author: VERGERONT, J.

text:
    Jeanna M. Ruenger, Plaintiff-Appellant, v. Seymour C. Soodsma, Defendant, Rural Mutual Insurance Company, Defendant-Respondent.
    Court of Appeals

      No. 04-1795.

      Submitted on briefs December 16, 2004.

      Decided March 31, 2005.

    2005 WI App 79
    (Also reported in 695 N.W.2d 840.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Virginia M. Antoine, Habush Habush & Rottier, S.C., Milwaukee.
    On behalf of the defendant-respondent, the cause was submitted on the brief of Robert G. Wixson, Winner, Wixson & Pernitz, Madison.
    Before Deininger, RJ., Dykman and Yergeront, JJ.
   VERGERONT, J.

¶ 1. Jeanna Ruenger appeals the circuit court order determining that the reducing clause in the underinsured motorist (UIM) endorsement of her personal auto policy was valid and also determining that there was no UIM coverage under her business auto policy for the injuries she sustained while operating her skid loader. With respect to the personal auto policy, we agree with the circuit court that the reducing clause is valid because it complies with Wis. Stat. § 632.32(5)(i) and is not ambiguous when read in the context of the entire policy. With respect to the business auto policy, we agree with Ruenger that it does provide UIM coverage for her injuries. Our primary ruling on this issue is that both the insurer's proposed construction of the introductory language in the UIM endorsement and the occupancy exclusion are prohibited by § 632.32(6)(b)2. as construed and applied in Mau v. North Dakota Ins. Reserve Fund, 2001 WI 134, 248 Wis. 2d 1031, 637 N.W.2d 45. Finally, we conclude the reducing clause in the UIM endorsement to the business auto policy is valid because it complies with § 632.32(5)(i) and is not ambiguous when read in the context of the entire policy.

¶ 2. We therefore affirm in part, reverse in part, and remand for further proceedings consistent with this decision and the specific instructions in paragraphs 56-57.

BACKGROUND

¶ 3. Ruenger was operating her skid loader to clear snow from around her mailbox when an automobile driven by Seymour Soodsma struck the skid loader and caused injury to Ruenger. Soodsma was insured under a policy issued by Wisconsin American Mutual Insurance. After Ruenger initiated this action, Wisconsin American Mutual paid its policy limits — $250,000—to Ruenger.

¶ 4. Rural Mutual Insurance Company had issued two policies to Ruenger — a private passenger auto policy (personal policy) and a business automobile policy. Both policies contained UIM coverage — with a limit of $300,000 under the personal policy and $500,000 under the business policy — and the UIM. endorsements in both policies contained reducing clauses.

¶ 5. Rural moved for a declaratory ruling that the UIM reducing clause in the personal policy was valid and reduced its obligation to $50,000, which it had already paid Ruenger. Ruenger responded with a motion asking the court to declare the reducing clause unenforceable because it did not comply with Wis. Stat. § 632.32(5)(i) and, alternatively, because it was ambiguous when considered in the context of the entire policy. The court disagreed with Ruenger and declared the reducing clause valid.

¶ 6. Rural subsequently moved for a declaratory ruling that Ruenger was not entitled to UIM benefits under the business policy because of the exclusion for bodily injuries sustained by the named insured when occupying an owned vehicle that is not a covered auto (occupancy exclusion). In the alternative, Rural asked the court to declare that the reducing clause was valid and therefore its obligation was $200,000 — the $500,000 limit less the $250,000 Ruenger received under Soodsma's policy and the $50,000 she had received from Rural under the UIM coverage in her personal policy.

¶ 7. In response, Ruenger asked the court to declare that there was UIM coverage under the business policy and that the occupancy exclusion did not apply because it violated Wis. Stat. § 632.32(6)(b)2.a. and (5)(j). Ruenger also asked the court to declare that the reducing clause was unenforceable because it did not comply with § 632.32(5)(i) and, alternatively, because it was ambiguous in the context of the entire policy. The circuit court concluded that the occupancy exclusion was valid and, because of its application, there was no UIM coverage under the business policy. In the alternative, the court ruled that if there were UIM coverage under that policy, the UIM reducing clause would be valid.

DISCUSSION

¶ 8. On appeal, Ruenger renews her arguments on the reducing clauses in both policies, the occupancy exclusion, and other language in the business policy. Resolution of these issues requires the construction and application of statutes and insurance policy provisions to undisputed facts, both questions of law, which we review de novo. Van Erden v. Sobczak, 2004 WI App 40, ¶¶ 11, 22, 271 Wis. 2d 163, 677 N.W.2d 718.

¶ 9. When we construe insurance policy provisions, our goal is to give effect to the intent of the parties as expressed in the language of the policy. Folkman v. Quamme, 2003 WI 116, ¶ 12, 264 Wis. 2d 617, 665 N.W.2d 857. We first inquire whether the language regarding the disputed coverage issue is ambiguous, that is, susceptible to more than one reasonable interpretation. Id., ¶ 13. If there is no ambiguity, we apply the language as written, without resort to rules of construction or principles of case law. Id. On the other hand, if there is ambiguity, we construe the clause in favor of the insured. Id.

¶ 10. A provision that is unambiguous in itself may be ambiguous in the context of the entire policy. Id., ¶ 19. The test for determining contextual ambiguity is the same as that for determining whether a particular clause is ambiguous: is the language of the particular provision, "when read in the context of the policy's other language, reasonably or fairly susceptible to more than one construction... measured by the objective understanding of an ordinary insured." Id., ¶ 29 (citations omitted). In determining whether there is contextual ambiguity, we inquire whether "the organization, labeling, explanation, inconsistency, omission, and text" of other relevant provisions in the policy create an "objectively reasonable alternative meaning and, thereby, disrupt an insurer's otherwise clear policy language." Id., ¶¶ 19, 30.

I. UIM Reducing Clause in Personal Policy

A. Compliance with Wis. Stat. § 632.32(5)(i)

¶ 11. The reducing clause in the UIM endorsement of the personal policy provides:

B. The limit of liability shall be reduced by all sums:
1. Paid because of the "bodily injury" by or on behalf of persons or organizations who may be legally responsible. This includes all sums paid under Part A; and
2. Paid or payable because of the "bodily injury" under any of the following or similar law:
a. Workers' compensation law; or
b. Disability benefits law.
¶ 12. Under Wis. Stat. § 632.32(5)(i),
(i) A pohcy may provide that the limits under the policy for uninsured or underinsured motorist coverage for bodily injury or death resulting from any one accident shall be reduced by any of the following that apply:
1. Amounts paid by or on behalf of any person or organization that may be legally responsible for the bodily injury or death for which the payment is made.
2. Amounts paid or payable under any worker's compensation law.
3. Amounts paid or payable under any disability benefits laws.

¶ 13. Ruenger contends that the reducing'clause in her personal policy is broader than that authorized by the statute in three ways and is thus invalid: (1) when referring to the reduction for sums paid or payable under worker's compensation law or disability benefits law, the clause contains the phrase "under any . . . similar law," which the statute does not; (2) the reduction in the reducing clause for "sums.. . [plaid because of the 'bodily injury' by or on behalf of persons or organizations who may be legally responsible" does not expressly require that the legal responsibility be for the bodily injury, as does the statute; and (3) the second declarations page provides for reduction "as a result of your receiving amounts from other sources . . .," instead of limiting sources to the three mentioned in the statute.

¶ 14. We have specifically rejected the first argument in Van Erden, 271 Wis. 2d 163, and our reasoning in Remiszewski v. American Family Ins. Co., 2004 WI App 175, 276 Wis. 2d 167, 687 N.W.2d 809, resolves all three arguments against Ruenger. In Van Erden, we concluded that the phrase "or any similar law" following the words "workers' compensation or disability benefits law" in that reducing clause was not an impermissible broadening of the statute, but was simply a "catchall phrase for jurisdictions that may call their disability benefits law by another name." 271 Wis. 2d 163, ¶¶ 24-25. We also observed that the challenged phrase did not affect the insured, because the insured had received worker's compensation benefits, not disability benefits. Id., ¶ 25.

¶ 15. We reaffirmed this latter principle in Remiszewski, where the insured challenged the phrase "[a] payment made or amount payable" in that reducing clause because the statute permitted a reduction only for "[ajmounts paid." 276 Wis. 2d 167, ¶¶ 14, 15. The insurer had attempted to reduce the UIM limit based only on the amount actually paid and argued, citing Folkman, that " 'inconsistencies in the context of the policy must be material to the issue in dispute and be of such a nature that a reasonable insured would find an alternative meaning.'" Id., ¶ 16 (citing Folkman, 264 Wis. 2d 617, ¶ 32). We agreed with the insurer:

Here, [the insured] is challenging American Family's right to reduce her payment by the amount already paid to her from [the tortfeasor's] policy. While the "amount payable" provision would arguably permit further reductions, it would not cause a reasonable insured to believe that reductions would not be made for actual payments made from other sources .... The fact that an insurance policy may include arguably ambiguous language upon which the insurer has not relied is of no consequence and will not defeat the right of an insurer to reduce its limits liability under a valid provision.

Id., ¶ 17 (citing Van Erden, 271 Wis. 2d 163, ¶ 25).

¶ 16. Ruenger argues that Van Erden and Remiszewski are not controlling because they are both inconsistent with Hanson v. Prudential Prop. & Cas. Ins. Co., 2002 WI App 275, 258 Wis. 2d 709, 653 N.W.2d 915. In Hanson, we first concluded that the reducing clause there did not comply with Wis. Stat. § 632.32(5)(i) because, in addition to providing that the UIM limit would be reduced by "any amounts paid by the person responsible for the accident," it provided for reduction "by an amount paid under any other source." Id., ¶¶ 14,17. We then went on to decide that, even if the clause did conform to the statute, it was ambiguous in the context of the entire policy. Id., ¶ 18.

¶ 17. Ruenger asserts that Hanson supports her position that, if a reducing clause attempts to reduce a UIM limit by an impermissible source, the entire clause is unenforceable under any circumstances. We do not agree with Ruenger that we should follow Hanson rather than Van Erden and Remiszewski. First, Hanson did not directly address the issue whether the lack of conformity with the statute of one reducing clause provision that was not applied to the insured precluded the application to the insured of another provision in the clause that did comply with the statute. Instead, we went on to conclude that the reducing clause was ambiguous in the context of the entire policy, and we invalidated the entire clause on that basis. Second, and more importantly, as indicated in Remiszewski, Folkman does not permit invalidating a clause because of an inconsistency that is not material to the issue in dispute. 276 Wis. 2d 167, ¶¶ 16-17. To the extent that our decision in Hanson can be read to do that, we must follow Folkman, not Hanson. See Madison Reprographics, Inc. v. Cook's Reprographics, Inc., 203 Wis. 2d 226, 238, 552 N.W.2d 440 (Ct. App. 1996) (when a court of appeals decision conflicts with a supreme court decision, the court of appeals must follow the supreme court decision).

¶ 18. We conclude that Van Erden and Remiszewski are controlling. Following Van Erden, we conclude that the addition of "or similar law" does not expand the reducing clause beyond that authorized by Wis. Stat. § 632.32(5)(i). Following Van Erden and Remiszewski, we conclude that the reducing clause is not invalid in its entirety simply because of language that does not track the statute, if that language is not relied on by Rural in this case. Rural seeks to reduce the UIM limit by the amount paid on behalf of Soodsma, who was legally liable for Ruenger's injuries; that is permitted by § 632.32(5)(i) and by the language of the reducing clause. Thus, even if the language in the reducing clause might arguably permit reduction by an amount paid by one legally liable for something other than the injury, as Ruenger contends, that does not make the entire clause invalid. Similarly, even if the statement in the declarations failed to specify the sources in the statute, that does not preclude Rural from reducing the limit by a source that is specified in the statute and is included in the reducing clause itself. Accordingly, we agree with the circuit court that the provisions of the reducing clause on which Rural relied did comply with § 632.32(5)(i).

B. Contextual Ambiguity

¶ 19. Ruenger contends that, even if the reducing clause itself does comply with the statute, it is ambiguous when considered in the context of the entire policy and therefore is unenforceable. We disagree.

,¶ 20. We first observe, that, for the reasons we have already explained in paragraph 18, any ambiguity in the reducing clause itself is not material to the facts of this case and would not cause a reasonable insured to believe that the limits stated in the declarations would not be reduced by a payment made by or on behalf of the tortfeasor. See Remiszewski, 276 Wis. 2d 167, ¶ 17. We next consider the clause in the context of other policy provisions that, according to Ruenger, render the clause ambiguous.

¶ 21. The "Personal Auto Policy Declarations" is at the beginning of the policy and consists of two pages. The declarations are generally the portion of the insurance policy to which the insured looks first. Badger Mut. Ins. Co. v. Schmitz, 2002 WI 98, ¶ 62, 255 Wis. 2d 61, 647 N.W.2d 223. The first page here contains information relevant to the entire policy, such as the policy period, effective date, driver information, additional insureds, and covered autos. The second page lists the limits for the various coverages provided by the policy. It clearly informs the insured that the insured is purchasing UIM coverage in a fixed amount — $300,000 each person and $300,000 each accident — and that these limits "shall be reduced as a result of your receiving amounts from other sources because of your 'bodily injury.'" There is no inconsistency between the general reference to "other sources" of reduction in the declarations and the more specific itemization of those sources in the UIM endorsement. A reasonable insured would not be confused by this but would understand that the second declarations page provides general information — that the limits stated there are subject to reduction — and the UIM endorsement provides more specific information. There is no requirement that the declarations must tell the insured that the limits are subject to reduction, see Van Erden, 271 Wis. 2d 163, ¶ 20, let alone tell the insured the specific sources of reduction.

¶ 22. The bottom of the first declarations page lists the numbers of all the forms and attachments, but does not further identify them. There are thirty-four pages in the entire policy, including the declarations, and the UIM endorsement is at pages 30-33. We reject Ruenger's argument that the failure to identify the UIM endorsement by name next to its number and to specify where in the policy it can be found, together with length of the policy, create contextual ambiguity. A reasonable insured would understand that he or she had to look through the policy to find the pages that addressed each of the types of coverages listed on the second declarations page. If a reasonable insured did that, he or she would have no trouble finding the UIM endorsement, which is plainly labeled in bold print: "This Endorsement Changes The Policy. Please Read It Carefully. Underinsured Motorists Coverage— Wisconsin."

¶ 23. Ruenger argues that the interaction between the UIM endorsement and the "Split Underin-sured Motorists Limits" endorsement on page 26 of the policy, four pages before the UIM endorsement, creates confusion and ambiguity. The split-limits endorsement states that "The first paragraph of the Limit of Liability provision in [the Underinsured Motorists Coverage endorsement] is replaced by the following ..it then sets forth a paragraph that, in essence, provides more detail on what "maximum limit of liability for all damages resulting from any one auto accident" means in subsection A of the Limit of Liability section in the UIM endorsement. We conclude a reasonable insured would not be confused by the split-limits endorsement coming before the UIM endorsement, but would understand that the former referred to the UIM endorsement, would be able to easily find the UIM endorsement, and would know exactly where the replacement paragraph belonged in the UIM endorsement. Gohde v. MSI Ins. Co., 2004 WI App 69, ¶¶ 15-16, 272 Wis. 2d 313, 679 N.W.2d 835. We also conclude a reasonable insured would understand that the reducing clause in subsection B of the Limit of Liability section of the UIM endorsement qualifies the insurer's obligation to pay the maximum limit of liability as described in the replacement subsection A. There is no ambiguity in the interaction of the replacement paragraph and the reducing clause. Commercial Union Midwest Ins. Co. v. Vorbeck, 2004 WI App 11, ¶¶ 39-41, 269 Wis. 2d 204, 674 N.W.2d 665; Dowhower v. Marquez, 2004 WI App 3, ¶ 27, 268 Wis. 2d 823, 674 N.W.2d 906; Bellile v. American Family Mut. Ins. Co., 2004 WI App 72, ¶ 23, 272 Wis. 2d 324, 679 N.W.2d 827.

¶ 24. Ruenger also argues that subsection D of the Limit of Liability section in the UIM endorsement creates ambiguity when read together with the reducing clause in subsection B. Subsection D provides: "We will not make a duplicate payment under this coverage for any element of loss for which payment has been made by or on behalf of persons or organizations who may be legally responsible." According to Ruenger, a reasonable insured could understand that if the payment by or on behalf of someone legally responsible did not duplicate payments made under the UIM coverage, then there would be no reduction as a result of those payments. We disagree. In discussing an identically worded provision in another UIM endorsement, we stated: "A plain reading of subsec. D leads one to expect that a 'duplicate payment' would be one where both a tortfeasor and an insurer compensate the insured for the same element of loss. Subsection D guards against profiting beyond the damages actually incurred." Fischer v. Midwest Sec. Ins. Co., 2003 WI App 246, ¶ 24, 268 Wis. 2d 519, 532, 673 N.W.2d 297. Thus, subsection D plainly serves a purpose distinct from that of the reducing clause: it prevents a double recovery by the insured for the same loss in cases when the UIM insurer has not yet paid the limit of its UIM liability as reduced by the reducing clause. The two provisions are not inconsistent. We are satisfied that a reasonable insured would not be misled by subsection D to believe that if there is no duplication under that subsection, there is no reduction under the reducing clause.

¶ 25. We conclude the circuit court correctly decided that the reducing clause is not ambiguous when read in the context of the entire policy. Because the clause also complies with Wis. Stat. § 632.32(5)(i), it is a valid reducing clause.

II. Business Policy

A. UIM Coverage

¶ 26. The parties dispute whether there is UIM coverage for Ruenger under the business policy. Rural contends that, although Ruenger is the named insured, there is no UIM coverage because she was in a vehicle she owned that was not a covered auto when she was injured by an underinsured motor vehicle. Rural relies on: (1) the references to "covered auto" in the declarations; (2) the introductory language in the UIM endorsement and this court's construction of that language in Crandall v. Society Ins., 2004 WI App 34, 269 Wis. 2d 765, 676 N.W.2d 174; and (3) the occupancy exclusion. Ruenger responds that the references in the declarations to "covered auto" are ambiguous, as is the introductory language in the UIM form, when read with the general section on coverage in the UIM endorsement. According to Ruenger, Crandall is not controlling and the construction of the introductory language that Rural proposes, as well as the occupancy exclusion, violates Wis. Stat. § 632.32(6) (b)2.a. and (5)(j).

¶ 27. The portion of the declarations on which Rural relies states:

Item Two - Schedule Of Coverages And Covered Autos: This policy provides only those coverages where a charge is shown in the premium column below. Each of these coverages will apply only to those "autos" shown as covered "autos."

There follows a column entitled "Coverages," under which "Underinsured Motorists" appears, and a column entitled "Covered Autos (Entry of one or more of the symbols from the Covered Autos Section of the Business Auto Coverage Form shows which autos are covered autos)"; in this latter column there is a "2" next to "Underinsured Motorists." Numeral "2" is described as "Owned Autos' Only" in the Business Auto Coverage Form. A "Schedule Of Covered Autos You Own," also part of the declarations, lists a Chevrolet pickup.

¶ 28. The introductory language in the UIM endorsement on which Rural relies provides:

For a covered "auto" licensed or principally garaged, or "garage operations" conducted in, Wisconsin, this endorsement modifies insurance provided under the following:
Business Auto Coverage Form Garage Coverage Form Motor Carrier Coverage Form Truckers Coverage Form

There follows this sentence: "With respect to coverage provided by this endorsement, the provisions of the Coverage Form apply unless they are modified by this endorsement."

¶ 29. Section A of the UIM endorsement, entitled "Coverage," provides that Rural "will pay all sums the 'insured' is legally entitled to recover as compensatory damages from the owner or driver of an 'underinsured motor vehicle'" if the damages "resulted] from 'bodily injury' sustained by the 'insured' caused by an 'accident' " and if "[t]he owner's or driver's liability for these damages . . . result[ed] from the ownership, maintenance or use of the 'underinsured motor vehicle.' "

¶ 30. The occupancy exclusion on which Rural relies is contained in paragraph C(3)(a) of the endorsement: "This insurance does not apply to ... '[b]odily injury' sustained by ... [y]ou while 'occupying' or when struck by any vehicle owned by you that is not a covered 'auto' for Underinsured Motorists Coverage under this Coverage Form."

. ¶ 31. We agree with Ruenger that the coverage section of the UIM endorsement, when read alone, provides coverage for her injuries because they were caused by an accident and she is legally entitled to recover compensatory damages for them from the driver of an underinsured motor vehicle whose liability results from the use of the underinsured motor vehicle. We also agree with Ruenger that the declarations do not unambiguously provide that there is UIM coverage for the named insured only if that insured is occupying the covered auto. Item Two of the declarations plainly tells the insured that UIM coverage applies only to an auto that is a covered auto. However, it is clear from the definition of "auto" that a skid loader is not an auto. Item Two does not plainly tell a named insured that he or she does not have UIM coverage if he or she is not occupying any auto when injured by an underinsured motorist. Thus, when Item Two is read in conjunction with the coverage section of the UIM endorsement, a reasonable named insured could understand that he or she would have UIM coverage for injuries caused by an underinsured motor vehicle while the named insured is operating his or her skid loader.

¶ 32. Turning next to the introductory language in the UIM endorsement, we consider first Rural's argument that we construed this language in Crandall, 269 Wis. 2d 765, to require either that the accident involve a covered auto or that the insured be engaged in garage operations at the time of the accident. In Cran-dall, the issue was whether the UIM endorsement to a Garage Business Owner's policy provided coverage for injuries sustained by the named insured's daughter while a passenger in a car driven by her boyfriend. The parties agreed that the accident did not involve a covered auto and did not occur while anyone was engaged in garage operations, but the daughter argued that there was coverage because the garage operations were located in Wisconsin. Id., ¶ 4. We agreed with the insurer's argument that the introductory language of that UIM endorsement required that "the accident occur while the insured is in the course of garage operations." Id., ¶ 8. We reasoned that the policy was issued for the father's business, not for him as an individual, and was described in various places as a "business owner's policy" and "a garage policy." Id., ¶ 9. We concluded it would be "unexpected for this kind of policy to cover Crandall and his family under circumstances wholly unrelated to Crandall's business." Id., ¶ 9. At a later point in the opinion, we stated: "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." Id., ¶ 13.

¶ 33. Ruenger presents two primary reasons why Crandall does not compel the construction of the introductory language that Rural advocates. First, Ruenger contends that the introductory language does not attempt to define or limit the circumstances under which UIM coverage will apply, but simply states that the endorsement modifies insurance provided under the four specified coverages for a covered auto licensed or principally garaged in Wisconsin and for garage operations conducted in Wisconsin. A reasonable insured, according to Ruenger, would look to the coverage section of the endorsement, not that introductory language, for an understanding of the scope of UIM coverage, and the coverage section does not mention a covered auto. Moreover, Ruenger points out, if the introductory language required occupancy of a covered auto for all UIM coverage, there would be no need for the occupancy exclusion. Thus, at best, Ruenger concludes, the introductory language creates an ambiguity when read in conjunction with the coverage section of the endorsement.

¶ 34. We acknowledge that Ruenger's proposed construction of the introductory language has merit. However, it is flatly inconsistent with our construction of that same language in Crandall, and we may not modify, overrule, or withdraw language from our prior decision. Cook v. Cook, 208 Wis. 2d 166, 189, 560 N.W.2d 246 (1997). Thus we conclude, based on Crandall, that the introductory language limits UIM coverage to one of two situations: "an accident involves a covered auto or the insured is engaged in garage operations at the time of the accident." 269 Wis. 2d 765, ¶ 13. Ruenger's argument that this is not a reasonable construction of the introductory language or that the language is ambiguous must be directed to the supreme court.

¶ 35. However, we do agree with Ruenger's second reason why Crandall is not dispositive: Crandall did not address the issue whether the introductory language is valid if construed to preclude coverage for a named insured unless the named insured is occupying a covered auto. There was no reason to address this issue in Crandall because the injured party seeking UIM coverage was not the named insured. We therefore turn to the question whether Wis. Stat. § 632.32(6)(b)2. prohibits requiring that a named insured be occupying a covered auto in order to have UIM coverage.

¶ 36. Wisconsin Stat. § 632.32(6)(b)2. provides that "no policy may exclude from the coverage afforded or benefits provided: ... any person who is a named insured or passenger in or on the insured vehicle, with respect to bodily injury, sickness or disease, including death resulting therefrom to that person." Relying on Mau, 248 Wis. 2d 1031, Ruenger argues that the introductory language as we construed it in Crandall violates this prohibition.

¶ 37. In Mau, the court addressed an issue certified by the supreme court of North Dakota: "whether ... an underinsured motorist's policy can define a named insured by requiring occupancy of a specific vehicle." Id., ¶ 12. There the driver of a rented vehicle, which had gone off the road, was injured while sitting in a police squad car that was struck by an underinsured motor vehicle. Id., ¶¶ 3-5. The injured person had purchased an option from the rental agency that made UIM coverage available to him. Id., ¶ 9. The policy defined an insured to require occupancy of the rented vehicle. Id., ¶ 10. After deciding that the injured person was a named insured under the relevant policy, the court next considered whether it was permissible under Wis. Stat. § 632.32(6)(b)2.a. for the policy to define a named insured by requiring occupancy of a particular vehicle. At the outset, the court recognized that the occupancy requirement was not "couched as an exclusion," but the court decided to treat it as an exclusion because it had the same result as an exclusion: "excluding] coverage for persons not occupying the ... rental car." Id., ¶ 33. The court then concluded that, if the occupancy requirement were applied to the named insured, it would exclude coverage for him and thus violate § 632.32(6)(b)2.a. Id., ¶ 34. In reaching this conclusion, the court noted that the statutory language following "named insured" — "or passenger in or on the insured vehicle" — did not modify "named insured." Id., ¶ 34 n.16. In other words, § 632.32(6)(b)2.a. prohibited excluding from coverage a named insured without regard to whether the named insured was "in or on the insured vehicle."

¶ 38. Rural distinguishes the occupancy requirement in Mau and the occupancy exclusion in the UIM endorsement here, and we discuss those arguments below. However, Rural does not explain why the occupancy requirement in Mau is distinguishable in any significant way from the introductory language in the UIM endorsement if that language is construed to require occupancy in a covered auto. We see no significant distinction. The introductory language here, like the occupancy requirement in Mau, is not phrased as an exclusion, but, just as in Mau, if it is construed to require occupancy in a covered auto, the result is to exclude coverage for persons not occupying that particular vehicle. And, as in Mau, if that construction of the introductory language is applied to Ruenger, the effect is to exclude coverage for a named insured.

¶ 39. We conclude that a construction of the introductory language requiring Ruenger to occupy a covered auto in order to have UIM coverage is prohibited by Wis. Stat. § 632.32(6)(b)2. as construed and applied in Mau. It follows that Rural may not rely on this language to deny Ruenger UIM coverage under the business policy.

¶ 40. Finally, we consider the exclusion for bodily injury sustained by the named insured while "occupying ... any vehicle owned by [the named insured] that is not a covered 'auto.'" For reasons similar to those we have just discussed with respect to the introductory language, we conclude this exclusion is prohibited by Wis. Stat. § 632.32(6)(b)2. as construed and applied in Mau. The arguments that Rural makes to distinguish this exclusion from the occupancy requirement in Mau are not persuasive.

¶ 41. First, Rural argues that the occupancy exclusion does not exclude coverage for Ruenger if she is "in or on the insured vehicle," apparently viewing this phrase in Wis. Stat. § 632.32(6) (b)2. as modifying "named insured" as well as "passenger." However, as we have noted above, the court in Mau specifically held that the phrase "in or on the insured vehicle" modified only "passenger," not "named insured." 248 Wis. 2d 1031, ¶ 34. Indeed, this construction of the statute was critical to the holding in Mau, because the occupancy requirement there did not exclude coverage for the named insured if he was in the rented vehicle, but, instead, specifically required that he be in the rented vehicle.

¶ 42. Second, Rural argues that, while the Mau occupancy provision required that the named insured occupy the insured vehicle in order to have UIM coverage, the exclusion here does not. Rather, the exclusion here applies only if the named insured is occupying a vehicle she owns that is not the insured vehicle. That is a factual distinction, but Rural does not explain its significance under the court's analysis in Mau. This is how the court in Mau analyzed the occupancy requirement in that policy in relation to Wis. Stat. § 632.32(6)(b)2:

Section 632.32(6)(b)2.a. prohibits an exclusion for "[a]ny person who is a named insured." We have already determined that Mau is a named insured under the excess policy. The occupancy requirement, if applied to Mau will exclude coverage for Mau, a named insured. Based on our analysis, we find that the occupancy requirement violates § 632.32(6)(b)2.a., because the occupancy requirement excludes coverage for a named insured.

Mau, 248 Wis. 2d 1031, ¶ 34 (footnote omitted). The occupancy exclusion in Rural's policy, if applied to Ruenger, will exclude coverage for her, a named insured. Under the Mau court's analysis, we can see no principled distinction between this exclusion when applied to Ruenger and that occupancy requirement when applied to that named insured.

¶ 43. In summary, we conclude: (1) the coverage section of the UIM endorsement provides coverage to Ruenger for her injuries, notwithstanding the language in the declarations on which Rural relies; (2) the construction of the introductory language proposed by Rural, when applied to Ruenger, the named insured, is prohibited by Wis. Stat. § 632.32(6)(b)2. as construed and applied in Mau; and (3) the occupancy exclusion, when applied to Ruenger, the named insured, is also prohibited by § 632.32(6)(b)2. as construed and applied in Mau. Accordingly, there is UIM coverage for Ruenger under her business policy.

B. UIM Reducing Clause

1. Compliance with Wis. Stat. § 632.32(5)(i)

¶ 44. The reducing clause in the UIM endorsement of Ruenger's business provides:

D.2 The Limit of Insurance under this coverage shall be reduced by:
a. All sums paid or payable under any workers' compensation, disability benefits or similar law, and
b. All sums paid by or for anyone who is legally responsible, including all sums paid under this Coverage Form's Liability Coverage.

¶ 45. Ruenger argues that this clause does not comply with Wis. Stat. § 632.32(5) (i) for the same reasons she argues that the UIM reducing clause in her personal policy does not comply with that statute. The two clauses are in substance the same for purposes of addressing these arguments. For the reasons we have already discussed in paragraphs 13-18, we conclude the provisions in the business policy reducing clause on which Rural relies do comply with the statute.

2. Contextual Ambiguity

¶ 46. Ruenger also argues that the business policy reducing clause is contextually ambiguous. First, she points out that the declarations state "the most [the insurer] will pay" for this coverage is $500,000, without any indication that this limit is subject to reduction. However, as we have already observed, there is no requirement that the declarations must tell the insured that the stated limits are subject to reduction. Van Erden, 271 Wis. 2d 163, ¶ 21. The bottom of the first page of the declarations, just below the list of coverages, states: "Forms and Endorsements Applying To This Coverage Form and Made Part Of This Policy At The Time Of The Issue." There follows a list of various forms and endorsements identified by number, date, and descriptive label, including "Wisconsin Underin-sured Motorists Coverage." A reasonable insured would understand that it is necessary to consult this form in order to learn about UIM coverage. A reasonable insured would have no trouble in doing this, because the "Wisconsin Underinsured Motorists Coverage" endorsement is plainly labeled and contains the same number and date as indicated on the first page of the declarations.

¶ 47. We next reject Ruenger's argument that the twenty-one pages discussing other coverages in between the first page of declarations and the UIM endorsement mislead and confuse the insured about UIM coverage. The titles of the forms and endorsements in those pages correspond to the list at the bottom of the first page of declarations, and a reasonable insured would understand that he or she does not need to read through them all to understand the terms of the UIM coverage, which is plainly contained in that endorsement.

¶ 48. Ruenger advances other points of ambiguity, but we have resolved them against her in the context of the personal policy. Specifically, the reducing clause is not inconsistent with the first subsection of the "Limit of Insurance," which provides (in summary) that the limit in the declarations for UIM is the maximum the insurer will pay for any one accident: a reasonable insured would understand that the reducing clause qualifies the first subsection. See paragraph 23. Similarly, the duplicate payment provision would not mislead a reasonable insured as to the meaning of the reducing clause. See paragraph 24.

¶ 49. Because we conclude the reducing clause in the UIM endorsement of the business policy is not ambiguous when read in the context of the entire policy, and because it also complies with Wis. Stat. § 632.32(5)(i), it is valid.

III. Applicable Limits of Rural's UIM Liability

¶ 50. The parties dispute the limits of Rural's UIM liability under the business policy if we conclude that there is coverage and the reducing clause is valid. This dispute also implicates the personal policy.

¶ 51. In the circuit court, Rural argued in its initial brief in support of its motion for a declaratory judgment that, if there were UIM coverage and the reducing clause were valid, the limit of its liability would be $200,000. Rural arrived at this figure by subtracting from $500,000 the tortfeasor's payment of $250,000 and its own UIM payment of $50,000 to Ruenger under her personal policy. In that brief Rural acknowledged that "[i]f the reducing clause were not given effect, the full $500,000 would be available." Ruenger responded in her brief that, according to Janssen v. State Farm Mut. Auto. Ins. Co., 2002 WI App 72, 251 Wis. 2d 660, 643 N.W.2d 857, Wis. Stat. § 632.32(5)(i) does not permit an insurer to reduce the limit of its UIM liability by the amount the insured receives from her own UM or UIM insurer. In Janssen, Ruenger pointed out, we held that the statutory language "any person or organization that may be legally responsible for the bodily injury or death for which the payment is made" refers to payments made by or on behalf of tortfeasors and not to payments made pursuant to the insured's own uninsured motorist coverage. Id., ¶ 11. Ruenger also argued that Rural could not reduce its UIM limit of $500,000 under the business policy by the $250,000 Ruenger had received from the tortfeasor because that had already reduced Rural's limit of UIM liability under her personal policy.

¶ 52. In Rural's reply brief in the circuit court it made a new argument, which relied on the "Two or More Coverage Forms or Policies Issued by Us" contained in the Business Auto Coverage Form:

If this Coverage Form and any other Coverage Form or policy issued to you by us or any company affiliated with us apply to the same "accident" the aggregate maximum Limit of Insurance under all the Coverage Forms or policies shall not exceed the highest applicable Limit of Insurance under any one Coverage Form or policy. This condition does not apply to any Coverage Form or policy issued by us or any affiliated company specifically to apply as excess insurance over this Coverage Form.

Rural argued that it had not known of the business policy when it paid Ruenger the $50,000 under the personal policy; had it known, it would have invoked this "other coverage" clause and would not have paid Ruenger anything under the personal policy. Under this clause, Rural asserted, only the higher UIM coverage in the business policy is available to Ruenger for this accident. According to Rural, if there were UIM coverage under the business policy and the reducing clause were valid, then the reduced limit of its liability would be $250,000 (the $500,000 limit reduced by the tortfeasor's payment), hut Rural would owe Ruenger no more than $200,000 because it had already paid her $50,000.

¶ 53. At the hearing in the circuit court, Rural's counsel referred briefly to the argument in its reply brief on the "other coverage" clause; in response, Ruenger's counsel pointed to Rural's statements in its first brief that were inconsistent with its later position. This point was not discussed further and the court ultimately did not have to address it because of its ruling that there was no UIM coverage under the business policy.

¶ 54. On appeal, Rural asks that, if we decide there is UIM coverage under the business policy and the reducing clause is valid, we remand to the circuit court for a determination of Rural's "potential monetary liability." Ruenger objects to a remand. She contends that Rural waived its argument on the "other coverage" clause by not making it sooner in the circuit court.

¶ 55. We do not agree with Ruenger that Rural has waived the right to raise this issue on appeal. Rural did raise it in the circuit court — in its reply brief. The circuit court did not decide it because that was unnecessary given the ruling the court did make. In any event, we have the authority to decide questions of law even if they were not raised or not decided in the circuit court. Wirth v. Ehly, 93 Wis. 2d 433, 443-44, 287 N.W.2d 140 (1980). We recognize, however, that Ruenger has not yet briefed the issue of the "other coverage" clause, either in the circuit court or before this court. We conclude that, rather than deciding the issue on appeal without benefit of briefing by Ruenger, we should remand to the circuit court for a resolution of this issue.

¶ 56. On remand the court shall provide Ruenger the opportunity to respond to Rural's circuit court reply brief and shall allow such other briefing and argument as the court considers appropriate. The court shall determine, first, whether the "other coverage" clause applies. If the court determines that it does apply, then the only applicable limit of Rural's UIM liability to Ruenger for this accident is the $500,000 limit of the UIM coverage under the business policy. Consistent with our decision that the UIM reducing clause in that policy is valid, that $500,000 limit of liability is reduced by the tortfeasor's payment of $250,000. The court will then need to decide whether the reduced limit of $250,000 shall be further reduced by the $50,000 Rural has already paid Ruenger.

¶ 57. If the circuit court decides that the "other coverage" clause does not apply, then there are two applicable limits of UIM liability: the $300,000 in the personal policy and the $500,000 in the business policy. The court will then need to decide the issues raised by Ruenger in her responsive brief in the circuit court: whether Rural may apply the UIM reducing clause in the business policy to reduce that $500,000 limit by either: (1) the $250,000 the tortfeasor has paid Ruenger, which has already reduced the UIM limits of the personal policy, or (2) the $50,000 that Rural has already paid Ruenger under the UIM coverage of the personal policy.

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

       All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

       We recognize that the business policy does not use the term "UIM endorsement" but instead refers to "UIM coverage form." The label does not affect onr analysis, and we use the term "endorsement" for ease of reference.

       'You" is one of the four categories of "insured" identified in section B of the UIM endorsement, but "you" is not defined in the UIM endorsement or in the definition section of the Business Auto Coverage Form. The parties, however, appear to agree that "you" means the named insured, and Ruenger is plainly identified in the declarations as the named insured.

       We recognize that this provision may be subject to the same challenge Ruenger makes under Mau v. North Dakota Ins. Reserve Fund, 2001 WI 134, 248 Wis. 2d 1031, 637 N.W.2d 45, to Rural's construction of the introductory language in the UIM endorsement, which we discuss in paragraphs 36-39. However we address only the argument Ruenger actually makes concerning Item 2 of the declarations.

       An "auto" is defined in Section V of the Business Auto Coverage Form as a "land motor vehicle, trailer or semitrailer designed for travel on public roads but does not include 'mobile equipment.'"

       Rural cites an Iowa case, Welchans v. United Services Auto. Ass'n, 645 N.W.2d 1 (Iowa App. 2002), which applied an identically worded exclusion and' concluded that a tractor owned by the insured was a "vehicle" but not a "covered auto." Id. at 3. However, while the policy language was identical, the legal issue was not: here we are concerned with whether that policy language is prohibited by a Wisconsin statute as construed by the Wisconsin supreme court.

       Because of this conclusion, we do not address Ruenger's arguments that Rural's proposed construction of the introductory language and the occupancy exclusion violate Wis. Stat. § 632.32(5)(j), which provides:
      (j) A policy may provide that any coverage under the policy does not apply to a loss resulting from the use of a motor vehicle that meets all of the following conditions:
      1. Is owned by the named insured, or is owned by the named insured's spouse or a relative of the named insured if the spouse or relative resides in the same household as the named insured.
      2. Is not described in the policy under which the claim is made.
      3. Is not covered under the terms of the policy as a newly acquired or replacement motor vehicle.

       For the reasons we have discussed with respect to the personal policy UIM reducing clause, see paragraph 20, we do not discuss Ruenger's arguments on ambiguities in the business policy UIM reducing clause itself because they are not material to the facts of this case.


source: Caselaw Access Project

author: DYKMAN, J.

license: Public Domain

text:
    In re the Termination of Parental Rights to Jillian K. L., a Person Under the Age of 18: Kimberly S. S., Petitioner-Appellant, v. Sebastian X. L., Respondent-Respondent. [Case No. 04-3219.] In re the Termination of Parental Rights to Adam J. L., a Person Under the Age of 18: Kimberly S. S., Petitioner-Appellant, v. Sebastian X. L., Respondent-Respondent.† [Case No. 04-3220.]
    Court of Appeals

      Nos. 04-3219, 04-3220.

      Submitted on briefs March 1, 2005.

      Decided March 31, 2005.

    2005 WI App 83
    (Also reported in 697 N.W.2d 476.)

      On behalf of the petitioner-appellant, the cause was submitted on the briefs of Richard J. Auerbach of Auerbach & Porter, S.C., and Sandra Holtzman of Law Offices of Sandra Holtzman, Madison.
    On behalf of the respondent-respondent, the cause was submitted on the brief of Jon C. Manzo, Middleton.
    Before Dykrnan, Lundsten and Higginbotham, JJ.

       Petition to review denied 6-1-05.

   DYKMAN, J.

¶ 1. Kimberly S.S. appeals from a judgment dismissing her petition to terminate the parental rights of her ex-husband, Sebastian X.L., to their children, Jillian K.L. and Adam J.L., brought under Wis. Stat. § 48.415(4) (2003-2004) . The circuit court dismissed the termination of parental rights (TPR) petition because the family court order denying physical placement to Sebastian did not contain the warnings provided in Wis. Stat. § 48.356. Because we conclude that a petitioner need not prove that a family court order included the warnings provided in § 48.356, we reverse and remand for further proceedings.

Background

¶ 2. The relevant facts are undisputed. Kimberly and Sebastian were divorced in 2002. Their judgment of divorce denied Sebastian physical placement of their children, Jillian and Adam, but did not contain a warning that continuation of the denial of placement for one year could be grounds for termination of Sebastian's parental rights. In 2004, Sebastian was still denied physical placement, and Kimberly filed petitions to terminate his parental rights to the children under Wis. Stat. § 48.415(4). Sebastian moved to dismiss the petitions because the divorce judgment did not include the warnings contained in Wis. Stat. § 48.356(2). Kimberly asserted that § 48.415(4) does not require proof that an underlying family court order contained these statutory warnings. The circuit court granted Sebastian's motion and Kimberly appeals. The chief judge ordered that this case be heard by a three-judge panel. See Wis. Stat. Rule 809.41(3).

Discussion

¶ 3. The issue is whether Wis. Stat. § 48.415(4) requires that a TPR petitioner prove that an underlying family court order contained the warnings required by Wis. Stat. § 48.356(2). This is a question of statutory interpretation that we review independently of the trial court. In re Commitment of Lombard, 2004 WI 95, ¶ 17, 273 Wis. 2d 538, 684 N.W.2d 103.

¶ 4. "[T]he purpose of statutory interpretation is to determine what the statute means so that it may be given its full, proper, and intended effect." State ex rel. Kalal v. Circuit Court, 2004 WI 58, ¶ 44, 271 Wis. 2d 633, 681 N.W.2d 110. "We assume that the legislature's intent is expressed in the statutory language." Id. Therefore, statutory interpretation "begins with the language of the statute. If the meaning of the statute is plain, we ordinarily stop the inquiry." Seider v. O'Connell, 2000 WI 76, ¶ 43, 236 Wis. 2d 211, 612 N.W.2d 659.

¶ 5. Wisconsin Stat. § 48.415(4) provides that parental rights may be terminated for

continuing denial of periods of physical placement or visitation, which shall be established by proving all of the following:
(a) That the parent has been denied periods of physical placement by court order in an action affecting the family or has been denied visitation under an order under s. 48.345, 48.363, 48.365, 938.345, 938.363 or 938.365 containing the notice required by s. 48.356(2) or 938.356(2)....

The notice under Wis. Stat. § 48.356(2) and § 938.356(2) is a notice of "any grounds for termination of parental rights ... which may be applicable and of the conditions necessary for the child to be returned to the home ...." See §§ 48.356(1) and 938.356(2). The orders under Wis. Stat. §§ 48.345, 48.363, 48.365, 938.363 and 938.365 are juvenile court orders denying visitation to a parent in child in need of protection or services (CHIPS) proceedings.

¶ 6. Kimberly contends that the first usage of the word "or" in Wis. Stat. § 48.415(4)(a) separates the paragraph's first clause, which pertains to family court orders, from its second clause, which pertains to juvenile court orders. Sebastian asserts that the first usage of the word "or" in § 48.415(4)(a) does not separate the portion regarding family court orders from that regarding juvenile court orders. He argues that had the legislature intended the two to be read separately it would have divided the paragraph into separate sub-paragraphs. Further, he posits that the directive in § 48.415(4) that "all of the following" must be proven to establish this ground for termination means that proof of the notice in Wis. Stat. § 938.356(2) is required for orders issued in family court as well as juvenile court. We believe that Sebastian's view contravenes the statute's plain language.

¶ 7. The plain language of Wis. Stat. § 48.415(4) requires proof that the notices in Wis. Stat. § 48.356(2) were provided only when the underlying order was issued in juvenile court. We agree with Kimberly that the first usage of "or" in § 48.415(4)(a) separates the paragraph into two self-contained clauses, one pertaining to family court orders and the other applicable to juvenile court orders. Thus, we read the notice requirement provision to be a part of the clause pertaining to juvenile court orders, and as inapplicable to the clause pertaining to family court orders. "[W]hen a statute is plain and unambiguous, interpretation is unnecessary and intentions cannot be imputed to the legislature except those to be gathered from the terms of the statute itself." Harris v. Kelley, 70 Wis. 2d 242, 249, 234 N.W.2d 628 (1975).

¶ 8. Sebastian notes that a provision of the custody and physical placement section of the family code requires that courts "den[ying] periods of physical placement... give the parent that was denied periods of physical placement the warning provided under s. 48.356." Wis. Stat. § 767.24(4)(cm). He contends that this provision demonstrates that the legislature intended that the statutory warnings be given in family court orders under § 767.24. See Kalal, 271 Wis. 2d 633, ¶ 46 (explaining that context is relevant to a plain language interpretation of a statute, including "relation [of a statute] to the language of surrounding or closely-related statutes ....").

¶ 9. Sebastian's contention is correct as far as it goes. However, the fact that Wis. Stat. § 767.24 requires a family court to provide the applicable notice does not establish that provision of the notice is an element of proof under Wis. Stat. § 48.415(4). Ultimately, Sebastian's attempt to define § 48.415(4) by importing intent from § 767.24 must fail because the meaning of § 48.415(4) is apparent from the text of the statute itself.

¶ 10. We also note that the legislative history of Wis. Stat. § 48.415(4) supports our plain-meaning interpretation. See Kalal, 271 Wis. 2d 633, ¶ 51 ("[L]egisla-tive history is sometimes consulted to confirm or verify a plain-meaning interpretation."). Prior to July 1, 1996, § 48.415(4) applied only to family court orders denying physical placement, and did not refer to warnings of any kind. The legislature in 1995 amended the statute to add as a ground for termination denials of visitation contained in juvenile court orders. 1995 Wis. Act 275, § 80. An explanatory note accompanying the provision indicates that the notice requirement applies only to the juvenile court orders added by the legislation:

[This change] [e]xpands the ground for involuntary TPR based on continuing denial of periods of physical placement to also provide for periods in which a juvenile court has denied visitation under an order under s. 48.345 or 938.345, stats. (CHIPS dispositional order), 48.357 or 938.357, stats, (change in placement order), 48.363 or 938.363, stats, (revision of dispositional order), or 48.365 or 938.365, stats, (extension of disposi-tional order), if the order contained the notice required by s. 48.356 (2), stats., that is, a warning about continuing denial of visitation as a ground for involuntary TPR and the conditions necessary for the parent to be granted visitation.

Note to 1995 Wis. Act 275, § 80.

¶ 11. Finally, Sebastian contends that previous appellate court rulings support his position, citing In re D.F., 147 Wis. 2d 486, 496, 433 N.W.2d 592 (Ct. App. 1988), abrogated in part, In re Jamie L., 172 Wis. 2d 218, 493 N.W.2d 56 (1992), and State v. Alice, 2000 WI App 228, 239 Wis. 2d 194, 619 N.W.2d 151. He acknowledges that these cases differ from the present case because the underlying orders were issued in juvenile court, not family court. Nonetheless, he notes that this case, like those he cites, involves a parent's fundamental liberty interest in his or her child. He concludes that to require proof of notice for only some orders would mean that the fundamental liberty interest at stake in all TPR proceedings would be treated differently from case to case.

¶ 12. To the extent that Sebastian is arguing that the legislature would not enact statutes that treated similar situations differently, we repeat that the legislature unambiguously did just that in Wis. Stat. § 48.415(4). The remedy here, if any is needed, is legislative, not judicial. La Crosse Hospital v. La Crosse, 133 Wis. 2d 335, 338, 395 N.W.2d 612 (Ct. App. 1986). If Sebastian is questioning the constitutionality of § 48.415(4), we conclude that he has not adequately developed the issue and we need not address it. See Justmann v. Portage County, 2005 WI App 9, ¶ 13, 278 Wis. 2d 487, 692 N.W.2d 273. Moreover, the constitutionality of § 48.415(4) was recently upheld in Dane Co. v. P.P., 2005 WI 32, 279 Wis. 2d 169, 694 N.W.2d 344 (Wis. March 23, 2005) (Nos. 03-2440 through 03-2446), though differences may exist between the issues addressed in P.P. and those that Sebastian might raise.

By the Court. — Judgment reversed and cause remanded.

       All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted. The constitutionality of Wis. Stat. § 48.415(4) was recently upheld by the supreme court in a case asserting a substantive due process infirmity. Dane Co. v. P.P., 2005 WI 32, 279 Wis. 2d 169, 694 N.W.2d 344 (Wis. March 23, 2005) (Nos. 03-2440 through 03-2446).

       WISCONSIN Stat. § 48.356 requires that "any written order which places a child ... outside the home or denies visitation" contain warning "of any grounds for termination of parental rights .. . which may be applicable and of the conditions necessary for the child ... to be returned to the home ...."

       Though we conclude that Wis. Stat. § 48.356(2) notices are not required in family court, the better practice would be to explain to litigants the danger of ignoring placement denials.

       Moreover, as Kimberly observes, notice is not required for orders revising a judgment of divorce under Wis. Stat. § 767.325; it is only required for initial placement and custody determinations under Wis. Stat. § 767.24. If we took Sebastian's view, an order denying physical placement under § 767.325 could not be a basis for a TPR proceeding unless the court happened to provide warnings not required by statute.

       Wisconsin Stat. § 48.415(4) (1993-1994) provided:
      Continuing denial of periods of physical placement. Continuing denial of periods of physical placement may be established by a showing that:
      (a) The parent has been denied periods of physical placement by court order in an action affecting the family; and
      (b) At least 1 year has elapsed since the order ... was issued and [it] has not [been] subsequently modified . ..


author: N. PATRICK CROOKS, J.

text:
    In re Modern Building Materials Inc. Chapter 128 Receivership: Marine Bank and Robert K. Steuer, Receiver, Plaintiffs-Respondents, v. Taz's Trucking Incorporated, Defendant-Appellant-Petitioner.
    Supreme Court

      No. 2003AP2827.

      Oral argument March 31, 2005.

      Decided June 2, 2005.

    2005 WI 65
    (Also reported in 697 N.W.2d 90.)

      For the defendant-appellant-petitioner there were briefs by Mark S. Schmitt and Maier Mcllnay Schmitt & Button, Ltd., Grafton, and oral argument by Mark S. Schmitt.

    For the plaintiffs-respondents there was a brief by Daryl L. Diesing, Barbara J. Janaszek and Whyte Hirschboeck Dudek S.C., Milwaukee, and Robert K. Steuer and Robert K. Steuer Law Office, Milwaukee, and oral argument by Robert K. Steuer and Barbara J. Janaszek.

   N. PATRICK CROOKS, J.

¶ 1. Petitioner Taz's Trucking Incorporated (Taz's) petitions for review of a published decision of the court of appeals, Marine Bank v. Taz's Trucking Inc., 2004 WI App 164, 275 Wis. 2d 711, 688 N.W.2d 730, affirming the circuit court's grant of summary judgment in favor of Marine Bank and Robert K. Steuer, Receiver (Marine Bank). Marine Bank seeks to enjoin Taz's from collecting unpaid freight charges from the consignees of Modern Building Materials Inc. (MBM). On review, we address the following questions: (1) whether there are genuine issues of material fact, or reasonable alternative inferences to be drawn from undisputed facts, so that summary judgment should not have been granted; and (2) what are the applicable legal principles when determining whether Taz's may collect freight charges from the consignees-customers of MBM?

¶ 2. We conclude that summary judgment was improperly granted to Marine Bank. Genuine issues of material fact, and reasonable alternative inferences drawn from undisputed facts, exist as to whether an agreement was made between Taz's and MBM, to the effect that Taz's could not seek payment from a consignee-customer of MBM. We further conclude that Taz's liability for payment of freight charges is governed by contract law, and that there exist common law presumptions that a consignee and a consignor may be liable for the payment of those freight charges. See Schneider Nat'l Carriers, Inc. v. Rudolph Express Co., 855 F. Supp. 270, 273 (E.D. Wis. 1994). These presumptions may be rebutted, however, by evidence that the carrier and the consignor agreed that the consignor would be liable, exclusively, for such charges. Absent an express contract to that effect, such an agreement may be determined to exist through analysis of the conduct of the parties. Id. Here, however, the record is insufficient for a determination as to whether there was such an agreement. For these reasons, we reverse the court of appeals' decision affirming the summary judgment granted by the circuit court and remand this case for further proceedings consistent with this opinion.

r-H

¶ 3. In the spring of 2002, MBM entered into a business relationship with Taz's to ship its precast concrete building products to MBM's customers. The parties entered into a written agreement regarding the rates charged for shipping, but that agreement did not cover whether the consignor (MBM) or the consignee (MBM's customer) would be liable for those charges.

¶ 4. A typical transaction, pursuant to this agreement, consisted of MBM contacting Taz's to pick up the shipment and deliver the goods to an MBM customer. Taz's would subsequently calculate the trucking charge based upon prespecified rate sheets. For each shipment, MBM prepared a bill of lading to accompany the goods. This bill of lading served as the key transmittal document for each shipment to an MBM customer. The document did not contain any terms assigning liability for the freight charges; it simply provided the basic delivery information, such as time, place, manner, and the identity of the consignee.

¶ 5. Taz's billed MBM each week for the previous week's deliveries, until Taz's factored the account with a financing company in July 2002. Taz's informed MBM of this arrangement and indicated that MBM could wait up to 90 days before making its payments to the factor. However, in September 2002, MBM stopped making payments. When the factor informed Taz's of MBM's delinquency in November 2002, Taz's immediately contacted MBM and threatened to seek the past-due freight charges from the consignees. MBM promised to pay, and Taz's agreed not to seek payment from MBM's customers-consignees.

¶ 6. By January 2003, MBM was insolvent. Marine Bank, which made loans to MBM in 2001-02 totaling over $9 million, filed a complaint and a motion for appointment of a receiver and for a preliminary injunction. On January 24, 2003, the Kenosha County Circuit Court, Michael S. Fisher, Judge, granted Marine Bank's motion and appointed Robert K. Steuer (Steuer) as receiver of MBM, pursuant to Wis. Stat. ch. 128 (2001-02).

¶ 7. MBM then informed Taz's that it was forced into receivership and that it would not pay for freight charges that accrued prior to the receivership on January 24, 2003. Taz's then demanded payment from the consignees. Several of the consignees informed the receiver, Steuer, that Taz's demanded payment from them for the freight charges. Marine Bank filed a complaint on February 13, 2003, seeking an injunction and a declaratory judgment preventing Taz's from collecting freight charges from the consignees. The circuit court issued a temporary restraining order against Taz's to that effect.

¶ 8. Both sides then filed motions for summary judgment. The circuit court granted Marine Bank's motion and permanently enjoined Taz's from collecting from the consignees. The court concluded that there were no genuine issues of material fact. The court acknowledged the presumption of consignee liability upon receipt of the goods, but held that the presumption was overcome here with evidence that MBM and Taz's had impliedly agreed that MBM would be liable for all freight charges. Taz's timely appealed.

¶ 9. The court of appeals affirmed the circuit court's grant of summary judgment. It agreed with the circuit court that the law creates a presumption that both the consignor and consignee are liable to the carrier for freight charges. The court held:

[There is a] common-law presumption that a consignee, the party entitled to delivery under a bill of lading, becomes liable for paying the carrier's freight charges upon delivery of the goods consigned. The same liability is presumed to attach to the consignor, the party from whom the carrier receives the goods for delivery. But liability for paying freight charges is ultimately a matter of contract, so either presumption may be rebutted by evidence that the parties to the bill of lading had something else in mind.

Marine Bank, 275 Wis. 2d 711, ¶ 7 (quoting Schneider National, 855 F. Supp. at 273). Relying on Schneider National, the court of appeals determined that the common law presumption in regard to consignee liability had been rebutted here by undisputed evidence that MBM and Taz's had agreed that MBM would be solely liable for freight charges.

¶ 10. Taz's filed a petition for review with this court. We granted its petition on November 17, 2004.

II

¶ 11. The first issue that we address is whether the circuit court properly granted Marine Bank's motion for summary judgment. We review the grant of summary judgment de novo, applying the same methodology as the circuit court and the court of appeals, and benefiting from the analyses of those courts. Atkins v. Swimwest Family Fitness Ctr., 2005 WI 4, ¶ 11, 277 Wis. 2d 303, 691 N.W.2d 334 (citing Yahnke v. Carson, 2000 WI 74, ¶ 10, 236 Wis. 2d 257, 613 N.W.2d 102). Wisconsin Stat. § 802.08(2) directs that summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, 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."

¶ 12. Our methodology begins by determining if a claim for relief is set forth. If so, and the moving party has established a prima facie case for summary judgment, "we examine the record to determine whether there 'exist[s] disputed material facts, or undisputed material facts from which reasonable alternative infer-enees may be drawn, sufficient to entitle the opposing party to a trial.'" Trinity Evangelical v. Tower Ins. Co., 2003 WI 46, ¶ 32, 261 Wis. 2d 333, 661 N.W.2d 789 (quoting Grams v. Boss, 97 Wis. 2d 332, 338, 294 N.W.2d 473 (1980)). "The burden is on the moving party to prove that there are no genuine issues of material fact. An issue of fact is genuine if a reasonable jury could find for the nonmoving party. A material fact is such fact that would influence the outcome of the controversy." Central Corp. v. Research Prods. Corp., 2004 WI 76, ¶ 19, 272 Wis. 2d 561, 681 N.W.2d 178 (citations omitted).

¶ 13. We conclude, based on our review of the record, that there are disputed material facts, and reasonable inferences to be drawn from undisputed facts, to preclude summary judgment. The primary issue in this case is whether there was an agreement between MBM and Taz's regarding the assignment of liability for freight charges, so that Taz's could not seek payment from a consignee. Although there is no evidence of an express written agreement on this question, the circuit court and court of appeals held that the parties' Course of conduct established an agreement that MBM would be exclusively liable for the freight charges. It must be noted that while the course of dealing between MBM and Taz's supports the conclusion that Taz's or its factor generally received payment from MBM, there is nothing in the record that leads us to the conclusion directly, or by implication, that there was an agreement that MBM would be liable, exclusively, for such charges, and that Taz's could not seek payment from a consignee-customer of MBM. Under these circumstances, summary judgment should not have been granted.

¶ 14. Although there may be other genuine issues of material fact” or reasonable alternative inferences drawn from undisputed facts, the lack of clear, undisputed evidence in the record concerning exclusivity justifies the reversal of the grant of summary judgment.

h*H hH I — I

¶ 15. We next address the legal principles applicable in determining whether Taz's may collect from the consignees-customers of MBM. According to Taz's, the court of appeals erred by relying on Schneider National, E.W. Wylie Corporation v. Menard Inc., 523 N.W.2d 395 (N.D. 1994), and LTV Steel Co. v. David Graham Co., 78 B.R. 713 (Bankr. S.D.N.Y. 1987), to set forth the general rule of liability for such charges. Taz's asks us to rely instead on cases decided by this court, which it claims adhere to the rule that, unless there is an express agreement otherwise, the consignee will become liable to the carrier for freight charges upon the acceptance of delivery. See Chicago & N.W. Transp. Co. v. Krohn Cartage Co., 79 Wis. 2d 39, 255 N.W.2d 310 (1977); Werner Transp. Co. v. Shimon, 249 Wis. 87, 23 N.W.2d 519 (1946); Waters v. Pfister & Vogel Leather Co., 176 Wis. 16, 186 N.W. 173 (1922).

¶ 16. For guidance, we review many of the cases and the rationale discussed by the parties, the circuit court, and by the court of appeals. The first case on consignee liability is Waters. There, a carrier delivered goods to a consignee, and the bill of lading used by the parties was marked "prepaid." Although the document did not contain the freight charges or amount collected, the court determined that the carrier may look to recover the freight charges from the consignee, to whom the goods were actually delivered. Relying on the Interstate Commerce Act (ICA), the court held that "[i]t is the acceptance of the goods . . . that makes the consignee a party to the contract. Having accepted the goods, and it being undisputed that only a part of the lawful charge has been paid, the defendant thereby became Hable for the remainder." Waters, 176 Wis. at 20.

¶ 17. In Werner, a carrier filed suit against a consignee to recover freight charges for the delivery of three loads of eggs. The bill of lading attached to the shipment bore the notation "collect." This court held that" [although no contractual relation arises between carrier and consignee by the mere designation of the latter as consignee, the consignee is the presumptive owner of the goods transported[,] and if he accepts the goods in the capacity of owner the law implies a promise on his part to pay the charges." Werner, 249 Wis. at 89 (citation omitted).

¶ 18. Finally, in Krohn, this court gave its most recent interpretation on consignee liability for freight charges. Like the cases listed above, a carrier brought an action against a consignee to recover freight charges for two different shipments. Krohn Cartage was named as the consignee in both shipments, and the record indicated that only a small portion of the order was delivered to it. The court held:

"The mere designation in the bill of lading of the consignee as the one liable for the freight charges does not create a contractual relationship between the carrier and the consignee, rendering the latter liable therefor, but rather, the consignee becomes liable therefor when an obligation arises on his part from presumptive ownership, acceptance of goods and the services rendered, and the benefits conferred by the carrier for such charges."

Krohn, 79 Wis. 2d at 45 (quoting Arizona Feeds v. S. Pacific Transp. Co., 519 P.2d 199, 206 (Ariz. Ct. App. 1974).

¶ 19. We recognize that these cases were based, to some extent, on strict interpretations of the ICA. See New York Cent. & Hudson River R.R. Co. v. York & Whitney Co., 256 U.S. 496 (1921); Pittsburg, Cincinnati, Chicago & St. Louis Ry. Co. v. Fink, 250 U.S. 577 (1919). These cases appear to present a rule that, at least under the ICA, a consignee/beneficial owner of shipped goods will always be jointly and severally liable for a carrier's freight charges upon acceptance of those goods. In re Penn-Dixie Steel Corp., 6 B.R. 817, 820 (Bankr. S.D.N.Y. 1980).

¶ 20. The court of appeals cites a line of cases that rely on contract principles to determine the liability for freight charges, but which also recognize the presumptions concerning a determination as to whether the consignor and consignee both may be liable for such charges. In Schneider National, a carrier sought to recover freight charges from consignees. Pursuant to its agreement with the consignor, Schneider's drivers would pick up the shipments from one of the consignor's terminals and sign a document entitled "Sunpath Bill of Lading," "which listed the location of the [consignor's] terminal, the name and location of one of the instant defendants — identified as 'consignee'— various reference numbers, and the date and time of the driver's departure." Schneider Nat'l, 855 F. Supp. at 272. Upon delivery, the consignee would inspect the trailer, indicate on the document whether the shipment was "intact," and sign the document on the line marked "consignee." Schneider would then submit this document, along with an invoice, to the consignor. The consignor regularly paid Schneider's invoices, and Schneider never requested payment of freight charges from any consignee. This was consistent with the agreement between the consignor and the consignee, making the consignor responsible for transporting the shipments. Id. After the consignor stopped paying the freight charges and filed for bankruptcy, Schneider attempted collection from the consignees.

¶ 21. Schneider's claim was based on the "presumption that a consignee, the party entitled to delivery under a bill of lading, becomes liable for paying the carrier's freight charges upon delivery of the goods consigned." Id. at 273. However, the court in Schneider National made clear that the same liability is presumed to attach to the consignor. As a result, the court concluded that "liability for paying freight charges is ultimately a matter of contract, so either presumption may be rebutted by evidence that the parties to the bill of lading had something else in mind." Id. (citing S. Pac. Transp. Co. v. Commercial Metals Co., 456 U.S. 336, 343 (1982); Louisville & Nashville R.R. Co. v. Cent. Iron & Coal Co., 265 U.S. 59, 67 (1924); Consol. Freightways Corp. of Del. v. Admiral Corp., 442 F.2d 56, 62 (7th Cir. 1971)).

¶ 22. When the court in Schneider National looked for other evidence of the parties' intent, it focused on the Sunpath Bill of Lading. It held that the omission of terms from that bill of lading, such as the rate or charge for transportation, the agreement and stipulations with respect to the carrier's common law liability in the case of loss or injury to the goods, and other obligations assumed by the parties, suggested that these bills of lading were not intended to function as contracts of carriage. Id. at 274. Thus, the court held that "[t]he obvious implication is that freight charges were to be assessed not on the basis of the bill itself, but on the basis of an invoice sent separately from Schneider to [the consignor], pursuant (necessarily) to a contract between the two." Id.

¶ 23. The court also looked to the way in which the bills of lading were used to indicate the intent of the parties. In that case, the Sunpath Bills of Lading were not forwarded to the consignees separately from the shipments. Id. Instead, the bill of lading was given to a consignee upon delivery of the shipment. The court specifically held that the "Sunpath bills thus cannot have served as 'documents of title' establishing defendants' right to receive the shipments...." Id. (citation omitted). "[B]ecause [the consignees] did not receive the bills prior to arrival of Schneider's deliveries, [the consignees] were deprived of any meaningful opportunity to decide whether to reject them, as is the consignee's right when the bill fails to conform to the underlying contract of sale or shipment." Id. (citation omitted). Accordingly, based on the terms of the Sun-path Bill of Lading, and the contents and use of those bills, the court held that the bills "expressed an intention on the part of Schneider and the other parties that Schneider would look exclusively to [the consignor] for payment of freight charges." Id. at 275.

¶ 24. The court of appeals also relied on two decisions which "apply the common-law presumption on consignee liability for freight charges in the traditional arrangement of consignor, trucking company and consignee." Marine Bank, 275 Wis. 2d 711, ¶ 19. In Wylie, an interstate motor carrier brought an action against the consignee to collect unpaid freight charges. In that case, there was a preexisting contract between the consignor and the consignee, designating the consignor liable for payment of the freight charges. However, the bills of lading did not indicate the amount of freight charges or who was liable for them. After the carrier was unsuccessful in recovering payments from the consignor, it brought an action demanding payment from the consignees. The Supreme Court of North Dakota held that "contract law ordinarily determines who is liable for payment of freight charges under the common law." Wylie, 523 N.W.2d at 399 (citing Cent. Iron & Coal Co., 265 U.S. 59). Consequently, the court concluded that any common law presumption about responsibility for freight costs may be rebutted by evidence that the parties intended something else. Id. Thus, the court concluded that the circumstances presented evidenced an arrangement for exclusive consignor liability for the freight charges. The court held:

Although Wylie was not a party to [the consignee's] agreement with [the consignor], [the consignor] directed Wylie to bill it for transportation costs in a manner that conformed to the agreement between the [consignor] and [consignee]. During their entire business relationship, Wylie looked solely to [the consignor] for payment and billed it for freight charges after each delivery.... The bills of lading were silent as to the liability for and the amount of freight charges, and they thus confirmed [the consignee's] understanding that payment of freight charges was not a matter for its concern, but was a matter of contract between [the consignor] and Wylie.

Id. at 405-06 (citations omitted).

¶ 25. In LTV Steel, a carrier attempted to collect unpaid freight charges from a bankruptcy debtor's consignees. The debtor, as consignor, billed the consignees a net amount for the delivered materials, incorporating the freight charges. The consignor then paid the carrier for the freight charges until it became bankrupt. The bills of lading, which were marked "prepaid," were prepared by the debtors, signed by the carrier's agents, and billed directly to the consignor. The bankruptcy court determined that the carrier has a common law right to collect the freight charges from the consignee, unless the parties contractually alter the liability. Although the bill of lading was marked "prepaid," the court held that this notation was one factor to consider in determining whether the parties had agreed that the consignor alone would be liable for the freight charges. LTV Steel, 78 B.R. at 724.

¶ 26. The bankruptcy court also listed other factors for a court to consider, including: (1) whether the carrier historically looked solely to the consignor for payment; (2) whether this was the understanding of the parties as evidenced by every facet of their business relationship; (3) whether the consignor alone contracted with the carrier for shipping services; (4) whether direct billing was effected from carrier to consignor, and direct billing took place after delivery; (5) whether the consignor paid freight charges from its general funds; (6) whether customer-consignees were billed by the consignors on a unitary basis (i.e. one net amount for delivered materials inclusive of freight); (7) whether the consignor deposited the sum received from the customer-consignees into its general accounts; (8) whether there was no request by, or agreement with, the carrier to segregate any portion of the funds received from customer-consignees, and none took place; (9) whether the two billing processes were not synchronized so as to give an impression that the consignor was the mere conduit between carrier and consignee; and (10) whether bills of lading and delivery tickets were marked prepaid to indicate consignor's liability and were signed by the carrier's agents without objection. Id. at 723-24. After weighing these factors, the court found that conduct of the parties evidenced an enforceable agreement and that the exclusive liability for the freight charges was that of the consignor.

¶ 27. While we agree with the court of appeals that the holdings in Schneider National, Wylie, and LTV Steel provide a helpful framework for the analysis of this case, we conclude that the genuine issues of material fact here, as well as the conflicting and inconsistent presumptions, do not, without a more complete record, lead to a clear answer concerning whether there is exclusive liability for either the consignor or the consignee. Liability for payment of freight charges is ultimately a matter of contract, see Schneider Nat'l, 855 F. Supp. at 273, and, therefore, the presumptions concerning consignor and consignee liability for freight charges may be rebutted by evidence that the parties agreed to something else. See id.; Wylie, 523 N.W.2d at 399.

¶ 28. In Wisconsin, presumptions in civil cases are considered in accord with Wis. Stat. § 903.01, which states in relevant part:

[ A] presumption recognized at common law or created by statute, including statutory provisions that certain basic facts are prima facie evidence of other facts, imposes on the party relying on the presumption the burden of proving the basic facts, but once the basic facts are found to exist the presumption imposes on the party against whom it is directed the burden of proving that the nonexistence of the presumed fact is more probable than its existence.

In a case involving termination of parental rights, in discussing a rebuttable presumption of abandonment, we explained:

The operation of sec. 903.01, Stats., works as follows. The party relying on the presumption "has the burden of proving the basic facts." 7 Daniel D. Blinka, Wisconsin Practice sec. 301.4 at 52 (1991). The term "burden" referred to in the statute refers to both the burdens of production and persuasion. Once the basic facts are found to exist, i.e., the petitioner has both produced evidence of those facts and convinced the jury of their existence, the burdens of persuasion and production shift to the party opposing the presumption. That party then bears the burden of proving "that the nonexistence of the presumed facts is more probable than its existence." Id.
As applied to this case then, sec. 903.01, Stats., requires that once [the petitioner] establishes the basic facts of abandonment by clear and convincing evidence, i.e., meets both the burden of production and persuasion, the burden shifts to [the respondent].

Odd S.-G v. Carolyn S.-G., 194 Wis. 2d 365, 374, 533 N.W.2d 794 (1995).

¶ 29. In that same case, in her dissenting opinion, then Justice Shirley S. Abrahamson recognized the difficulties that presumptions present:

The concept of presumptions has plagued courts and scholars for years primarily because the law uses the word "presumption" in many different ways. As a leading text explains, "one ventures the assertion that 'presumption' is the slipperiest member of the family of legal terms, except its first cousin, 'burden of proof.'" McCormick on Evidence, sec. 342 at 449 (4th ed. 1992). Professor Lansing has written in a similar vein that "the domain of presumptions has been called 'a place fraught with danger,' 'an impenetrable jungle,' 'a mist laden morass' — where more than one academician has been known to lose his way and, once returned, is never quite the same."

Id. at 384 — 85 (Abrahamson, J., dissenting) (footnotes omitted).

¶ 30. In this case, we are faced with conflicting. and inconsistent presumptions. Professor Daniel D. Blinka, in his treatise on Wisconsin evidence, has offered the following observation on such presumptions: "Conflicting presumptions should rarely present a problem. Under § 903.01 it is impossible for opposing parties to both have the burden of persuasion on the same issue." 7 Blinka, Wisconsin Practice: Wisconsin Evidence § 301.4 at 73 (2d ed. 2001) (footnote omitted). For support of this proposition, Blinka cites both Weinstein's Evidence, par. 301[04] and the Judicial Council Committee's Note to Wis. Stat. § 903.01: "('Should inconsistent presumptions be established in a case, the weight of the evidence establishing the facts upon which the presumption[s] are premised [the basic facts] is for the trier of fact and not to be dealt with by the judge in the discharge of his function with respect to the law.')" 7 Blinka, Wisconsin Practice: Wisconsin Evidence § 301.4 at 73, n.10.

¶ 31. On remand, the circuit court, or the trier of fact if not the circuit court, must weigh the evidence establishing the facts upon which the presumptions relating to consignor and consignee liability are premised. See Schneider National, 855 F. Supp. at 273. All of the factors discussed herein should be weighed in reaching a decision on the issue of exclusive liability.

IV

¶ 32. In sum, we conclude that summary judgment was improperly granted to Marine Bank. Genuine issues of material fact, and reasonable alternative inferences drawn from undisputed facts, exist as to whether an agreement was made between Taz's and MBM, to the effect that Taz's could not seek payment from a consignee-customer of MBM. We further conclude that Taz's liability for payment of freight charges is governed by contract law, and that there exist common law presumptions that a consignee and a consignor may be liable for the payment of those freight charges. See id. at 273. Such presumptions may be rebutted, however, by evidence that the carrier and the consignor agreed that the consignor would be liable, exclusively, for such charges. Absent an express contract to that effect, such an agreement may be determined to exist through analysis of the conduct of the parties. Id. Here, however, the record is insufficient for a determination as to whether there was such an agreement. For these reasons, we reverse the court of appeals' decision affirming the summary judgment granted by the circuit court and remand this case for further proceedings consistent with this opinion.

By the Court. — The decision of the court of appeals is reversed and remanded.

       A factor is defined as "[ojne who buys accounts receivable at a discount... ." Black's Law Dictionary 612 (7th ed. 1999).

       Unless otherwise indicated all references to the Wisconsin Statutes are to the 2001-02 edition.

       The parties entered into a stipulation pending the disposition of the case. The stipulation provided that Marine Bank was free to collect from MBM's customers-consignees any and all of MBM's accounts receivable. For each account receivable recovered, Marine would hold in trust in an interest-bearing business account the lesser of the dollar amount claimed by Taz's with respect to the account receivable or the amount actually collected on the account receivable from the identified MBM customer-consignee.

       The court also looked at E.W. Wylie Corporation v. Menard, Inc., 523 N.W.2d 395 (N.D. 1994), and LTV Steel Co. v.

        David Graham Co., 78 B.R. 713 (Bankr. S.D.N.Y. 1987), in addition to Schneider National Carriers, Inc. v. Rudolph Express Co., 855 F. Supp. 270, 273 (E.D. Wis. 1994), and determined that all three cases are correct statements of law and should be applied to the facts in this case. See Marine Bank v. Taz's Trucking, Inc., 2004 WI App 164, ¶¶ 19-22, 275 Wis. 2d 711, 688 N.W.2d 730.

       Although both parties argued in their briefs that the facts were undisputed, they asserted otherwise at oral argument. Taz's responded during questioning that there was no agreement on the facts, and Marine Bank's counsel stated that the parties were "two ships passing in the night with respect to what the facts are."

       Although the court of appeals acknowledged that "[t]he parties agree that the general rule of liability for freight charges is correctly set forth in Schneider," Marine Bank, 275 Wis. 2d 711, ¶ 7 (citation omitted), Taz's apparently withdrew its endorsement of that rule before this court.

       When a carrier signs a bill of lading upon receiving goods for delivery, the bill of lading may serve as a contract as well as a receipt. See Schneider Nat'l, 855 F. Supp at 273-74. Therefore, its provisions are to be reviewed in order to determine whether it was intended to be a contract of carriage and, if so, what was the agreement of the parties.

       The Interstate Commerce Act (ICA), passed by Congress in 1887, created the Interstate Commerce Commission, the first regulatory agency. Congress enacted the ICA in order to regulate the railroad industry, and to solve the problems of widespread discrimination that existed in pricing. The historical purpose of the ICA was "to achieve uniformity in freight transportation charges, and thereby to eliminate the discrimination and favoritism that had plagued the railroad industry in the late 19th century." S. Pac. Transp. Co. v. Commercial Metals Co., 456 U.S. 336, 344 (1982). The ICA required common carriers to publish their rates in tariffs filed with the ICC, and prohibited carriers from charging or receiving different compensation for transportation than the rate specified in the tariff.
      Although the ICA was repealed by the ICC Termination Act of 1995, Pub. L. No. 194-88, 109 Stat. 803 (1995), the new statutory framework has retained some of the provisions. See 49 U.S.C. § 13707.

       Taz's argues that the Schneider National case is distinguishable, because in that case there existed a contract between the consignor and the trucking company regarding payment of freight charges. Taz's also points out that the course of dealing in Schneider National went on for six years, where here the practice between MBM and Taz's lasted for months, not years. That difference is an appropriate factor for consideration.

       The court contrasted the Sunpath Bill of Lading from the Uniform Bill of Lading, 49 C.F.R. § 1051.1. The court found, among other things, that because the Sunpath Bill of Lading did not contain the terms required by the Uniform Bill of Lading, the parties did not intend to convey liability for payment of freight charges in that document.
      While we recognize that 49 C.F.R. § 1051.1 has been redes-ignated as 49 C.FR. § 373.101, the analysis listed above is still relevant. The fact that the regulatory provision has been redesignated does not change the fact that the Sunpath Bill of Lading was not a contract of carriage and did not contain any language that might indicate a right of the carrier to collect payment of freight charges from the consignee. Without such language, it was merely an invoice. We see no reason for a court not to use such a document as a factor in analyzing the parties' course of conduct, in order to determine whether there was any agreement that the consignor would be exclusively liable for the freight charges.

       To support this proposition, the court in Wylie cited the following authority: In re Roll Form Prod., Inc., 662 F.2d 150, 154 (2d Cir. 1981); Consol. Freightways Corp. of Del. v. Admiral Corp., 442 F.2d 56, 61-62 (7th Cir. 1971); New York Cent. R. Co. v. Trans Am. Petroleum Corp., 108 F.2d 994, 997 (7th Cir. 1939); Schneider Nat'l, 855 F. Supp. at 273; LTV Steel, 78 B.R. at 722-723; In re Penn-Dixie Steel Corp., 6 B.R. 817, 820 (Bankr. S.D.N.Y. 1980); Consol. Freightways Corp. of Del. v. Peacock Eng'g Co., 628 N.E.2d 300, 304 (Ill. App 1993); Consol. Rail Corp. v. Hallamore Motor Transp., Inc., 473 N.E.2d 1137, 1138 (Mass. 1985); see also 13 Am. Jur. 2d Carriers 473 (1964).

       While we recognize that these cases were decided before the ICC was repealed in 1995, each was based on common law contract principles, rather than the guidelines of the ICA.

       While we recognize that the Uniform Commercial Code (U.C.C.) governs the sale of goods, it may nonetheless be instructive here. LTV Steel, 78 B.R. at 723 n.12. Section 2-208(1) of the U.C.C. states: "Where the contract for sale involves repeated occasions for performance by either party with knowledge of the nature of the performance and opportunity for objection to it by the other, any course of performance accepted or acquiesced in without objection shall be relevant to determine the meaning of the agreement."


author: PER CURIAM.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Henry G. Wagner, Defendant-Appellant-Petitioner.
    Supreme Court

      No. 2003AP1878-CR.

      Oral argument March 30, 2005.

      Decided June 2, 2005.

    2005 WI 63
    (Also reported in 697 N.W.2d 89.)

      For the defendant-appellant-petitioner, there were briefs by John T Wasielewski and Wasielewski & Erickson, Milwaukee, and oral argument by John T Wasielewski.

    For the plaintiff-respondent, the cause was argued by Jeffrey J. Kassel, assistant attorney general, with whom on the brief was Peggy A. Lautensehlager, attorney general.

       Motion for reconsideration denied 6-22-05.

   PER CURIAM.

¶ 1. Henry G. Wagner petitioned for review of the court of appeals' summary disposition, State v. Wagner, No. 2003AP1878-CR, unpublished order (Wis. Ct. App. August 27, 2004), that affirmed a judgment convicting Wagner of one count of armed robbery. The court of appeals concluded that statements made by Wagner while the West Allis Police Department officers were booking him fell within the routine booking exception to Miranda.

¶ 2. We accepted review to determine the scope of the "booking exception" to the requirement that police give Miranda warnings prior to questioning a suspect while in custody. After examining the record and the briefs of the parties, and after hearing oral argument, we conclude that the petition for review was improvidently granted. Because it is not clear whether the officer limited the questioning to the booking form or whether follow-up questions were asked, and because the record is silent as to which of Wagner's statements were volunteered or in response to police questioning, we conclude that this case does not present the issue for which we granted review; therefore, we dismiss the petition for review.

By the Court. — The review of the decision of the court of appeals is dismissed as improvidently granted.

        Miranda v. Arizona, 384 U.S. 436 (1966).