author: KESSLER, J.

text:
    James A. Holzbauer and Theresa Holzbauer, Plaintiffs, Board of School Directors of the Public Schools of the City of Milwaukee, Plaintiff-Appellant, v. Safway Steel Products, Inc. and ABC Insurance Company, Defendants-Respondents.

    Court of Appeals

      No. 2004AP2058.

      Submitted on briefs August 30, 2005.

      —Decided October 25, 2005.

    2005 WI App 240
    (Also reported in 708 N.W.2d 36.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Grant F. Langley, city attorney and Jan A. Smokowicz, assistant city attorney.
    On behalf of the defendants-respondents, the cause was submitted on the brief of Jay R. Starrett and Pamela M. Schmidt of Whyte Hirschboeck Dudek, S.C. of Milwaukee.
    Before Wedemeyer, RJ., Fine and Kessler, JJ.

       Petition to review denied 2-27-06.

   KESSLER, J.

¶ 1. The Board of School Directors of the Public Schools of the City of Milwaukee ("MPS") appeals from nonfinal orders of the trial court (1) granting summary judgment to Safway Steel Products, Inc., on its counterclaim against MPS and denying summary judgment to MPS on the same issue; and (2) denying MPS's motion for leave to amend its answer to assert a statute of frauds defense. We conclude that the trial court misapplied the burden of proof in analyzing Safway's motion for summary judgment, and that MPS is entitled to summary judgment as a matter of law. Therefore we reverse and remand with directions to enter judgment in MPS's favor on Safeway's counterclaim. Because judgment will be granted in MPS's favor, we need not address whether the trial court erroneously exercised its discretion when it denied MPS's motion to amend its answer to the counterclaim to include a statute of frauds defense.

BACKGROUND

¶ 2. This case involves injuries that James A. Holzbauer, an employee of MPS, suffered when he fell through some scaffolding as Holzbauer and other employees were painting the ceiling of an elementary school gymnasium. Holzbauer was injured when he fell from a height of seventeen feet, through a gap between the scaffold platform and a guardrail. Safway supervised the erection of the scaffolding, which it owned and rented to MPS.

¶ 3. Additional background on the painting crew and how the scaffolding came to be erected is essential to an understanding of the resolution of this case. Holzbauer is employed by MPS as a member of a paint crew. The crew reports to a crew leader. The leader reports to a foreman. The foreman reports to a paint shop manager. The manager reports to the Director of Facilities and Maintenance Services, who reports to the superintendent of schools, who reports to MPS.

¶ 4. Tim Schein, the crew leader, with permission from his foreman, contacted Safway to get a bid for scaffolding rental so the gymnasium ceiling could be painted. Safway later faxed a price proposal, and a drawing of the proposed scaffolding, to Schein. This faxed document was never signed by anyone at MPS or Safway. The record discloses no discussion between anyone from MPS and anyone from Safway of the terms or conditions contained in two columns of fine print on the back of the proposal document.

¶ 5. Schein later called Safway and left a telephone message that the "quotation" had been accepted and disclosed a purchase order number generated within the MPS system. According to the Director of Facilities and Maintenance Services, Richard Moore, it is ordinarily necessary for a management person to authorize a purchase order. Moore also testified that the terms and conditions of contracts entered into with vendors were limited only to the terms contained in the purchase order, unless "somebody in an administrative position would have reviewed and authorized a different type of contract." In this particular instance, the purchase order document was never delivered to Saf-way or signed by anyone from Safway, and there is no evidence that anyone in an administrative position reviewed and authorized any other type of contract. Nonetheless, the scaffolding was delivered to MPS.

¶ 6. David Kastel, a Safway employee, supervised assembly of the scaffolding. After the scaffolding was assembled, and before he left the school, Kastel presented a printed form and asked that someone employed by MPS sign it. On the front of the pages, all of the equipment delivered was identified, the MPS purchase order number had been inserted, and the upper right hand corner of the document was labeled "Rental Agreement." The back of the document contained two columns which comprise over thirty paragraphs of terms and conditions, including the hold harmless and indemnification obligations which purport to bind MPS to "indemnify and hold harmless" Safway "from all actions, claims, costs, damages, liabilities and expense, including reasonable attorneys' fees" which result from anything except "the sole negligence of Safway."

¶ 7. Chris Vanderlois, a member of the paint crew, complied with Kastel's request and signed the form. There is no evidence in the record that the indemnification clause, or any other clauses in the fine print on the back, were ever mentioned to, or discussed with anyone employed by MPS at any time prior to this litigation. Vanderlois testified that he believed he was only signing a "form" acknowledging receipt of the scaffolding.

¶ 8. As a result of his fall, Holzbauer suffered serious injuries that resulted in medical bills of over $450,000. Holzbauer sued Safway, alleging that it was negligent in the utilization, installation and construction of the scaffolding. Holzbauer also named the City of Milwaukee as a plaintiff. Later, the parties stipulated to substitute MPS for the City of Milwaukee, after agreeing MPS was the true party in interest.

¶ 9. Safway filed a counterclaim, alleging that MPS had to indemnify Safway consistent with the indemnification clause that was contained in Safway's initial bid to do the work and in a rental agreement— the one that MPS refers to as a "delivery ticket" — that was signed by Vanderlois.

¶ 10. Safway moved for summary judgment, seeking dismissal of James and Theresa Holzbauer's claims against it and seeking an order requiring MPS to indemnify and defend Safway in this action. The trial court held a hearing on the motions and denied Safway's motion with respect to the Holzbauers.

¶ 11. With respect to Safway's motion that MPS indemnify it, the trial court decided to take the motion under advisement. Several weeks later, MPS filed a motion for leave to amend its answer to assert the affirmative defense of statute of frauds. It asserted that the reason for its motion had been prompted by a "concession" made by counsel for Safway at the hearing on Safway's summary judgment motion. MPS explained:

It was at that hearing for the first time that counsel for Safway indicated to this Court that it no longer need consider the "delivery ticket" as anything more than a receipt for the delivery of materials. This, of course, was the only written document, that was signed by anyone employed by the Board. It was signed, however, merely by a painter, that is, a member of the painting crew employed by the Board. Apparently realizing that this particular document could never serve as a written agreement binding the Board to any indemnification provision contained in that document, Safway's counsel simply asked this Court not to consider that written document, and only to consider a previously provided price quotation from Safway that was faxed to the Board.
That previously-provided price quotation was not signed by anyone from Safway. It was also never signed by anyone on behalf of the Board. All that occurred with respect to that document was some telephone call from a paint crew leader to Safway in which the paint crew leader may have indicated that the Board had accepted Safway's proposal.
The thrust of the remainder of Safway's argument in the summary judgment motion hearing, therefore, was that this oral statement constituted a binding acceptance of all of the terms of Safway's rental agreement, including the indemnification provision. Under Wisconsin law, however, such a contract is void as it violates the statute of frauds. It is, therefore, not binding on the Board because it was not signed by a duly authorized representative of the Board.

¶ 12. In addition to seeking leave to amend its answer to assert a statute of frauds defense, MPS also moved for summary judgment in its favor with respect to Safway's counterclaim for indemnification.

¶ 13. Three days later, the trial court issued a written decision granting Safway's motion for summary judgment on its counterclaim against MPS. The trial court concluded that the rental agreement's indemnification agreement was enforceable against MPS because "no MPS employee had exclusive designated authority to contract on behalf of MPS for projects with an estimated cost of less than $10,000." The trial court further found that the language of the indemnification agreement was enforceable against MPS.

¶ 14. MPS filed an amended motion for leave to amend its answer to Safway's counterclaim and for reconsideration of the trial court's order granting Saf-way summary judgment on its counterclaim. In response, Safway contested MPS's assertion that Safway had conceded the ineffectiveness of its rental agreement with MPS. Safway explained:

[MPS] relies upon 29 words uttered by Safway's counsel in response to a question by the Court during a hearing that required 129 pages to transcribe. When read in its entirety, the answer to the question demonstrates counsel's belief that the summary judgment motion was meritorious regardless of whether [the painter] was authorized to sign the contract for MPS. Safway merely argued in the alternative - as it had in its briefs. Either the contract was formed when MPS issued the purchase order number or when [the painter] alternatively accepted the contract for MPS or ratified the earlier acceptance. Safway's response to the Court's question simply does not qualify as a judicial admission.

¶ 15. The trial court heard argument on MPS's motions and denied both of them. The trial court's orders granting judgment in Safway's favor and denying MPS's motion for reconsideration were based in part on its conclusion that MPS had not established that Vanderlois, the painter who signed the rental agreement, lacked authority to enter into the contract in question. We granted MPS's request for an interlocutory appeal of the trial court's orders.

STANDARD OF REVIEW

¶ 16. Summary judgment is appropriate when there is no material factual dispute and the moving party is entitled to judgment as a matter of law. Germanotta v. National Indent. Co., 119 Wis. 2d 293, 296, 349 N.W.2d 733 (Ct. App. 1984). In an appeal from the entry of summary judgment, this court reviews the record de novo, applying the same standard and following the same methodology required of the trial court under Wxs. Stat. § 802.08 (2003-04). See Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315-17, 401 N.W.2d 816 (1987). That methodology is well known, and need not be repeated here. See § 802.08; Grams v. Boss, 97 Wis. 2d 332, 338-39, 294 N.W.2d 473 (1980).

DISCUSSION

¶ 17. At issue is the trial court's ruling that MPS must indemnify Safway. This ruling was based on the trial court's conclusion that "[b]ecause there is no specific statute or rule delegating authority to enter into this contract, MPS cannot challenge the authority [the painters] Schein and Vanderlois had to enter into the contract." We conclude that this ruling is contrary to the applicable law.

¶ 18. Municipal entities are created by, and derive their power from, the state legislature. Wisconsin statutes define the duties and powers of the Board of School Directors in a city of the first class (i.e., Milwaukee). Wisconsin Stat. §§ 119.16 and 119.50 contain the following descriptions of duties and payment responsibilities relevant to this case:

119.16 Board; duties.

(lm) Management of school distiuct. The board shall have the possession, care, control and management of the schools, facilities, operations, property and affairs of the school district.
(3) Buildings and sites, (a) The board shall construct, purchase, lease, improve or enlarge buildings and purchase furniture and sites for the public schools, shall purchase, install and maintain heating systems in public schools and may contract for carrying out any of these purposes.
119.50 Disbursement of moneys. (1) All moneys received by or raised in the city for school district purposes shall be paid over to the city treasurer. Such moneys shall be disbursed by the city treasurer on the written order of the superintendent of schools, countersigned by the auditing officer of the city.

(Emphasis added.)

¶ 19. As the above statutes provide, the legislature has been quite specific in granting power and duties to the entity that is generally known as MPS. In describing the general purpose of statutes regulating municipal entities, the Wisconsin Supreme Court has observed that ”[t]he limitations upon the authority of municipal officers to enter into contracts, and prescribed methods for the exercise of such power, are for the protection of the public, and such provisions will not be permitted to be invoked to the harm of the public[.]" Center Drainage Dist. v. Capitol Indent. Corp., 33 Wis. 2d 294, 299, 147 N.W.2d 245 (1967) (citation omitted). Delegation of the entity's authority to contract, because it ultimately obligates the taxpayers, must be clearly and specifically described by the entity. Indeed, even the Milwaukee City Attorney — unlike most attorneys who have the power to bind clients as their agents — may not enter into a settlement agreement as an attorney/agent of the city without specific authority from the Milwaukee Common Council to do so. See Kocinski v. Home Ins. Co., 154 Wis. 2d 56, 59, 452 N.W.2d 360 (1990). And one who would contract with a municipal entity is bound by "the common-law rule that one who deals with a municipality does so at his own risk and may be subject to any provisions of law that might prevent him from being paid by a municipality even though the services are rendered." Menzl v. City of Milwaukee, 32 Wis. 2d 266, 274, 145 N.W.2d 198 (1966).

¶ 20. The burden of proof to establish compliance with relevant law is on the person seeking to enforce a contract with a municipality. See Ellerbe & Co. v. City of Hudson, 1 Wis. 2d 148, 158, 85 NW 2d 663, (1957) (per curiam) ("The burden of proof was upon the plaintiff to establish an effective ratification by the council of the contract entered into between the hospital trustees and the plaintiff."). In this case, the trial court referred to Ellerbe, and acknowledged the authority of a unit of municipal government to specifically delegate contracting authority. However, the trial court held:

Because there is no specific statute or rule delegating authority to enter into this contract, MPS cannot challenge the authority [the painters] Schein and Vanderlois had to enter into the contract.

¶ 21. We disagree with the trial court's conclusion that, because at the time of this incident MPS had not specifically delegated authority to enter into contracts involving less than $10,000, Schein and/or Vanderlois had the authority to enter into those contracts. Such is not the law.

¶ 22. The trial court misapplied the rule outlined in Ellerbe. Unless the power to bind the municipality financially has been specifically delegated, the only entity with the statutory authority to contract is the municipality. See Center Drainage Dist., 33 Wis. 2d at 299; Kocinski, 154 Wis. 2d at 59; Menzl, 32 Wis. 2d at 274. The trial court's erroneous view of the law effectively turned the burden of proof on its head because it required the municipality to prove that Vanderlois did not have authority to contract, rather than requiring Safway to prove that he did. That approach is inconsistent with applicable Wisconsin legal precedent.

¶ 23. Consistent with Center Drainage Dist., Kocinski, Menzl and Ellerbe, it was the responsibility of Safway to determine whether and to whom MPS had delegated its authority to contract for the services Safway provided. Here, Safway apparently concluded that authority had been delegated to Vanderlois, a painter. We are unable to find any support in the record for that legal conclusion.

¶ 24. The statutes do not authorize anyone other than the Board to enter into contracts. The Board may delegate that authority, but it must do so clearly and specifically. Hence, for an MPS employee to have such power, it must be specifically delegated by the Board to that employee or class of employees.

¶ 25. The record is lacking any evidence that the Board ever authorized anyone to enter into an indemnification and hold harmless contract, regardless of what goods or services the employee may have had specific authority to purchase. Nor do we find undisputed evidence that at the time of this incident MPS had specifically authorized either Schein (the crew leader) or Vanderlois (the painter) or their counterparts at the same level of responsibility to purchase or rent anything on MPS's behalf.

¶ 26. A detailed search of the record provided to us discloses no evidence of specific delegation by MPS to employees at the level of responsibility of Vanderlois (painter) or Schein (crew leader) to enter into a contract that potentially abrogates the MPS workers compensation liability limit established by statute, or to make MPS and the taxpayers who fund it potentially responsible for the negligence and attorney fees of third parties. To hold that a municipal employee has the authority to "agree" to those extraordinary liabilities, obscured in the fine print on the back of a form which appears at casual reading only to document an otherwise limited contract for goods or services, would effectively make municipalities incapable of managing their liability. If a painter, without specific written authority, can enter into such an agreement on behalf of a municipality, why not also a custodian, or a bus driver, or any employee with even the most minimal authority to buy supplies of modest value? Such an outcome would, no doubt, astonish taxpayers and fly in the face of the rationale articulated by our supreme court for strict compliance with the limited authority granted to municipal entities.

¶ 27. In searching the record for undisputed facts upon which the grant of summary judgment might have been based, we find no facts that clearly and specifically establish a specific delegation by MPS of contracting authority to painters and/or crew leaders. In the absence of this evidence, Safway cannot compel MPS to indemnify it. Consequently, MPS is entitled to judgment in its favor on Safway's counterclaim.

By the Court. — Orders reversed and cause remanded with directions.

       Although Moore acknowledged that no written document existed that stated who had authority to authorize a purchase order for services totaling less than $5000, he said he believed a number of people (e.g., the manager of environmental services) had authority to execute those contracts. Painters and crew leaders were not among those persons he identified.

       Apparently, under the terms of this provision, even if the jury were to determine that Safway was ninety-five percent negligent, Safway would still be entitled to complete indemnification from the renter.

       The specifics of Safway's motion with respect to the Holzbauers, and the bases for denying it, are not relevant to this appeal and will not be addressed.

       The Holzbauers took no position with respect to the merits of the motions and are not parties to this appeal.

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


source: Caselaw Access Project

author: FINE, J.

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Respondent, v. Mahlick D. Ellington, Defendant-Appellant.

    Court of Appeals

      No. 2004AP2325-CR.

      Submitted on briefs October 4, 2005.

      —Decided October 25, 2005.

    2005 WI App 243
    (Also reported in 707 N.W.2d 907.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Andrea Taylor Cornwall, assistant state public defender, Milwaukee.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general, and James M. Freimuth, assistant attorney general.
    Before Wedemeyer, PJ., Fine and Curley, JJ.

       Petition to review denied 1-24-06.

   FINE, J.

¶ 1. Mahlik D. Ellington appeals from an original and an amended judgment entered on a jury verdict convicting him of causing great bodily harm to Marilyn B. with intent to cause great bodily harm to her, see Wis. Stat. § 940.19(5) (1999-2000), and from an order denying his motion for postconviction relief. He contends that: (1) the trial court erred in instructing the jury on "great bodily harm"; (2) he was denied his right to confrontation; and (3) his trial lawyer gave him constitutionally deficient representation. We affirm, but remand to the trial court with directions to issue a second amended judgment of conviction that spells correctly Ellington's first name: "Mahlik," not "Mahl-ick," as it is spelled in both the original and the amended judgment.

I.

¶ 2. Ellington admits to beating Marilyn B. His defense was that her injuries did not constitute "great bodily harm."" 'Great bodily' harm means bodily injury which creates a substantial risk of death, or which causes serious permanent disfigurement, or which causes a permanent or protracted loss or impairment of the function of any bodily member or organ or other serious bodily injury." Wis. Stat. § 939.22(14).

¶ 3. Marilyn B. testified that she had dated Ellington for one month, and that when she told him that she wanted to end their relationship, he choked her, hit her, and kicked her. The following are excerpts from her direct testimony describing what she claimed Ellington did to her:

• "He grabbed me around my neck and he choked me. He cut my wind off."
• He pushed her out the front door, and "still had [her] around [her] neck."
• Outside of the front door was a porch with a railing. "I flipped over that porch, or he pushed me over that porch, or something, and I end up on the ground, and he started beating me in my face and stomping on my face with his foot and my stomach and back and stuff. He was kicking me on my side."
• "I faded in and out."
• When asked how many times Ellington "stomped" on her face, Marilyn B. replied: "It was just once on my face. The rest was on my body."
• Ellington was "wearing tennis shoes" when he kicked her.

Later, on cross-examination, Marilyn B. further explained:

• "He had me by my windpipe. He knocked my air off of me and pushed me out the door."
• "He grabbed me around my neck. I thought he was grabbing me to say goodbye, see you later, with his arm; but instead, he put his hand around my neck, the prints was [sic] there, he grabbed me by my throat, put his thumb in my throat, and knocked my wind pipe off. As I was telling him let me go, saying let me go. He let me go out the front door, with my back going out. And from there, I was over the rail of my fence, of my porch, fence, and I was saying, would you please let me go. He wouldn't let go .... I flipped over the porch, he went over the porch with me, and he just started hitting me in my face. And from there he started kicking me, and then he started stepping in my face."
• When Ellington's lawyer asked if Marilyn B. had "any broken bones," Marilyn B. replied: "My gums are still messed up."

Medical records received into evidence without objection, see Wis. Stat. Rule 908.03(6m) (health-care-provider-records exception to the rule against hearsay), and excerpts from those records were read to the jury by Erik Villarreal, a Milwaukee police detective. They indicated that Marilyn B. had "a blowout fracture," a "depressed frontal skull fracture," and a "right mandible fracture."

¶ 4. Villarreal was the only person other than Marilyn B. to testify at the trial. He told the jury that he went to the hospital to talk to Marilyn B. shortly after she arrived there. He described what he saw:

[H]er eyes were all swollen shut, she was — seemed pretty brutally beaten. Her front lip was splitted [sic] wide open, and there was [sic] distinct tread patterns on her face from footprints, that we found pretty unique, so we called in our photographer later to get pictures of that before — if they were going to go away and the swelling reduced so they disappeared, so we got pictures right away. I believe there was bleeding in the ear as well, visible bleeding from the ear, nose, mouth, eyes. She was really beaten pretty bad.

Villarreal also told the jury that when they arrested Ellington, he was wearing shoes whose treads were "consistent" with the tread marks on Marilyn B.'s face. The jury saw photographs that confirmed the severity of Marilyn B.'s injuries.

II.

¶ 5. As noted, Ellington contends that the trial court erred in instructing the jury on "great bodily harm." He also argues that the trial court deprived him of his constitutional right to confrontation by permitting the police detective to read from the medical reports, and, also, to tell the jury that in the past the detective found certified medical records to be reliable. Recognizing that his trial lawyer did not object to receipt of the medical records into evidence, Ellington also argues that his lawyer gave him constitutionally deficient representation. We analyze these contentions in turn.

A. Great Bodily Harm.

¶ 6. As we have seen in footnote one, the statute applicable to the charge that Ellington inflicted "great bodily harm" on Marilyn B. read: "Whoever causes great bodily harm to another by an act done with intent to cause either substantial bodily harm or great bodily harm to that person or another is guilty of a Class C felony." Wis. Stat. § 940.19(5) (1999-2000). As we have also seen, " '[g]reat bodily harm'" meant (and means today) "bodily injury which creates a substantial risk of death, or which causes serious permanent disfigurement, or which causes a permanent or protracted loss or impairment of the function of any bodily member or organ or other serious bodily injury." Wis. Stat. § 939.22(14). The trial court instructed the jury that it could find Ellington guilty of "great bodily harm" if it found that the State had proven beyond a reasonable doubt that he inflicted "serious bodily injury" on her: "Great bodily harm means serious bodily injury. You, the jury, are to alone to determine whether the bodily injury in your judgment is serious." Ellington argues that this was error because without telling the jury the context of the phrase "other serious bodily injury," the jury was free, he contends, to find him guilty for acts that did not meet the great-bodily-harm threshold; in essence, he seeks to have the phrase "other serious bodily injury" limited by the preceding list, using a tool of statutory construction known as ejusdem gent eris. See State v. Peters, 2003 WI 88, ¶ 10, 263 Wis. 2d 475, 480-481, 665 N.W.2d 171, 174. He thus claims that the instruction deprived him of due process. We disagree.

¶ 7

A trial court has broad discretion in instructing a jury but must exercise that discretion in order to fully and fairly inform the jury of the applicable rules of law. Whether a jury instruction is appropriate, under the given facts of a case, is a legal issue subject to independent review. On review, the challenged words of jury instructions are not evaluated in isolation. Rather, jury instructions "must be viewed in the context of the overall charge." Relief is not warranted unless the court is "persuaded that the instructions, when viewed as a whole, misstated the law or misdirected the jury." Whether a jury instruction violated a defendant's right to due process is a legal issue subject to de novo review.

State v. Ziebart, 2003 WI App 258, ¶ 16, 268 Wis. 2d 468, 480-481, 673 N.W.2d 369, 375 (citations and quoted source omitted). The flaw in Ellington's argument is his contention that the legislature intended the phrase "other serious bodily injury" to assume the coloration of the list of specific injuries that precede it. But that was not the legislature's intent. La Barge v. State, 74 Wis. 2d 327, 333, 246 N.W.2d 794, 797 (1976). Thus, the doctrine of ejusdem generis is not applicable and does not narrow the otherwise broad scope of "other serious bodily injury." Id., 74 Wis. 2d at 332-333, 246 N.W.2d at 796-797. Indeed, La Barge concluded unambiguously: "Our study of the legislative history of the particular statute leads, however, to the conclusion that the phrase, 'or other serious bodily injury,' was designed as an intentional broadening of the scope of the statute to include bodily injuries which were serious, although not of the same type or category as those recited in the statute." Id., 74 Wis. 2d at 332, 246 N.W.2d at 796 (emphasis added).

¶ 8. La Barge's holding that ejusdem generis does not apply to what is "great bodily harm" under Wis. Stat. § 940.19(5) was reaffirmed by Cheatham v. State, 85 Wis. 2d 112, 119-124, 270 N.W.2d 194, 198-200 (1978), upon which Ellington relies for the opposite proposition. Although Cheatham held that it would not be improper to read to a jury the full statutory definition of "great bodily harm" in situations where the trial court determined in the exercise of its discretion that it might be helpful to the jury, it reaffirmed that giving meaning to the phrase "serious bodily injury" was well within a jury's ability. Id., 85 Wis. 2d at 123-124, 270 N.W.2d at 200. Indeed, Cheatham answered the following question in the affirmative: "[Wjhether the phrase 'or other serious bodily injury,' without being restricted by the rule of ejusdem generis to the enumerated types of injury, sufficiently identifies the degree of injury necessary for a jury to convict a defendant of a violation of [§ 940.19(5)'s predecessor]," concluding that the phrase "serious bodily injury" is of " 'ordinary significance' " so that a " 'trial court need not define [it] in its instructions'" because the words " 'are well understood by any jury of ordinary intelligence.'" Id., 85 Wis. 2d at 122-123, 270 N.W.2d at 199-200 (quoted source omitted). Indeed, Cheatham made this clear in the part of its decision upon which Ellington most relies:

Presented with an instruction containing the entire statutory definition of "great bodily harm" a jury could reasonably interpret the phrase "other serious bodily injury" in that context, particularly so because of the preceding phrases which describe severe injuries. Even though the general phrase is not restricted to the meaning of the enumerated injuries, it acquires sufficient definition because of the nature of the injuries enumerated.
"General and specific words in a statute which are associated together and which are capable of an analogous meaning, take color from each other, so that the general words are restricted to a sense analogous to the less general. ..."

Id., 85 Wis. 2d at 124, 270 N.W.2d at 200 (emphasis added). Cheatham quoted what the decision cited as "73 Am. Jur.2d, Statutes, p. 407, sec. 214." Cheatham, 85 Wis. 2d at 124, 270 N.W.2d at 200. The quoted material is now found at 73 Am. Jur. 2d Statutes § 135 (2001), and, references the very doctrine that Cheatham recognized did not apply to the statutory definition of "great bodily harm":

General and specific words in a statute which are associated together and which are capable of an analogous meaning take color from each other, so that the general words are restricted to a sense analogous to the less general. Similarly, in accordance with what is commonly known as the rule of ejusdem generis, where in a statute general words follow a designation of particular subjects or classes of persons, the meaning of the general words will ordinarily be presumed to be, and construed as, restricted by the particular designation, and as including only things or persons of the same kind, class, character, or nature as those specifically enumerated. In accordance with the rule of ejus-dem generis, such terms as "other," "other thing," "other persons," "others," "otherwise," or "any other," when preceded by a specific enumeration, are commonly given a restricted meaning, and limited to articles of the same nature as those previously described.

73 Am. Jur 2d Statutes § 135 (footnotes omitted). Despite the confusing reference to the second edition of American Jurisprudence's explanation of ejusdem generis, Cheatham's refusal to restrict the meaning of "other serious bodily injury" to the injuries "enumerated" in the statutory definition of "great bodily harm" must control. Indeed, this is reflected in the jury-instruction committee notes to the applicable pattern jury instruction, which recommend "that defining great bodily harm as 'serious bodily injury' is sufficient in most cases." Wis JT-Criminal 1225, cmt. 2. Although not binding on us, the committee's assessment of a proper jury instruction is "persuasive." State v. Olson, 175 Wis. 2d 628, 642 n.10, 498 N.W.2d 661, 667 n.10 (1993).

¶ 9. The trial court also did not err in telling the jury that it "alone" had to determine whether Ellington inflicted great bodily harm on Marilyn B. because that, too, is the law. Flores v. State, 76 Wis. 2d 50, 57-60, 250 N.W.2d 720, 724-725 (1977), overruled on other grounds by State v. Richards, 123 Wis. 2d 1, 10-11, 365 N.W.2d 7, 11 (1985). But Flores is also instructive here in connection with Ellington's argument that the trial court erred in not reading the full statutory definition of "great bodily harm" to the jury.

¶ 10. Flores determined that battery was a lesser-included offense of aggravated battery, id., 76 Wis. 2d at 54, 250 N.W.2d at 722, and that the trial court in that case had erred in not instructing the jury on battery, id., 76 Wis. 2d at 56-61, 250 N.W.2d at 723-725. Richards overruled Flores on this point. Richards, 123 Wis. 2d at 10-11, 365 N.W.2d at 11. But the legislature trumped Richards by decreeing that "[a]n included crime may be . . . [a] crime which is a less serious or equally serious type of battery than the one charged." Wis. Stat. § 939.66(2m). This was the law applicable to Ellington, see § 939.66(2m) (1999-2000), and it is the law now, see § 939.66(2m) (2003-04). Ellington was thus perfectly free to seek to have the jury determine whether he was guilty of aggravated battery, as charged, or some "less serious . . . type of battery," and no one could gainsay that if a less-serious type of battery were submitted to the jury it would have the sole responsibility "to determine whether the bodily injury in your judgment is serious," and, if so, return a guilty verdict on the aggravated-battery charge. See Flores, 76 Wis. 2d at 57-60, 250 N.W.2d at 724-725. But Ellington specifically and deliberately chose not to seek submission to the jury of a less-serious type of battery, and he cannot now complain that the trial court permitted the jury to decide whether Marilyn B.'s injuries were "serious" without overlaying the specific aggravated-battery examples also in Wis. Stat. § 939.22(14). Although Ellington would prefer otherwise, the doctrine of ejusdem generis does not apply to § 939.22(14), La Barge, 74 Wis. 2d at 332-333, 246 N.W.2d at 796-797, and, as we have seen, Cheatham left La Barge intact.

B. Confrontation.

m

¶ 11. Every defendant in a criminal case is entitled to confront his or her accusers: "In all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him." U.S. Const. amend. VI. This clause applies to the states as well as to the federal government. Pointer v. Texas, 380 U.S. 400, 406 (1965). The Wisconsin Constitution also guarantees the right to confrontation: "In all criminal prosecutions the accused shall enjoy the right... to meet the witnesses face to face." Wis. Const, art. 1, § 7. The two clauses are, "generally," coterminous. State v. Hale, 2005 WI 7, ¶ 43, 277 Wis. 2d 593, 607, 691 N.W.2d 637, 644. While the Sixth Amendment has "a preference for face-to-face confrontation at trial," Ohio v. Roberts, 448 U.S. 56, 63 (1980), overruled on other grounds by Crawford v. Washington, 541 U.S. 36, 60-69 (2004), face-to-face confrontation is not "an indispensable element of the Sixth Amendment's guarantee," Maryland v. Craig, 497 U.S. 836, 849 (1990) (child sexual-abuse victim may testify by one-way closed-circuit television out of defendant's physical presence).

¶ 12. As noted, Ellington complains that he was denied his right to confront the witnesses against him because the trial court permitted the detective to read to the jury excerpts of medical records that were already in evidence. He also argues that he was deprived of his right to confrontation because the trial court overruled a "relevancy" objection to the detective being asked whether in the past he had generally found properly certified medical records to be reliable. These matters are not preserved for direct appellate review.

¶ 13. First, as we have seen, the certified medical records were received by the trial court without objection. Certainly, the jurors could have read the pertinent excerpts, and, also, the prosecutor or defense counsel could have read to the jury excerpts from those records. Ellington does not explain why any witness could not also read pertinent excerpts to the jury. Generally, the lawyer is the best reader in the courtroom, but there is no rule or doctrine that prevents the lawyer from asking a witness to read to the jury material that is in evidence.

¶ 14. Second, an objection on relevancy grounds does not preserve a confrontation-based argument. See State v. Nelson, 138 Wis. 2d 418, 439, 406 N.W.2d 385, 393-394 (1987) ("hearsay" objection does not preserve a confrontation issue), habeas corpus granted sub nom. Nelson v. Ferrey, 688 F. Supp. 1304 (E.D. Wis. 1988), rev'd, 874 F.2d 1222 (7th Cir. 1989); State v. Gove, 148 Wis. 2d 936, 941, 437 N.W.2d 218, 220 (1989) ("[E]ven the claim of a constitutional right will be deemed waived unless timely raised in the trial court."). Thus, Ellington's confrontation arguments must be analyzed in an ineffective-assistance-of-counsel context. See Kimmelman v. Morrison, 477 U.S. 365, 374-375 (1986); State v. Carprue, 2004 WI 111, ¶ 47, 274 Wis. 2d 656, 678, 683 N.W.2d 31, 41-42.

C. Ineffective Assistance of Counsel.

¶ 15. To establish ineffective assistance of counsel, a defendant must show: (1) deficient performance, and (2) prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984). To prove deficient performance, a defendant must point to specific acts or omissions by the lawyer that are "outside the wide range of professionally competent assistance." Id., 466 U.S. at 690. To prove prejudice, a defendant must demonstrate that the lawyer's errors were so serious that the defendant was deprived of a fair trial and a reliable outcome. Id., 466 U.S. at 687. Thus, in order to succeed on the prejudice aspect of the Strickland analysis, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id., 466 U.S. at 694. We turn to the two aspects of Ellington's confrontation arguments.

1.

¶ 16. Ellington concedes that the excerpts from the medical records read to the jury were not testimonial under Crawford, 541 U.S. at 53-54 ("testimonial" hearsay is not admissible in a criminal trial against a defendant unless: (1) "the defendant had had a prior opportunity for cross-examination," and (2) the hearsay declarant is "unavailable to testify"). Rather, he contends that the reading violated the rule in State v. Rundle, 166 Wis. 2d 715, 728, 480 N.W.2d 518, 524 (Ct. App. 1992), which ruled that admission of subjective, diagnostic opinions — as opposed to "clinical and nondi-agnostic" "objective findings" — violated a defendant's rights of confrontation. Here, the detective read to the jury only the objective findings of the medical personnel as well as what Marilyn B. told them about her injuries, namely, among other things, that they were the result of Ellington beating her. These latter nested statements by Marilyn B. in the medical records are also nondiag-nostic under Rundle. See id., 166 Wis. 2d at 729, 480 N.W.2d at 524. This clinical evidence is a far cry from the subjective conclusion in Rundle that Rundle's baby was the victim of child abuse. Id., 166 Wis. 2d at 729-730, 480 N.W.2d at 524-525. We do not have to further discuss this aspect of Ellington's argument because he has not shown the requisite prejudice. See Strickland, 466 U.S. at 687. First, he has not shown that any of the clinical findings read to the jury by the detective were flawed. See State v. Arredondo, 2004 WI App 7, ¶ 40, 269 Wis. 2d 369, 397, 674 N.W.2d 647, 660 (defendant claiming ineffective assistance of counsel must establish how he or she was prejudiced by what the lawyer either did or did not do). Second, with respect to Marilyn B.'s statements to the medical personnel, Ellington has not disputed that he hit her. Accordingly, Ellington's ineffective-assistance-of-counsel contention with respect to the reading to the jury of the excerpts from Marilyn B.'s medical records fails. See Strickland, 466 U.S. at 697 (an ineffective-assistance-of-counsel claim fails unless the defendant establishes both deficient performance and prejudice).

2.

¶ 17. As we have seen, Ellington's "relevancy" objection at trial to the detective's experience with certified medical records did not preserve for appellate review any confrontation issue, if there is one (which we do not decide). Ellington does not argue on appeal that the detective's opinion was not relevant. See Wis. Stat. Rule 904.01 (" 'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."). Insofar as his "confrontation" objection is concerned,. he does not show how the detective's opinion prejudiced him under the Strickland analysis: that is, he has not shown that the medical record excerpts read to the jury were flawed so that the detective's comment that in his experience certified medical records were reliable deprived Ellington of a fair trial. See id., 466 U.S. at 687. Accordingly, this aspect of his ineffective-assistance-of-counsel contention fails as well.

By the Court. — Judgments and order affirmed and cause remanded with directions.

       Mahlik D. Ellington was convicted for what he did to Marilyn B. on January 27, 2003. Wisconsin Stat. § 940.19(5) was amended, effective February 1, 2003, to modify the provision as follows (additions underlined, deletions crossed out): "Whoever causes great bodily harm to another by an act done with intent to cause either substantial bodily harm-or great bodily harm to that person or another is guilty of a Class € E felony." 2001 Wis. Act 109, §§ 608, 9459(1).
      The initial judgment, dated September 26, 2003, added an habitual-criminality enhancer. See Wis. Stat. § 939.62. An amended judgment, dated, August 23,2004, deleted the habitual-criminality enhancer.

       The medical records themselves are not part of the record on appeal.


author: ANN WALSH BRADLEY, J.

text:
    Progressive Northern Insurance Company, Plaintiff-Appellant-Petitioner, v. Edward Hall, Defendant, General Casualty Company of Wisconsin, Defendant-Respondent.
    Supreme Court

      No. 2004AP688.

      Oral argument December 1, 2005.

      —Decided February 7, 2006.

    2006 WI 13
    (Also reported in 709 N.W.2d 46.)

      For the plaintiff-appellant-petitioner there were briefs by Rick E. Hills, Michelle M. Stoeck, and Hills Legal Group, Ltd., Waukesha, and oral argument by Rick E. Hills.

      For the defendant-respondent there was a brief by Stuart B. Eiche and Eiche & Frakes, S.C., Milwaukee, and oral argument by Stuart B. Eiche.

   ANN WALSH BRADLEY, J.

¶ 1. The petitioner,

Progressive Northern Insurance Company, seeks review of a court of appeals’ decision affirming the circuit court's judgment dismissing Progressive's action for a declaratory judgment against General Casualty Company of Wisconsin. The insurance companies dispute which of them is primary, that is, which is liable to pay the first $100,000 under the uninsured motorist coverage set forth in their respective policies. The issue before us is whether Progressive's "other insurance" clause, which provides that uninsured motorist coverage is primary for a named insured but excess for certain occupancy insureds, violates Wis. Stat. § 632.32(3)(a) (2003-04).

¶ 2. Initially, we determine that § 632.32(3)(a) applies to uninsured motorist coverage. Because Progressive cannot save the other insurance clause by casting it as an "exclusion" under subsection (5) (e) of the statute and because Progressive's policy fails to provide uninsured motorist coverage for an occupancy insured in the same manner as the named insured, we further determine that the clause violates § 632.32(3)(a). Accordingly, we affirm the court of appeals.

j.

¶ 3. The relevant facts are not in dispute. Edward Hall was a passenger in a vehicle operated by his brother, Richard Hall. They were involved in an accident with another vehicle operated by an uninsured driver. Edward sustained injuries as a result of the accident.

¶ 4. Edward was insured under a policy issued by General Casualty, and Richard was insured under a policy issued by Progressive. Each policy provided uninsured motorist coverage potentially applicable to Edward. In addition, each policy also contained an "other insurance" clause describing when uninsured motorist coverage would be primary and when it would be excess.

¶ 5. The "other insurance" clause in the General Casualty policy stated that "[a]ny insurance we provide with respect to a vehicle you do not own shall be excess over any collectible insurance providing such coverage on a primary basis." The "other insurance" clause in the Progressive policy stated that "[a]ny insurance we provide shall be excess over any other uninsured or under-insured motorist coverage, except for bodily injury to you or a relative when occupying a covered vehicle." (Emphasis added.) Although Edward and Richard are brothers, Edward was not a "relative" under Richard's policy with Progressive because Edward did not reside in Richard's household.

¶ 6. Progressive filed a declaratory judgment action against Edward and General Casualty, seeking a determination that General Casualty was obligated to provide uninsured motorist coverage to Edward on a primary basis. General Casualty countered that Progressive's "other insurance" clause was unenforceable under § 632.32 because it provided primary coverage for a named insured and driver while providing only excess coverage for a passenger. The circuit court agreed with General Casualty, as did the court of appeals. Progressive petitioned for review.

II

¶ 7. The parties agree that Edward is potentially entitled to uninsured motorist coverage under both policies. They also agree that if the language of both policies is given full effect, then Progressive's coverage is excess to General Casualty's. The parties disagree, however, on the validity of Progressive's "other insurance" clause under § 632.32.

¶ 8. The policy limits for uninsured motorist coverage under the Progressive policy are $100,000. Under the General Casualty policy, the limits for uninsured motorist coverage are $500,000. Thus, the dispute is over who pays the first $100,000 in coverage for Edward.

¶ 9. The issue we must address is whether Progressive's "other insurance" clause, which provides that uninsured motorist coverage is primary for a named insured but excess for certain occupancy insureds, violates § 632.32(3)(a). This issue requires that we interpret and apply statutory provisions to undisputed facts and that we interpret an insurance policy. These are questions of law subject to independent appellate review. Beerbohm v. State Farm Mut. Auto. Ins. Co., 2000 WI App 105, ¶ 8, 235 Wis. 2d 182, 612 N.W.2d 338.

¶ 10. We initially determine that § 632.32(3)(a) applies to uninsured motorist coverage. In addition, we determine that Progressive's "other insurance" clause violates § 632.32(3)(a) because it fails to provide that occupancy insureds are covered in the same manner as the named insured and because Progressive cannot cast its other insurance clause as an "exclusion" under subsection (5) (e) of the statute in order to save the clause from the requirements of subsection (3)(a).

I — I I — I h-i

¶ 11. We begin with the language of § 632.32(3)(a). It provides:

(3) Required provisions. Except as provided in sub. (5), every policy subject to this section issued to an owner shall provide that:
(a) Coverage provided to the named insured applies in the same manner and under the same provisions to any person using any motor vehicle described in the policy when the use is for purposes and in the manner described in the policy.

"Using," in turn, includes "riding in" a vehicle under § 632.32(2)(c). For purposes of § 632.32(3)(a), Edward was therefore "using" Richard's vehicle when he was riding in it at the time of the accident.

¶ 12. We first address whether the requirements of § 632.32(3)(a) extend to uninsured motorist coverage. Progressive argues that they do not because uninsured motorist coverage is indemnity insurance, not liability insurance, and because § 632.32 does not apply to indemnity insurance. In support of its argument, Progressive cites the following language in § 632.32(1), which delineates the scope of § 632.32's applicability:

Except as otherwise provided, this section applies to every policy of insurance issued or delivered in this state against the insured's liability for loss or damage resulting from accident caused by any motor vehicle ....

(Emphasis added.)

¶ 13. We determine that the question of whether § 632.32(3)(a) applies to uninsured motorist coverage does not turn on whether such coverage is categorized as liability insurance or indemnity insurance.

¶ 14. Every policy of insurance insuring against liability under § 632.32 must include uninsured motorist coverage "therein or supplemental thereto" pursuant to § 632.32(4). Thus, § 632.32(4) mandates that "every policy of insurance issued or delivered in this state against the insured's liability for loss or damage resulting from accident caused by any motor vehicle" must include uninsured motorist coverage. Section 632.32(1); see also Blazekovic v. City of Milwaukee, 2004 WI 41, ¶ 10, 234 Wis. 2d 587, 610 N.W.2d 467 ("Wisconsin Stat. § 632.32(4)(a) mandates that every policy of automobile insurance issued in the state include uninsured motorist coverage.").

¶ 15. In other words, every policy insuring against liability under § 632.32 must include uninsured motorist coverage. Section 632.32(3)(a) plainly applies to every policy subject to § 632.32. Thus, we conclude that § 632.32(3)(a) applies to uninsured motorist coverage, regardless of whether such coverage is categorized as liability or indemnity insurance.

¶ 16. Progressive relies on Martin v. Milwaukee Mutual Insurance Co., 146 Wis. 2d 759, 433 N.W.2d 1 (1988), in arguing that § 632.32(3)(a) cannot apply to uninsured motorist coverage. We determine, however, that Martin is not controlling.

¶ 17. In Martin, this court briefly discussed § 632.32(3)(a) in addressing whether an occupancy insured in a vehicle involved in an accident may benefit from uninsured motorist coverage carried by the named insured on another vehicle not involved in the accident. Martin, 146 Wis. 2d at 766, 770-71. The court in Martin questioned the applicability of § 632.32(3)(a) to indemnity insurance, and it characterized uninsured motorist coverage as indemnity insurance. Id. at 770. However, the court did not definitively determine whether § 632.32(3)(a) may apply to uninsured motorist coverage. Rather, the court said:

Section 632.32(3)(a), Stats., has been primarily interpreted as dealing with liability insurance rather than indemnity insurance such as uninsured motorist coverage. Even if sec. 632.32(3)(a), Stats., did apply to indemnity insurance, it... would not apply in this case. The policy of an involved auto is applied to both the driver and occupant. Both are able to recover under that uninsured motorist provision. The uninvolved auto's policy, however, is not subject to the statute because the Martins are not covered by it; not being occupants they were not occupancy insureds. The statutes do not state that "occupancy insureds are entitled to all applicable insurance protection the named insured has procured for himself."

Id. at 770-71 (citations omitted).

¶ 18. Thus, the court in Martin observed that § 632.32(3)(a) had been "primarily" interpreted as dealing with liability insurance rather than indemnity insurance but avoided deciding whether § 632.32(3)(a) applied to uninsured motorist coverage in general. Instead, the court reasoned that § 632.32(3)(a) did not apply to the extent that the occupancy insured was not "using" another vehicle that was not involved in the accident. The court concluded that an occupancy insured in a vehicle involved in an accident could not benefit from uninsured motorist coverage carried by the named insured on another vehicle. Neither the Martin court's conclusion nor its reasoning precludes us from determining that § 632.32(3)(a) applies to uninsured motorist coverage.

¶ 19. In support of its position, Progressive also cites to the court of appeals' decisions in American Hardware Mut. Ins. Co. v. Steberger, 187 Wis. 2d 682, 523 N.W.2d 187 (Ct. App. 1994), and Peabody v. American Family Mut. Ins. Co., 220 Wis. 2d 340, 582 N.W.2d 753 (Ct. App. 1998). In American Hardware, the court of appeals relied primarily on Martin in determining that, despite § 632.32(3)(a), an insurance policy could provide underinsured motorist coverage that was higher for specifically named insureds than for a permissive user. American Hardware, 187 Wis. 2d at 683, 686-86. In Peabody, the court of appeals rejected the application of § 632.32(6)(b)l. to underinsured motorist coverage, suggesting that § 632.32 applies only to liability policies. Peabody, 220 Wis. 2d at 350-51.

¶ 20. Both American Hardware and Peabody involved un&erinsured motorist coverage. Those cases do not necessarily dictate the applicability of § 632.32(3)(a) to uninsured motorist coverage, which is required in every insurance policy subject to § 632.32.

¶ 21. In any event, subsequent to both American Hardware and Peabody, this court determined that it is appropriate to apply provisions of § 632.32 to underm-sured motorist coverage, at least when that coverage is part of a liability policy. Mau v. North Dakota Ins. Reserve Fund, 2001 WI 134, ¶ 30 & n.13, 248 Wis. 2d 1031, 637 N.W.2d 45. In Mau, making specific reference to Martin and Peabody, the court called into question the vitality of earlier cases which suggested that certain provisions of § 632.32 apply only to liability policies. Id., ¶ 30.

¶ 22. In a footnote, the court in Mau further suggested that any distinction between liability coverage and indemnity coverage does not matter for purposes of § 632.32 when underinsured motorist coverage is issued as part of a policy containing liability insurance:

Liability coverage "requires the insurer to shield the insured from making payment on a claim for which the insured is liable." Blazekovic v. City of Milwaukee, 2004 WI 41, ¶ 38, 234 Wis. 2d 587, 610 N.W.2d 467. "In contrast, uninsured motorist coverage [indemnity coverage] seeks to compensate the insured after the insured has sustained an actual loss." Id. Similar to uninsured motorist coverage, underinsured motorist coverage is indemnity coverage.
Here the distinction between liability and indemnity coverage does not change our conclusion as to the applicability of Wis. Stat. § 632.32. The excess policy falls within the scope of § 632.32 because it is a liability policy. Mau was covered under the excess policy because he bought the IEP Option. According to the rental jacket, "EP [Extended Protection] provides both LIS [Liability Insurance Supplement] and UM protection." The excess policy, therefore, is a liability policy with uninsured and underinsured motorist coverage.

Mau, 248 Wis. 2d 1031, ¶ 30 n.13.

¶ 23. The court's determinations in Mau are consistent with our determination today that § 632.32(3)(a) applies to «reinsured motorist coverage in an automobile insurance policy issued in this state, regardless of whether uninsured motorist coverage is categorized as indemnity insurance or liability insurance. This is because, as we have explained, in Wisconsin every policy insuring against liability under § 632.32 must include uninsured motorist coverage.

¶ 24. Having determined that § 632.32(3)(a) applies to uninsured motorist coverage, we turn to the statute's qualifying language. Section 632.32(3)(a) imposes certain requirements on every policy subject to § 632.32 "[e]xcept as provided in sub. (5)."

¶ 25. Progressive asserts that, even if § 632.32(3)(a) applies to uninsured motorist coverage, we must still ask whether the "other insurance" clause is permissible under subsection (5)(e) of the statute. Subsection (5)(e) states:

A policy may provide for exclusions not prohibited by sub. (6) or other applicable law. Such exclusions are effective even if incidentally to their main purpose they exclude persons, uses or coverages that could not be directly excluded under sub. (6)(b).

According to Progressive, its "other insurance" clause is permissible under § 632.32(5)(e).

¶ 26. We are not persuaded by Progressive's reliance on § 632.32(5)(e). In order for subsection (5)(e) to apply to a term in an insurance policy, there is a threshold question as to whether that term is an "exclusion." Here, we determine that Progressive cannot cast its "other insurance" clause as an "exclusion" under (5)(e) in order to save the clause from the requirements of subsection (3) (a) of the statute.

¶ 27. An "other insurance" clause generally does not have the same purpose as an "exclusion." The purpose of an "other insurance" clause is to define which coverage is primary and which coverage is excess between policies. Wis. Stat. § 631.43(1); Remiszewski v. American Family Ins. Co., 2004 WI App 175, ¶ 29, 276 Wis. 2d 167, 687 N.W.2d 809 (citing §631.43(1)). " 'Other insurance' clauses govern the relationship between insurers, they do not affect the right of the insured to recover under each concurrent policy." 15 Couch on Insurance, § 219.1, at 219-8 (3d ed. 1999).

¶ 28. An exclusion, in contrast, determines whether a particular policy provides coverage at all. It is a provision that eliminates coverage under a particular policy where, were it not for the exclusion, coverage would have existed under that policy. Bortz v. Merrimac Mut. Ins. Co., 92 Wis. 2d 865, 871, 286 N.W.2d 16 (Ct. App. 1979); see also Stubbe v. Guidant Mut. Ins. Co., 2002 WI App 203, ¶ 13, 257 Wis. 2d 401, 651 N.W.2d 318.

¶ 29. Progressive apparently did not consider its "other insurance" clause to be an exclusion when it drafted its policy. The "other insurance" clause is found in the section of the policy entitled "OTHER INSURANCE," after the section called "LIMITS OF LIABILITY" and before the section called "ARBITRATION." The policy has a separate section entitled "EXCLUSIONS." That section of the policy includes several exclusions and explains to the insured, consistent with the law, that "IF AN EXCLUSION APPLIES, COVERAGE WILL NOT BE AFFORDED

¶ 30. Indeed, Progressive seems to be of two minds as to whether its "other insurance" clause is an exclusion, considering the clause to be an exclusion to the extent that it benefits Progressive and considering the clause to be something else to the extent that it does not. Although Progressive is plainly arguing that the clause is a permissible provision under § 632.32(5)(e), which refers to "exclusions," Progressive also explains at one point in its brief that "Edward Hall is not being excluded from coverage; rather he is being offered coverage on an excess rather than a primary basis." (Emphasis in original.)

¶ 31. We recognize, of course, that the label given to a term in an insurance policy is not necessarily controlling. For example, we have previously invalidated a definitional provision of an insurance policy as an impermissible "exclusion" under § 632.32(5)(e) after determining that the purpose of the definition was to exclude coverage. Mau, 248 Wis. 2d 1031, ¶¶ 31-38.

¶ 32. The provisions of § 632.32 addressed both here and in Mau are remedial in nature and must be construed broadly to increase rather than to limit coverage. See Greene v. General Cas. Co., 216 Wis. 2d 152, 161, 576 N.W.2d 56 (Ct. App. 1997). The court in Mau correctly recognized that an insurer should not be able to avoid the protections that § 632.32(5)(e) provides to insureds by calling an exclusion something else.

¶ 33. Similarly, we determine that Progressive cannot use § 632.32(5)(e) to avoid the protections that both subsections (3) (a) and (5) (e) provide to insureds by attempting to cast its "other insurance" clause as an "exclusion" under subsection (5)(e). Stated another way, Progressive cannot cast its "other insurance" clause as an "exclusion" under subsection (5)(e) in order to save the clause from the requirements of subsection (3)(a).

¶ 34. Having determined that Progressive cannot cast its "other insurance" clause as an "exclusion" under § 632.32(5)(e) in order to save the clause, we turn to examine what subsection (3) (a) requires. Subsection (3) (a) mandates that, except as provided in subsection

(5), coverage provided to the named insured must apply "in the same manner and under the same provisions" to any person riding in any motor vehicle described in the policy. See also, e.g., Smith v. National Indem. Co., 57 Wis. 2d 706, 713, 205 N.W.2d 365 (1973); Carrell v. Wolken, 173 Wis. 2d 426, 433-34, 496 N.W.2d 651 (Ct. App. 1992).

¶ 35. Contrary to what § 632.32(3)(a) requires, Progressive's "other insurance" clause operates so that Progressive's policy provides primary coverage for a named insured while providing only excess coverage for an occupancy insured who is not also a "relative" as defined in the policy. The clause states that "[a]ny insurance we provide shall be excess over any other uninsured or underinsured motorist coverage, except for bodily injury to you or a relative when occupying a covered vehicle." Thus, the policy does not provide uninsured motorist coverage for "any person using" a vehicle in the same manner as such coverage is provided for the named insured. Accordingly, we conclude that Progressive's "other insurance" clause violates § 632.32(3)(a).

¶ 36. As a final matter, we address the effect of our determination that Progressive's "other insurance" clause violates § 632.32(3)(a). The court of appeals concluded that the clause is "void and unenforceable" because it violates § 632.32(3)(a) and that, "[a]s a result, Progressive will have to pay the first $100,000 in damages."

¶ 37. Progressive asserts that the court of appeals' decision swept too broadly and that voiding the entire clause is not the proper remedy. We question whether the court of appeals' decision sweeps as broadly as Progressive suggests. To the extent it could be read so broadly, however, General Casualty acknowledges that the proper remedy here is not to nullify Progressive's entire "other insurance" clause. It notes that "[a]ny immaterial language in Progressive's 'other insurance' clause need not be 'invalidated.'"

¶ 38. We determine that the proper remedy here is to treat Progressive's policy as if Edward, the occupancy insured in this case, had the same coverage as Richard, the named insured. See Wis. Stat. § 631.15 (3m) (insurance policy "that violates a statute or rule is enforceable against the insurer as if it conformed to the statute or rule"); Brunson v. Ward, 2001 WI 89, ¶ 14, 245 Wis. 2d 163, 629 N.W.2d 140. We therefore treat Progressive's policy in this case as if the uninsured motorist coverage is primary for Edward, just as it would have been for Richard. General Casualty's uninsured motorist coverage is excess in this case. Accordingly, we agree with the court of appeals that Progressive must pay the first $100,000 of any uninsured motorist coverage to which Edward is entitled.

IV

¶ 39. In sum, we have determined that § 632.32(3)(a) applies to uninsured motorist coverage. In addition, because Progressive cannot save the other insurance clause by casting it as an "exclusion" under subsection (5) (e) of the statute and because Progressive's policy fails to provide uninsured motorist coverage for an occupancy insured in the same manner as the named insured, we determine that the clause violates § 632.32(3)(a). We therefore affirm the court of appeals.

By the Court. — The decision of the court of appeals is affirmed.

        See Progressive N. Ins. Co. v. Hall, 2005 WI App 17, 278 Wis. 2d 499, 692 N.W.2d 355 (affirming a judgment of the circuit court for Milwaukee County, Clare L. Fiorenza, Judge).

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

       In its brief, General Casualty cautions against classifying uninsured motorist coverage as indemnity insurance. It notes that:
      Uninsured motorist coverage is typically termed "indemnity" insurance because, like fire and health insurance, it most often pays the person who pays for the policy. However, unlike other such "first party" insurance coverages, the insurer's obligation to pay uninsured motorist benefits depends on a liability comparison between the insured and a "third party," and the insurer often pays less than 100% of the insured's actual loss. In this respect, uninsured motorist coverage is not typical of "indemnity" insurance. While useful in some contexts, labeling insurance coverage as one type or another is a tricky proposition at best, and doing so as a primary basis for a published appellate court decision requires special caution.
      We need not address this concern here because we determine that the applicability of Wis. Stat. § 632.32(3) (a) to uninsured motorist coverage does not turn on whether such coverage is categorized as liability insurance or indemnity insurance.

       We therefore need not reach the question of whether, even if Progressive's "other insurance" clause could be considered an "exclusion" under § 632.32(5)(e), the clause would still be "prohibited by sub. (6) or other applicable law." Section 632.32(5)(e). Likewise, we need not reach the question of whether "incidentally to [its] main purpose" the clause would "exclude persons, uses or coverages that could not be directly excluded under sub. (6)(b)." Id.