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Mark Broderick v. Dairyland Insurance Company and Jonathan Schrack

February 16, 2012

MARK BRODERICK, APPELLANT (PLAINTIFF),
v.
DAIRYLAND INSURANCE COMPANY AND JONATHAN SCHRACK, APPELLEES (DEFENDANTS).



Appeal from the District Court of Natrona County The Honorable Catherine E. Wilking, Judge S-11-0096

The opinion of the court was delivered by: Voigt, Justice.

Before KITE, C.J., and GOLDEN, HILL, VOIGT, and BURKE, JJ.

NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be made before final publication in the permanent volume.

[¶1] The appellant was physically injured as a result of an accident caused by an underinsured motorist. Prior to the accident, the appellant purchased a Dairyland Insurance Company (Dairyland) policy through his insurance agent, Jonathan Schrack (Schrack). Although the appellant requested "full coverage," the policy did not include underinsured motorist coverage. When the other driver's insurance did not fully cover the appellant's damages, the appellant sued Dairyland and Schrack, raising numerous theories as to why he should recover under the Dairyland policy. The district court granted Dairyland's and Schrack's motions for summary judgment. We affirm.

ISSUES

[¶2] Did the district court properly grant summary judgment in favor of Dairyland and Schrack?

FACTS

[¶3] In May 2008, the appellant and his wife met with Schrack to purchase insurance for the appellant's motorcycle. Schrack served as an agent for Dairyland and other insurers. The appellant purchased a Dairyland policy that included liability coverage and uninsured motorist coverage, both with limits of $100,000 per person, and $300,000 per accident, but did not include underinsured motorist coverage. The policy defines an uninsured motor vehicle as follows:

An uninsured motor vehicle is a motor vehicle for which there is no bodily injury policy or liability bond available at the time of the motor vehicle accident with at least the minimum limits required by the financial responsibility law of the state in which your motorcycle is principally garaged.

An uninsured motor vehicle also includes a motor vehicle which has insurance available at the time of the motor vehicle accident but the company writing it becomes insolvent or denies coverage.

An uninsured motor vehicle is a hit-and-run motor vehicle that strikes you, or a motor vehicle you are occupying, if neither the driver nor the owner can be identified.*fn1

Neither the Supplemental Declarations Page of the appellant's policy nor the body of the policy itself made any mention of underinsured motorist coverage. All parties acknowledge that neither the appellant nor his wife read the policy.

[¶4] On July 11, 2008, the appellant was riding his motorcycle when another motorist ran a stop sign and collided with him, causing the appellant serious injury. At the time of the accident the other motorist had the minimum bodily injury insurance required under Wyoming law ($25,000 per person, $50,000 per accident). See Wyo. Stat. Ann. § 31-9-405(b)(ii) (LexisNexis 2011). With Dairyland's consent, the appellant settled with the other motorist's insurer for $25,000. The appellant's medical bills and lost wages exceeded that amount, however, and the following year he sought $75,000 from Dairyland, which amount represented his Dairyland policy limit less the amount received from the other motorist's insurer.

[¶5] After investigating the matter, Dairyland filed a declaratory judgment action in federal district court seeking a determination that it was not required to pay the appellant under the terms of the policy. The action in state district court commenced following the federal court's dismissal of Dairyland's lawsuit. Subsequently, Dairyland and Schrack filed separate motions for summary judgment. Following a hearing on the motions, the district court granted Dairyland's motion, finding that the uninsured motorist statutes, Wyo. Stat. Ann. §§ 31-10-101 and 31-10-102 (LexisNexis 2011), are not ambiguous and do not require underinsured motorist coverage, that the policy sold to the appellant was not ambiguous and did not include underinsured motorist coverage, that reformation of the contract was not appropriate because there was no mutual mistake, that application of the promissory estoppel doctrine was not appropriate because there was no evidence to establish the "existence of a clear and definite promise between Dairyland and the [appellant]" or reasonable reliance on the part of the appellant, and that the doctrine of reasonable expectations was inapplicable because the policy was unambiguous in not including underinsured motorist coverage. The district court also granted Schrack's motion, finding that the appellant did not have a viable claim under the Wyoming Consumer Protection Act because of the failure to give statutory notice to Schrack, that promissory estoppel could not be applied because there can be no reasonable expectation of coverage where the appellant did not read the contract, and that the appellant could not rely upon the appellant's apparent authority to bind Dairyland where the policy clearly provided to the contrary. This appeal followed.

STANDARD OF REVIEW

[¶6] The standard of summary judgment review is well established by this Court.

Summary judgment is appropriate when no genuine issue as to any material fact exists and the prevailing party is entitled to have a judgment as a matter of law. Eklund v. PRI Environmental, Inc., 2001 WY 55, ¶ 10, 25 P.3d 511, [514-15] (Wyo. 2001); see also W.R.C.P. 56(c). A genuine issue of material fact exists when a disputed fact, if it were proven, would have the effect of establishing or refuting an essential element of the cause of action or defense that has been asserted by the parties. Williams Gas Processing-Wamsutter Co. v. Union Pacific Resources Co., 2001 WY 57, ¶ 11, 25 P.3d 1064, [1071] (Wyo. 2001). We examine the record from the vantage point most favorable to the party who opposed the motion, and we give that party the benefit of all favorable inferences that may fairly be drawn from the record. Id. We evaluate the propriety of a summary judgment by employing the same standards and by using the same ...


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