Mark F. Meisner v. State Farm Mutual Automobile Insurance 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.
August 8, 2023
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. 2022AP1463 Cir. Ct. No. 2017CV1409

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

MARK F. MEISNER AND DENISE M. MEISNER,

PLAINTIFFS-APPELLANTS,

V.

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, ABC
INSURANCE COMPANY AND DEF INSURANCE COMPANY,

DEFENDANTS,

TRUMBULL INSURANCE COMPANY,

DEFENDANT-RESPONDENT.

APPEAL from an order of the circuit court for Brown County:
TAMMY JO HOCK, Judge. Affirmed.

Before Stark, P.J., Hruz and Gill, JJ.
No. 2022AP1463

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. Mark Meisner1 appeals from an order, entered
following a remand from this court, that reduced the amount of available
underinsured motorist (UIM) coverage from his automobile insurance carrier,
Trumbull Insurance Company, by the amount Meisner had been paid by another
insurer. Specifically, Meisner challenges the circuit court’s determination that a
stipulation entered into by the parties during litigation incorporated a UIM
reducing clause from Meisner’s policy with Trumbull. We conclude that the
circuit court’s factual finding that the parties intended their stipulation to
incorporate the reducing clause is not clearly erroneous, and we reject Meisner’s
additional arguments that the circuit court erroneously exercised its discretion.
Accordingly, we affirm.

BACKGROUND

¶2 Meisner was seriously injured in an automobile accident. He
eventually filed suit against the driver of another vehicle involved in the accident,
Jon Mineau, and Mineau’s automobile insurer, State Farm Mutual Automobile
Insurance Company. Meisner also named his own automobile insurer, Trumbull,
as a defendant, seeking to recover under the UIM provisions of his policy.
Meisner alleged that Mineau had caused the accident and was underinsured
relative to Meisner’s extensive injuries.

1
Although Mark’s wife, Denise Meisner, also joined the notice of appeal, Trumbull’s
liability with respect to her injuries is not before us. We therefore limit our discussion in this
opinion to Mark’s claim.

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¶3 Meisner entered into a stipulation with Trumbull that excused
Trumbull from participating at trial. The stipulation, as agreed to by the parties
and as ultimately approved by the circuit court, provided in relevant part that
Trumbull “shall be bound by the verdict reached at trial with respect to the [UIM]
claim in this matter, up to the limits of its [UIM] insurance policy.”

¶4 At trial, the jury determined that Meisner’s injuries resulted in
damages totaling $424,354. Based upon the verdict, State Farm agreed to pay
Meisner its liability policy limits of $100,000. Meisner subsequently sought to
collect $250,000 from Trumbull based upon the stipulation and the per-person
UIM policy limits identified on the declarations page of Meisner’s policy with
Trumbull.

¶5 Trumbull opposed Meisner’s motion, asserting that the unambiguous
language of the stipulation required application of not only the UIM policy limits
but also a reducing clause contained within the insurance policy. The reducing
clause stated that the limits of liability shown on the declarations page “shall be
reduced by all sums … [p]aid because of the bodily injury by or on behalf of
persons or organizations who may be legally responsible.” Trumbull asserted that
State Farm’s $100,000 payment should be subtracted under the reducing clause
from the $250,000 Trumbull would otherwise owe Meisner based upon the UIM
policy limits.

¶6 The circuit court2 determined that the parties’ use of the phrase “up
to the limits of its underinsured motorist insurance policy” in the stipulation

2
The Honorable Kendall Kelley presided over the matter before the Honorable
Tammy Jo Hock was appointed on remand.

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No. 2022AP1463

unambiguously required Trumbull to pay the full amount of the UIM policy limits,
without any reduction. It then entered judgment against Trumbull in the amount
of $250,000 for Meisner’s injuries. This court reversed on appeal, however,
concluding that the language of the stipulation was ambiguous because it could
reasonably be interpreted to refer to the full UIM limits, or to the limits as
modified by other provisions in the policy. We remanded the matter to the circuit
court for a factual determination, based upon extrinsic evidence, as to the
agreed-upon coverage limits under the stipulation.

¶7 On remand, the parties submitted affidavits and eventually agreed to
forgo an evidentiary hearing to present live testimony. The circuit court then
relied upon the filed submissions—including the pleadings, requests and responses
to discovery, emails between the parties attached to the affidavits, a letter to the
court, and the policy itself—to find that the parties negotiated the stipulation at
issue with the understanding that Trumbull was agreeing to an amount of liability
coverage based upon all the terms of Meisner’s UIM policy, including the
reducing clause. Accordingly, the court concluded that Meisner was entitled to
recover only $150,000 from Trumbull, rather than $250,000. Meisner now
appeals that decision.

DISCUSSION

¶8 Meisner raises three issues on appeal. He claims the circuit court
erroneously exercised its discretion by: (1) failing to construe the stipulation
against its drafter, Trumbull; (2) considering evidence outside the time frame in
which the stipulation was actually being negotiated; and (3) violating the doctrine
of equitable estoppel. We reject each of these arguments.

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No. 2022AP1463

¶9 As a threshold matter, we note that Meisner cites the wrong standard
of review. When a contract is ambiguous and must be construed by the use of
extrinsic evidence, the contract’s interpretation presents a question of fact.
Town Bank v. City Real Est. Dev., LLC, 2010 WI 134, ¶32, 330 Wis. 2d 340, 793
N.W.2d 476. We will uphold a circuit court’s findings of fact (including any
reasonable inferences upon which they rest) unless they are clearly erroneous—
meaning that they go against the great weight and clear preponderance of the
evidence. Phelps v. Physicians Ins. Co. of Wis., Inc., 2009 WI 74, ¶¶34, 38-39,
319 Wis. 2d 1, 768 N.W.2d 615.

¶10 Addressing Meisner’s arguments, the rule about construing a
stipulation against the drafter applies only if any ambiguities remain after
considering extrinsic evidence. See Ash Park, LLC v. Alexander & Bishop, Ltd.,
2015 WI 65, ¶36, 363 Wis. 2d 699, 866 N.W.2d 679. Here, the circuit court found
that extrinsic evidence resolved the ambiguity of the phrase “up to the limits” of
the UIM policy in the stipulation and showed that the parties intended that phrase
to mean the UIM limits of the policy taking into account the reducing clause. In
light of that finding—which we conclude is not clearly erroneous—there were no
further ambiguities in the stipulation for the court to construe against its drafter.

¶11 Key to our conclusion that the circuit court’s finding is not clearly
erroneous is that the parties described the UIM limits in the stipulation by
reference to the Trumbull insurance policy without mentioning any specific
coverage amount from that policy. It was therefore always going to be necessary
to review the Trumbull policy in order to determine the agreed-upon UIM limits in
the stipulation. Because the insurance policy was produced during discovery, well
before the stipulation was entered, the court could reasonably infer that both
parties were aware of all the policy’s relevant UIM terms—including the reducing

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No. 2022AP1463

clause—when they entered into the stipulation. In that context, and in the absence
of any evidence in the emails or affidavits that the parties discussed excluding any
relevant policy terms from the calculation of available UIM coverage, it was also
reasonable (and not contrary to the great weight and clear preponderance of the
evidence) for the court to infer that the parties intended the reducing clause to
apply when they referred in the stipulation to the UIM limits in the Trumbull
policy.

¶12 Next, we note that extrinsic evidence may “include ‘the surrounding
circumstances including factors occurring before and after the signing of an
agreement.’” Kernz v. J.L. French Corp., 2003 WI App 140, ¶10, 266 Wis. 2d
124, 667 N.W.2d 751 (citation omitted). We therefore reject Meisner’s assertion
that there was anything improper about the circuit court’s consideration of other
pleadings and discovery materials produced outside the time frame of the
negotiations over the stipulation, in which Trumbull explicitly referred to its UIM
coverage as being “subject to all of the terms, conditions, limitations, and
exclusions of the policy.” Nor did such consideration misconstrue the prior
directive of this court, as Meisner contends.

¶13 Finally, Meisner’s assertion that the circuit court should have
applied the doctrine of equitable estoppel to preclude Trumbull from applying the
reducing clause relies upon the premise that Meisner’s trial strategy was based in
part upon Trumbull’s agreement to pay up to $250,000. That premise is
necessarily defeated, however, by the circuit court’s construction of the parties’
stipulation.

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By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5. (2021-22).

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