Opinion
Case No. 96-1955.
Opinion Released: March 4, 1997. Opinion Filed: March 4, 1997. This opinion will not be published. See RULE 809.23(1)(b)5, STATS.
APPEAL from a judgment of the circuit court for Pierce County: ROBERT W. WING, Judge. Affirmed.
Before Cane, P.J., LaRocque and Myse, JJ.
Mark Donkersgoed appeals a summary judgment that dismissed his underinsured motorist lawsuit against his own liability insurer, Economy Preferred Insurance Company. The Economy policy supplied underinsured motorist coverage for an accident with another motor vehicle with liability coverage less than the liability coverage limits provided by the Economy policy itself. Donkersgoed had an accident with a vehicle having the same liability limits as the Economy policy, not lower liability limits.
On appeal, Donkersgoed argues that his underinsured motorist coverage is invalid for deviating from the rational expectations of a reasonable insured. He also argues that the trial court should have stacked the liability limits of the two policies he had from Economy Preferred insuring his two motor vehicles. The trial court correctly granted summary judgment if Economy showed no dispute of material fact and a right to judgment as a matter of law. Powalka v. State Mut. Life Assur. Co. , 53 Wis.2d 513, 518, 192 N.W.2d 852, 854 (1972). Donkersgoed acknowledges that both his arguments contradict prior appellate court decisions on the same issues. He asks us not to apply those decisions or, alternatively, to certify the issues to the Wisconsin Supreme Court. We reject Donkersgoed's arguments and therefore affirm the summary judgment.
First, the Wisconsin Supreme Court has held that an identical underinsured coverage provision furnished no coverage. Smith v. Atlantic Mut. Ins. Co. , 155 Wis.2d 808, 811, 456 N.W.2d 597, 599 (1990). This decision binds this court, State v. Dowe , 197 Wis.2d 848, 854, 541 N.W.2d 218, 220-21 (Ct.App. 1995), and modification of the Smith decision must come from the Wisconsin Supreme Court. Second, we have already held that underinsured claimants may not stack the liability limits of two policies for two cars. Krech v. Hanson , 174 Wis.2d 170 [ 164 Wis.2d 170], 172-73, 473 N.W.2d 600, 601-02 (Ct.App. 1991). As a published court of appeals decision, Krech has statewide precedential effect, see § 752.41(2), Stats., an is generally binding on future court of appeals cases. See State v. Solles , 169 Wis.2d 566, 570, 485 N.W.2d 457, 459 (Ct.App. 1992). We see no reason to depart from it here.
By the Court. — Judgment affirmed.