Donna Brenner v. National Casualty Company

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.
November 19, 2019
A party may file with the Supreme Court a
Sheila T. Reiff 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. 2018AP2252 Cir. Ct. No. 2012CV12446

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

DONNA BRENNER, AS THE PERSONAL REPRESENTATIVE FOR THE ESTATE OF
RUSSELL T. BRENNER AND DONNA BRENNER, INDIVIDUALLY,

PLAINTIFFS,

V.

NATIONAL CASUALTY COMPANY,

DEFENDANT-APPELLANT,

MILWAUKEE WORLD FESTIVAL, AMERISURE MUTUAL INSURANCE COMPANY,
ABC INSURANCE COMPANY, HARRISON METALS, INC. AND AMERISURE
MUTUAL INSURANCE CO.,

DEFENDANTS,

AMERISURE INSURANCE COMPANY,

INTERVENOR-RESPONDENT.
No. 2018AP2252

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

Before Brash, P.J., Kessler and Dugan, 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. National Casualty Company (National) appeals an
order resolving a personal injury claim. The issue on appeal is whether the circuit
court correctly decided cross-motions for summary judgment filed by two
insurance companies, National and Amerisure Insurance Company (Amerisure).1
The circuit court agreed with Amerisure, concluding that its policy insuring
Milwaukee World Festival, Inc. (MWF) is excess to National’s policy and
rejecting National’s contention that National and Amerisure are both primary
insurers. We affirm.

Background

¶2 Russell T. Brenner sustained injury on the MWF premises while
working for Hunzinger Construction Company (Hunzinger). At the time of the
injury, MWF was insured through its policy with National. Further, Hunzinger
had an insurance policy from Amerisure, and MWF was an additional insured on
that policy pursuant to a “Contractors Blanket Additional Insured Endorsement.”

1
The Honorable Glenn H. Yamahiro entered the order resolving the motions for
summary judgment that underlie the parties’ dispute on appeal. The Honorable Jeffrey A. Conen
entered the final order disposing of the litigation.

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No. 2018AP2252

Brenner filed a personal injury suit, pursuing claims against both National and
Amerisure.2

¶3 As the litigation progressed, National and Amerisure filed cross-
motions for summary judgment addressing the extent to which Amerisure was
required to provide coverage for Brenner’s injuries. The circuit court determined
that National’s policy provided primary coverage and Amerisure’s policy provided
excess coverage. Brenner, by his personal representative, subsequently settled his
claims for an amount less than National’s policy limits. The circuit court entered a
final order disposing of the litigation and National appeals, asserting that
Amerisure is not an excess insurer but a primary insurer that must share the costs
of defense and indemnification with National.

Discussion

¶4 Summary judgment is appropriate when no genuine dispute exists as
to any material fact, and one party is entitled to judgment as a matter of law. See
WIS. STAT. § 802.08(2) (2017-18).3 Whether the circuit court properly granted
summary judgment is a question of law that we consider de novo. See
Brown Cty. v. OHIC Ins. Co., 2007 WI App 46, ¶9, 300 Wis. 2d 547, 730 N.W.2d
446.

2
Brenner sued Amerisure Mutual Insurance Company, which had issued a worker’s
compensation policy to Hunzinger. Amerisure Insurance Company subsequently intervened in
the litigation because it is the entity that issued a commercial general liability insurance policy to
Hunzinger. Amerisure Insurance Company is the only respondent to this appeal.
3
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.

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No. 2018AP2252

¶5 Interpretation of an insurance policy is also a question of law. See
Day v. Allstate Indem. Co., 2011 WI 24, ¶25, 332 Wis. 2d 571, 798 N.W.2d 199.
Our goal when construing a policy “is to determine and carry out the intentions of
the parties as expressed by the language of the insurance policy.” See id., ¶27.
Therefore, we construe policies “whenever possible, ‘so as to give a reasonable
meaning to each provision of the contract,’” and we “‘avoid a construction which
renders portions of a contract meaningless, inexplicable or mere surplusage.’” See
id. (citation omitted).

¶6 The parties agree that this case involves a circumstance where MWF
had more than one insurance policy applicable to the same risk at the same time.
“Whenever two policies apply to the same insured at the same time, the issue of
which policy must pay first—or which is primary and which is excess—is dealt
with by ‘other insurance’ clauses.” Burgraff v. Menard, Inc., 2016 WI 11, ¶27,
367 Wis. 2d 50, 875 N.W.2d 596 (citation omitted). If, however, the policies are
inconsistent on the issue of which pays first, “the insurers shall be jointly and
severally liable to the insured on any coverage where the terms are inconsistent.”
See id. (citing WIS. STAT. § 631.43(1) (2013-14)).4

¶7 The relevant portion of the National insurance policy defines
National’s coverage obligations to MWF as follows:

4. Other Insurance

If other valid and collectible insurance is available
to the insured for a loss we cover ... our obligations are
limited as follows:

4
The text of WIS. STAT. § 631.43(1) (2013-14), cited in Burgraff v. Menard, Inc., 2016
WI 11, ¶27, 367 Wis. 2d 50, 875 N.W.2d 596, is the same as the current text of that statute.

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No. 2018AP2252

a. Primary Insurance

This insurance is primary except when
Paragraph b. below applies....

b. Excess Insurance

(1) This insurance is excess over:

....

(b) Any other primary insurance available
to you covering liability for damages arising out of the
premises or operations, or the products and completed
operations, for which you have been added as an additional
insured by attachment of an endorsement. (Emphasis
added.)

¶8 As to Amerisure’s policy, it insured MWF pursuant to the following
language in the “Additional Insured Endorsement:”

4. Other Insurance

Any coverage provided in this endorsement is
excess over any other valid and collectible insurance
available to the additional insured whether primary, excess,
contingent, or on any other basis unless the written contract
... requires that this insurance be primary, in which case
this insurance will be primary without contribution from
such other insurance available to the additional insured.
(Emphasis added.)

¶9 National concedes that “[t]he contract between M[WF] and
Hunzinger does not expressly require that the insurance Hunzinger agrees to
procure for M[WF]’s benefit be primary.” Further, National concedes that “the
effect of Amerisure’s Other Insurance provision is that the Amerisure [p]olicy
[issued to Hunzinger] applies in excess of other valid and collectible insurance.”

¶10 With the foregoing concessions in place, National argues that its
own policy is “similar[]” to Amerisure’s in providing coverage for MWF that is
“excess over any other primary insurance.” In other words, National views both

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No. 2018AP2252

policies as providing excess coverage for MWF. National argues that the two
policy provisions are therefore in conflict, and both coverages should be treated as
primary with the risk divided equally between the two insurers. See Burgraff, 367
Wis. 2d 50, ¶27.

¶11 We reject National’s policy interpretation because it does not
account for the totality of the language in the applicable portions of the policies.
The National policy provides that the insurance for MWF “is primary except when
Paragraph b. applies.” (Emphasis added.) In Paragraph b., the policy states that
National’s coverage is excess of “any other primary insurance.” (Emphasis
added.) These provisions do not create a conflict with the language of
Amerisure’s policy because the plain language of Amerisure’s policy states that
when other valid and collectible insurance is available, “[a]ny coverage”
Amerisure provides to MWF is excess, not primary, absent a contract provision
that National agrees does not exist.

¶12 National asserts, however, that the facts of this case are
“indistinguishable” from those in Colony Insurance Co. v. Scottsdale
Insurance Co., No. SA-14-CA-894 (W.D. Tex. June 1, 2015), and that we should
follow the Colony court’s lead in concluding that the two policies in this case both
provide primary coverage. Colony is an unpublished decision from a Texas
federal district court and is not binding authority here. See State v. Mechtel, 176
Wis. 2d 87, 95, 499 N.W.2d 662 (1993). Nonetheless, we have considered the
Colony court’s opinion. Upon doing so, we reject National’s premise: the facts of
Colony are dissimilar from those at issue in this case.

¶13 In Colony, a contract between a property owner and a construction
company required the company to name the owner as an “additional insured” on

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No. 2018AP2252

the company’s policy and further provided that the coverage was to be primary.
See id., No. SA-14-CA-894,*1. When the owner suffered a loss, the owner had
coverage as an additional insured—as the contract required—through the
construction company’s insurer, Scottsdale Insurance Company. The owner also
maintained insurance coverage on its own behalf through a policy issued by
Colony. Both policies had “Other Insurance” provisions which stated: “This
insurance is primary except when Paragraph b., below applies.” See id., No. SA-
14-CA-894, *2 (emphasis omitted). The language of Paragraph b. in the
Scottsdale policy provided that “[t]his insurance is excess over any other
insurance ... [t]hat is valid and collectible.” Id. (some emphasis omitted). The
language of “Paragraph b.” in the Colony policy provided that “[t]his insurance is
excess over any other primary insurance ... for which you have been added as an
additional insured.” Id. (some emphasis omitted). The Colony court read the
provisions of the two policies together and determined that the property owner had
“valid and collectible” insurance through the Colony policy, which triggered the
Scottsdale policy’s excess coverage provision. See id. At the same time, the
property owner was an “additional insured” on the Scottsdale policy, which
triggered the Colony policy’s excess coverage provision. The Colony court
concluded that, although either policy alone would provide the owner with
primary coverage, “[t]he existence of ‘other insurance’ trigger[ed] the excess
insurance coverage provisions in each policy.” See id. The two policies were thus
in conflict, requiring that liability under both be apportioned pro rata. See id.

¶14 The instant case is different. National’s “other insurance” provision
provides that National’s coverage is primary except when other primary insurance
is available. Amerisure’s “other insurance” provision, by contrast, provides that
Amerisure’s coverage is excess unless a contract provision requires otherwise,

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No. 2018AP2252

and, as we have seen, no such contract provision exists. The existence of “other
insurance” thus does not trigger conflicting provisions in the two policies. We are
satisfied that Colony does not provide guidance here.

¶15 We also reject National’s contention that we must read each of the
applicable policies “without regard to the other policy’s ‘Other Insurance’
provision.” We conclude instead that we must “examine each policy to determine
whether, and to what extent, it had anticipated the existence of an ‘other
insurance’ provision in another policy and expressly contracted for exoneration
from liability in that event.” See Schoenecker v. Haines, 88 Wis. 2d 665, 672,
277 N.W.2d 782 (1979).

¶16 As Schoenecker directs, we have examined each policy at issue here
to determine how, if at all, it anticipated the existence and effect of the other. The
applicable language shows that National provided primary coverage for MWF
unless MWF had primary coverage available from another source. Amerisure
provided excess coverage for MWF when other insurance was available unless a
separate contract term required Amerisure to provide primary coverage—and all
parties agree that such a separate contract term was not in place. We therefore can
give effect to both the National and the Amerisure policies: (1) National provided
primary coverage because MWF did not have primary coverage available from
another source; and (2) Amerisure provided excess coverage because no separate
contract term required otherwise. 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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