ins. Co. v. Ace Baking Co., 164 Wis. 2d 499, 505, 476 N.W.2d 280 (Ct. App. 1991). More recently, we have stated that:

[C]ontamination "connotes a condition of impurity resulting from mixture or contact with a foreign substance," and that it means "to make inferior or impure by mixture; an impairment of impurity; loss of purity resulting from mixture or contact," a definition the court found consistent with common understanding and Websters New International Dictionary. Even if exclusions from all-risk policies are construed narrowly and in favor of the insured, the term "contamination" is plain.

Richland Valley Prods., 201 Wis. 2d at 169-70 (citations omitted).

¶ 16. Discussing Richland Valley Products, a federal court observed that "[a]¡though various forms of matter can constitute contamination, the term is not itself reasonably susceptible to multiple meanings." J.L. French Auto. Castings, Inc. v. Factory Mut. Ins. Co., 2003 WL 21730127 (N.D. Ill. July 23, 2003). The presence of Listeria monocytogenes in Landshire's food products plainly rendered the food unfit for consumption, and as such meets the ordinary, unambiguous definition of "contamination." Landshire's proposition —that the term "contaminant" in the policy definition of "pollutant" included only "inorganic matter" — is therefore unreasonable and does not render the language ambiguous. A policy term is not ambiguous merely because the parties disagree as to its meaning. Richland Valley Prods., 201 Wis. 2d at 169.

¶ 17. We hold that the term "contaminants" in Employers' pollution exclusion, when given its plain meaning, incorporates bacteria such as Listeria monocytogenes. We decline Landshire's request to apply the rule of ejusdem generis or otherwise rewrite the policy because we have concluded that the language of Employers' insurance policy is unambiguous. See id. at 173 (holding that the contamination exclusion was neither overly broad nor ambiguous, we determined that the ejusdem generis rule was inapplicable). Accordingly, the Employers insurance policy excludes coverage for any loss or damage caused directly or indirectly by the Listeria contamination.

¶ 18. We need not address the applicability of the alternate exclusions invoked by the trial court. Because the pollution exclusion applies, it is irrelevant whether the faulty maintenance, government order, or loss of market exclusions also apply. Furthermore, the policy's extra expense provision, which covers necessary expenses incurred during a "period of restoration," applies to expenses arising from a covered cause of loss. Because we have determined that this event did not arise from a covered cause of loss, the extra expense coverage is not available.

CONCLUSION

¶ 19. The meaning of the term "contaminant" in an insurance contract pollution exclusion is well settled in Wisconsin. The term is not susceptible to multiple interpretations. Bacteria, such as Listeria monocytoge-nes, when it renders a product impaired or impure, falls squarely within the plain and ordinary meaning of "contaminant." Landshire's claims for loss or damage caused by the Listeria are therefore excluded and the summary judgment in favor of Employers is affirmed.

By the Court. — Judgment affirmed.

       All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise indicated.

       The policy provides that "Specified Causes of Loss" means the following: Fire; lightning; explosion; windstorm or hail; smoke; aircraft or vehicles; riot or civil commotion; vandalism; leakage from fire extinguishing equipment; sinkhole collapse; volcanic action; falling objects; weight of snow, ice or sleet; water damage.