### COURT OF APPEALS DECISION DATED AND FILED August 8 , 2023

Samuel A. Christensen Clerk of Court of Appeals NOTICE
This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See W IS . S TAT . § 808.10 and R ULE 809.62.

Appeal No. 2022AP1463 Cir. Ct. No. 2017CV1409 STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT III

M ARK F. M EISNER AND D ENISE M. M EISNER ,
P LAINTIFFS - A PPELLANTS ,

V . S TATE F ARM M UTUAL A UTOMOBILE I NSURANCE C OMPANY , ABC I NSURANCE C OMPANY AND DEF I NSURANCE C OMPANY ,
D EFENDANTS ,
T RUMBULL I NSURANCE C OMPANY ,
D EFENDANT - R ESPONDENT .

APPEAL from an order of the circuit court for Brown County:
TAMMY JO HOCK , Judge. Affirmed

.

Before Stark, P.J., Hruz and Gill, JJ.No. 2022AP1463

2 Per curiam opinions may not be cited in any court of this state as precedent or authority, except for the limited purposes specified in W IS . S TAT . R ULE 809.23(3).
¶ 1 PER CURIAM. Mark Meisner 1 appeal s from an order , entered following a remand from this court, that reduced the amount of available

un der insured motorist (U IM) coverage from his automobile insurance carrier, Trumbull Insurance Company, by the amount Meisn er had been paid by another
insurer. Specifically, Meisner challenges the circuit court’s determination that a stipulation entered into by the parties during litigation incorporated a UIM reducing clause from Meisner’s policy with Trumbull. We conclude t hat the
circuit court’s factual finding that the parties intended their stipulation to incorporate the reducing clause is not clearly erroneous , and we reject Meisner’s additional arguments that the circuit court erroneously exercised its discretion

. Accordingly, we affirm.

BACKGROUND

¶ 2 Meisner was seriously injured in an automob ile accident

. He eventually filed suit against the driver of another vehicle involved in the accident,
Jon Mineau, and Mineau’s automobile insurer , State Far m Mutual Automobile
Insurance Company

. Meisner also named his own automobile insurer, Trumbull, as a defendant, seeking to recover under the UIM provisions of his policy.
Meisner alleged that Mineau had caused the accident and was underinsured
relative t o Meisner ’s extensive injuries.

1 Although Mark’s wife , Denise Meisner , also joined the notice of appeal, Trumb u ll’s liability with respect to her injur ies is not before us. We therefore limit our discussion in this opinion to Mark’s claim.No. 2022AP1463

3 ¶ 3 Meisner entered into a stipulation with Trumbull that excused Trumbull from participating at trial. The stipulation , as agreed to by the parties
and as ultimately approved by the circuit court, provid ed in relevant part that
Trumbu ll “ shall be bound by the verdict reached at trial with respect to the [UIM] claim in this matter, up to the limits of its [UIM] insurance polic y

. ”

¶ 4 At trial, t he jury determined that Meisner ’s injuries resulted in damages totaling $424,354. Based upon the verdict, State Farm agreed to pay
Meisner its liability policy limit s of $100,000

. Meisner subsequently sought to collect $250,000 from Trumbull based upon the stipulation and the per

- pers on UIM policy limit s identified on the declarations page of Meisner ’s policy with
Trumbull.

¶ 5 Trumbull opposed Meisner’s motion, asserting that the unambiguous language of the stipulation required application of not only the UIM policy limit s but also a reducing clause contained within the insurance policy. The reducing clause stated that the limits of liability shown on the declarations page “shall be reduced by all sums ... [p]aid because of the bodily injury by or on behalf of
persons or organizations who may be legally responsible.” Trumbull asserted that State Farm’s $100,0 00 payment should be subtracted under the reducing clause from the $250,000 Trumbull would otherwise owe Meisner based upon the UIM policy limit s

. ¶ 6 T he circuit court 2 determined that the parties’ use of the phrase “up to the limits of its underinsured motorist insurance policy” in the stipulation

2 The Honorable Kendall Kelley presided over the matter before the Honorable Tammy Jo Hock was appointed on remand.No. 2022AP1463

4 unambiguously required Trumbull to pay the full amount of the UIM policy limit s , withou t any reduction. It then entered judgment against Trumbull in the amount of $ 250,000 for Meisner’s injuries. This court reversed on appeal, however, concluding that the language of the stipulation was ambiguous because it could reasonably be interpreted to refer to the full UIM limit s , or to the limit s as modified by other provision s in the policy. We remanded the matter to the circuit

court for a factual determination, based upon extrinsic evidenc e, as to the agreed

- upon coverage limit s under the stipul ation.

¶ 7 On remand, the parties submitted affidavits and eventually agreed to forgo an evidentiary hearing to present live testimony . T he circuit court then
relied upon the f

iled submissions

— including the pleadings, requests and responses

to discovery , emails between the parties attached to the affidavits, a letter to the
court, and the policy itself

— to find that the parties negotiated the stipulation at issue with the understanding that Trumb ull was agreeing to an amount of liability
coverage based upon all the terms of Meisner’s UIM policy, including the reducing clause. Accordingly , the court concluded that Meisner was entitled to

recover only $150,000 from Trumbull , rather than $250,000. Meisner now appeals that decision.

DISCUSSION

¶ 8 Meisner raises three issues on appeal. He cla ims the circuit court erroneously exercised its discretion by: (1) failing to construe the stipulation against its drafter, Trumbull; (2) considering evidence outside the time frame in which the stipulation was actually being negotiated; and (3) violating the doctrine of equitable estoppel . We reject each of these arguments.No. 2022AP1463

5 ¶ 9 A s a threshold matter, we note that Meisner cites the wrong standard
of review. When a cont r act is ambiguous and must be construed by the use of extrinsic evidence, the contract’s interpretation presents a question of fact.
Town Bank v. City R eal Est. Dev ., LLC , 2010 WI 134, ¶ 32, 330 Wis. 2d 340, 793
N.W.2d 476. We will uphold a circuit court’ s findings of fact (including any reasonable inferences upon which they rest) unless they are clearly erroneous

— meaning that they go against the great weight and cle ar preponderance of the
evidence

. Phelps v. Physicians Ins. Co. of Wis., Inc. , 2009 WI 74, ¶¶ 34, 38

- 39,
319 Wis. 2d 1, 768 N.W.2d 615.

¶ 10 Addressing Meisner’s arguments , the rule a bout construing a stipulation against the drafter applies only if any ambiguities remain after considering extrinsic evidence. See A sh Park, LLC v. Alexander & Bishop, Ltd. , 2015 WI 65, ¶36, 363 Wis. 2d 699, 866 N.W.2d 679. Here, the circuit court found
that extrinsic evidence resolved the ambiguity of the phrase “up to the limits” of the UIM policy in the stipulation and showed that the parties intended that phrase
to mean the UIM limits of the policy taking into account the reducing clause. In light of that finding

— which we c onclude is not clearly erroneous

— there were no
f urther ambiguities in the stipulation for the court to construe against its drafter.

¶ 11 Key to our conclusion that the circuit court’s finding is not clearly erroneous is that the p arties des cribed the UIM limit s in the stipulation by
reference to the Trumbull insurance policy without mentioning any specific coverage amount from that policy. It was therefore always going to be necessary to review the Trumbu ll policy in order to determine the agreed

- upon UIM limit s in the stipulation. Because the insurance policy was produced during discovery, well before the stipu lation was entered, the court could reasonably infer tha t both parties were aware of all the policy’s relevant UIM terms

— including the reducingNo. 2022AP1463

6 clause

— when they entered into the stipulation

. In that context, and in the absence of any evidence in the emails or affidavits that the parties discussed excluding any relevant policy terms from the calculation of available UIM cove rage, it was also
reasonable (and not contrary to the great weight and clear preponderance of the evidence) for the court to infer that the parties intended the reducing clause to apply when they referred in the stipulation to the UIM limit s in the Trumbul l policy

. ¶ 12 Next, we note that e xtrinsic eviden ce may “include ‘ the surrounding circumstances including factors occurring before and aft er the signing of an agreement. ’ ” Kernz v. J.L. French Corp. , 2003 WI App 140, ¶10, 266 Wis. 2d 124, 667 N.W.2d 751 (citation omitted). We there fore reject Meisner’s assertion that there was anything improper about the circuit court’s consideration of other pleadings and discovery materials produced outside the time frame of the negotiations over the sti pulation , in which Trumbull explicitly referred to its UIM coverage as being “subject to all of the terms, conditions, limitation s , and exclusions of the policy.” Nor did such consideration misconstrue the prior
directive of this court, as Meisner contends.

¶ 13 Finally, Meisner’s assertion that the circuit court should have applied the doctrine of equitable estoppel to preclude Trumbull from applying the reducing clause relies upon the premise that Meisner’s trial strategy was based in part upon Trumbull ’s agreement to pay up to $250,000. That premise is necessarily defeated, however, by the circuit court’ s construction of the parties’ stipulation.No. 2022AP1463

7 By the Court.

— Order affirmed.
This opinion will not be publish ed. See W IS

. S TAT

. R ULE 809.23(1)(b)5. (20 21

- 2 2 ).