Stipulated Settlement Reserving Coverage Issue Was Final for Appellate Jurisdiction
The plaintiffs sued the defendants for injuries sustained in an auto accident. The defendant driver, Kuester, did not have insurance, but an insurer, Tokio Marine, insured the leasing company of Kuester’s vehicle. Tokio Marine moved for summary judgment, arguing that it did not provide any coverage for the plaintiffs’ claimed damages. The plaintiffs also moved for summary judgment, arguing that Tokio Marine provided coverage for their injuries and that the policy limit available to them was $5 million. The circuit court held that Tokio Marine provided coverage for the plaintiffs’ injures but that the policy limit was $50,000 per occurrence. The parties then stipulated that Tokio Marine could be dismissed from the case upon payment of $50,000 to the court, conditional upon resolution of an appeal of the coverage issue. The stipulation also specified that, if the court of appeals found coverage of greater than $50,000 per occurrence, Tokio Marine could contest the amount of negligence attributable to Kuester and the amount of damages sustained by the plaintiffs. In the event the court of appeals found coverage of $50,000 or less, or no coverage, Tokio Marine would be dismissed.
The court of appeals accepted the appeal, then asked the parties to brief whether it had jurisdiction to resolve the appeal. The court was concerned that the conditional settlement waived the right of Tokio Marine to appeal, and that the order was not a final order from which an appeal could be made but was rather an interlocutory order. The court of appeals affirmed jurisdiction, holding that where an insurer stipulates as to liability and damages if coverage is found to be at one amount, or a lesser amount, and pays that amount to the court in return for an order for dismissal conditional upon appeal of the coverage issue, the court of appeals has jurisdiction to consider the coverage issue. The court of appeals noted that all issues, including liability, had been stipulated to by the parties after the circuit court found coverage at $50,000, so there were no additional issues to be tried if the court of appeals found in Tokio Marine’s favor.
Brown v. Tokio Marine & Nichido Fire Insurance Co., Ltd., 2011 WI App 120 (2011AP454) Court of Appeals opinion
