Jessica Mabin v. Talgat Konkargaev

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
March 24, 2022
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2021AP188 Cir. Ct. No. 2018CV2424

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

JESSICA MABIN,

PLAINTIFF-APPELLANT,

V.

ARTISAN AND TRUCKERS CASUALTY COMPANY,

DEFENDANT-RESPONDENT,

TALGAT KONKARGAEV, DUET INSURANCE GROUP AND
NATIONAL LIABILITY & FIRE INSURANCE COMPANY,

DEFENDANTS,

C A S TRANSPORT, INC. AND
NATIONAL CONTINENTAL INSURANCE COMPANY,

DEFENDANTS-THIRD-PARTY PLAINTIFFS,

V.

NOVA LINES, INC. AND
NATIONAL CONTINENTAL INSURANCE COMPANY,

THIRD-PARTY DEFENDANTS.
No. 2021AP188

APPEAL from an order of the circuit court for Dane County:
STEPHEN E. EHLKE, Judge. Affirmed.

Before Blanchard, P.J., Fitzpatrick, and Kloppenburg, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. § 809.23(3).

¶1 PER CURIAM. A semi-trailer truck rear-ended Jessica Mabin’s
car. Mabin filed this personal injury action against the driver of the semi-truck
and its owner. She also sued various insurance companies. This included a claim
against her own insurer, Artisan and Truckers Casualty Company (Artisan), based
on an uninsured motorist (UM) provision in her Artisan auto policy. The circuit
court dismissed Mabin’s UM claim against Artisan, concluding that, under the
circumstances, the policy does not provide UM coverage. On appeal, Mabin
argues that she is entitled to UM coverage because the semi-truck was an
“uninsured vehicle,” as defined in the policy. Based on our conclusions that there
is no ambiguity in the pertinent language of the policy and that the semi-truck is
not an “uninsured vehicle,” we agree with Artisan that Mabin is not entitled to UM
coverage.

¶2 Separately, Mabin appeals circuit court decisions to deny her
motions for leave to amend her complaint to add new claims against Artisan based
on theories of equitable estoppel and bad faith. We reject Mabin’s arguments on
these topics.

¶3 Accordingly, we affirm the challenged decisions of the circuit court
and the dismissal of Mabin’s action against Artisan.

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No. 2021AP188

BACKGROUND

¶4 The semi-truck rear-ended Mabin’s car in September 2015 in Dane
County. Mabin filed this personal injury suit in the circuit court against the truck
driver, who identified himself on the scene as Talgat Konkargaev, and CAS
Transport, Inc. (CAS), the owner of the semi-truck. Mabin also named as
defendants three insurance companies. She sued two of them—National
Continental Insurance Company (National Continental) and National Liability &
Fire Insurance Company (National Liability)—as alleged insurers of CAS or
Konkargaev with potential exposure in this case. Mabin also sued Artisan, as
pertinent here based on an Artisan policy held by Mabin that provided for UM
coverage.1

¶5 We skip over, as irrelevant to this appeal, procedural history
regarding: (1) a third-party complaint that CAS and National Continental filed
against Nova Lines, Inc. (Nova) and; (2) decisions by the circuit court to grant
motions for summary judgment in favor of CAS, National Continental, National
Liability, and Nova, dismissing each from this action. As established in a July 16,
2021 order of this court, the scope of this appeal is limited to the decisions of the
circuit court granting Artisan’s motion for summary judgment based on the
absence of UM coverage, dismissing Artisan from the case, and denying Mabin’s

1
Mabin initially claimed that Artisan was an insurer of CAS, but she does not pursue
that position in this appeal. She discusses Artisan exclusively in its role as her own insurer, and
she seeks exclusively to establish a right to UM coverage under her Artisan policy.

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No. 2021AP188

motions for leave to amend her complaint against Artisan based on theories of
equitable estoppel and bad faith.2

¶6 Mabin moved for partial summary judgment and for leave to amend
her complaint as to Artisan, and followed this up with a “revised memorandum” to
the circuit court on these same issues. Mabin made three arguments, each
matching the arguments she now makes on appeal. We now briefly summarize
them.

¶7 First, Mabin argued that she is entitled to summary judgment in her
favor because the semi-truck qualifies as “an uninsured motor vehicle as defined
under” Mabin’s Artisan policy. Second, she argued that the circuit court should
permit her to amend the complaint to add a claim of equitable estoppel against
Artisan. Her theory was that, due to Artisan’s actions and inactions, it “is
estopped from now claiming that there is no UM coverage” on the grounds that
Artisan was then asserting. Third, she argued that the court should permit her to
amend the complaint to add a claim of bad faith against Artisan, “based upon its
breach of its duty to [Mabin] to act in good faith.”

¶8 Artisan moved for summary judgment seeking dismissal of all
claims against it, advancing the same arguments it now makes on appeal. In
pertinent part Artisan argued that the UM provisions in the policy do not apply
here because Mabin “was not involved in an accident with an ‘uninsured motor
vehicle.’” Regarding Mabin’s motions for leave to amend the complaint, Artisan

2
In this appeal, Mabin challenges aspects of the circuit court’s reasoning in dismissing
National Continental on summary judgment, but this is improper argument under our prior order
and accordingly we ignore those challenges.

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No. 2021AP188

contended that leave was not appropriate because any theories of estoppel or bad
faith would fail on multiple grounds.

¶9 After considering briefing and oral arguments of the parties, the
circuit court denied Mabin’s motions for partial summary judgment and for leave
to amend the complaint, and granted Artisan’s motion for summary judgment,
dismissing it from the case. Mabin appeals.

DISCUSSION

¶10 We first address the UM coverage issue and then turn to the circuit
court’s denial of Mabin’s motions for leave to amend the complaint.

I. UM Coverage

A. Legal Standards

¶11 We independently review a grant of summary judgment using the
same methodology as the circuit court. Pertzsch v. Upper Oconomowoc Lake
Ass’n, 2001 WI App 232, ¶7, 248 Wis. 2d 219, 635 N.W.2d 829. Summary
judgment is appropriate if there are no genuine issues of material fact, and the
moving party is entitled to judgment as a matter of law. WIS. STAT. § 802.08(2)
(2019-20).3

¶12 The interpretation and application of statutes and regulations present
issues of law that are generally subject to de novo review. Wisconsin Power &
Light Co. v. PSC, 2009 WI App 164, ¶18, 322 Wis.2d 501, 777 N.W.2d 106.

3
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

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¶13 Interpretation of an insurance policy presents issues of law that we
review independently from determinations of the circuit court. Folkman v.
Quamme, 2003 WI 116, ¶12, 264 Wis. 2d 617, 665 N.W.2d 857.

¶14 Under Wisconsin’s coverage methodology, a court first examines the
terms in the policy addressing coverage to determine whether the alleged damages
are covered. American Family Mut. Ins. Co. v. American Girl, Inc., 2004 WI 2,
¶24, 268 Wis. 2d 16, 673 N.W.2d 65. In this case, we end with that first step,
because we determine that there is no grant of coverage and the parties do not
discuss any exclusions or exceptions to exclusions in the Artisan policy. See id.
(addressing the potential for second or third steps in the methodology).

¶15 Ambiguities are construed against the insurer, see Folkman, 264
Wis. 2d 617, ¶16, but here we discern no pertinent ambiguities. “If there is no
ambiguity in the language of an insurance policy, it is enforced as written, without
resort to rules of construction or applicable principles of case law.” Id., ¶13.

¶16 Courts must avoid determining that there is coverage for risks that
the insurer did not contemplate or underwrite and for which it did not receive a
premium. American Family Mut. Ins. Co., 268 Wis. 2d 16, ¶23.

B. Additional Background

¶17 The following additional background is undisputed and pertinent to
various arguments by the parties on the UM coverage issue. Some of it is also
pertinent to the two other issues addressed below.

¶18 At the time of the accident, the semi-truck had been leased by its
owner, CAS, to Bright Trucking Company. Bright, in turn, had entered into a
“Broker-Carrier Transportation Agreement” with Nova, under which Bright

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No. 2021AP188

agreed to pick up and deliver a load of goods for a Nova customer using the semi-
truck. Thus, the state of affairs when the semi-truck struck Mabin’s car was that
Bright was the interstate motor carrier that operated the semi-truck, which was on
lease from CAS and carrying a load for a customer of Nova.

¶19 A state trooper responded to the accident scene, conducted an
investigation that included taking photographs, and prepared a report that became
available to the public. This evidence revealed that two signs were attached to the
driver-side door of the semi-truck tractor: “LEASED TO NOVA LINES” and
“BRIGHT TRUCKING US DOT #2783363 WOODRIDGE, IL.”4

¶20 At the time of the accident, CAS and Nova each had liability
insurance policies with National Continental and Bright had a policy with National
Liability. In order to distinguish between the two separate policies that two
different entities had with the same insurer, we refer to the CAS policy as National
Continental-CAS policy and the Nova policy as the National Continental-Nova
policy.

¶21 Mabin filed a liability claim with National Continental-CAS, which
was denied. National Continental-CAS took the position that the driver “did not
qualify as an insured” under the policy and that he “was not working for” CAS at

4
Regarding the “DOT number” on one of these signs, federal regulations governing
commercial motor vehicles establish the required contents and modes of display for
“identification numbers issued by” the Federal Motor Carrier Safety Administration, to be
“preceded by the letters ‘USDOT,’” including signage involving leased vehicles. See 49 C.F.R.
§ 390.21 (2020). All references to the Code of Federal Regulations are to the 2020 edition unless
otherwise noted.

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No. 2021AP188

the time of the accident. In contrast, Mabin did not pursue claims based on the
National Continental-Nova policy or Bright’s National Liability policy.5

¶22 Also at the time of the accident, Mabin had an Artisan auto
insurance policy that includes UM coverage with limits of $500,000 per accident.
Part III, paragraph (a), of the policy provides in pertinent part:

If you pay the premium for this coverage, we will pay for
damages that an insured person is legally entitled to
recover from the owner or operator of an uninsured motor
vehicle because of bodily injury:

1. sustained by an insured person;

2. caused by an accident; and

3. arising out of the ownership, maintenance, or use of an
uninsured motor vehicle.

“Uninsured motor vehicle” is defined in paragraph (d) of Part III as follows:

“Uninsured motor vehicle” means a land motor vehicle or
trailer of any type:

a. to which no bodily injury liability bond or policy
applies at the time of the accident and the owner or
operator has not furnished proof of financial
responsibility for the future;

b. to which a bodily injury liability bond or policy applies
at the time of the accident, but the bonding or insuring
company:

(i) denies coverage; or

(ii) is or becomes insolvent.

5
To clarify, Mabin initially sued National Liability based on a lapsed policy that
National Liability had issued to CAS (entirely separate from the policy issued to Bright), but
Mabin did not mention Bright in the operative complaint and she does not now assert that there is
evidence that she ever pursued a claim based on Bright’s National Liability policy.

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No. 2021AP188

c. that is an unidentified motor vehicle involved in a hit-
and-run accident with an insured person; or

d. that is a phantom motor vehicle, if all of the following
apply [listing three circumstances irrelevant to this
appeal] ….

¶23 We now explain briefly how one aspect of the UM provision in
Mabin’s Artisan policy causes the parties to discuss federal financial responsibility
statutes and regulations that govern interstate motor carriers. Central to some
arguments is one phrase, emphasized in the following, from subparagraph a. of
paragraph III(d) of the Artisan policy: “‘Uninsured motor vehicle’ means a land
motor vehicle … to which no bodily injury liability bond or policy applies at the
time of the accident and the owner or operator has not furnished proof of financial
responsibility for the future.” In broad strokes, interstate motor carriers must
comply with federal law governing their financial responsibilities, and one
permissible way for them to do this is to maintain an endorsement attached to an
insurance policy. See 49 C.F.R. § 387.7(d); John Deere Ins. Co. v. Nueva, 229
F.3d 853, 856 (9th Cir. 2000) (“Federal law applies to the operation and effect of”
the specified endorsement.). This endorsement is identified in federal law as an
“Endorsement[] for Motor Carrier Policies of Insurance for Public Liability Under
Sections 29 and 30 of the Motor Carrier Act of 1980,” and is referred to as an
MCS-90 endorsement. See 49 C.F.R. § 387.7(d).

¶24 In introducing the concept of the federal proof of financial
responsibility law and the MCS-90 endorsement we make the following basic
points. As the parties here agree, an MCS-90 endorsement is not a policy of
insurance that provides coverage for a particular vehicle or set of vehicles.
Instead, it demonstrates the financial responsibility of the particular interstate
motor carrier that is named in the insurance policy to which the endorsement is

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No. 2021AP188

attached. See 49 C.F.R. §§ 387.5, 387.15; Canal Ins. Co. v. Distribution Servs.,
Inc., 320 F.3d 488, 490 (4th Cir. 2003) (“‘the primary purpose of the MCS-90
endorsement is to assure that injured members of the public are able to obtain
judgment from negligent authorized interstate carriers,’” and it “creates a
suretyship by the insurer to protect the public” (emphasis added; alteration and
quoted source omitted)).

¶25 It is undisputed that an MCS-90 endorsement was attached to the
National Continental-CAS policy, to the National Continental-Nova policy, and to
Bright’s National Liability policy.

¶26 As discussed in more detail below, Mabin contends that she is
entitled to coverage under the UM provision of the Artisan policy because
National Continental-CAS’s denial of her claim caused the semi-truck to qualify
as an “uninsured motor vehicle” under the Artisan policy.

C. Analysis

¶27 We now explain why we reject Mabin’s arguments that the semi-
truck fits a definition of an “uninsured motor vehicle” contained in the UM
provision of the Artisan policy, based strictly on our construction of the pertinent
policy terms.6 Based on that conclusion, we affirm the circuit court on the UM
coverage issue.

6
Given our dispositive interpretation of pertinent policy terms on the UM coverage
issue, we need not and do not reach what Artisan may intend to present as a broader argument for
affirming the circuit court. Artisan’s broader argument might be that, based on federal or state
statutes and regulations, no one in Mabin’s position could possibly be entitled to UM coverage in
any “trucking accident case that involves no less than three interstate motor carriers, each with a
liability policy including an MCS-90 endorsement.” This includes the arguments made by each
party about the significance and persuasive value of a California state court opinion. See Global
(continued)

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No. 2021AP188

¶28 Subparagraphs a.-d. of paragraph (d) of Part III of the Artisan policy
are stated in the disjunctive, and therefore Mabin would establish that the semi-
truck was an “uninsured vehicle” if she could show that any subparagraph applies.
The primary dispute between the parties involves subparagraph b. Mabin adds
limited argument based on subparagraph a., but she makes no argument at all
based on subparagraphs c. or d., as quoted more completely supra in ¶22. Given
Mabin’s emphasis, we now address in turn subparagraphs b. and a., explaining
why we conclude that neither provision applies here.

1. Subparagraph b.

¶29 Subparagraph b. defines “[u]ninsured motor vehicle” using a two-
part test. Each part must be met in order for a motor vehicle (here, the semi-truck)
to be deemed “uninsured,” because the parts are separated by a conjunctive “but.”
First, the vehicle must be one “to which a bodily injury liability bond or policy
applies at the time of the accident.” Second, the bonding or insuring company
must either deny coverage to the person claiming UM coverage, or else the
company must be “insolvent” or become so. (Neither party suggests that company
insolvency is an issue in this case.)

¶30 We agree with Artisan that the following aspect of undisputed
evidence is dispositive in its favor under a proper interpretation of the terms of

Hawk Ins. Co. v. Century-National Ins. Co., 138 Cal.Rptr.3d 363 (Cal. Ct. App. 2012) (holding
that the liability insurer of an interstate motor carrier that rear-ended a garbage truck was required
to reimburse a UM insurer of the owner of the garbage truck for benefits paid by the UM insurer
based on the carrier’s MCS-90 endorsement). The facts in Global Hawk differ in numerous ways
from the facts here and, at least so far as the current arguments of Artisan and Mabin suggest, the
reasoning of the California court could be persuasive authority only regarding what Artisan may
intend as the broader argument, which we do not reach.

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No. 2021AP188

subparagraph b., which are not ambiguous. It is undisputed that neither the semi-
truck nor its driver at the time of the accident is listed on any insurance policy held
by any of the three interstate motor carriers that have been identified as having
potential liability in the accident. Mabin acknowledges this undisputed fact in her
briefing on appeal: “CAS Transport, Inc., Nova Lines, Inc., and Bright Trucking
Company, Inc. each had their own insurance polic[ies], but neither the driver nor
the semi was listed on any of the policies.” For this reason, Mabin cannot meet
the first part of the two-part test in subparagraph b., because she lacks evidence
that the semi-truck was one “to which a bodily injury liability bond or policy
applies at the time of the accident.”

¶31 It is true that Mabin was denied coverage by National Continental-
CAS. She contends that this denial alone was sufficient to satisfy the
subparagraph b. test. This is incorrect because, as Mabin concedes, the National
Continental-CAS policy did not apply to the semi-truck or to the driver. As
Artisan argues, the mere fact of this denial did not transform the semi-truck into an
“uninsured vehicle” under the terms of subparagraph b.

¶32 Mabin argues that hers is a “basic,” “very typical” UM claim,
because she was an “insured” “involved in a motor vehicle accident, the at-fault
driver’s insurer denie[d] coverage for the accident, and the insured file[d] an
uninsured motorist claim under its own policy.” But it is a false premise that in
this case “the at-fault driver’s insurer denie[d] coverage.” Mabin is referring to
denial of coverage by National Continental-CAS. We have just explained why
National Continental-CAS is not “the at-fault driver’s insurer.” Further, as noted
above, Mabin did not pursue claims based on either the National Continental-Nova
policy or on Bright’s National Liability policy, and therefore there could have
been no denial under either of those policies.

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No. 2021AP188

¶33 Mabin argues that “a reasonable person in her position would
understand,” based on the UM provision in the Artisan policy, “that the denial of
liability coverage by [National Continental-CAS] triggered Ms. Mabin’s uninsured
motorist coverage under her policy.” Mabin is correct that one rule of insurance
policy interpretation is that courts attempt to construe a given term so that it aligns
with “the common and ordinary meaning it would have in the mind of a lay
person.” See Cieslewicz v. Mutual Serv. Cas. Ins. Co., 84 Wis. 2d 91, 97-98, 267
N.W.2d 595 (1978). But dispositive here is another rule that we have already
noted: absent ambiguity, a policy “is enforced as written, without resort to rules of
construction or applicable principles of case law.” Folkman, 264 Wis. 2d 617,
¶13. Further, Mabin falls to persuade us that a “lay person” applying “common
and ordinary meaning[s]” to the pertinent terms in subparagraph b. would reach a
different conclusion. Cieslewicz, 84 Wis. 2d at 98.

¶34 At least at points in her briefing, Mabin seems to suggest an
alternative argument that, even if the unambiguous terms of subparagraph b.
dictate that there could be no UM coverage on the undisputed facts, the steps that
she took (through counsel) to investigate the facts and consider the potential
pursuit of claims in the wake of the accident should have been sufficient to trigger
UM coverage because those were the actions of a reasonable insured. At least this
would seem to be the implication of her many assertions about what information
was or was not readily available to her when she was making decisions about what
claims to pursue. For example, she asserts (without providing a record citation)
that, at some unidentified time, she “did not know about the MCS-90
endorsement[s]” attached to the liability policies of Bright and Nova “and did not
know about Nova Lines, Inc. or the Bright Trucking Company.” However, we do
not discern in any of these references to information that she claims to have lacked

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No. 2021AP188

at various points a basis to conclude that UM coverage is available to her under
subparagraph b., or under any other policy term referenced by the parties. Put
differently, Mabin fails to identify evidence in the summary judgment materials
related to the availability of information that could have any effect on the simple
analysis we have just given explaining why, based on the undisputed facts and the
unambiguous terms, subparagraph b. does not apply here to qualify the semi-truck
as an “uninsured vehicle.”

¶35 Mabin asserts that she should not have to “prove a negative” to
qualify for UM coverage, but fails to explain this assertion in terms of policy
language and we dismiss this as an undeveloped argument. See State v. Pettit, 171
Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992) (appellate courts may decline
to address undeveloped and inadequately briefed issues).

2. Subparagraph a.

¶36 For the most part, Mabin relies on subparagraph b. Indeed, she
states in her opening brief that her “argument is focused on” subparagraph b.
However, she may intend to add one or more arguments relying on subparagraph
a., related to the federal financial responsibility law referenced above.7 We now
explain why we fail to discern a developed argument by Mabin that could render
the semi-truck an “uninsured vehicle” under subparagraph a.

7
Mabin’s subparagraph a. argument is arguably developed primarily in her reply brief,
but we do not reject it on that basis. See Roy v. St. Lukes Med. Ctr., 2007 WI App 218, ¶30 n.6,
305 Wis. 2d 658, 741 N.W.2d 256 (appellants are not entitled as of right to raise arguments for
the first time in reply briefs).

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¶37 “Uninsured motor vehicle” is defined in subparagraph a. by a
different two-part test. Each part of the subparagraph a. test must be met, because
the parts are separated by the conjunctive “and.” First, the vehicle must be one “to
which no bodily injury liability bond or policy applies at the time of the accident.”
Second, the “owner or operator” of the vehicle “has not furnished proof of
financial responsibility for the future.”

¶38 Mabin makes references to the second part of the subparagraph a.
test. She asserts that the meaning of the phrase “has not furnished proof of
financial responsibility for the future” means that Artisan was required to provide
Mabin “with proof of financial responsibility for the future.” To this assertion she
adds that “only a lawyer would think that [the second part of the subparagraph a.
refers to] the filing of a Form BMC 91X Certificate of Liability Insurance with the
Federal Highway Administration,” meaning the filing of a form related to an
MCS-90 endorsement. We assume without deciding that Mabin raises potential
questions about how, precisely, proof of financial responsibility is to be
“furnished” under the terms of the UM policy. However, until her reply brief, she
does not develop a discernable argument based on the policy terms, as opposed to
simply raising questions. In the reply brief she may intend to indicate that her
point is that the reference in subparagraph a. to “proof of financial responsibility
for the future,” is, in her words, “likely” a reference not to federal financial
responsibility laws and the use of MCS-90 endorsements but instead to WIS. STAT.
§§ 344.24 – 344.579. This is a generic citation to the many sections of Chapter
344 (“Vehicles – Financial Responsibility”), including subchapter III, which
addresses aspects of “Proof Of Financial Responsibility For the Future.”

¶39 The purpose of Wisconsin’s financial responsibility law is “to
provide a method of compensating [third parties] for damages that may result from

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future accidents caused by [the] negligence of [an] operator with a poor driving
record.” Cardinal v. Leader Nat. Ins. Co., 166 Wis. 2d 375, 390, 480 N.W.2d 1
(1992). Stated broadly, under this state law it is a condition of a license to operate
a motor vehicle that the operator obtain a liability insurance policy for the
protection of persons or property injured through operation of such vehicles. See
Hechimovich v. Acuity, 2014 WI App 14, ¶¶6-8, 352 Wis. 2d 513, 842 N.W.2d
493; WIS. STAT. § 344.33 (defining required “motor vehicle liability policy”).

¶40 With that background, Mabin does not develop an argument that the
second part of the subparagraph a. test has been satisfied here by proof that the
“owner or operator” of the semi-truck “has not furnished proof of financial
responsibility for the future” because the “owner or operator” did not comply with
Wisconsin’s financial responsibility law, as opposed to complying with the federal
financial responsibility law. As would minimally be required for an argument
along these or similar lines, she does not address in this context (or explain why
she need not address) the uncontested facts that: (1) CAS, Bright, and Nova all
had liability policies (which was, after all, a necessary precondition to having
MCS-90 endorsements, which are attached to liability policies); (2) Mabin made
no claims against either of the potentially responsible motor carriers Bright or
Nova. And stepping back, Mabin does not support her assertion that, contrary to
the unambiguous terms of the policy that the furnishing of proof is to be made by
the “owner-operator,” the furnishing of proof is to be made by Artisan to its
insured.

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II. Motions For Leave To Amend

¶41 Mabin argues that the circuit court should have granted her motions
for leave to amend her complaint to add claims against Artisan based on theories
of equitable estoppel and bad faith.

¶42 As pertinent here, leave to amend in civil actions “shall be freely
given at any stage of the action when justice so requires.” WIS. STAT. § 802.09(1).
A circuit court’s decision whether to allow an amendment to a complaint when the
party does not have a right to amend under § 802.09(1) is a matter left to the
discretion of the court. Mach v. Allison, 2003 WI App 11, ¶20, 259 Wis. 2d 686,
656 N.W.2d 766. We affirm a circuit court’s discretionary decision if it applies a
correct legal standard to the facts in a reasonable manner. See id. We conclude
here that the circuit court did not erroneously exercise its discretion in determining
that justice did not require amendment on either proposed theory.

A. Equitable Estoppel

¶43 We need not summarize the law governing the doctrine of equitable
estoppel or Mabin’s particular theory of equitable estoppel. This is because we
resolve this issue based on Mabin’s concession to one of Artisan’s arguments,
applying settled Wisconsin case law, which is dispositive on this issue. This case
law establishes that a dispute over the existence of insurance coverage, which is all
that is at issue here, cannot be resolved based on application of the doctrine of
equitable estoppel against the purported insurer. See Maxwell v. Hartford Union
High Sch. Dist., 2012 WI 58, ¶29, 341 Wis. 2d 238, 814 N.W.2d 484 (“‘The
general rule is well established that the doctrine of waiver or estoppel based upon
the conduct or action of the insurer or its agent is not applicable to matters of
coverage.’” (quoting Shannon v. Shannon, 150 Wis. 2d 434, 450-51,442 N.W.2d

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25 (1989)). “[E]stoppel can neither create an insurance contract where none
exists, nor enlarge existing coverage.” Budget Rent-A-Car Sys., Inc. v. Shelby
Ins. Grp., 197 Wis. 2d 663, 671, 541 N.W.2d 178 (Ct. App. 1995). Mabin
concedes the point by failing to explain, after Artisan cites this case law, why this
case law does not defeat her arguments. See United Coop. v. Frontier FS Coop.,
2007 WI App 197, ¶39, 304 Wis. 2d 750, 738 N.W.2d 578 (appellant’s failure to
respond in reply brief to argument made in response brief may be taken as
concession). Based on this concession, the circuit court could not have
erroneously exercised its discretion on this issue.

B. Bad Faith

¶44 A bad faith claim in the insurance context “is a tort separate and
apart from a breach of contract [p]er se,” giving rise to a separate claim for
damages. Anderson v. Continental Ins. Co., 85 Wis. 2d 675, 686, 271 N.W.2d
368 (1978). A plaintiff must show: (1) the absence of a reasonable basis for
denying policy benefits, and (2) the insurer’s knowledge or reckless disregard of
the lack of a reasonable basis for denying the claim. Brethorst v. Allstate Prop.
and Cas. Ins. Co., 2011 WI 41, ¶26, 334 Wis. 2d 23, 798 N.W.2d 467. The first
element is objective and the second is subjective. Weiss v. United Fire and Cas.
Co., 197 Wis. 2d 365, 377, 541 N.W.2d 753 (1995).

¶45 We conclude that the circuit court did not erroneously exercise its
discretion on this issue for the following reason. As Artisan notes, in denying the
motion for leave to amend to add a bad faith claim, the circuit court made the
basic point that “there is no basis for the UM coverage here,” and therefore a bad
faith claim against Artisan would be “ill-founded in light of the fact [that] I have
concluded there is no UM coverage.” That is, the circuit court concluded that,

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No. 2021AP188

viewed in an objective manner, Mabin could not show the absence of a reasonable
basis for denying policy benefits, given the fact that there is no basis for coverage.
Mabin fails to develop an argument (and provides no argument at all on this issue
in her reply brief) that could provide a sufficient basis for this court to reverse the
circuit court’s exercise of discretion on this issue, given our conclusion that the
circuit court properly determined that there is no UM coverage under the policy.8
Mabin fails to persuade us that the circuit court failed to apply correct legal
standards to the facts in a reasonable manner.

CONCLUSION

¶46 For all of these reasons, we affirm the circuit court rulings denying
Mabin’s request for a determination of UM coverage and her motions for leave to
amend her complaint, and dismissing her action against Artisan.

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5.

8
Before concluding, we note one fundamental shortcoming in Mabin’s appellate
briefing. In multiple spots, Mabin’s counsel provides as record authority for a proposition a
citation to a set of pages in the appellant’s appendix, without providing either a specific page or a
record citation. Both are required. See Roy, 305 Wis. 2d 658, ¶10 n.1. We remind counsel for
Mabin that judges and staff of this high volume court, as well as opposing counsel, are entitled to
expect briefing by an attorney that follows the basic rules of appellate procedure.

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