Contracts/ Choice Of Law/ Insurance/ Coverage/ Public Policy/ Summary Judgment/ Declaratory Judgment
From 'Swan & Associates v. American Safety Casualty' (2009AP531)
¶7 In general, Wisconsin courts will enforce parties' express
agreement that the law of a particular jurisdiction shall
control their contractual relations. 'Bush v. National Sch.
Studios, Inc.', 139 Wis. 2d 635, 642, 407 N.W.2d 883 (1987).
Allowing parties some degree of autonomy to stipulate
controlling law "promotes certainty and predictability in
contractual relations ." Id. (citing WILLIS L. M. REESE, Choice
of Law in Torts and Contracts and Directions for the Future, 16
COLUM. J. TRANSNAT'L L. 1, 22-24 (1977)). The right is not
unqualified, however; parties are not permitted, through their
contractual selection of applicable law, to disregard the
"important public policies of a state whose law would be
applicable if the parties choice of law provision were
disregarded." Id.
¶8 Swan argues we must look to Minnesota public policy because,
absent the choice-of-law provision, Wisconsin courts would apply
Minnesota law. Absent agreement by the parties, the law of the
forum presumptively applies unless it becomes clear that
nonforum contacts are of greater significance. Drinkwater, 290
Wis. 2d 642, ¶40. Even if Swan is correct, and Minnesota
contacts are clearly of greater significance, Minnesota public
policy does not require abrogation of the parties' choice of
law. Citing MINN. STAT. § 60A.08(4) (2009), and 'Onstad v. State
Mutual Life Assurance Co.', 32 N.W.2d 185 (Minn. 1948), Swan
contends the choice-of-law provision contravenes Minnesota
public policy deeming insurance contracts "made" in Minnesota.
Section 60A.08(4) simply provides, as relevant, "All contracts
of insurance on property, lives, or interests in this state,
shall be deemed to be made in this state," and does not, by its
plain terms, prohibit choice-of-law agreements. Further,
'Onstad' did not involve a conflict-of-laws provision, but an
aviation exclusion rider prohibited under then-existing
Minnesota law. 'Onstad', 32 N.W.2d at 186-87. Neither authority
establishes an important public policy flouted by choice-of-law
agreements. Instead, Minnesota courts have a "longstanding
policy of enforcing contractual choice of law provisions."
'Hagstrom v. American Circuit Breaker Corp.', 518 N.W.2d 46, 49
(Minn. Ct. App. 1994); see also 'Medtronic, Inc. v. Advanced
Bionics Corp.', 630 N.W.2d 438, 454 (Minn. Ct. App. 2001).
¶9 While we recognize Minnesota courts will ordinarily give
effect to the parties' agreement, we have not addressed any
alleged substantive conflicts between Georgia and Minnesota law
that might lead a Minnesota court to apply the law of its own
forum for public policy reasons. This omission falls squarely on
Swan, whose brief contains only the most cursory analysis of the
purported conflicts. Swan's brief-in-chief cites only two
Georgia authorities. Swan does not explain what these two
authorities say, nor analyze how they conflict with Minnesota
law, preferring instead to simply note each "does not appear" to
adequately protect Minnesota insureds. These conclusory
arguments do not merit our attention. See 'M.C.I., Inc. v.
Elbin', 146 Wis. 2d 239, 244-45, 430 N.W.2d366 (Ct. App. 1988)
(we need not consider undeveloped arguments). We therefore
conclude Georgia law governs resolution of this insurance
dispute.[footnote omitted]
¶10 While we affirm the circuit court on the choice-of-law
issue, we disagree with its decision to treat Swan's failure to
brief coverage under Georgia law as a concession. The court's
request for supplemental briefing permitted Swan to address two
issues: (1) which law, other than Wisconsin's, applied to the
coverage dispute; and (2) "whether [American Safety] has a duty
to defend and indemnify the insureds if Wisconsin law does not
apply." Swan submitted a brief arguing for application of
Minnesota law, which purportedly requires coverage. While it was
perhaps strategically unwise not to address coverage under
Georgia law, Swan's interpretation of the court's request was
reasonable. We therefore remand for further proceedings
consistent with this opinion, including a determination of
coverage under Georgia law.
