Estate of John Holman v. General Casualty Company of Wisconsin

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
April 2, 2026
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2023AP2423 Cir. Ct. No. 2021CV7847

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

ESTATE OF JOHN HOLMAN, ALYSSA HOLMAN, A.R.H. AND A.O.H.,

PLAINTIFFS-RESPONDENTS,

ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY AND PAINTERS &
ALLIED TRADES DISTRICT COUNSEL NO. 7,

SUBROGATED PARTIES-PLAINTIFFS,

V.

GENERAL CASUALTY COMPANY OF WISCONSIN,

DEFENDANT-APPELLANT,

GREAT AMERICAN INSURANCE COMPANY OF NEW YORK,

DEFENDANT-RESPONDENT,

SUNDANCE, INC. AND ROSARIO VICTOR MORENO,

DEFENDANTS.
No. 2023AP2423

APPEAL from an order of the circuit court for Milwaukee County:
PEDRO A. COLÓN, Judge. Affirmed.

Before White, C.J., Donald, and Geenen, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).

¶1 PER CURIAM. General Casualty Company of Wisconsin
(“General Casualty”) appeals an order of the trial court, which held that an
insurance policy issued by General Casualty provided a total liability coverage
limit of $2,000,000, and rejected a claim for contribution and indemnity from
Great American Insurance Company of New York (“Great American”). For the
reasons discussed below, we affirm.

BACKGROUND

¶2 The relevant facts in this appeal are not in dispute. General Casualty
issued a commercial auto insurance policy to Sundance, Inc., a restaurant
franchisee. Sundance entered into a lease for a motor vehicle that it assigned to its
employee, Rosario Victor Moreno. The vehicle was also insured with an umbrella
policy by Great American.

¶3 In September 2021, while Moreno was operating the leased vehicle,
Moreno allegedly struck John Holman’s motorcycle causing Holman’s death.
After the accident, the Estate of John Holman and the beneficiaries of his Estate
(collectively “the Estate”), brought this case raising several causes of action,
including that: (1) Moreno negligently operated the vehicle; and (2) Sundance
negligently entrusted the vehicle to Moreno.

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No. 2023AP2423

¶4 The Estate filed a motion seeking a declaratory judgment that
General Casualty’s policy provided $1,000,000 of liability coverage to Moreno
and an additional $1,000,000 of liability coverage to Sundance. Great American
joined in the motion.

¶5 The trial court issued an oral ruling, further documented in a written
decision, finding that General Casualty’s policy provides $1,000,000 in coverage
for Moreno and a separate $1,000,000 in coverage for Sundance. Additionally, the
court found that the policy limits afforded to Moreno were not subject to
reduction.

¶6 A day prior to the trial court’s oral ruling, General Casualty filed a
cross-claim seeking a declaratory judgment regarding the amount of coverage, and
a claim for “contribution and/or indemnity” against Great American. In response,
Great American filed a motion to dismiss arguing that General Casualty’s cross-
claim was barred and General Casualty was not entitled to contribution or
indemnity. General Casualty filed a brief in opposition and a motion to reconsider
the court’s previous order. The court issued a written decision granting Great
American’s motion to dismiss and denying General Casualty’s motion for
reconsideration.1

¶7 General Casualty now appeals. Additional relevant facts are
discussed below.

1
We note that after the decision granting the declaratory judgement motion, General
Casualty reached a settlement, wherein it paid the Estate $2,000,000 while preserving its cross-
claim against Great American.

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No. 2023AP2423

STANDARD OF REVIEW

¶8 This appeal involves the review of a decision on declaratory
judgment, issues of statutory interpretation, insurance policy interpretation, and
the review of a motion to dismiss based on estoppel by record and a failure to state
a claim—all issues that we review de novo. See Young v. West Bend Mut. Ins.
Co., 2008 WI App 147, ¶6, 314 Wis. 2d 246, 758 N.W.2d 196; LaCount v.
General Cas. Co., 2006 WI 14, ¶20, 288 Wis. 2d 358, 709 N.W.2d 418; State ex
rel. Lawton v. Town of Barton, 2005 WI App 16, ¶9, 278 Wis. 2d 388, 692
N.W.2d 304.

DISCUSSION

I. Policy Coverage

¶9 On appeal, General Casualty first challenges the trial court’s finding
that there is $1,000,000 in coverage for Sundance and $1,000,000 in coverage for
Moreno. Contrary to the trial court’s finding, General Casualty contends that its
policy only provides a total of $1,000,000 in coverage per accident.

¶10 General Casualty does not dispute that when there is negligence on
the part of two insureds, Wisconsin courts apply two separate liability policy
limits pursuant to WIS. STAT. § 632.32(3) (2023-24).2 See, e.g., Progressive Cas.
Ins. Co. v. Bauer, 2007 WI App 122, ¶¶6-7, 301 Wis. 2d 491, 731 N.W.2d 378.
General Casualty, however, argues that § 632.32(3) is inapplicable here.

2
All references to the Wisconsin Statutes are to the 2023-24 version.

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No. 2023AP2423

¶11 WISCONSIN STAT. § 632.32(3) provides in relevant part:

(3) 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.

(b) Coverage extends to any person legally
responsible for the use of the motor vehicle.

Id. According to General Casualty, neither Sundance nor Moreno qualify as an
“owner” pursuant to § 632.32(3) because Sundance leased the vehicle used in the
accident. We disagree.

¶12 When interpreting a statute, we begin with the language of the
statute. State ex rel. Kalal v. Circuit Ct. for Dane Cnty., 2004 WI 58, ¶45, 271
Wis. 2d 633, 681 N.W.2d 110. If the meaning of the statute is plain, we ordinarily
stop the inquiry. Id. We give statutory language “its common, ordinary, and
accepted meaning.” Id. Additionally, “statutory language is interpreted in the
context in which it is used; not in isolation but as part of a whole; in relation to the
language of surrounding or closely-related statutes; and reasonably, to avoid
absurd or unreasonable results.” Id., ¶46.

¶13 Here, WIS. STAT. § 632.32(3) does not define “owner.” As the trial
court observed, the statute defines “owned motor vehicle” as a motor vehicle that
is “owned by the insured or that is leased by the insured for a term of 6 months or
longer.” Sec. 632.32(2)(be). Thus, it follows that an “owner” of a motor vehicle
includes vehicles “leased by an insured for six months or longer.” See Kalal, 271
Wis. 2d 633, ¶46 (stating that statutory language is interpreted “as part of a whole;
in relation to the language of surrounding or closely-related statutes; and

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No. 2023AP2423

reasonably, to avoid absurd or unreasonable results”). It would make no sense to
interpret “owner” differently in § 632.32(3).

¶14 In its argument, General Casualty points to Bindrim v. Colonial Ins.
Co., 181 Wis. 2d 799, 806, 810, 512 N.W.2d 209 (Ct. App. 1994), aff’d 190
Wis. 2d 525, 527 N.W.2d 320 (1995), which states that WIS. STAT. § 632.32(3)
“does not require that coverage be provided for nonowned vehicles.” Bindrim,
however, did not address the issue in this case—whether “owner” encompasses a
long-term lessee. Thus, we reject General Casualty’s argument that § 632.32(3)
does not apply here and conclude that the trial court properly found that there is
$1,000,000 in coverage for Sundance and $1,000,000 in coverage for Moreno.

II. Reducing Clause

¶15 General Casualty next argues that Moreno’s liability limit should be
$60,000 based on a reducing clause. The reducing clause provides:

A. Changes in Liability Coverage.

1. If your business is other than selling, servicing,
repairing or parking “autos”, Who Is An Insured is
changed to include an officer, agent or “employee”
of such business while using a covered “auto”.
However, that person is an “insured” only if he or
she has no other valid and collectible insurance with
at least the applicable minimum limit specified in
WIS. STAT. ch. 344. In this event, coverage will be
provided only up to the applicable minimum limit
specified in WIS. STAT. ch. 344. The applicable
minimum limit is:

a. $60,000 for each “accident” for “bodily
injury” and “property damage”, if the limit
of liability is a single limit that applies for
each “accident”[.]

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No. 2023AP2423

The reducing clause further provides:

5. The following is added:

Conformity To Statute or Rule

Any provision of this Coverage Part (including
endorsements which modify the Coverage Part) that
is in conflict with a Wisconsin statute or rule is
hereby amended to conform to that statute or rule.

¶16 General Casualty argues that the $60,000 limit applies because
Moreno was an employee of Sundance, which is not in the business of selling,
servicing, repairing or parking autos, and was using a covered auto with no other
collectible insurance.

¶17 General Casualty’s interpretation of the reducing clause, however,
conflicts with WIS. STAT. § 632.32(5)(b). This statute provides:

If the policy is issued to anyone other than a motor vehicle
handler, it may limit the coverage afforded to a motor
vehicle handler or its officers, agents or employees to the
limits under s. 344.01(2)(d) and to instances when there is
no other valid and collectible insurance with at least those
limits whether the other insurance is primary, excess or
contingent.

Sec. 632.32(5)(b). Motor vehicle handler is defined as:

1. A motor vehicle dealer, as defined in s. 218.0101(23)(a).

2. A lessor, as defined in s. 344.51(1g)(a), or a rental
company, as defined in s. 344.51(1g)(c).

3. A repair shop, service station, storage garage or public
parking place.

Sec. 632.32(2)(b).

¶18 As the trial court found, the plain language of WIS. STAT.
§ 632.32(5)(b) permits a limitation of coverage to “a motor vehicle handler or its

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No. 2023AP2423

officers, agents or employees.” Since Sundance is not a motor vehicle handler and
thus Moreno is not an employee of a motor vehicle handler, the statute does not
permit the reducing clause to limit Moreno’s liability.

¶19 In support of its argument, General Casualty relies on Pemper v.
Hoel, 2004 WI App 67, 271 Wis. 2d 442, 677 N.W.2d 705, and Binon v. Great
Northern Ins. Co., 218 Wis. 2d 26, 580 N.W.2d 370 (Ct. App. 1998). These cases
however do not apply because they involved policies issued to a motor vehicle
handler. Pemper, 271 Wis. 2d 442, ¶¶2,9; Binon, 218 Wis. 2d at 30-31.3 Thus,
we reject General Casualty’s argument that Moreno’s liability limit should be
$60,000.

III. General Casualty’s Cross-Claim

¶20 Lastly, we address General Casualty’s cross-claim. General
Casualty sought a declaratory judgment that “the maximum amount of coverage
available under the General Casualty Policy is $1,000,000, including the $60,000
worth of coverage that may be available to … Moreno.” General Casualty also
sought “contribution and/or indemnity against Great American to the extent that
General Casualty is obligated to pay any sum in excess of $1,000,000.”

¶21 The trial court granted Great American’s motion to dismiss,
concluding that General Casualty’s first argument was barred by estoppel by
record and General Casualty’s second argument was not legally viable. We agree.

3
Great American also argues in the alternative that General Casualty’s policy is
ambiguous and must be construed in favor of coverage for Moreno. Because we conclude WIS.
STAT. § 632.32(5)(b) does not permit a reduction of Moreno’s liability, we do not address Great
American’s alternative argument. See State v. Blalock, 150 Wis. 2d 688, 703, 442 N.W.2d 514
(Ct. App. 1989) (“[C]ases should be decided on the narrowest possible ground[.]”).

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No. 2023AP2423

¶22 The doctrine of estoppel by record prevents a party from relitigating
what was actually litigated in a former proceeding. Brooks v. Bank of Wis. Dells,
161 Wis. 2d 39, 46, 467 N.W.2d 187 (Ct. App. 1991). “In order for a prior
proceeding to bar the current action there must be an identity of parties and an
identity of causes of action or claims in the two proceedings.” Id., 46-47. Here,
the declaratory judgment proceeding fully litigated the liability limits under
General Casualty’s policy and the same parties were involved. Thus, we conclude
the trial court properly applied the doctrine of estoppel by record to prevent the re-
litigation of its decision that General Casualty owes $1,000,000 in liability
coverage to Sundance and $1,000,000 in liability coverage for Moreno.

¶23 Second, General Casualty is not entitled to contribution or
indemnification from Great American. Great American’s policy provides
indemnity coverage to the “Insured” in excess of the “retained limit.” “Retained
limit” is defined in the policy, in relevant part, as:

G. Retained Limit

Subject to the applicable Limits of Insurance stated in the
Declarations and described in A. through F., above, we will
be liable only for that portion of damages that is in excess
of the “retained limit.” The “retained limit” is the greater
of:

1. the total amounts stated as the applicable limits of the
underlying policies listed in the Schedule of Underlying
Insurance and the applicable limits of all other insurance
providing coverage to the “Insured” during the Policy
Period[.]

Thus, General Casualty’s primary policy limit of $1,000,000 in liability to
Sundance and $1,000,000 in liability to Moreno must be paid before Great
American’s excess policy limits apply.

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No. 2023AP2423

¶24 Contribution requires that: (1) the parties be liable for the same
obligation; and (2) the party seeking the contribution must have paid more than its
fair share of the obligation. Kafka v. Pope, 194 Wis. 2d 234, 242, 533 N.W.2d
491 (1995). Here, the parties are not liable for the same obligation. As stated
above, General Casualty provides the primary coverage and Great American
provides the excess coverage after the primary coverage has been exhausted.

¶25 Similarly, the elements of equitable indemnity are not met.
Indemnity “shifts the loss from one person who has been compelled to pay to
another who on the basis of equitable principles should bear the loss.” Brown v.
LaChance, 165 Wis. 2d 52, 64, 477 N.W.2d 296 (Ct. App. 1991) (citation
modified). The elements of equitable indemnity are: (1) the payment of damages;
and (2) the lack of liability. Id. Here, General Casualty had liability up to
$2,000,000 and must bear that loss. Great American as an excess insurer does not
have an equitable duty or obligation to bear the loss.

¶26 Therefore, for the reasons stated above, we affirm.

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

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