Bits & Pieces

Waziry v. All. Express, LLC

Commonwealth Court of Pennsylvania

March 10, 2022, Submitted; April 12, 2022, Filed

No. 859 C.D. 2021

Reporter

2022 Pa. Commw. Unpub. LEXIS 130 *; 2022 WL 1087695

Hashmatullah Waziry, Petitioner v. Alliance Express, LLC and Uninsured Employers’ Guarantee Fund (Workers’ Compensation Appeal Board), Respondents

Notice: An unreported opinion of the Commonwealth Court may be cited and relied upon when it is relevant under the doctrine of law of the case, res judicata or collateral estoppel. Parties may also cite an unreported panel decision of the Commonwealth Court issued after January 15, 2008 for its persuasive value, but not as binding precedent. A single-judge opinion of the Commonwealth Court, even if reported, shall be cited only for its persuasive value, not as a binding precedent.

Core Terms

Claimant, driving, truck, truck driver, regularly, localized, factual findings, trips, substantial evidence, load, workers’ compensation, picked, logs, hire

Judges: [*1] BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE STACY WALLACE, Judge, HONORABLE MARY HANNAH LEAVITT, Senior Judge.

Opinion by: STACY WALLACE

Opinion

MEMORANDUM OPINION BY JUDGE WALLACE

Hashmatullah Waziry (Claimant) petitions for review of the Workers’ Compensation Appeal Board’s (Board) July 6, 2021 Order that reversed a Workers’ Compensation Judge’s (WCJ) April 27, 2020 Decision to grant Claimant’s Claim Petitions against Alliance Express, LLC (Employer) and the Uninsured Employers’ Guaranty¹ Fund (UEGF). The Board determined that Pennsylvania does not have jurisdiction over Claimant’s Claim Petitions. For the reasons that follow, we reverse the Order of the Board and remand to the Board for consideration of Employer’s and the UEGF’s remaining contentions on appeal.

I. Background

Employer is a shipping company that operates four trucks and employs four truck drivers. Reproduced Record (R.R.) at 49a. Employer’s office and truck yard are in Philadelphia, Pennsylvania. R.R. at 8a. Claimant was born in Afghanistan, where he was an interpreter for the United States Government for five years. Certified Record (C.R.) at 120. Claimant immigrated to the United States and obtained his commercial driver’s [*2] license here. C.R. at 134, 172. In approximately August 2017, Claimant called Employer from his home in Texas and asked if Employer had a truck that was available to be driven. R.R. at 5a, 10a. Employer responded that it did have a truck available and inquired about Claimant’s qualifications for employment. R.R. at 10a. Employer explained to Claimant the requirements of the job and how he would be paid for driving Employer’s truck. R.R. at 47a.

Since Claimant lived in Texas and had no means of getting to Philadelphia, Employer brought a truck to San Antonio, Texas, and picked up Claimant. R.R. at 39a. Employer then rode with Claimant for two weeks to ensure that Claimant knew how to tie down cargo loads and obtain shipping and receiving papers. R.R. at 57a, 66a. During this time, Employer and Claimant drove from Texas to New York, from New York back to Texas, and from Texas to Philadelphia. R.R. at 59a. Claimant equally split the mileage and load compensation with Employer for these trips. R.R. at 71a. At the conclusion of these two weeks, after arriving in Philadelphia, Claimant began driving on his own. Id.

During his nearly four months of employment with Employer, Claimant received [*3] all driving assignments, with delivery deadlines, from Employer via phone calls or text messages that Employer sent from its office in Philadelphia. R.R. at 9a. Employer provided Claimant with the truck, chains, and tarps and paid for all gas and tolls. R.R. at 8a. Employer required Claimant to submit driving logbooks to Employer, which Employer maintained at its Philadelphia office. C.R. at 235-36. Claimant brought the truck to Philadelphia for maintenance, and he also picked up his paychecks in Philadelphia. R.R. at 24a, 30a.

Employer introduced daily driving logs for some limited periods of time² during Claimant’s employment. C.R. at 519-46. The WCJ determined that those driving logs

indicate [Claimant] worked regularly out of [Employer’s] Philadelphia, PA Office. In particular, [Claimant] picked up his truck in Philadelphia, PA on September 5, 2017 and September 6, 2017 and ended his driving day in Philadelphia, PA on September 7, 2017 and September 15, 2017. He started his workday in Philadelphia, PA on September 8, 2017 and September 9, 2017. He picked up a load on Byberry Road, Philadelphia on November 8, 2017, drove to Great Bend, PA and after a delivery in Syracuse, NY, drove [*4] back to Philadelphia. On November 10, 2017, he picked up his truck in Philadelphia.

R.R. at 9a-10a (emphasis added). Although Claimant testified that he went “from east coast to west coast picking up loads and delivering the loads,” R.R. at 39a, he would regularly return to Employer’s Pennsylvania location after each trip.³ See C.R. at 519-46. When Claimant was asked about his contact with Employer’s Pennsylvania location, the following exchange occurred:

Q. And when you completed the task of each assignment, where would you have to take the tractor trailer? Back to the company [Employer]?

A. Yeah, it was whenever we coming [sic] back, we just staying [sic] like in New York. We have their station. We have their main office here in Philadelphia, Pennsylvania.

C.R. at 123-24.

Claimant’s employment with Employer ended on December 20, 2017, when Employer dispatched Claimant to obtain a load and transport it to Oklahoma City, Oklahoma. R.R. at 79a-80a. While Claimant was putting a tarp on top of the load in Dover, Delaware, Claimant fell to the ground and injured his right arm. R.R. at 8a, 40a. Claimant received surgery on his right arm at a hospital in Delaware the following day. C.R. at 137-38. [*5] After the surgery, Employer transported Claimant to Employer’s Philadelphia truck yard, where Claimant spent the night sleeping in his truck. C.R. at 139-40. Claimant then flew to Buffalo, New York, on December 22, 2017, so that he could use his health insurance for medical treatments.⁴ R.R. at 8a; C.R. at 142-43.

Unable to work as a result of the injury, Claimant filed Claim Petitions in Pennsylvania against Employer and the UEGF. R.R. at 3a. The WCJ held hearings on the Claim Petitions and determined that Claimant’s employment was principally localized in Pennsylvania and that his contract of hire was entered in Pennsylvania. R.R. at 9a. Since the injury occurred in the course of employment, the WCJ granted Claimant’s Claim Petitions. R.R. at 12a-14a.

On appeal, the Board determined that Claimant’s employment was not principally localized in Pennsylvania and that his contract of hire was not entered in Pennsylvania. R.R. at 29a. Accordingly, the Board determined that Pennsylvania lacked jurisdiction over Claimant’s Claim Petitions. Id. Due to a lack of jurisdiction over the claims, the Board reversed the WCJ’s Decision and declined to address the additional issues raised by Employer [*6] and the UEGF. Id.

II. Discussion

In a workers’ compensation appeal, we, like the Board, are “limited to determining whether necessary findings of fact are supported by substantial evidence, whether an error of law was committed, or whether constitutional rights were violated.” Elberson v. Workers’ Comp. Appeal Bd. (Elwyn, Inc.), 936 A.2d 1195, 1198 n.2 (Pa. Cmwlth. 2007). Substantial evidence is

such relevant evidence as a reasonable person might accept as adequate to support a conclusion. See Waldameer Park, Inc. v. Workers’ Comp. Appeal Bd. (Morrison), 819 A.2d 164 (Pa. Cmwlth. 2003); Hoffmaster v. Workers’ Comp. Appeal Bd. (Senco Prods., Inc.), 721 A.2d 1152 (Pa. Cmwlth. 1998). In performing a substantial evidence analysis, the evidence must be viewed in a light most favorable to the party that prevailed before the WCJ. Waldameer Park, Inc.; Hoffmaster. In a substantial evidence analysis where both parties present evidence, it is immaterial that there is evidence in the record supporting a factual finding contrary to that made by the WCJ; rather, the pertinent inquiry is whether there is any evidence which supports the WCJ’s factual finding. Waldameer Park, Inc.; Hoffmaster.

Mere speculation or conjecture is insufficient to support a factual finding, but where there exists the ability to draw reasonable and logical inferences from evidence that is presented, including testimony, a conclusion so derived will be sufficient, even if it may not be the only possible conclusion. See Fitzpatrick v. Natter, 599 Pa. 465, 961 A.2d 1229, 1241-42 (Pa. 2008); see also Moore v. Workmen‘s Comp. Appeal Bd., 539 Pa. 333, 652 A.2d 802, 806 (Pa. 1995) (referee did not engage in [*7] speculation where there was relevant supporting evidence).

W. Penn Allegheny Health Sys., Inc. v. Workers’ Comp. Appeal Bd. (Cochenour), 251 A.3d 467, 475 (Pa. Cmwlth. 2021).

The Workers’ Compensation Act (Act)⁵ authorizes Pennsylvania to exercise jurisdiction over a worker’s injuries that occur outside the boundaries of Pennsylvania if, at the time of the injury “[h]is employment is principally localized in [Pennsylvania]” or “[h]e is working under a contract of hire made in [Pennsylvania] in employment not principally localized in any state.” Section 305.2 of the Act, added by the Act of December 5, 1974, P.L. 782, 77 P.S. § 411.2(a)(1)-(2). Where an injury occurs outside the Commonwealth of Pennsylvania, a claimant bears the burden of proving that his employment qualifies for Pennsylvania’s extraterritorial jurisdiction under 77 P.S. § 411.2(a). Williams v. Workers’ Comp. Appeal Bd. (POHL Transp.), 4 A.3d 742, 745 (Pa. Cmwlth. 2010) (citing Atkins v. Workmen‘s Comp. Appeal Bd. (Geo-Con, Inc.), 651 A.2d 694, 698 (Pa. Cmwlth. 1994)).

Since Claimant’s injury occurred in Delaware, we begin by addressing whether Claimant’s employment was principally localized in Pennsylvania. See 77 P.S. § 411.2(a)(1). The WCJ found that Claimant’s employment was principally localized in Pennsylvania pursuant to 77 P.S. § 411.2(d)(4)(i), which states that “[a] person’s employment is principally localized in [Pennsylvania] or another state when . . . his employer has a place of business in this or such other state and he regularly works at or from such place of business . . . .” [*8]

To show that an employee regularly works at or from an employer’s place of business, he must prove that “he worked from the Pennsylvania location as a rule, not as the exception.” Atkins, 651 A.2d at 699 (citing Root v. Workmen’s Comp. Appeal Bd. (U.S. Plywood Corp.), 161 Pa. Commw. 291, 636 A.2d 1263, 1266 (Pa. Cmwlth. 1994). In Root, 636 A.2d 1263, an employee was injured in an automobile accident in New Jersey after attending a sales meeting at the employer’s Philadelphia office. This Court held that the employee did not regularly work at or from employer’s Philadelphia office, as

[i]n this case, [the c]laimant’s sales territory was limited exclusively to southern New Jersey, and she started and ended every work[]day in her home/office in New Jersey. She was required to attend only monthly sales meetings and other sporadic functions at Employer’s Philadelphia office. However, because [the c]laimant was not expected to “regularly” be present in the Philadelphia office, she was provided no workspace. The WCJ correctly found these periodic contacts were not enough to establish that [the c]laimant “regularly worked at or from” [the e]mployer’s Philadelphia office. In order to establish such, a claimant must prove that he or she works from the Pennsylvania location as a rule, not as the exception.

Id. at 1265-66.

In Holland v. Workmen’s Compensation Appeal Board (Pep Boys), 586 A.2d 988, 990-91, 137 Pa. Commw. 22 (Pa. Cmwlth. 1990), a truck driver, who began 190 of his [*9] 195 driving trips from his employer’s location in New Jersey, filed a claim in Pennsylvania. He argued that he made deliveries to the employer’s Pennsylvania locations and “was in Pennsylvania alone 26% of the days he worked and in Pennsylvania and other states an additional 20% of the time.” Id. We held that the truck driver “began virtually every working day” from the New Jersey location, and that “[t]he only constant” for the truck driver was the location in New Jersey. Id. at 991. Accordingly, we concluded that his employment was principally localized in New Jersey. Id.

In Robbins v. Workmen‘s Compensation Appeal Board (Mason-Dixon Line, Inc.), 91 Pa. Commw. 269, 496 A.2d 1349, 1350 (Pa. Cmwlth. 1985), a Tennessee employer hired a Pennsylvania resident truck driver. The truck driver used the employer’s Pennsylvania terminal as his “home office,” regularly received his work assignments there, and “reported there whenever he did not have a load to take elsewhere.” Id. at 1351-52. Under these facts, we determined that the truck driver‘s employment was principally localized in Pennsylvania, as he regularly worked from the employer’s Pennsylvania location. Id. at 1352.

In Hiller v. Workmen‘s Compensation Appeal Board (Deberardinis), 131 Pa. Commw. 189, 569 A.2d 1024, (Pa. Cmwlth. 1990), a truck driver began every one of his driving trips from Pennsylvania. In addition, he “was required to contact [the employer’s] office daily and was required to forward all paper[]work [*10] to [the employer’s] office in . . . Pennsylvania.” Id. at 1027. The employer also approved all rates and mileage fees, dispatched the truck driver, and provided his paychecks. Id. Under these facts, we determined the truck driver regularly worked from the employer’s Pennsylvania location. Id. at 1028.

In this matter, the WCJ’s factual findings generally fit into two categories: first, that Claimant used Employer’s Pennsylvania location as his home base, and second that he regularly began or ended his driving trips there. Regarding the first category, the WCJ noted that Employer provided Claimant with his paychecks at, and sent Claimant driving assignments from, Employer’s Pennsylvania location. R.R. at 9a. Regarding the second category, the WCJ noted the driving logs submitted in this matter showed that Claimant’s routine was to leave from or return to Employer’s Pennsylvania location. R.R at 9a-10a.

Viewed in the light most favorable to Claimant, as our standard of review requires, we conclude that the driving logs submitted in this matter established that Claimant regularly began and ended his driving trips at Employer’s Philadelphia, Pennsylvania, location, which was the only constant location for Claimant. [*11] Although Claimant drove throughout the United States, the driving logs submitted support Claimant’s testimony that he regularly returned to Employer’s Pennsylvania location after completing his driving assignments. In this regard, Claimant is similar to the truck driver in Hiller, who began all of his driving trips at his employer’s Pennsylvania location. Claimant is also similar to the truck driver in Holland, who began nearly all of his driving trips at his employer’s location in New Jersey, which we considered to be the truck driver‘s only constant location. In both Hiller and Holland, we determined the truck drivers’ employment was principally localized at the location where they began their driving trips.

Viewed in the light most favorable to Claimant, we further conclude that the evidence presented in this matter showed that Employer’s Pennsylvania location was Claimant’s home base. Employer provided Claimant with his driving assignments from Employer’s Pennsylvania location. Claimant was required to submit his driving logs at Employer’s Pennsylvania location, and Claimant came there to obtain his paychecks. Employer provided Claimant with the truck and all equipment, and Claimant brought the truck back [*12] to Employer’s Pennsylvania location after he completed driving assignments and when the truck needed maintenance. Thus, Claimant is similar to the truck driver in Robbins, who used his employer’s Pennsylvania location as his home base, and whose employment was determined to be principally localized in Pennsylvania.

The Board relied heavily on this Court’s prior decision in Root to determine that Claimant did not work from Employer’s Pennsylvania location as a rule. Board R.R. at 29a. Although we note that Root did not involve a truck driver and that Claimant had substantially more contact with Employer’s Pennsylvania location than the employee in Root did, the Board’s overriding error was its failure to evaluate whether the WCJ’s findings were supported by substantial evidence. Instead of doing this, the Board improperly reviewed the evidence and independently made factual findings that Claimant’s contacts with Employer’s Pennsylvania location were only periodic in nature. See R.R. at 28a-29a.

Although we agree evidence exists that would support the Board’s conclusion, a reasonable mind would accept the evidence presented in this matter as adequate to show that Claimant used Employer’s location as his [*13] home base and began or ended his driving trips there. Thus, the WCJ’s factual findings are supported by substantial evidence. See W. Penn Allegheny Health Sys., 251 A.3d at 475. In light of the WCJ’s factual findings, which we accept, the WCJ’s legal conclusion that Claimant’s employment was principally localized in Pennsylvania pursuant to Section 305.2(a)(1) of the Act, 77 P.S. § 411.2(a)(1), was free of legal error.

Accordingly, we conclude that Pennsylvania has jurisdiction over the Claimant’s Claim Petitions pursuant to Section 305.2(a)(1) of the Act, 77 P.S. § 411.2(a)(1). Since a claimant only has to prove one ground for Pennsylvania’s exercise of extraterritorial jurisdiction under the Act, we need not address whether Claimant’s contract of hire was made in Pennsylvania.

The Board did not address Employer’s and the UEGF’s additional contentions on appeal, as the Board stopped its analysis after it determined that Pennsylvania lacked jurisdiction over the Claim Petitions. Because we have determined that the Board erred in this regard, we remand to the Board for consideration of Employer’s and the UEGF’s additional contentions on appeal.

III. Conclusion

For the reasons set forth herein, we conclude that the Board erred in making independent factual findings rather than analyzing whether the WCJ’s factual [*14] findings were supported by substantial evidence. Substantial evidence exists to support the WCJ’s factual findings, and, in light of those findings, the WCJ did not commit an error of law. Accordingly, Pennsylvania has jurisdiction over Claimant’s Claim Petitions, and we reverse the Order of the Board.

Since the Board did not address Employer’s or the UEGF’s additional contentions on appeal, we remand to the Board for determination of those additional contentions.

STACY WALLACE, Judge

ORDER

AND NOW, this 12th day of April 2022, the Order of the Workers’ Compensation Appeal Board, dated July 6, 2021, is reversed, and the matter is remanded to the Workers’ Compensation Appeal Board for consideration of Alliance Express, LLC and the Uninsured Employers’ Guaranty Fund’s additional contentions on appeal.

Jurisdiction relinquished.

STACY WALLACE, Judge

End of Document

¹The caption of this matter, as set forth in Petitioner’s Petition for Review, incorrectly spells “Guaranty” as “Guarantee.”

²August 31, 2017 to September 14, 2017 and November 8, 2017 to November 24, 2017. C.R. at 519-46. Employer did not produce driving logs for the remainder of Claimant’s employment. Claimant testified that Employer destroyed his other driving logs, because Employer was requesting Claimant to drive more hours than legally permitted. C.R. at 164-65.

³Claimant kept Employer’s truck at his home in Texas for a week on one occasion, but this was because Employer, knowing that Claimant was obtaining a new apartment in Texas, intentionally arranged for Claimant to take a load to Texas on his way there. C.R. at 243, 394.

⁴After immigrating to the United States, Claimant received Medicare in New York state, which remained effective. C.R. at 142-43.

⁵Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2710.

Mabin v. Artisan & Truckers Cas. Co.

Court of Appeals of Wisconsin

March 24, 2022, Decided; March 24, 2022, Filed

Appeal No. 2021AP188

Reporter

2022 Wisc. App. LEXIS 244 *; 2022 WL 872204

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.

Notice: THIS OPINION IS SUBJECT TO FURTHER EDITING. IF PUBLISHED, THE OFFICIAL VERSION WILL APPEAR IN THE BOUND VOLUME OF THE OFFICIAL REPORTS.

THIS OPINION WILL NOT BE PUBLISHED. SEE WIS. STAT. RULE 809.23(1)(B)(4).

Prior History: [*1] APPEAL from an order of the circuit court for Dane County: STEPHEN E. EHLKE, Judge. Cir. Ct. No. 2018CV2424.

Disposition: Affirmed.

Core Terms

coverage, subparagraph, semi-truck, circuit court, insurer, endorsement, amend, time of an accident, proof of financial responsibility, uninsured motor vehicle, summary judgment, insurance policy, driver, terms, equitable estoppel, parties, liability policy, motion for leave, motor carrier, motor vehicle, undisputed, bodily injury liability, uninsured vehicle, bad faith, interstate, ambiguity, Trucking, financial responsibility law, asserts, qualify

Case Summary

Overview

HOLDINGS: [1]-Where an insured was injured when a semi-trailer truck rear-ended her car, and where the insured filed a personal injury suit against the driver of the semi-truck and its owner as well as against her own insurer based on an uninsured motorist (UM) provision in her policy, the trial court properly dismissed the insured’s UM claim against her insurer because the policy did not provide UM coverage under these circumstances since the semi-truck was not an uninsured vehicle under the policy’s terms; [2]-In particular, the semi-trailer truck that rear-ended the insured’s car had an endorsement that was not a policy of insurance, but rather demonstrated financial responsibility for the vehicle in compliance with federal law, but there was no evidence that a bodily injury liability bond or policy applied to the semi-truck at the time of the accident.

Outcome

Decision affirmed.

LexisNexis® Headnotes

Civil Procedure > … > Summary Judgment > Entitlement as Matter of Law > Appropriateness

Civil Procedure > Appeals > Summary Judgment Review > Standards of Review

Civil Procedure > Judgments > Summary Judgment > Entitlement as Matter of Law

Civil Procedure > … > Summary Judgment > Entitlement as Matter of Law > Legal Entitlement

Civil Procedure > … > Summary Judgment > Entitlement as Matter of Law > Genuine Disputes

Entitlement as Matter of Law, Appropriateness

Appellate courts independently review a grant of summary judgment using the same methodology as the circuit court. 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).

Administrative Law > Judicial Review > Standards of Review > De Novo Standard of Review

Governments > Legislation > Interpretation

Civil Procedure > Appeals > Standards of Review > De Novo Review

Civil Procedure > Appeals > Standards of Review > Questions of Fact & Law

Standards of Review, De Novo Standard of Review

The interpretation and application of statutes and regulations present issues of law that are generally subject to de novo review.

Civil Procedure > Appeals > Standards of Review > De Novo Review

Insurance Law > Claim, Contract & Practice Issues > Policy Interpretation > Judicial Review

Insurance Law > Claim, Contract & Practice Issues > Policy Interpretation > Question of Law

Civil Procedure > Appeals > Standards of Review > Questions of Fact & Law

Standards of Review, De Novo Review

Interpretation of an insurance policy presents issues of law that appellate courts review independently from determinations of the circuit court.

Insurance Law > Claim, Contract & Practice Issues > Claims Made Policies > Coverage

Claims Made Policies, Coverage

Under Wisconsin’s coverage methodology, a court first examines the terms in the insurance policy addressing coverage to determine whether the alleged damages are covered.

Insurance Law > … > Policy Interpretation > Ambiguous Terms > Construction Against Insurers

Ambiguous Terms, Construction Against Insurers

Ambiguities in insurance policies are construed against the insurer. 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.

Insurance Law > Claim, Contract & Practice Issues > Policy Interpretation

Claim, Contract & Practice Issues, Policy Interpretation

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.

Insurance Law > … > Coverage > Compulsory Coverage > Motor Carriers

Transportation Law > Carrier Duties & Liabilities > Freight Brokers & Forwarders

Compulsory Coverage, Motor Carriers

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. 49 C.F.R. § 387.7(d). Federal law applies to the operation and effect of the specified endorsement.

Insurance Law > Claim, Contract & Practice Issues > Policy Interpretation > Entire Contract

Insurance Law > Claim, Contract & Practice Issues > Policy Interpretation > Ordinary & Usual Meanings

Policy Interpretation, Entire Contract

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. But another rule is that absent ambiguity, a an insurance policy is enforced as written, without resort to rules of construction or applicable principles of case law.

Insurance Law > … > Coverage > Compulsory Coverage > Proof of Financial Responsibility

Compulsory Coverage, Proof of Financial Responsibility

The purpose of Wisconsin’s financial responsibility law is to provide a method of compensating third parties for damages that may result from future accidents caused by the negligence of an operator with a poor driving record. 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.

Civil Procedure > Judicial Officers > Judges > Discretionary Powers

Civil Procedure > … > Pleadings > Amendment of Pleadings > Leave of Court

Judges, Discretionary Powers

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) (2019-20). 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. Appellate courts affirm a circuit court’s discretionary decision if it applies a correct legal standard to the facts in a reasonable manner.

Insurance Law > Claim, Contract & Practice Issues > Estoppel & Waiver > Burdens of Proof

Insurance Law > Claim, Contract & Practice Issues > Estoppel & Waiver > Policy Coverage Issues

Insurance Law > Claim, Contract & Practice Issues > Estoppel & Waiver > Equitable Estoppel

Estoppel & Waiver, Burdens of Proof

A dispute over the existence of insurance coverage cannot be resolved based on application of the doctrine of equitable estoppel against the purported insurer. 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. Estoppel can neither create an insurance contract where none exists, nor enlarge existing coverage.

Insurance Law > Liability & Performance Standards > Bad Faith & Extracontractual Liability > Elements of Bad Faith

Bad Faith & Extracontractual Liability, Elements of Bad Faith

A bad faith claim in the insurance context is a tort separate and apart from a breach of contract per se, giving rise to a separate claim for damages. 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. The first element is objective and the second is subjective.

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

Opinion

P1 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.

P2 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 [*2] equitable estoppel and bad faith. We reject Mabin’s arguments on these topics.

P3 Accordingly, we affirm the challenged decisions of the circuit court and the dismissal of Mabin’s action against Artisan.

BACKGROUND

P4 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

P5 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, [*3] 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 motions for leave to amend her complaint against Artisan based on theories of equitable estoppel and bad faith.²

P6 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.

P7 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 [*4] 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.”

P8 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 contended that leave was not appropriate because any theories of estoppel or bad faith would fail on multiple grounds.

P9 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

P10 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

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

P12 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.

P13 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.

P14 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, P24, 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).

Id., ¶13.

P16 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., 2004 WI 2, 268 Wis. 2d 16, ¶23, 673 N.W.2d 65.

B. Additional Background

P17 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.

P18 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 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.

P19 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 [*7] LINES” and “BRIGHT TRUCKING US DOT #2783363 WOODRIDGE, IL.”⁴

P20 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.

P21 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 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

P22 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 [*8] 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.

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] ….

P23 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 [*9] 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.” 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).

P24 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 [*10] motor carrier that is named in the insurance policy to which the endorsement is 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)).

P25 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.

P26 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

P27 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.

P28 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.

P29 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 [*12] insolvency is an issue in this case.)

P30 We agree with Artisan that the following aspect of undisputed evidence is dispositive in its favor under a proper interpretation of the terms of 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.”

P31 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 [*13] 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.

P32 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.

P33 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 [*14] under her policy.” Mabin is correct that ” to the pertinent terms in subparagraph b. would reach a different conclusion. Cieslewicz, 84 Wis. 2d at 98.

P34 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 [*15] 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 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.”

P35 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 [*16] 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.

P36 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.

P37 “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.”

P38 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 [*17] 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 [*18] For the Future.”

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”).

P40 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 [*19] 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.

II. Motions For Leave To Amend

P41 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.

P42 As pertinent here, not erroneously exercise its discretion in determining that justice did not require amendment on either proposed theory.

A. Equitable Estoppel

P43 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 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

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).

P45 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, viewed in an objective manner, Mabin could not show the absence of a reasonable [*22] 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

P46 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).

End of Document

¹Mabin 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.

²In 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.

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

⁴Regarding 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.

⁵To 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.

⁶Given 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 Hawk [*11] Ins. Co. v. Century-National Ins. Co., 203 Cal. App. 4th 1458, 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.

⁷Mabin’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).

⁸Before 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.