Dorothy A. Pender v. Artisan and Truckers Casualty Company ( 2022 )

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.
December 6, 2022
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. 2021AP838 Cir. Ct. No. 2020CV989
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I
DOROTHY A. PENDER,
PLAINTIFF-APPELLANT,
V.
ARTISAN AND TRUCKERS CASUALTY COMPANY, LJ AUTO REPAIR AND
SERVICES, LLC, JUSTIN L. MORGAN, JOHN EARL SAMS, JR., ABC
INSURANCE CO. AND DEF INSURANCE CO.,
DEFENDANTS-RESPONDENTS,
ALEX AZAR,
SUBROGATED-PLAINTIFF-RESPONDENT.
APPEAL from a judgment of the circuit court for Milwaukee
County: LINDSEY CANONIE GRADY, Judge. Reversed and cause remanded
for further proceedings.
Before Donald, P.J., Dugan and White, JJ.
No. 2021AP838
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. Dorothy A. Pender appeals the circuit court order
granting summary judgment in favor of Artisan and Truckers Casualty Company
(Artisan). Pender argues that Artisan failed to comply with Wisconsin’s Financial
Responsibility law for motor carriers and the Department of Transportation (DOT)
administrative code regarding the cancellation of the insurance policy Artisan
issued to LJ Auto Repair and Services, LLC (LJ Auto Repair); therefore, Artisan
was liable when LJ Auto Repair’s tow truck injured Pender in an accident.
Artisan contends that the insurance policy it issued to LJ Auto Repair was
canceled; therefore, no operative insurance contract existed at the time of the
accident, which negated its liability. Pender also argues that Artisan failed to
show that its process of notification to DOT about the cancellation was sufficient
as a matter of law. We conclude that Artisan has not made a prima facie case for
summary judgment. Thus, we reverse and remand to the circuit court for further
proceedings.
BACKGROUND
¶2 This case arises out of an accident on November 30, 2018, in which
Justin Morgan, driving an LJ Auto Repair tow truck, struck Pender as she walked
in a crosswalk. In February 2020, Pender filed a negligence action against
Morgan; LJ Auto Repair; LJ Auto Repair’s owner, John Earl Sams, Jr.; and their
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relevant insurance companies.1 The complaint named Artisan as the insurance
carrier for LJ Auto Repair.
¶3 Because the facts of this case turn on specific statutory and
administrative provisions of law, we first recite the law at issue, namely WIS.
STAT. § 194.41 (2019-20)2 and WIS. ADMIN. CODE §§ TRANS 176.02 and 176.04
(Mar. 2012).3 WISCONSIN STAT. ch. 194 governs motor vehicle transportation,
which includes motor carriers for hire and what we might commonly consider
commercial vehicle transport.4 Liability for damages to persons or property by
motor carriers is governed by § 194.41, also known as the Financial Responsibility
law. The operation of the Financial Responsibility law can require a motor carrier
insurer to cover a loss not specifically assumed by the insurer, an exception to the
1
In response to Pender’s complaint, Artisan filed a counterclaim seeking declaratory
relief alleging that it properly canceled the insurance policy it issued to LJ Auto Repair for failure
to make premium payments. Subsequently, Artisan filed a motion for summary judgment
seeking a declaratory judgment declaring that it had no duty to indemnify or defend any of the
defendants in this action.
2
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.
3
All references to the Wisconsin Administrative Code are to the March 2012 version
unless otherwise noted.
4
For the purposes of this appeal, the details and exceptions of chapter 194 need not be
examined, because it is undisputed that LJ Auto Repair’s tow truck fell under the regulations set
forth in this chapter. For ease of reading, we refer to motor carriers as encompassing the vehicles
regulated in this chapter. See WIS. STAT. § 194.07.
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general rule.5 Rural Mut. Ins. Co. v. Peterson, 134 Wis. 2d 165, 173, 395
N.W.2d 776 (1986).
¶4 Under the Financial Responsibility law, DOT may not issue a permit
to a motor carrier unless it has “on file with the department and in effect an
approved certificate for a policy of insurance or other written contract” complying
with DOT regulations by an authorized insurance carrier. WIS. STAT. § 194.41(1).
The insurance contract is subject to DOT approval and the contract “shall provide
that the insurer shall be directly liable for” damages or injuries that “may be
recovered against the owner or operator of any such motor vehicles by reason of
the negligent operation thereof in such amount as the department may require.”
Id.; see also Rural Mut. Ins. Co., 134 Wis. 2d at 171.
¶5 Also under the Financial Responsibility law, a motor carrier
insurance contract subject to WIS. STAT. § 194.41 may not be “terminated at any
time prior to its expiration under the terms thereof, nor canceled for any reason
whatever, unless there has been filed with [DOT] by the insurer a notice thereof at
least [thirty] days prior to the date of termination or cancellation.” Sec. 194.41(2).
The statute sets forth that DOT must adopt rules for the administration and
enforcement of this section. Sec. 194.41(4).
¶6 DOT’s enactment of the required rules and regulations are provided
in WIS. ADMIN. CODE TRANS ch. 176. “The purpose of this chapter is to prescribe
5
Under Wisconsin law, “[j]udicial interpretation of a contract, including an insurance
policy, seeks to determine and give effect to the intent of the contracting parties.” American
Fam. Mut. Ins. Co. v. American Girl, Inc., 2004 WI 2, ¶23, 268 Wis. 2d 16, 673 N.W.2d 65. As
a general rule, this court does “not interpret insurance policies to provide coverage for risks that
the insurer did not contemplate or underwrite and for which it has not received a premium.” Id.4
No. 2021AP838
the requirements of liability insurance policies and surety bonds for persons
subject to the provisions” of WIS. STAT. § 194.41. Sec. TRANS 176.01(1). At
issue are three administrative code procedures regulating insurance policies for
motor carriers: Form E, Form F, and Form K. First, Form E is the Uniform Motor
Carrier Bodily Injury and Property Damage Liability Certificate of Insurance, in
which the insurance carrier states it has issued a policy to a named insurer with the
required liability endorsement. Sec. TRANS 176.02(1)(a). Second, Form F is the
Uniform Bodily Injury and Property Damage Liability Insurance Endorsement,
which must be attached to the certificate of insurance. Sec. TRANS 176.02(1)(b).
Finally, Form K is the Uniform Notice of Cancellation of Motor Carrier Insurance
policies, which the insurer must provide to DOT at the time of cancellation.
Sec. TRANS 176.04(1). The notice of cancellation “is not effective until after
[thirty] days from the date it is received by” DOT. Sec. TRANS 176.04(3).
¶7 With that law in mind, we return to the procedural events in this
case. In response to Pender’s negligence action, Artisan filed an answer and
counterclaim seeking declaratory relief in March 2020. Artisan acknowledged
that it issued a policy to LJ Auto Repair on June 19, 2018, but alleged that the
policy was properly canceled for failure to make premium payments.6 In May
2020, Artisan filed a motion for declaratory and summary judgments. First,
Artisan asked the court to declare that the LJ Auto Repair’s policy was cancelled
before the accident and that there was no coverage or duty to defend arising out of
6
In its briefing to the circuit court. Artisan stated that it cancelled LJ Auto Repair’s
insurance policy for non-payment in accordance with WIS. STAT. § 631.36, the statute regarding
termination of general insurance contracts by insurers.
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the policy. Second, Artisan asked the court to dismiss Pender’s direct claim
against it because there was no approved underlying insurance coverage.
¶8 In support of its motion for summary and declaratory judgments,
Artisan submitted two affidavits relevant to the facts at issue. First, an Artisan
representative attested that on June 19, 2018, Artisan issued an insurance policy to
LJ Auto Repair with a policy period of June 19, 2018 through June 19, 2019. LJ
Auto Repair failed to make payments in July and August 2018, and Artisan mailed
a cancellation notice informing LJ Auto Repair that its insurance policy would be
cancelled effective September 4, 2018.7
¶9 In the second affidavit, an Artisan process auditor described
Artisan’s compliance with DOT administrative regulations with regard to the
insurance contract with LJ Auto Repair. Artisan submitted the first certificate of
insurance, also known as Form E, to DOT on June 19, 2018; however, DOT
rejected the form for having an incorrect name. On June 20, 2018, Artisan
cancelled the first Form E and submitted a second Form E with updated name
information. The second Form E was also rejected by DOT for an incorrect name.
The first Form E’s cancellation was effective July 25, 2018. The second Form E
was cancelled on September 11, 2018, with an effective date of October 11, 2018.
The process auditor also stated that Artisan cancelled LJ Auto Repair’s insurance
contract in compliance with the DOT Carriers and Trucking System (CaTS)
manual by cancelling both rejected Form E documents, in accordance with the
7
It is undisputed that LJ Auto Repair did not make payments to maintain its insurance
contract with Artisan. Artisan argues on appeal that because LJ Auto Repair’s insurance policy
was cancelled for non-payment, it owed no liability through the terms of that policy. We do not
interpret Pender to argue that Artisan could not or did not cancel LJ Auto Repair’s policy for non-
payment. Accordingly, we do not address this issue further.
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DOT-provided training manual for insurance underwriters. The affidavit included
a screenshot from a DOT system that showed the Form E submissions and
cancellations.
¶10 The factual record with regard to the endorsement attachment, also
known as Form F, and the cancellation document, also known as Form K, is less
developed. During discovery, Artisan submitted a copy of LJ Auto Repair’s
insurance policy, as well as the Form F attachment to that contract. The Form F
endorsement stated that Artisan complied with state motor carrier laws,
referencing: (1) proof of financial responsibility; (2) the filed certificate of
insurance (i.e., Form E) to DOT; and (3) notice that cancellation requires notice to
DOT. Artisan affirmed in its answers to interrogatories and requests for
production that it did not submit a Form K to DOT related to the cancellation of LJ
Auto Repair’s insurance contract, stating that there was “no certificate for a policy
of insurance approved by the WI DOT to cancel.”
¶11 After a hearing on April 7, 2021, the circuit court declared that there
was no liability coverage under the insurance policy or Financial Responsibility
law and that Artisan had no duty to defend any party. The circuit court agreed
with Artisan’s arguments, finding that while Artisan did not submit a Form K to
notify DOT that it was cancelling LJ Auto Repair’s insurance policy, it made a
“good faith effort” to comply with DOT procedure and the administrative code
when it attempted multiple Form E submissions and then cancelled them. The
court stated that when Artisan wanted to cancel the policy for non-payment, “the
cancellation happened, it happened both, it happened twice.” The court stated that
“the process by which to notice and to give some administrative control to [DOT]
was filed.” It then concluded the disputed facts surrounding cancellation were not
material because the dispute was only whether it was “a ‘K’ or was it a
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cancellation with the word ‘cancellation’ that was received” by DOT. It granted
summary and declaratory judgment in favor of Artisan and dismissed Pender’s
complaint against Artisan.
¶12 Pender now appeals.
DISCUSSION
¶13 Pender argues that Artisan was not entitled to judgment as a matter
of law because there were genuine issues of material fact regarding Artisan’s
liability. Pender argues that Artisan failed to comply with statutory and
administrative procedure to cancel a commercial motor carrier insurance policy,
which she asserts requires DOT to be notified with Form K. Although Pender
concedes that Artisan had the right to cancel the LJ Auto Repair’s policy for non-
payment, she asserts that by failing to notify DOT in accordance with the
administrative code, Artisan maintained liability under the Financial
Responsibility law, WIS. STAT. § 194.41. Artisan argued that the policy was
cancelled prior to the accident for two reasons. First, because it terminated the
policy in accordance with WIS. STAT. § 631.36, the generalized insurance statutes,
which is not disputed on appeal. Second, because it complied with the DOT CaTS
manual to notify DOT of the cancellation of LJ Auto Repair’s insurance contract.
Therefore, it argues it has no liability under the insurance contract or under the
Financial Responsibility law.
¶14 In order to resolve this appeal, we must consider the standards for
summary and declaratory judgment. “We review a grant of summary judgment
[independently], relying on the same methodology as the circuit court.” Estate of
Sustache v. American Fam. Mut. Ins. Co., 2008 WI 87, ¶17, 311 Wis. 2d 548,
751 N.W.2d 845. It is proper for the circuit court to grant summary judgment
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where “there is no genuine issue as to any material fact” and “the moving party is
entitled to a judgment as a matter of law.” WIS. STAT. § 802.08(2). “Summary
judgment materials, including … answers to interrogatories, and admissions on
file are viewed in the light most favorable to the nonmoving party.”
AccuWeb, Inc. v. Foley & Lardner, 2008 WI 24, ¶16, 308 Wis. 2d 258, 746
N.W.2d 447. The decision to grant or deny declaratory judgment is within the
discretion of the circuit court. See Jones v. Secura Ins. Co., 2002 WI 11, ¶19, 249
Wis. 2d 623, 638 N.W.2d 575. However, when the court’s discretion “turns upon
a question of law, we review the question” independently. Olson v. Farrar, 2012
WI 3, ¶24, 338 Wis. 2d 215, 809 N.W.2d 1.
¶15 Pender argues there are two reasons summary judgment is
inappropriate. First, Pender argues that because it is undisputed that Artisan did
not submit a Form K to DOT, Artisan was not relieved of liability under the
Financial Responsibility law. She asserts that this court should require strict
adherence to the insurance laws for common motor carriers out of public policy
concerns. Second or alternatively, Pender contends that Artisan has not shown
any legal authority or proof that the alternate method it claims it followed in the
CaTS manual to cancel Form E is a sufficient replacement for Form K under DOT
rules. Therefore, the sufficiency of its cancellation and notification methods are
disputed material facts.
¶16 Conversely, Artisan argues it has no liability—thus, the circuit
court’s order should be affirmed—for two reasons. First, because no Form E was
ever officially accepted by the DOT, LJ Auto Repair’s insurance contract was not
approved by DOT, which Artisan argues is a prerequisite to the application of the
Financial Responsibility law. Second, Artisan argues that Form K is a formality
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and that it complied with the DOT CaTS system to cancel the rejected Form E’s;
therefore, DOT was notified of the cancellation before the accident.
¶17 This case requires us to interpret state statutes and administrative
code, which present questions of law that we review independently. Rural
Mut. Ins. Co., 134 Wis. 2d at 170. “[T]he purpose of statutory interpretation is to
determine what the statute means so that it may be given its full, proper, and
intended effect.” State ex rel. Kalal v. Circuit Ct. for Dane Cnty., 2004 WI 58,
¶44, 271 Wis. 2d 633, 681 N.W.2d 110. If the plain meaning of the language
within the statute is unambiguous, we stop our inquiry. Id., ¶45 (citation omitted).
“Interpretations of [administrative] code provisions, and the determination as to
whether the provision in question is consistent with the applicable statute, are
subject to principles of statutory construction.” Orion Flight Servs., Inc. v.
Basler Flight Serv., 2006 WI 51, ¶18, 290 Wis. 2d 421, 714 N.W.2d 130.
¶18 Under the plain meaning of the language of the administrative code,
Artisan had to notify DOT that it was cancelling LJ Auto Repair’s insurance
before the cancellation could take effect. WISCONSIN ADMIN. CODE
§ TRANS 176.04(1) specifically states that notification to DOT of a policy
cancellation “shall be made by the insurer on FORM K.” The circuit court
concluded that cancelling Form E was sufficient, and Artisan urges this court to do
the same. However, Artisan has not offered adequate facts or law to support that
cancelling a rejected Form E was a legally sufficient substitute for submitting a
Form K. Its only factual support is counsel’s affidavit stating that an open records
request to DOT yielded no Form E documents on file for LJ Auto Repair.
Viewing the facts in the light most favorable to the non-moving party—as we do
when reviewing a summary judgment order—the DOT open records response does
not satisfy the inquiry into whether DOT was notified of the cancellation of LJ
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No. 2021AP838
Auto Repair’s insurance contract. Further, Artisan fails to provide legal authority
for its position that strict adherence to the administrative code with regard to Form
K was not required. See State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633(Ct. App. 1992) (“Arguments unsupported by references to legal authority will not
be considered.”). It is, therefore, a genuine issue of material fact whether the
notifications to DOT complied with the regulations on cancellation of a motor
carrier insurance contract.
¶19 We also note that our examination of the record reflects that multiple
genuine issues of material fact exist and leaves unanswered important questions
including: (1) the impact of the attachment of Form F to the policy; (2) what
actions DOT had taken to accept, approve, reject, or certify LJ Auto Repair’s
insurance contract and how that affected the Financial Responsibility law’s
application; (3) whether LJ Auto Repair ever sought or received a DOT permit and
the effect of not issuing a permit would have on the situation; and (4) how the
various effective dates for the cancellation of the policy relate to Artisan’s liability
under the Financial Responsibility law. Further, we conclude that there is a
material issue of fact regarding how an insurance policy can be cancelled under
DOT procedures. Pender asserts that the insurance policy could only be cancelled
by filing a Form K with DOT. Artisan asserts that the insurance policy was
cancelled when Artisan cancelled the rejected Form E documents in compliance
with the DOT CaTS manual.
¶20 We conclude that in this case, disputed material facts exist which
preclude granting the motion for summary judgment and therefore, the circuit
court order must be reversed. See WIS. STAT. § 802.08(2). Artisan’s arguments
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about how the statutory and administrative code operates with regard to the
Financial Responsibility law are unsupported by legal authority.8 See Pettit, 171
Wis. 2d at 646. Accordingly, we reverse the circuit court’s grant of summary
judgment in Artisan’s favor, restore Pender’s action against Artisan, and remand
for further proceedings.9 We note that this decision does not hold Artisan liable
for Pender’s injuries under the Financial Responsibility law, but instead, we
conclude that the facts are not sufficiently developed, and that Artisan has failed to
show it is not liable as a matter of law.
CONCLUSION
¶21 For the reasons stated above, we conclude that the circuit court erred
when it granted summary judgment in Artisan’s favor. We conclude there are
genuine issues of material fact and that Artisan did not make a prima facie
showing it was entitled to summary judgment.10 Accordingly, we reverse the
circuit court order and remand for further proceedings.
8
Artisan argues that Pender has failed to rebut the presumption that the two cancelled
Form E documents were sufficient. We reject this argument because it is offered without legal
authority that such presumption exists. See State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d
633 (Ct. App. 1992).
9
Pender argues that interpreting the Financial Responsibility law set forth in WIS. STAT.
§ 194.41 and WIS. ADMIN. CODE TRANS ch. 176 is a question of first impression. Additionally,
Pender argues that public policy, equitable estoppel, or the parol evidence rule may maintain
Artisan’s liability under the Financial Responsibility law. Because we conclude that the circuit
court improperly granting summary judgment is dispositive to this appeal, we do not address
Pender’s arguments further.
10
We note that we do not narrow the case on remand to only resolve the sufficiency of
the notification to DOT of the policy cancellation; we have identified multiple material facts in
dispute.
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By the Court.—Judgment reversed and cause remanded for further
proceedings.
This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5.
13