Filing v. Commercial Union Midwest Insurance Co
In Filing v. Commercial Union Midwest Insurance Co., 217 Wis. 2d 640, 579 N.W.2d 65 (Ct. App. 1998), the Court addressed the issue of whether the per person or the per accident limits should apply in determining UIM coverage.
In that case, the plaintiffs consisted of Filing and three family members, all of whom were injured by a tortfeasor who carried liability coverage of $ 100,000 per person and $ 300,000 per accident.
Filing had two insured vehicles with a single limit of $ 300,000 UIM coverage for each vehicle. Filing argued that in determining whether the tortfeasor was underinsured, the court should compare his $ 300,000 UIM liability limits to the tortfeasor's $ 100,000 per person limit, not the tortfeasor's $ 300,000 per accident limit. See id. at 644.
The policy's definition of "underinsured motor vehicle" required a comparison of the tortfeasor's "limit for bodily injury liability" to Filing's "limit of liability for this coverage." Id. at 645.
In reaching our decision in Filing, the Court observed that the policy at issue did not indicate whether the "limit for bodily injury liability" comprised the per person or the per accident limit. See id.
The Court did not, however, conclude that the policy was ambiguous. Rather, the Court looked at the purpose of UIM coverage, which is to provide an insured with benefits to recover for losses caused by a negligently and financially underinsured motorist, subject to the policy limits.
UIM coverage also seeks "to place the insured party in the same position as if the underinsured had liability limits equal to the insured's coverage." Id. at 649.
The Court then concluded that where there are multiple insureds under a policy, a court should look at what limit the individual insured could recover from the tortfeasor's liability policy and compare that amount to the UIM policy limit in order to decide whether the tortfeasor's vehicle is underinsured. See id. at 649-50.