Cole J. Kretman v. American Family Mutual Insurance Company

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.
April 27, 2021
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. 2019AP2092 Cir. Ct. No. 2017CV246

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

COLE J. KRETMAN AND JOSEPH KRETMAN,

PLAINTIFFS-APPELLANTS,

UNITED HEALTHCARE COMMUNITY PLAN,

INVOLUNTARY-PLAINTIFF,

V.

AMERICAN FAMILY MUTUAL INSURANCE COMPANY,

DEFENDANT-RESPONDENT.

APPEAL from a judgment of the circuit court for Polk County:
JEFFERY ANDERSON, Judge. Affirmed.

Before Stark, P.J., Hruz and Seidl, 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. RULE 809.23(3).
No. 2019AP2092

¶1 PER CURIAM. Cole and Joseph Kretman (collectively “Kretman”)
appeal from a declaratory judgment upholding an insurance policy limitation for
injuries caused by a “dangerous dog.” Kretman argues American Family Mutual
Insurance Company (American Family) failed to provide its insured proper notice
of a policy change that reduced coverage for injuries caused by a “dangerous dog.”
Kretman also argues the circuit court erred by concluding the dog that bit him was
a “dangerous dog” within the meaning of the American Family policy. We reject
Kretman’s arguments and affirm.

BACKGROUND

¶2 American Family issued a homeowners’ insurance policy to
Janelle Lundmark effective March 1, 2013 to March 1, 2014. On December 17,
2013, American Family sent Lundmark a notice that it was amending her policy
effective with the next policy period and the amendment would reduce or
eliminate portions of her coverage. As relevant here, the policy’s $300,000 limit
for personal liability coverage was changed to $25,000 in coverage if the injuries
and damages were caused by a “dangerous dog.” The policy defines “dangerous
dog” as “any dog … that has a prior history of biting or vicious act
that … required any type of professional medical treatment.” Lundmark
subsequently renewed her policy with American Family.

¶3 Lundmark owned a pit bull that bit an individual in 2015, causing
serious injuries. The dog subsequently bit Cole Kretman in 2016, causing him
personal injuries and resulting medical expenses. Kretman commenced a

2
No. 2019AP2092

direct-action lawsuit against American Family, alleging double damages under
WIS. STAT. § 174.02 (2019-20),1 because the dog had previously caused injury.

¶4 American Family agreed to pay Kretman its $25,000 policy limit.
Kretman claimed the amended policy limit did not apply, and that the applicable
limit of liability was $300,000. American Family brought a motion for declaratory
judgment, contending the policy limited its liability to $25,000. The circuit court
granted the motion, and Kretman now appeals.

DISCUSSION

¶5 Kretman argues that American Family failed to properly notify its
insured of the change in its coverage as required by WIS. STAT. § 631.36(5)(a).
Kretman notes that § 631.36(5)(a) is designed to advise an insured of altered terms
within policy renewals, and that insureds must receive a detailed statement of their
right to cancel upon any changes to their coverage—including notification of a
sixty-day window to cancel their policy upon any change. Kretman argues that
while American Family provided information about changes to the policy in the
present case, it did not provide any notice of the sixty-day limit to cancel the
policy. Citing Hanson v. Prudential Property & Casualty Insurance Co., 224
Wis. 2d 356, 591 N.W.2d 619 (Ct. App. 1999), he contends the reduced policy
limits therefore do not apply.

¶6 We conclude Kretman waived this issue by specifically withdrawing
it from the circuit court’s consideration during the oral arguments on the parties’

1
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

3
No. 2019AP2092

competing motions for declaratory relief. Kretman’s counsel stated the following
at oral argument:

I will concede that the—the Hanson case talks about
renewal under less favorable terms, and that’s a
complicated thing; in fact, the Hanson case … I will
concede that, under the circumstances of this, that that
would not apply. So that I will save you some—that will
save you some time and effort trying to weed through that
thing.

¶7 The circuit court noted in its oral decision that “at the point of the
oral arguments, [Kretman] did agree that [Hanson] did not apply.” We will not
blindside the circuit court with a reversal based on a theory that Kretman willingly
and deliberately conceded below. See State v. Rogers, 196 Wis. 2d 817, 827, 539
N.W.2d 897 (Ct. App. 1995). We also note in this regard that Kretman fails to
address the waiver argument whatsoever in his reply brief to this court.
Arguments not refuted are deemed admitted. See Charolais Breeding Ranches,
Ltd. v. FPC Sec. Corp., 90 Wis. 2d 97, 109, 279 N.W.2d 493 (Ct. App. 1979).

¶8 Even if not waived, however, the circuit court properly found that
American Family’s notice was sufficient under WIS. STAT. § 631.36(5)(a). During
the first one-year policy term of American Family’s coverage provided to
Lundmark, it notified her that it would be adding an amendatory endorsement to
her policy at the next renewal term, which was set to begin on March 1, 2014.
That notice was provided on December 17, 2013, which was seventy-four days
prior to the effective date of the change. The notice also provided: “If this
endorsement is not acceptable to you, Wisconsin state law allows you to cancel
your policy. You should notify us if you wish to do so.” The notice also provided
Lundmark with two different options for contacting the company with questions,

4
No. 2019AP2092

stating: “If you have questions about this notice, please contact your agent listed
below or call us at 1-800-MY-AMFAM (1-800-692-6326).”

¶9 Kretman argues that “[a]n allowance of time is not the same as a
notice of a right.” Kretman contends “the fact that change was effective 74 days
after notice to [the insured] is irrelevant because [American Family] did not
properly inform [the insured] of her rights in the first place.”

¶10 Kretman raises a distinction without a difference. As required by
law, Lundmark received timely notice of the policy change and the fact that she
could cancel her policy if the amendment was not acceptable. Further, even if we
assume improper notice, the remedy would be a continuation of the same coverage
for the next one-year policy period, with reduced coverage effective during the
following policy period. See WIS. STAT. § 631.36(5)(a). Kretman’s dog bite did
not occur until 2016, when the reduced coverage would already have been in
effect irrespective of any presumed failure to specifically advise Lundmark of her
right to cancel the policy sixty days before renewal.

¶11 Kretman next argues that even if American Family provided
sufficient notice, the insurance policy was ambiguous, which rendered the
endorsement meaningless. The interpretation of an insurance policy is a question
of law that we review de novo. State Farm Mut. Auto. Ins. Co. v. Langridge,
2004 WI 113, ¶13, 275 Wis. 2d 35, 683 N.W.2d 75. If the policy language is
unambiguous, we give the words of the policy their common and ordinary
meaning. Id., ¶14. Language in an insurance policy is ambiguous if susceptible to
more than one reasonable interpretation. Id., ¶15. A court may find guidance in
construing the common meaning of an insurance policy term by looking to a

5
No. 2019AP2092

definition of the term in a recognized dictionary. Weimer v. Country Mut. Ins.
Co., 216 Wis. 2d 705, 722-23, 575 N.W.2d 466 (1998).

¶12 Kretman first contends that the policy’s “dangerous dog” provision
constitutes an “exclusion” and that “the doctrine of the shifting burden of proof
dictates that [American Family] now bears the burden of proving whether the
policy’s dangerous dog exclusion precludes coverage.” However, the “dangerous
dog” provision is not an exclusion. It is a limitation on the amount of American
Family’s liability—the applicability of which is determined under the policy
definitions. Kretman seeks coverage under the policy, and thus has the burden of
proving the limitation is inapplicable. In other words, he must prove the policy
language at issue is ambiguous.

¶13 Kretman next argues that the phrase “required any type of
professional medical treatment” in the “dangerous dog” definition is ambiguous.
He contends the dog’s prior victim did not “require” medical care because the
victim sought no treatment for several months after the attack, and even then
sought only a diagnosis from an “independent medical examination” upon the
advice of his attorney, for which the victim did not follow up. He also claims a
tetanus shot the prior victim received after the dog bite was not “required” medical
treatment but, rather, was first aid as defined in an OSHA regulation.

¶14 Kretman seeks to create ambiguity where there is none. Indeed, in
his reply brief Kretman acknowledges that the dictionary definition that the circuit
court applied to the term “required” is correct. The court stated:

To that end, the Court went to Webster’s Collegiate
Dictionary, the 11th Edition, from 2003, and looked up the
term “required” .... But as part of that definition for require,
required or requiring seems to be demand as necessary or
essential or have a compelling need for.

6
No. 2019AP2092

….

But what I find is, when you look at the entire term
“require medical treatment” by a common dictionary
definition, it is clear from this record that [the prior dog bite
victim] required medical treatment. Dr. Wire and the
information provided to the Court is clear: require medical
treatment in order to prevent further deterioration.

Finding that to be unambiguous, the Court finds that the
dog is a dangerous dog and that the reducing clause comes
into effect.

¶15 Kretman nevertheless claims the prior dog bite victim did not
“require” medical care because he sought none for months after his injury and,
when he did, he sought only diagnoses and did not follow up on any of his medical
provider’s recommendations. There is, however, no temporal requirement for the
medical treatment discussed in the policy. The “dangerous dog” provision does
not limit the time within which the injured person must seek medical treatment.

¶16 The circuit court also noted that the exhibits submitted by the parties
in the present case dispelled Kretman’s contention that the prior dog bite victim
did not “require” any type of professional medical treatment. The court quoted
from a portion of a medical record exhibit titled “Injuries and Medical Treatment,”
stating that in the prior attack

the dog took a chunk of tissue from the right side of [the
prior victim’s] mouth. In addition, the dog bit him in the
right arm, near the elbow. As soon as the dog bit him, his
arm went numb. Since that time he’s had ongoing varying
degrees of pain and discomfort on his face and to his right
arm. He has experienced weakness and loss of the use of
his right hand. He also has pain that radiates up into his
shoulder that wakes him up at night.

The court further noted that the doctors were clear that medical treatment was
required to avoid future degeneration of nerve tissue, and that it “should be

7
No. 2019AP2092

provided as soon as possible so as to prevent his condition from further
deterioration.”

¶17 In fact, the prior dog bite victim’s settlement demand letter to the
insurer claimed the victim required medical treatment as a result of the dog
bite: “Dr. Wire recommended immediate medical treatment for this injury to
prevent his condition from further deterioration. Dr. Wire states that [the prior
victim’s] nerve injury from the dog bite will continue to deteriorate if he does not
receive prompt medical care.” The demand letter further states that with regard to
the scarring from the prior dog bite, “Dr. Wire recommended scar revision, laser
resurfacing, and camouflage tattooing.” The bite was so severe that the insurer
settled that claim for $85,000.2

¶18 The policy does not state that the prior victim had to receive required
medical treatment. Rather, it states that a dog is deemed dangerous if any type of
professional medical treatment is required as a result of a prior dog bite. Put
another way, the applicability of the dangerous dog provision is not based upon
whether the person first bitten opted not to receive the required medical care. The
amount, severity, or timing of the treatment is irrelevant—the dangerous dog
limitation is applicable if any type of professional medical treatment is required as
a result of the dog bite.3 We therefore affirm the circuit court’s conclusion that the

2
Kretman ignores a visit to the emergency room, at which time the tetanus shot was
administered. The circuit court found “it’s clear that the tetanus shot was a direct result of the
dog bite, or at least that’s how it’s set forth in the medical records.” The court’s finding is not
clearly erroneous. See WIS. STAT. § 805.17(2).
3
Given our conclusion that the policy provision at issue is unambiguous, we need not
address case law from other jurisdictions purportedly defining medical treatment.

8
No. 2019AP2092

“dangerous dog” limitation in American Family’s policy is unambiguous and that
the limitation was applicable under the facts of this case.

By the Court.—Judgment affirmed.

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

9