Opinion · Court of Appeals of Wisconsin

Sukala v. Heritage Mutual Insurance

Sukala v. Heritage Mut. Ins., 275 Wis. 2d 469 (Wis. Ct. App. 2004)

Type
Opinion
Court
Court of Appeals of Wisconsin
Jurisdiction
Wisconsin
Date
2004-06-17
Topic
general

DYKMAN, J. ¶ 1. Dawn and John Sukala (the Sukalas) appeal from an order denying them relief under Wis. Stat. § 806.07(l)(h) (2001-02).1 They assert that the trial court erroneously exercised its discretion when it found that a change in case law did not justify opening the judgment. We agree and reverse. FACTS ¶ 2.

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SUKALA v. HERITAGE MUT. INS. CO.,2004 WI App 128
275 Wis.2d 469,685 N.W.2d 809
Dawn SUKALA and John Sukala, Plaintiffs-Appellants, v. HERITAGE MUTUAL
INSURANCE COMPANY and Western National Mutual Insurance Company,
Defendants-Respondents.fn†
Court of Appeals of Wisconsin.
No. 03-0173.
Oral argument January 9, 2004.
Decided June 17, 2004.
Page 470

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]Page 471
Appeal from an order of the circuit court for Wood County: FREDERIC FLEISHAURER, Judge.Reversed.
On behalf of the plaintiffs-appellants, the cause was submitted on the briefs ofD. James WeisofHabushPage 472Habush Rottier, S.C., Rhinelander, andVirginia M. AntoineofHabush Habush Rottier, S.C., Milwaukee. There was oral argument byD. James Weis.

On behalf of the defendant-respondent, Heritage Mutual Insurance Company, the cause was submitted on the brief ofMarkA. KlinnerandMichael J. RomanofZalewski, KlinnerKramer, LLP, Wausau. There was oral argument byMichael J.Roman.

On behalf of the defendant-respondent, Western National Mutual Insurance Company, the cause was submitted on the brief ofNadine I. DavyofAnderson, O'Brien, Bertz, Skrenes Golla, Stevens Point. There was oral argument byNadine I. Davy.
Before Deininger, P.J., Dykman and Higginbotham, JJ.
¶ 1. DYKMAN, J.
Dawn and John Sukala (the Sukalas) appeal from an order denying them relief under WIS. STAT. §806.07(1)(h) (2001-02).1They assert that the trial court erroneously exercised its discretion when it found that a change in case law did not justify opening the judgment. We agree and reverse.
FACTS
¶ 2. Because our review is limited to the trial court's denial of relief under WIS. STAT. §806.07(1)(h), we need not consider the merits of the underlying insurance claims in this case. We set forth only those facts relevant to the §806.07(1)(h) motion, which focuses primarily on the procedural history of this case and supreme court decisions rendered after the trialPage 473court entered judgment. For an explanation of the facts of the underlying insurance claimssee Sukala v. Heritage MutualInsurance Co.,2000 WI App 266,240 Wis. 2d 65,622 N.W.2d 457(Sukala I).

¶ 3. The Sukalas sued respondents to recover under automobile insurance policies with underinsured motorist (UIM) coverage. The UIM coverage contained reducing clauses. On April 14, 1999, the trial court entered an order and judgment in favor of the insurers. The Sukalas appealed, raising two issues: (1) whether Heritage Mutual Insurance Company (Heritage) complied with the notification requirements in WIS. STAT. §631.36(5); and (2) whether the statute permitting reducing clauses, WIS. STAT. §632.32(5)(i), was constitutional. After the parties filed their briefs, the supreme court decidedDowhower v. West Bend MutualInsurance Co.,2000 WI 73,236 Wis. 2d 113,613 N.W.2d 557. There, the supreme court held that §632.32(5)(i) was constitutional and that:
an insurer may reduce payments made pursuant to a UIM policy by amounts received from other legally responsible persons or organizations, provided that the policy clearly sets forth that the insured is purchasing a fixed level of UIM recovery that will be arrived at by combining payments made from all sources.
Id., ¶ 33. We allowed the parties inSukala Ito address the issue of policy ambiguity at oral argument. We concluded thatDowhowerdisposed of the Sukalas' constitutionality claims. We held that the policy was unambiguous. Accordingly, we affirmed the trial court's decision. The supreme court denied the Sukalas' petition for review on April 5, 2001.

¶ 4. While we were consideringSukala I, Badger MutualInsurance Co. v. Schmitzwas also being litigated.Page 474Badger Mut. Ins. Co. v. Schmitz,2002 WI 98,255 Wis. 2d 61,647 N.W.2d 223.Schmitzraised the issue of whether a UIM reducing clause was unenforceable because it rendered UIM coverage ambiguous or illusory. The trial court held that the reducing clauses were unenforceable because the policy language did not clearly set forth the insurer's right to reduce liability. On appeal, we relied on our decision inSukala Iand held that the policy was enforceable because the reducing clause was unambiguous. Accordingly, we reversed the trial court's order.

¶ 5. The supreme court granted a petition for review inSchmitzon October 23, 2001. It reversed on July 10, 2002, concluding that a reviewing court must examine "an unambiguous reducing clause in the context of the entire policy to determine whether the coverage provided is understandable and clear. If the coverage provided is misleading and unclear, the policy is ambiguous, or worse, and the clause reducing UIM coverage is not enforceable."Schmitz,255 Wis. 2d 61, ¶ 49. In reaching this conclusion, the supreme court addressedSukala I, where we concluded:
[T]hat underDowhowerand the declared public policy of the legislature in WIS. STAT. §632.32(5)(i), UIM reducing clauses complying with §632.32(5)(i) cannot render UIM coverage "illusory." Once we have concluded that the UIM provisions of a policy are unambiguous, as we have here, then our inquiry is at an end.
Sukala I,240 Wis. 2d 65, ¶ 20. The supreme court considered this reasoning ambiguous because
theSukalacourt shifted terms, moving from the reducing clause to "the UIM provisions" of the policy, although the two could easily be read as one and the same. A policy in which all "the UIM provisions" arePage 475unambiguous is different from a policy in which only the reducing clause is unambiguous. In any event, the concluding sentence implies that once the reducing clause is found to be unambiguous, the inquiry is at an end. That is incorrect becauseDowhowercontemplates consideration of the entire policy.
Schmitz,255 Wis. 2d 61, ¶ 42 (citations omitted).

¶ 6. In this case,Sukala II, the trial court held a hearing concerning the developments in case law since it entered a judgment validating the reducing clauses in the Sukalas' policies. In its oral decision, the court compared the facts here to those inMullen v. Coolong,153 Wis. 2d 401,406,451 N.W.2d 412(1990) (Mullen II) and reasoned that the inequity inMullen IIderived from contrary constructions of the same policy. It also recognized that the Sukalas had signed a release for Western National Mutual Insurance Company (Western) and a stipulated dismissal for Heritage. It noted that seven months passed between the time the supreme court denied review inSukala Iand granted review inSchmitz.Finally, the trial court reasoned that the supreme court would have explicitly overruledSukala Iif its result was incorrect. The court explained,
[I]t becomes very difficult for me to say that the judgment ought to be reopened and find some extraordinary circumstance, other than the fact that there's a new precedent in the Court of Appeals. And I think that for me to reopen simply on the ground that there's a new precedent . . . or new language interpreting the precedent is inappropriate.


The trial court concluded that no extraordinary circumstances justified relief and denied the Sukalas' WIS. STAT. §806.07(1)(h) motion. The Sukalas appeal.Page 476
STANDARD OF REVIEW
¶ 7. Whether to grant relief from a judgment under WIS. STAT. §806.07(1)(h) lies within the discretion of the trial court.Mullen,153 Wis. 2d at 406. We will reverse only if the trial court erroneously exercised its discretion.Id."The term `discretion' contemplates a process of reasoning which depends on facts that are in the record or reasonably derived by inference from the record and yields a conclusion based on logic and founded on proper legal standards."Id.A trial court erroneously exercises its discretion when it bases a decision on an error of law.State v. Brunton,203 Wis. 2d 195,202,552 N.W.2d 452(Ct.App. 1996).
DISCUSSION
¶ 8. WISCONSIN STAT. §806.07authorizes the court to relieve a party from a judgment, order, or stipulation in certain circumstances. Paragraph 806.07(1)(h) is a catch-all provision that permits relief for any "reasons justifying relief from the operation of the judgment." It "gives the trial court broad discretionary authority and invokes the pure equity power of the court."Mullen II,153 Wis. 2d at 407. Courts construe this statute "to achieve a balance between the competing values of finality and fairness in the resolution of disputes."Id.

¶ 9. "There is no simple rule to guide the court in deciding whether or not to sunburst or how to sunburst a decision."2Harmann v. Hadley,128 Wis. 2d 371,379,Page 477382 N.W.2d 673(1986). To start, we turn toMullen IIfor some guidance on when relief under WIS. STAT. §806.07(1)(h) is appropriate. InMullen II, the supreme court denied Mullen's petition for review and then "accepted certification of [Nicholson v. Home Ins. Co.] which posed the identical question of law raised by Mullen in her petition for review."Mullin IIat 404. InNicholson, the court specifically overruledMullenI. Id.Mullen, apparently unaware thatNicholsonwas pending, settled her claim and stipulated to dismissing the action.Id.AfterNicholsonwas released, Mullen moved for relief from the stipulated dismissal order and reentry of judgment pursuant to §806.07.Id.The supreme court affirmed the trial court's decision to grant relief because Mullen was "a victim of circumstance."Id.at 408. It reasoned that it "reached the precise result [inNicholsonthat] Mullen advocated in her petition for review inMullen I."Id.It concluded that "[u]nder these unique facts, the result reached by the trial court [was] not an abuse of discretion."Id.

¶ 10. Since then, the court has clarified its ruling inMullenII:
[T]his courtdid notpromulgate a two-part test under which a plaintiff must show that this court denied review of an issue at the same time an identical issue was before this court in another case.Mullen IImerely set forth one example of an appropriate exercise of discretion and did not, in any way, limit the circuit court's authority to grant relief pursuant to sec.806.07, Stats.
Page 478Schwochert v. American Family Mut. Ins. Co.,172 Wis. 2d 628,634,494 N.W.2d 201(1993) (citations omitted).

¶ 11. The respondents correctly assert that the facts of this case are not the same as those inMullen II.They distinguishMullen IIbecause the petitions for review inMullen IandNicholsonwere contemporaneously pending before the supreme court and posed identical issues. They note that seven months passed between the supreme court's denial of the Sukalas' petition for review and the time it granted review inSchmitz.They argue thatSchmitzdid not present the same arguments asSukala I.They also contend that the Sukalas knew thatSchmitzwas pending before the supreme court when they executed their releases. The respondents urge us to consider the fact of this case to be more analogous toSchwochert v. American FamilyMutual Insurance Co.,166 Wis. 2d 97,479 N.W.2d 190(Ct.App. 1991),aff'd,172 Wis. 2d 628,494 N.W.2d 201(1993), andBrown v. Mosser Lee Co.,164 Wis. 2d 612,476 N.W.2d 294(Ct. App. 1991), where we denied relief under WIS. STAT. §806.07(1)(h).

¶ 12. While the facts here are not exactly the same as those inMullen II, the supreme court has clarified that such similitude is not necessary for relief to be warranted under WIS. STAT. §806.07(1)(h).Schwochert,172 Wis. 2d at 634. Like Mullen, the Sukalas were victims of circumstance. The inequity that occurred inMullen IIoccurred here: The supreme court granted review inSchmitzseven months after denying review of the same issue inSukala I.Such a time frame is close enough to the scenario inMullen II.Moreover, the supreme court overruledSukala IinSchmitz, albeit implicitly.See Dowhower v. Marquez,2004 WI App 3, ¶20,268 Wis. 2d 823,674 N.W.2d 906Page 479(Sukala Ioverruled bySchmitz). Regardless, relief under §806.07(1)(h) is not contingent on the supreme court overruling the case in which movant's judgment was rendered. The crux of our inquiry is whether fairness mandates opening the judgment, despite the compelling justifications for protecting the finality of the judgment. Those facts are present here, and bring the Sukalas within theMullen IIexception to the finality of judgments. Accordingly, we conclude that the trial court erroneously exercised its discretion by denying the Sukalas' motion.

¶ 13. Finally, Western contends that WIS. STAT. §806.07(1)(h) does not authorize opening the release the Sukalas executed regarding their claims against them. It asserts that §806.07(1) permits a court to relieve a party from a "judgment, order or stipulation," but not from a release of claims. It argues that a release is an enforceable contract between the parties, citingContinental Casualty Co. v. Wisconsin Patients CompensationFund,164 Wis. 2d 110,117,473 N.W.2d 584(Ct.App. 1991). It also argues that the Sukalas must return the consideration, $75,999.82, that Western paid to them before the agreement would be voided. The Sukalas assert that Western waived this issue by not raising it in the trial court.

¶ 14. After reviewing the transcript of the trial court hearing, we conclude that Western has not waived its argument that WIS. STAT. §806.07(1)(h) does not provide for relief from a release. However, we are not persuaded by this argument. We treat releases and stipulations as contracts and construe them to give effect to the parties' intentions.Compare Gielow v.Napiorkowski,2003 WI App 249,268 Wis. 2d 673,673 N.W.2d 351,review denied,2004 WI 20,269 Wis. 2d 200,Page 480675 N.W.2d 806(Wis. Feb. 24, 2004) (No. 03-0050)with State v.Peppertree Resort Villas, Inc.,2002 WI App 207, ¶13,257 Wis. 2d 421,651 N.W.2d 345. Section806.07(1) authorizes the court to relieve a party "from a judgment, order or stipulation." We can ascertain no valid justification for protecting a release from being opened while stipulations are subject to equitable relief. Both methods are commonly used to terminate litigation. Therefore, for the purposes of a motion under §806.07(1), we consider a release and a stipulation to dismiss a claim one and the same. We need not consider the effect of the nearly $76,000 Western has paid the Mullins until they recover less than that amount from Western.By the Court.— Order reversed.
¶ 15. DEININGER, P.J. (dissenting).
I cannot join the majority's reasoning or result. I believe the majority pays only lip service to the standard for our review of the trial court's exercise of discretion and, instead, exercises its own in directing that the Sukalas' WIS. STAT. §806.07(2001-02)1motion be granted. In addition, the majority misapplies the supreme court's holdings inMullen v. Coolong,153 Wis. 2d 401,451 N.W.2d 412(1990) (Mullen II), andSchwochert v. American Family Mutual Insurance Co.,172 Wis. 2d 628,494 N.W.2d 201(1993), and it overstates the impact ofBadger Mutual Insurance Co. v. Schmitz,2002 WI 98,255 Wis. 2d 61,647 N.W.2d 223, on our decision inSukala v. Heritage MutualInsurance Co.,2000 WI App 266,240 Wis. 2d 65,622 N.W.2d 457(Sukala I). Finally, the majority's disposition of this appeal seriously underminesPage 481the finality of judgments in Wisconsin courts because losing parties will now arguably have grounds to seek relief from final judgments whenever a subsequent appellate decision casts doubt on a prior outcome.

¶ 16. The majority relies heavily onMullen IIin support of the result it reaches. The supreme court explained inMullen IIthat the standard for appellate review of a trial court's order granting or denying relief from a judgment under WIS. STAT. §806.07is as follows:
An order granting a motion for relief under sec.806.07, STATS., will not be reversed unless there has been a clear abuse of discretion.Shuput v. Lauer,109 Wis. 2d 164,177,325 N.W.2d 321(1982). The term "discretion" contemplates a process of reasoning which depends on facts that are in the record or reasonably derived by inference from the record and yields a conclusion based on logic and founded on proper legal standards.Id.at 177-78.
Mullen II,153 Wis. 2d at 406. The majority does not tell us in what manner the trial court's discretionary decision to deny the Sukalas relief was deficient. That is, the majority identifies no error of law or fact in the trial court's ruling, and neither does it assert that the trial court failed to employ a logical reasoning process in reaching its decision.

¶ 17. The majority is not alone in this. I, too, cannot find fault with the trial court's reasoning. The court applied the proper legal standard. It stated that it had readMullen IIand concluded that it must determine "if there was an injustice done" to the Sukalas arising from the supreme court's denial of their petition for review and subsequent issuance of its decision inSchmitz. See id.at 407 (noting that relief under WIS. STAT. §806.07(1)(h) is warranted "`whenever such actionPage 482is appropriate to accomplish justice'" (citation omitted)). At another point in its oral ruling, the court referred to the need for there to be "unique and extraordinary" circumstances in order to justify granting relief under §806.07(1)(h). This is also a correct statement of applicable law.See Brown v. Mosser LeeCo.,164 Wis. 2d 612,616,618-19,476 N.W.2d 294(Ct.App. 1991). Finally, the trial court also expressed its awareness that it was required to balance any unfairness toward the Sukalas against the competing value of "finality . . . in the resolution of disputes."Mullen II,153 Wis. 2d at 407;Brown,164 Wis. 2d at 616.

¶ 18. The trial court also considered the relevant facts in this case. The court took note of the fact that the Sukalas' litigation with the two UIM insurers had ended with the supreme court's denial of their petition for review some seven monthsbeforethe court granted review inSchmitz.The trial court concluded, in my estimation, correctly, that this fact removed the present case from the type of "unique and extraordinary" circumstances that existed inMullen II.The trial court further observed, also correctly, as I discuss further below, that unlike what had occurred inMullen II, the supreme court inSchmitzneither expressly overruledSukala Inor suggested thatSukala Ihad been incorrectly decided.

¶ 19. Finally, the trial court, in synthesizing the applicable legal standard with the facts before it, employed a logical reasoning process to reach a readily affirmable conclusion, which the court summarized as follows:
I just can't imagine that if [the supreme court] actually felt that that decision [Sukala I] was erroneous when they were doing [Schmitz], that they wouldn't havePage 483done more than say that one sentence of the language used inSukalawas incorrect; and it's that absence of their reference to this as something extraordinary in error that tells me they didn't believe that it was; and without them making a finding that specifically overruled that case or specifically stated the decision in this case was in error in light of the subsequent decision, it becomes very difficult for me to say that the judgment ought to be reopened and find some extraordinary circumstance, other than the fact that there's a new precedent. . . .


¶ 20. In place of any legitimate criticism of the trial court's exercise of discretion, the majority simply substitutes its own assessment of the present facts, finding them "close enough to the scenario inMullen II" to justify granting the Sukalas relief from the final judgment. Majority at ¶ 12. The majority virtually acknowledges that it has independently weighed the competing values at stake in this case when it explains that the "crux ofour inquiryis whether fairness mandates opening the judgment."Id.(emphasis added). But, of course, that is not what appellate judges are supposed to do when reviewing a trial court's discretionary ruling:
Motions under §806.07STATS., are reviewed for erroneous exercise of discretion.Nelson v. Taff,175 Wis. 2d 178,187,499 N.W.2d 685,689(Ct.App. 1993). Therefore, we are not deciding whether we would have granted Kovalic's motion, but whether the trial court's decision was within the wide band of decisions that a reasonable trial court could have made.
The limited scope of our review of discretionary rulings is well settled. Generally, "[w]e will not reverse a discretionary determination by the trial court if the record shows that discretion was in fact exercised andPage 484we can perceive a reasonable basis for the court's decision."Prahl v. Brosamle,142 Wis. 2d 658,667,420 N.W.2d 372,376(Ct.App. 1987). Indeed, "[b]ecause the exercise of discretion is so essential to the trial court's functioning, we generally look for reasons to sustain discretionary determinations."Schneller v. St. Mary's Hosp.,155 Wis. 2d 365,374,455 N.W.2d 250,254(Ct.App. 1990),aff'd,162 Wis. 2d 296,470 N.W.2d 873(1991).
Kovalic v. DEC Int'l,186 Wis. 2d 162,166,519 N.W.2d 351(Ct. App. 1994).2

¶ 21. In addition to failing to employ the proper standard of review, the majority misstates the facts ofMullen IIand misapplies its holding. The majority asserts that inMullen II, "the supreme court denied Mullen's petition for review and then `accepted certification of [Nicholson].'" Majority at ¶ 9. That sequence of events would concededly bring theMullen IIfacts closer to those in this case, but that is not what happened inMullen II.Rather, as the supreme court explained, it had "already accepted certification of a case [Nicholson] which posed the identical question of law raised by Mullen in her petition for review" some nine monthsbeforedenying Mullen's petition.Mullen II,153 Wis. 2d at 404. It is that sequence of events thatPage 485the supreme court inMullen IIdeemed the "determinative fact in this case," i.e., "we denied a petition for review inMullenIat the very same time when the same issue was before us inNicholson."Id.at 408.

¶ 22. The majority citesSchwochertfor the proposition that the supreme court's denial of review of an issue, when the identical issue is pending before it in another case, is not a prerequisite for relief under WIS. STAT. §806.07(1)(h). Majority at ¶¶ 10, 12 (citingSchwochert,172 Wis. 2d at 634). I agree that other "unique and extraordinary" facts may permit a trial court to properly grant relief under §806.07(1)(h), but further development of the law after a given case is concluded is, if anything, a frequent and routine occurrence.See Brown,164 Wis. 2d at 623(noting that it is "neither unique nor extraordinary" for a case to be decided "based on precedent that is later overruled," which "has never been considered grounds for reopening preexisting judgments").

¶ 23. Moreover, the trial court in this case, unlike the trial court inSchwochert, did not labor under the misimpression that only facts identical to those inMullen IIcould be the basis for relief.See Schwochert,172 Wis. 2d at 633. Rather, the trial court here concluded that, because the Sukalas' litigation had ended several months before the supreme court even chose to grant review inSchmitz, and becauseSchmitzmerely criticized certain language inSukala Ibut neither overruled it nor disputed the correctness of its outcome, the present facts were simply too far removed from those inMullen IIto be deemed a unique and extraordinary circumstance that would outweigh the value in the finality of the present judgment.Page 486

¶ 24. Although it relies on the unremarkable explanation inSchwochertthat relief under WIS. STAT. §806.07(1)(h) is not conditioned on presenting facts identical to those inMullenII, the majority neglects to relate that the supreme court inSchwochertactually upheld the trial court's denial of relief, notwithstanding the trial court's misconception of the applicable law. The court explained that although it had subsequently withdrawn "dictum" contained in its earlierSchwochertdecision, it had not overruled the earlier decision, a contention it concluded was "an essential component" of the Schwocherts' claim for relief.Schwochert,172 Wis. 2d at 634.3As the trial court here correctly concluded, the Sukalas' claim suffers from a similar infirmity.Page 487

¶ 25. The majority maintains that the supreme court "implicitly" overruledSukala IinSchmitz, citing in support our opinion inDowhower v. Marquez,2004 WI App 3, ¶20,268 Wis. 2d 823,674 N.W.2d 906. Majority at ¶ 12. The citation toDowhoweris somewhat disingenuous, however, in that we neither expressly concluded inDowhowerthatSukala Ihad been overruled, nor did we provide any basis for so concluding. In fact, we relied onSukala IinDowhowerfor the proposition that "[a] declarations page is intended to provide a summary of coverage and cannot provide a complete picture of coverage under a policy," while noting in our citation toSukala I, in an appositive providing subsequent case history,"overruled onother grounds by Schmitz." Dowhower,268 Wis. 2d 823, ¶ 20. With all due respect to the current majority and that inDowhower, I do not feel bound by the cited appositive and find the trial court's analysis of what the supreme court did inSchmitzwith respect toSukala Imuch closer to the mark.

¶ 26. To be sure, in the passage fromSchmitzquoted by the majority at ¶ 5, the supreme court criticized a sentence in our opinion inSukala Ias being "ambiguous and misleading."Schmitz,255 Wis. 2d 61, ¶ 42. It did so, however, only after "[i]n essence" agreeing with our earlier analysis inSukala I.Id.Nowhere inSchmitzdid the supreme court suggest that, beyond our unfortunate "shift [in] terms" in the last sentence of paragraph 20 inSukala I, we had improperly analyzedPage 488the policies at issue or reached an erroneous result.4Quite simply, the supreme court hasnotoverruledSukala I, either inSchmitzor since, and we have no power to do so. "`Only the supreme court, the highest court in the state, has the power to overrule, modify or withdraw language from a published opinion of the court of appeals.'"Sukala I,240 Wis. 2d 65, ¶ 20 (citingCook v. Cook,208 Wis. 2d 166,189-90,560 N.W.2d 246(1997)).

¶ 27. The contrast between the supreme court's subsequent action on "the identical issue" litigated inMullen I, and what the supreme court said inSchmitzaboutSukala I, was a major consideration in the trial court's decision to deny the Sukalas' motion for relief. The result inMullen Iwould clearly have been different had the supreme court granted review and decided that case together withNicholson. See Mullen II,153 Wis. 2d at 408("[W]e reached [inNicholson] the precise result Mullen advocated in her petition for review inMullen I."). The same cannot be said in this case: Had the supreme court granted review ofSukala I, and decided it together with or afterSchmitz, the result might have changed, but it also might not have (see footnote 4). Thus, the present facts are for a second reason veryPage 489different from the circumstances present inMullen II, and they are much closer to those inSchwochert,172 Wis. 2d at 636-37(affirming denial of motion for relief where prior appellate decision had not been overruled) andKovalic,186 Wis. 2d at 164-67(same, rejecting notion "that if the law changes, all cases decided under the prior law may be relitigated" because "such a rule would destroy the finality of many judgments").

¶ 28. I do not doubt that the supreme court's call inSchmitzfor "crystal clarity" in insurance policies containing UIM reducing clauses would have strengthened the Sukalas' arguments for invalidating the reducing clauses in these two policies on ambiguity grounds.See Schmitz,255 Wis. 2d 61, ¶ 46. But this fact alone not only fails to justify reopening the final judgment in this case, it also demonstrates the slipperiness of the slope on which the majority's disposition places us. Suppose, for example, that the Sukalas had obtained the relief the majority grants them because ofSchmitz, and that they then prevailed in obtaining a judgment in their favor because the reducing clauses at issue here failed theSchmitz"crystal clear" test. Suppose further that the supreme court denied the present insurers' petitions for review before it accepted review of our decision inFolkman v. Quamme,2002 WI App 237,257 Wis. 2d 864,652 N.W.2d 406, (Folkman I),rev'd,2003 WI 116,264 Wis. 2d 617,665 N.W.2d 857(Folkman II). Under the majority's rationale, would a court not be obliged to grant the insurers relief from the final judgment adverse to them after the supreme court issued its decision inFolkman II, in which the court explained that its "crystal clear" language inSchmitzhad had the unintended effect of "alter[ing] the analytical focus" of lower court decisions, clarifying thatSchmitzdid "not demand perfection in policy draftsmanship"?Page 490Folkman II,264 Wis. 2d 617, ¶¶ 30-31. In other words, will this case ever end, regardless of the number of final judgments that are entered or opportunities for appellate review that are exhausted, so long as the law regarding UIM clauses continues to evolve?

¶ 29. The foregoing hypothetical is not as farfetched as it might first appear. We recently concluded inGohde v. MSIInsurance Co.,2004 WI App 69, ¶¶1, 4-7,272 Wis. 2d 313,679 N.W.2d 835, that a policy containing a UIM reducing clause was not ambiguous based onFolkman II, having previously concluded it was ambiguous underSchmitz, after still earlier concluding it was valid underSukala I.InGohde, however, unlike here, our two earlier conclusions never terminated the litigation because the supreme court twice granted review and remanded to us for further consideration in light of firstSchmitzand thenFolkman II. Id.Under the majority's disposition, the Sukalas and their UIM insurers will now also have the policies at issue examined underSchmitzandFolkman II, notwithstanding the fact that the circuit court judgment in this case was entered on April 14, 1999, and became final on April 5, 2001, when the supreme court denied the Sukalas' petition for review.

¶ 30. This litigation was thus concluded more than three months before this court decidedSchmitzin July 2001, and almost seven months before the supreme court agreed to review ourSchmitzdecision on October 23, 2001. It is now 2004, and unless the supreme court accepts review and reverses the majority's disposition, the parties will go back to the circuit court to argue whether that court's 1999 judgment in favor of the insurers was correct in light of a series of appellate decisions issued years after appellate review of the 1999 judgment had concluded. Not onlyPage 491will the parties be required to argue, and the circuit court to consider, the effect of the 2002Schmitzdecision and its 2003 clarification inFolkman II, but also the possible effect of several published appellate decisions that have followed (and more that may yet follow).See, e.g., Gohde,2004 WI App 69,272 Wis. 2d 313,679 N.W.2d 835;Van Erden v. Sobczak,2004 WI App 40, ¶¶21-32,271 Wis. 2d 163,677 N.W.2d 718(Van ErdenII) (concluding that a policy with a reducing clause was not ambiguous underFolkman II, having previously reached the same result underSchmitz);Dowhower,268 Wis. 2d 823, ¶¶ 1-3, 19-29 (concluding that a policy was ambiguous regarding UIM coverage reductions underFolkman II, just as the court had earlier concluded underSchmitz).

¶ 31. As the varying outcomes inGohde, Van Erden IIandDowhowerdemonstrate, it is far from certain that a different result will be reached in this case now that the present judgment has been set aside because of the supreme court's comments inSchmitzregardingSukala I.As I have explained, that makes this a very different case thanMullen II, even if one could conclude, as the majority does, that the supreme court's denial of a petition for review seven months before accepting a similar case is "close enough" to the simultaneous denial of review while an identical issue is pending to entitle the Sukalas to the same relief as granted to Shirley Mullen.

¶ 32. Regardless of whether this decision is published, as the majority recommends, the result the majority reaches will not go unnoticed by those involved on both sides of the much-litigated issue of reducing clause ambiguity. It will not be surprising, therefore, if numerous motions to reopen are filed, seeking to obtain for a disappointed litigant the perceivedPage 492benefit of newly decided case law. Thus, I believe that many judgments in Wisconsin that were once thought to be final will be much less so after today. For this reason, and because I cannot conclude that the trial court erred in determining that "unique and extraordinary" circumstances are not present that outweigh the value in the finality of judgments, I respectfully dissent.Page 493
  1. Petitions to review granted 9-1-04. ↩
  2. All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted. ↩
  3. "Sunbursting" is the "technique known as prospective overruling . . . to soften or limit the impact of a newly announced rule.State v. Picotte,2003 WI 42,43,261 Wis. 2d 249,661 N.W.2d 381. The term derives fromGreat NorthernRailway Co. v. Sunburst Oil Refining Co.,287 U.S. 358(1932), where the court limited its decision to future conduct. ↩
  4. All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted. ↩
  5. InKovalic v. DEC International,186 Wis. 2d 162,519 N.W.2d 351(Ct.App. 1994), we affirmed the trial court's denial of a motion for relief from judgment. We explained that "[d]espite Kovalic's assertions of extraordinary circumstances, we conclude that Kovalic's motion was nothing more than an attempt to relitigate his previous appeal. Despite his arguments to the contrary, Kovalic has shownat bestthat the law has changed, and that he now wants to take advantage of those changes."Id.at 167. Under the standard of review we espoused inKovalic, and for much the same reason we cited there, I would affirm the denial of the Sukalas' motion. ↩
  6. The supreme court set out the standard for its review in the second paragraph ofSchwochert v. American Family MutualInsurance Co.,172 Wis. 2d 628,494 N.W.2d 201(1993): "`On appeal from an order denying a motion for relief from a judgment, the circuit court's decision will not be reversed unless there has been a clear abuse of discretion.'"Id.at 630 (citation omitted). In each of the precedents under discussion, the end result of appellate action was the affirmance of the trial court's exercise of discretion in granting or denying relief under WIS. STAT. §806.07(1):Schwochert,172 Wis. 2d 628,636-37(affirming trial court's denial of relief);Mullen v.Coolong,153 Wis. 2d 401,411,451 N.W.2d 412(1990) (MullenII) (reversing our reversal of, and thus affirming, the trial court's granting of relief);Kovalic,186 Wis. 2d 162,171(affirming trial court's denial of relief);Brown v. Mosser LeeCo.,164 Wis. 2d 612,623,476 N.W.2d 294(Ct.App. 1991) (same). This does not mean, of course, that trial courts may do anything they please when acting on motions for relief under §806.07, regardless of the law or facts, but it does show that reversals of discretionary decisions are more the exception than the rule, owing in large measure to a very deferential standard of appellate review.See State v. McConnohie,113 Wis. 2d 362,370,334 N.W.2d 903(1983) ("`[T]o be invested with discretion means that the trial judge has what might be termed a limited right to be wrong in the view of the appellate court, without incurring reversal.'" (citation omitted)). ↩
  7. The supreme court's criticism of the language in paragraph 20 ofSukala Iwas that it incorrectly suggested that if a reducing clause itself is unambiguous, no inquiry is required regarding whether ambiguity is created by the "entire policy," taken as a whole.Schmitz,255 Wis. 2d 61, ¶ 42. InSukala I, however, we examined various features of the policies at issue before concluding that both were unambiguous with respect to the reduction of UIM coverage limits for certain payments from other sources.See Sukala v. Heritage Mut. Ins. Co.,2000 WI App 266, ¶¶9-14,240 Wis. 2d 65,622 N.W.2d 457(Sukala I). This perhaps explains why the supreme court inSchmitzcriticized the imprecise language in one sentence of our opinion rather than rejecting our overall analysis or result. ↩