2014 WI 73
SUPREME COURT OF WISCONSIN
CASE NO.: 2012AP858
COMPLETE TITLE: Vicki L. Blasing,
Plaintiff,
v.
Zurich American Insurance Company and Menard,
Inc.,
Defendants-Appellants,
Jefferson County Human Services Department,
Defendant,
American Family Mutual Insurance Company,
Intervenor-Respondent-Petitioner.
REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at 346 Wis. 2d 30, 827 N.W.2d 909
(Ct. App. 2013 – Published)
PDC No.: 2013 WI App 27
OPINION FILED: July 17, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: October 15, 2013
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Jefferson
JUDGE: William F. Hue
JUSTICES:
CONCURRED:
DISSENTED: ROGGENSACK, ZIEGLER, GABLEMAN, JJJ., dissent.
(Opinion filed.)
NOT PARTICIPATING:
ATTORNEYS:
For the intervenor-respondent-petitioner, there were briefs
by David J. Pliner, Chester A. Isaacson, and Corneille Law
Group, LLC, Madison, and oral argument by David J. Pliner.
For the defendants-appellants, there were briefs by Jeffrey
S. Fertl, Melissa J. Lauritch, and Hinshaw & Culbertson LLP,
Milwaukee, and oral argument by Jeffrey S. Fertl.
An amicus curiae brief was filed by James A. Friedman,
Jonathan T. Smies, and Godfrey & Kahn, S.C., Madison, on behalf
of the Wisconsin Insurance Alliance.
2
2014 WI 73
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2012AP858
(L.C. No. 2011CV71)
STATE OF WISCONSIN : IN SUPREME COURT
Vicki L. Blasing,
Plaintiff,
v.
Zurich American Insurance Company and Menard,
Inc., FILED
Defendants-Appellants,
JUL 17, 2014
Jefferson County Human Services Department,
Diane M. Fremgen
Clerk of Supreme Court
Defendant,
American Family Mutual Insurance Company,
Intervenor-Respondent-Petitioner.
No. 2012AP858
REVIEW of a decision of the Court of Appeals. Affirmed
¶1 SHIRLEY S. ABRAHAMSON, C.J. This is a review of a
published decision of the court of appeals reversing an order of
the circuit court for Jefferson County, William F. Hue, Judge,
and remanding the cause for further proceedings.1 The circuit
court granted American Family Insurance Company's motion for
summary judgment, ruling that American Family had no duty to
defend or indemnify under its automobile liability insurance
policy. The court of appeals reversed the order of the circuit
court, holding against American Family. We affirm the decision
of the court of appeals.
¶2 Vicki Blasing, the plaintiff, was injured when lumber
that was being loaded into her pickup truck by an employee of
Menard, Inc. fell on her foot. Vicki Blasing is the named
insured in the American Family policy.
¶3 The plaintiff, a named insured, brought a tort action
for personal injury damages against Menard and Zurich American
Insurance Company. The plaintiff did not sue the Menard
employee. Menard's potential liability is vicarious liability
for the torts of its employee. Menard claims its employee is an
insured under the American Family policy, as a permissive user
of the plaintiff's pickup truck. Menard is insured under a
1
Blasing v. Zurich Am. Ins. Co., 2013 WI App 27, 346
Wis. 2d 30, 827 N.W.2d 909.
2
No. 2012AP858
separate general liability insurance policy issued by Zurich
Insurance to Menard.
¶4 Let us begin by stating what is and what is not at
issue before the court.
¶5 The ultimate question before the court is whether
American Family has a duty to defend and indemnify Menard when
the injury was to the named insured under the American Family
policy and the alleged tortfeasor (a Menard employee) was a
permissive user of the vehicle insured under the American Family
policy.
¶6 What is not before the court are the merits of the
personal injury action; the plaintiff's personal injury action
has been stayed pending resolution of this insurance policy
dispute.
¶7 What is not before the court are the obligations of
Zurich Insurance under its general liability insurance policy
insuring Menard and the respective duties of American Family and
Zurich Insurance if the court holds that American Family has a
duty to defend and indemnify in the present case. The Zurich
Insurance policy is not in the record, and the parties are not
debating Zurich Insurance's obligations in isolation or in
relationship to the obligations of American Family. Any such
dispute between American Family and Zurich Insurance is for
another day. The parties apparently agree that the Zurich
Insurance policy will fully cover Menard's liability, if any,
for damages, if any, incurred by the plaintiff.
3
No. 2012AP858
¶8 The issue presented in the present case, simply
stated, is whether American Family is obliged under the policy
it sold to the named insured-plaintiff in the present case to
defend and indemnify an alleged tortfeasor when the tortfeasor
is a permissive user of the insured vehicle and the plaintiff-
injured victim is the named insured.2
¶9 In order to answer this question, the court must
address three separate inquiries.
¶10 First: Do the alleged tortfeasor's actions constitute
a "use" of the pickup truck under the American Family liability
policy?
¶11 Second: Does American Family's automobile liability
insurance policy require American Family to defend and indemnify
a permissive user tortfeasor when the injured victim is the
named insured under the policy? The key and sole argument made
by American Family and by the non-party Wisconsin Insurance
Alliance is that interpreting American Family's policy to
provide a permissive user tortfeasor defense and indemnity for
injury to the named insured creates an absurd result.
2
The court of appeals similarly stated the issue as
follows: "The question here is whether American Family must
defend Menards and provide coverage if it is determined that the
Menards employee negligently injured Blasing." Blasing v.
Zurich Am. Ins. Co., 2013 WI App 27, ¶1, 346 Wis. 2d 30, 827
N.W.2d 909.
The court of appeals concluded that American Family has a
duty to defend and indemnify Menard in the present case under
its policy. Blasing, 346 Wis. 2d 30, ¶31.
The dissent addresses issues not argued or briefed.
4
No. 2012AP858
¶12 Third: The third question as phrased by American
Family is as follows: "Does the concept of a permissive user
under the Omnibus Statute, [Wis. Stat.] § 632.32(3)(a) [2011-
12],3 require an injured person's own liability insurer to defend
and indemnify the tortfeasor who injured the insured, [when] the
tortfeasor has its own liability insurance?" (Emphasis and
footnote added.) This statement of the issue speaks in terms of
the concept of the omnibus statute and other insurance coverage
available to the permissive user tortfeasor.
¶13 Zurich Insurance phrases the question somewhat
differently, referring directly to the omnibus statute and
omitting any reference to the permissive user having its own
liability insurance: "Does the omnibus statute, Wis. Stat.
§ 632.32(3)(a), require that an automobile insurer defend and
indemnify a negligent tortfeasor who injures the named insured,
3
The omnibus statute, Wis. Stat. § 632.32(3), provides as
follows:
Required provisions. Except as provided in sub. (5),
every policy subject to this section issued to an
owner shall provide that:
(a) Coverage provided to the named insured applies in
the same manner and under the same provisions to any
person using any motor vehicle described in the policy
when the use is for purposes and in the manner
described in the policy.
(b) Coverage extends to any person legally responsible
for the use of the motor vehicle.
All subsequent references to the Wisconsin Statutes are to
the 2011-2012 version unless otherwise indicated.
5
No. 2012AP858
where the tortfeasor was a permissive user of the insured
vehicle?"
¶14 The court of appeals answered the first two questions
in the affirmative and answered the third question by stating,
"[P]ermissive user coverage is required in this case by the
omnibus statute, Wis. Stat. § 632.32."4
¶15 American Family asks us to reverse the court of
appeals and hold that the American Family policy does not cover
the liability of a permissive user tortfeasor who injures a
named insured because such a result is absurd; "insurance
policies should be given a reasonable interpretation and not one
which leads to an absurd result."5
¶16 We are not convinced by American Family's argument
that the result that the court of appeals reached and that we
reach is absurd. Rather, the American Family policy explicitly
provides coverage in the present case: The policy promises to
cover any insured for liability for damages to any person. It
does not exclude recovery by an injured victim who happens to be
4
Blasing, 346 Wis. 2d 30, ¶3.
5
Olguin v. Allstate Ins. Co., 71 Wis. 2d 160, 165, 237
N.W.2d 694 (1976). An interpretation is absurd when the
application of a policy to a specific fact pattern would produce
an unreasonable result. See Bethke v. Auto-Owners Ins. Co.,
2013 WI 16, ¶¶55-56, 345 Wis. 2d 533, 825 N.W.2d 482 (holding
that an unambiguous policy could still be held to require
coverage if doing otherwise would lead to an unreasonable
result); Schinner v. Gundrum, 2013 WI 71, ¶91, 349 Wis. 2d 529,
833 N.W.2d 685 (refusing on absurdity grounds to interpret a
policy in such a way that defies "common sense"). For a general
discussion of the case law on absurdity, see 1 Arnold P.
Anderson, Wisconsin Insurance Law § 1.34 (6th ed. 2010).
6
No. 2012AP858
the named insured or who happens to be another insured under the
policy.
¶17 Our case law demonstrates that our holding today is
not novel and has not been viewed as absurd or unreasonable in
past cases. Several Wisconsin cases have held that the named
insured under an automobile liability insurance policy is not
precluded from recovering on the policy when an additional
insured, while using the vehicle within the terms of the policy,
inflicts injury upon the named insured.6 Indeed, Wisconsin case
law has followed what appears to be the majority rule
"recognizing that the named insured under an automobile
liability insurance policy may recover from the insurer when
injured by another insured under the policy."7 "In the greater
6
"Being an additional insured does not bar one from
recovery from the insurer for the negligence of the insured."
Blashaski v. Classified Risk Ins. Corp., 48 Wis. 2d 169, 176,
179 N.W.2d 924 (1970). See also Utica Mut. Ins. Co. v.
Prudential Prop. & Cas. Ins. Co., 477 N.Y.S.2d 657 (App. Div.
1984); Aetna Cas. & Sur. Co. v. Gen. Cas. Co. of Am., 140
N.Y.S.2d 670 (App. Div. 1955) (listing additional cases from
other jurisdictions holding the named insured's policy covers
injury to the named insured).
7
L.C. Di Stasi, Jr., Automobile Liability Insurance Policy
as Covering, in the Absence of Specific Exclusion, Personal
Injury or Death of, or Loss Sustained by, Named or Additional
Insured, 15 A.L.R. 3d 711, §§ 2, 3[a] (1967) (citing Archer v.
Gen. Cas. Co. of Wis., 219 Wis. 100, 261 N.W. 9 (1935), reh'g
denied, 219 Wis. 103, 262 N.W. 257 (1935)).
7
No. 2012AP858
number of cases, the courts . . . have sustained the right of
the named insured . . . to recover under an automobile liability
policy for an injury to . . . such insured." 7A Steven Plitt et
al., Couch on Insurance 3d § 110:14 (2013).
¶18 Because we dispose of the instant case based on the
text of the American Family policy, we need not and do not
address the third question, namely whether exclusion of coverage
of injury to the named insured contravenes the omnibus statute.
An answer to this question would require us to determine the
validity of a hypothetical provision in a hypothetical policy.
We do not know the exact policy exclusion language or the facts.
¶19 For the reasons set forth, we affirm the decision of
the court of appeals.
I
¶20 This case requires us to interpret and apply an
insurance policy and a statute to undisputed facts. The
interpretation of a statute and insurance policy and their
application to undisputed facts ordinarily present questions of
law that this court decides independently of the circuit court
Two jurisdictions have apparently ruled that named insureds
are not covered for injuries resulting from the actions of
permissive user tortfeasors. See MacBey v. Hartford Accident &
Indem. Co., 197 N.E. 516 (Mass. 1935); Cain v. Am.
Policyholders' Ins. Co., 183 A. 403 (Conn. 1936). Compare
MacBey (holding that a named insured was not covered for
injuries sustained while the car was operated by a permissive
user), with Transamerica Ins. Co. v. Norfolk & Dedham Mut. Fire
Ins. Co., 279 N.E.2d 686, 688 (Mass. 1972) (holding that the
omnibus clause's use of the words "'by any person' includes the
insured").
8
No. 2012AP858
or court of appeals, but benefiting from their analyses.
Showers Appraisals, LLC v. Musson Bros., 2013 WI 79, ¶21, 350
Wis. 2d 509, 835 N.W.2d 226; Schinner v. Gundrum, 2013 WI 71,
¶35, 349 Wis. 2d 529, 833 N.W.2d 685.8
¶21 We review a grant of summary judgment de novo, using
the same methodology as the circuit court. Schinner, 349
Wis. 2d 529, ¶36. Summary judgment is proper when the record
demonstrates that there is no genuine issue of any material fact
and that the moving party is entitled to judgment as a matter of
law. Wis. Stat. § 802.08(2); Schinner, 349 Wis. 2d 529, ¶36.
II
¶22 The facts surrounding the alleged incident and
injuries are undisputed for purposes of this review. On
September 16, 2008, the named insured-plaintiff, Vicki Blasing,
visited a store owned and operated by Menard, Inc. in the
Village of Johnson Creek, Jefferson County, Wisconsin, to pick
up lumber she had purchased at Menard. She drove her 1990
Chevrolet pickup truck to the store and parked it in a
lumberyard area.
¶23 An employee of Menard used a forklift to place the
purchased lumber into the plaintiff's pickup truck, which was
insured by the American Family policy. The plaintiff stood near
the rear passenger side of her truck. While the employee was
8
Courts "construe ambiguities in coverage in favor of the
insureds and narrowly construe exclusions against insurers."
Folkman v. Quamme, 2003 WI 116, ¶16, 264 Wis. 2d 617, 665
N.W.2d 857.
9
No. 2012AP858
attempting to place the lumber into the pickup truck, some of
the lumber fell and hit the plaintiff's foot.
¶24 The plaintiff initiated a personal injury action
against Menard and Zurich Insurance, Menard's insurer, on
January 24, 2011, for injuries arising out of the falling lumber
incident, alleging both common-law negligence and a violation of
the Wisconsin Safe Place Statute, Wis. Stat. § 101.11. It
appears to be undisputed that the Zurich Insurance policy will
fully indemnify Menard and fully compensate the plaintiff for
her injuries if the plaintiff proves her case against Menard on
its merits.
¶25 Menard tendered its defense to American Family on May
31, 2011, arguing that it was an insured under the terms of the
American Family policy. American Family agreed to defend Menard
under a reservation of rights.
¶26 American Family subsequently intervened in the
plaintiff's tort action against Menard and Zurich Insurance. It
moved for summary judgment, requesting a ruling that American
Family is not required to defend or indemnify Menard for the
activities of the Menard employee under either the American
Family policy or the omnibus statute.
¶27 Menard and Zurich Insurance moved for declaratory
judgment, seeking a declaration that American Family has a duty
to indemnify and defend Menard under the permissive user
provisions of the American Family policy and under the omnibus
statute.
10
No. 2012AP858
¶28 The circuit court granted American Family's summary
judgment motion and denied Menard's motion for a declaratory
judgment, reasoning that the parties to the policy did not
contemplate that there would be coverage for a permissive user
tortfeasor injuring the named insured premium-paying
policyholder.
¶29 The court of appeals reversed the order of the circuit
court, holding that American Family had a duty to defend and
indemnify Menard under the American Family automobile liability
policy insuring the plaintiff and under the omnibus statute.
III
¶30 We first determine whether the tortfeasor's actions
constituted a "use" of the pickup truck under the American
Family automobile liability insurance policy.
¶31 The American Family policy provides coverage to
permissive users. The American Family policy includes the
following relevant coverage language:
We will pay compensatory damages an insured person is
legally liable for because of bodily injury and
property damage due to the use of a car or utility
trailer.
We will defend any suit or settle any claim for
damages payable under this policy as we think proper
(emphasis added).
¶32 The American Family policy defines "bodily injury" to
mean bodily injury to, sickness, disease, or death of any
person. In other words, the policy does not exclude bodily
injury to a named insured or any other insured.
11
No. 2012AP858
¶33 The policy goes on to define "insured person" or
"insured persons" to mean the named insured (i.e., the
policyholder), the named insured's relatives, or persons using
the insured car with the named insured's permission, as follows:
Insured person or insured persons means:
1. You or a relative.
2. Any person using your insured car.
3. Any other person or organization. This applies
only to legal liability for acts or omissions of:
a. Any person covered under this Part while
using your insured car. . . .
¶34 The policy enumerates some users who are not insureds
under the policy, such as persons using the vehicle without the
permission of the policyholder or persons exceeding the scope of
the permission. None of these persons is involved in the
present case. The alleged user in the present case is the
Menard employee who dropped the lumber.
¶35 The policy defines "use" to mean "ownership,
maintenance, or use" and provides that American Family will
indemnify and defend an insured person for "bodily injury and
property damage due to the use of a car or utility trailer."
¶36 The courts have had several opportunities to interpret
the phrase "use of a vehicle" under both insurance policies and
the omnibus statute.
¶37 Courts have interpreted "use" broadly. Use is not
limited to the driving of the vehicle. "One does not have to be
12
No. 2012AP858
driving or operating an automobile to be using it."9 Our courts
have interpreted "use" of a vehicle to include a wide range of
non-driving activities, including: unloading a rifle from the
vehicle, Allstate Ins. Co. v. Truck Ins. Exchange, 63
Wis. 2d 148, 216 N.W.2d 205 (1974);10 loading and unloading a
vehicle, Amery Motor Co. v. Corey, 46 Wis. 2d 291, 297, 174
N.W.2d 540 (1970); gesturing to a child to assist her in
crossing a road, Garcia v. Regent Ins. Co., 167 Wis. 2d 287, 481
N.W.2d 660 (Ct. App. 1992); shooting game from the insured
vehicle, Kemp v. Feltz, 174 Wis. 2d 406, 497 N.W.2d 751 (Ct.
App. 1993); and loading a scrapped dump truck tailgate into a
pickup truck under uninsured motorist coverage, Austin-White ex
rel. Skow v. Young, 2005 WI App 52, 279 Wis. 2d 420, 694
N.W.2d 436.
¶38 A lead case defining "use" in an insurance policy is
Lawver v. Boling, 71 Wis. 2d 408, 238 N.W.2d 514 (1976). In
Lawver, the victim was injured when a rope and pulley system
attached to a truck owned by the insured gave way. The dispute
centered on whether the insured's negligence in using the rope
9
Blashaski, 48 Wis. 2d at 174 (citing Kanios v. Frederick,
10 Wis. 2d 358, 103 N.W.2d 114 (1960)) (giving hand signals to
traffic from a stopped vehicle); Wiedenhaupt v. Vander Loop, 5
Wis. 2d 311, 92 N.W.2d 815 (l958) (loading a parked truck)).
10
"Persons actively engaged in loading and unloading the
automobile in the commonly accepted meaning of those words are
considered to be using or operating the automobile . . . ."
Allstate Ins. Co. v. Truck Ins. Exchange, 63 Wis. 2d 148, 155,
216 N.W.2d 205 (1974) (quoting Amery Motor Co. v. Corey, 46
Wis. 2d 291, 297-99, 174 N.W.2d 540 (1970)).
13
No. 2012AP858
and pulley system connected to the truck qualified as use of the
truck under the policy.
¶39 The Lawver court explained that the question presented
was whether the vehicle's connection with the conduct that gave
rise to the injuries (and the negligence connected therewith)
was sufficient to bring the conduct within the risk for which
the parties to the insurance policy reasonably contemplated
there would be coverage.11 The Lawver court then stated that the
reasonable contemplation of the parties to the insurance policy
is usually determined by examining whether the alleged use is
reasonably consistent with the inherent use of the vehicle. The
Lawver court declared: "This question [of the reasonable
contemplation of the parties] is usually resolved by determining
whether the alleged 'use' is one which is reasonably consistent
with the inherent nature of the vehicle."12
11
"To determine if an accident arises out of the use of an
automobile, the criterion is whether the activity is reasonably
contemplated by the parties and consistent with the inherent
purpose of an automobile." 1 Anderson, supra note 5, § 2.50.
See also 8 Lee R. Russ & Thomas F. Segalla, Couch on
Insurance 3d § 111.31 (2005) ("'Use' of a vehicle includes more
than driving or riding in an automobile; it extends to utilizing
the vehicle as an instrumental means to an end in any manner
intended or contemplated by the insured.").
12
Lawver v. Boling, 71 Wis. 2d 408, 416, 238 N.W.2d 514
(1976).
"When a policy does not include the terms loading and
unloading, the issue is whether the act in question was a
natural and reasonable incident or a consequence of the use of
the vehicle." 1 Anderson, supra note 5, § 2.51.
14
No. 2012AP858
¶40 In Lawver, the court concluded that the injuries arose
out of use of the truck, reasoning that when the insured vehicle
is a pickup truck in a farm setting, it is reasonable to expect
that it will be put to a variety of uses beyond the ordinary
transportation of persons and goods from place to place, and
that within the range of reasonable uses is its use as a power
source in performing necessary farm repairs.13
¶41 Similarly, we conclude that loading an insured pickup
truck with lumber is reasonably contemplated by the insured and
insurer because it is consistent with the ordinary
transportation of persons and goods inherent in the purpose of
the pickup truck. Thus, we conclude that under the American
Family policy, the Menard employee was a permissive user and as
such was an insured under the American Family policy.
Accordingly, we answer the first question in the affirmative.
IV
¶42 We now address the second issue: Does American
Family's policy require American Family to defend and indemnify
a permissive user tortfeasor when the injured victim is a named
insured under the policy?
¶43 American Family relies solely on the argument that if
the court requires American Family to defend and indemnify
Menard, the result would be absurd, thus violating a cardinal
13
Lawver, 71 Wis. 2d at 416.
15
No. 2012AP858
rule of interpretation: A court's interpretation should avoid
absurd or unreasonable results.14
¶44 The court of appeals concluded that the result is not
unreasonable or absurd. We agree with the court of appeals, but
we acknowledge, as did the court of appeals, that holding
against American Family in the present case might appear to some
to be anomalous, and we address a perceived anomaly.
¶45 One way of stating the anomaly is that American Family
would be required to defend and possibly indemnify a tortfeasor
who has injured the premium-paying named insured policyholder.
The court of appeals recognizes that this result can be viewed
as troubling because "an injured policyholder bringing suit
against a tortfeasor would face an attorney supplied by her own
insurance company, and . . . an eventual payout might come from
her insurer."15
¶46 Put in perspective, this result is neither troubling
nor anomalous. American Family drafted the policy, which the
named insured accepted. In the policy, American Family "has a
14
See Bethke, 345 Wis. 2d 533, ¶¶55-56 (holding that an
unambiguous policy could still be held to require coverage if
doing otherwise would lead to an unreasonable result); Schinner,
349 Wis. 2d 529, ¶91 (refusing on absurdity grounds to interpret
a policy in such a way that defies "common sense"). For a
general discussion of the absurdity case law, see 1 Anderson,
supra note 5, § 1.34.
15
Blasing, 346 Wis. 2d 30, ¶30.
16
No. 2012AP858
contractual duty to defend its insured . . . ."16 An insured
under the American Family policy is the Menard employee. Thus,
the result we reach is in accord with the policy.
¶47 American Family is not representing both the injured
insured and the tortfeasor in the present case. The injured
named insured must hire her own attorney to represent her
against any tortfeasor; thus, American Family would not be
representing or assisting the injured named insured in her
lawsuit against the tortfeasor regardless of whether the
tortfeasor was or was not an insured under the American Family
policy.
¶48 Similarly, if the named insured were injured in a car
collision with a third party who also had American Family
liability automobile insurance, the named insured would face an
attorney supplied by her own insurance company.17 In such a
case, both the injured named insured and the tortfeasor are
paying premiums that support the defense of the tortfeasor
against the injured named insured. This result may happen with
some frequency and is not viewed as absurd.
16
Mowry v. Badger State Mut. Cas. Co., 129 Wis. 2d 496,
527-28, 385 N.W.2d 171 (1986) (citing Gross v. Lloyds of London
Ins. Co., 121 Wis. 2d 78, 84, 358 N.W.2d 266 (1984); U.S.
Guarantee Co. v. Liberty Mut. Ins. Co., 244 Wis. 317, 321, 12
N.W.2d 59 (1943)).
17
The court of appeals concluded that, "as American Family
admits, a policyholder generally understands that his or her own
insurance company may provide a defense to parties with
interests adverse to the interests of the policyholder."
Blasing, 346 Wis. 2d 30, ¶24.
17
No. 2012AP858
¶49 A second way of stating the anomaly is that an
automobile liability insurance policy ordinarily covers the
liability of an insured for injury to third parties who are not
insureds under the policy, rather than liability of an insured
for an injury to an insured.18 In other words, ordinarily the
liability provisions of an automobile liability insurance policy
do not insure the insured against an injury to the insured.
¶50 But in the instant case the named insured plaintiff is
not making a claim against American Family for her injuries.
The plaintiff is suing Menard and Zurich Insurance for her
injuries as a third-party victim of Menard's tort, not as an
insured under the American Family policy. The plaintiff's claim
against Menard depends on Menard's liability to her as the
third-party victim of Menard's tort. American Family is
defending its insured, the Menard employee, against liability
for injury to a person who for purposes of this lawsuit is a
third party to the policy, not a named insured.
¶51 A third way of stating the anomaly is that providing
coverage under an automobile liability insurance policy for a
permissive user tortfeasor who allegedly negligently injures a
named insured seems to provide greater coverage to the
permissive user than to the named insured herself. In other
words, providing coverage in the present case to the permissive
18
A policy could, of course, include first-party coverage
such as medical-payments coverage or uninsured and underinsured
automobile liability insurance, but none of these provisions is
at issue here.
18
No. 2012AP858
user seems to give the permissive user coverage when injuring
the named insured but would not give the named insured coverage
when the named insured injured herself. The named insured
cannot be liable to herself.19 If the plaintiff in the present
case had injured herself while loading her pickup truck at
Menard, the American Family policy would not have been
triggered. Thus it appears that the permissive user receives
coverage for an injury to the named insured, when the named
insured cannot receive coverage for an injury to herself.
¶52 Yet a closer look reveals that the coverage for the
permissive user is no broader than for the named insured. No
insured (including the named insured or a permissive user) is
covered for negligently inflicted self-injury. If the named
insured had injured herself, her injury would not be covered,
and if the permissive user had injured himself, his injury
similarly would not be covered. The American Family policy
treats all insureds alike, including a named insured and the
permissive user, covering all of them for liability for injury
to another, regardless of whether the victim is also an insured.
¶53 A fourth way of describing the anomaly is that the
Menard employee and Menard have liability insurance coverage
with Zurich Insurance covering any possible liability to the
plaintiff. American Family places great emphasis in its
absurdity argument on the fact that Menard and the Menard
employee are covered by Zurich Insurance. It is not clear
19
See Blashaski, 48 Wis. 2d at 175-76.
19
No. 2012AP858
whether American Family would be making the same argument that
it has no duty to defend or indemnify if Zurich Insurance were
not capable of fully indemnifying Menard and capable of paying
the plaintiff's damages. It is not for this court in the
present case to assign relative responsibility to the insurance
companies for indemnification or defense. The only issue before
us is whether American Family's policy provides coverage in the
instant case. The issue before us at this stage of the
proceedings is independent of the existence of the Zurich
Insurance coverage and multiple applicable liability policies.
¶54 With regard to all four claimed anomalies, their roots
are in the language of the American Family policy itself. The
policy provides coverage to a permissive user tortfeasor for
liability for personal injury to all persons. The policy does
not except or exclude an insured's liability for an injury to
another insured.
¶55 Our case law demonstrates that our holding today is
not novel and has not been viewed as absurd or unreasonable in
past cases. Several Wisconsin cases have held that the named
insured under an automobile liability insurance policy is not
precluded from recovering on the policy when an additional
insured inflicts injury upon the named insured while using the
vehicle within the terms of the policy.20 Indeed, as we have
20
See also Utica Mut. Ins. Co. v. Prudential Prop. & Cas.
Ins. Co., 477 N.Y.S. 2d 658 (1984); Aetna Cas. & Sur. Co., 140
N.Y.S. 2d 670 (listing additional cases from other jurisdictions
holding the named insured's policy covers injury to the named
insured).
20
No. 2012AP858
stated previously, Wisconsin case law has followed what appears
to be the majority rule "recognizing that the named insured
under an automobile liability insurance policy may recover from
the insurer when injured by another insured under the policy."21
"In the greater number of cases, the courts . . . have sustained
the right of the named insured . . . to recover under an
automobile liability policy for an injury to . . . such
insured." 7A Steven Plitt et al., Couch on Insurance 3d
§ 110:14 (2013).
¶56 The Wisconsin rule is best illustrated by Archer v.
General Casualty Co. of Wisconsin, 219 Wis. 100, 261 N.W. 9
(1935), reh'g denied, 219 Wis. 103, 262 N.W. 257 (1935). In
Archer, the wife and husband were both named insureds on their
automobile liability insurance policy. While the husband was
driving, the wife suffered injuries when their car collided with
a train. The wife sued her husband and the railway company for
damages. After she recovered a judgment against her husband,
she began an action against their insurer to recover the amount
of the judgment. The insurer argued that because the wife was a
named insured, she could not recover for her injuries under the
policy. The court was unconvinced by the insurer's reasoning,
stating that by the terms of the policy, protection is as much
"Being an additional insured does not bar one from recovery
from the insurer for the negligence of the insured." Blashaski,
48 Wis. 2d at 176.
21
See note 7, supra.
21
No. 2012AP858
for the benefit of the wife as it is for any other person not
named in the policy:
Plaintiff makes no claim in this case on account of
the policy having been issued to her. Her claim is
based upon the fact that she has a claim against her
husband, who is insured against loss by reason of the
ownership and use of the automobile.
It is true . . . that a third party has no greater nor
more extensive right under the terms of the policy
than the original parties to the contract, but there
is no limitation contained in the policy which
excludes the right of recovery by the plaintiff under
the facts of this case . . . .
Archer, 219 Wis. at 103. In Archer, that the victim was a named
insured and that the tortfeasor was a named insured were
irrelevant. The victim brought the claim as a third-party
rather than as a named insured.22
¶57 In the case at bar, the injured victim, the plaintiff,
like the injured victim in Archer, is also the named insured.
The injured victim brings her claim in the instant case, as in
Archer, as a third-party victim, not as the named insured.
Adhering to the principles of Archer, we conclude that under the
facts and circumstances of the instant case, the plaintiff's
22
"If the plaintiff and her husband had been held jointly
liable and she had paid the judgment and was seeking to recover
contribution from her husband, the arguments made on behalf of
the defendant here would have greater validity." Archer v. Gen.
Cas. Co. of Wis., 219 Wis. 100, 103, 261 N.W. 9 (1935), reh'g
denied, 219 Wis. 103, 262 N.W. 257 (1935)).
22
No. 2012AP858
identity as the named insured does not affect the coverage
American Family affords to the permissive user tortfeasor.23
¶58 The rule in favor of coverage of the permissive user
tortfeasor regardless of the identity of the victim as the named
insured is further buttressed by Allstate Insurance Co. v. Truck
Insurance Exchange, 63 Wis. 2d 148, 216 N.W.2d 205 (1974).
¶59 In the Allstate case, a passenger in an insured
vehicle shot and killed the named insured driver when the
passenger removed a hunting rifle from the insured vehicle.
Clearly the insured driver, had he removed the rifle himself and
injured himself, would not have been indemnified under his
automobile liability insurance policy. Yet, the court
determined that the driver's automobile liability policy
afforded coverage to the permissive user passenger who allegedly
negligently killed the named insured driver when the widow of
the named insured brought a wrongful death action against the
permissive user.
¶60 When the injured party was an insured but not the
named insured, courts have concluded that the liability
insurance policy provided coverage to the permissive user
tortfeasor who injured an insured.
¶61 In Nelson v. Ohio Casualty Insurance Co., 29
Wis. 2d 315, 139 N.W.2d 33 (1966), both the injured person and
23
See also Aetna Cas. & Sur. Co., 140 N.Y.S.2d 670 (citing
Archer and holding that insurer of passenger-owner was liable
for damages authorized driver became obligated to pay for
injuries sustained by passenger-owner, despite fact that
passenger-owner was named insured under policy).
23
No. 2012AP858
the tortfeasor were employees of the city of Hartford. The
injured person was unloading a garbage truck, while the
tortfeasor was driving it. The court held that the city's
insurance policy was required to defend and indemnify the
permissive user tortfeasor. Although the case was decided on
different grounds, the victim's status as another insured did
not trouble the Nelson court.
¶62 In several cases, an automobile liability insurance
company has been required to defend and indemnify a permissive
user tortfeasor who injured an insured while loading or
unloading a covered vehicle. The fact pattern is similar in a
number of cases. A truck driver parks his truck to be loaded or
unloaded; during the loading or unloading the truck driver is
injured by a person who negligently loads or unloads the truck.
The general principle of according automobile liability
insurance coverage to permissive users who cause injury to an
insured has been applied. See, e.g., Ermis v. Fed. Windows Mfg.
Co., 7 Wis. 2d 549, 97 N.W.2d 485 (1959); Lukaszewicz v.
Concrete Research, Inc., 43 Wis. 2d 335, 168 N.W.2d 581 (1969);
Pitrowski v. Taylor, 55 Wis. 2d 615, 201 N.W.2d 52 (1972).
¶63 Our case law demonstrates that although an injured
person cannot recover under an automobile insurance liability
policy for self-inflicted injury, an injured person who is an
insured can recover under an automobile insurance liability
policy if injured by a fellow insured. Coverage is not based on
the identity of the victim absent language in the policy stating
otherwise.
24
No. 2012AP858
V
¶64 The parties frame the third question differently, as
we explained in paragraphs 12 and 13 above. Both parties can,
however, be interpreted as asking: Does the omnibus statute,
Wis. Stat. § 632.32(3), require an automobile liability
insurance policy to provide a permissive user tortfeasor
coverage when the permissive user injures a named insured?
¶65 The omnibus statute, Wis. Stat. § 632.32(3), provides
as follows:
Required provisions. Except as provided in sub. (5),
every policy subject to this section issued to an
owner shall provide that:
(a) Coverage provided to the named insured applies in
the same manner and under the same provisions to any
person using any motor vehicle described in the policy
when the use is for purposes and in the manner
described in the policy.
(b) Coverage extends to any person legally responsible
for the use of the vehicle.
¶66 We need not and do not decide whether in light of the
omnibus statute an automobile liability insurance policy may
exclude coverage of liability for personal injuries suffered by
the named insured. We cannot rule on a proposed exclusion
without knowing the precise language of the exclusion and the
facts to which the exclusion is applied.
¶67 Nevertheless, we note that the court has decided a
number of cases in which the parties dispute the validity of
exclusion clauses under the omnibus statute. See, e.g., Schenke
v. State Farm Mut. Auto. Ins. Co., 246 Wis. 301, 16 N.W.2d 817
25
No. 2012AP858
(1944); Frye v. Theige, 253 Wis. 596, 34 N.W.2d 793 (1948);24
Musselman v. Mut. Auto Ins. Co., 266 Wis. 387, 63 N.W.2d 691
(1954); Havlik v. Bittner, 272 Wis. 71, 74 N.W.2d 798 (1956);
Bauman v. Gilbertson, 7 Wis. 2d 467, 96 N.W.2d 854 (1959);
Ottinger v. Falkenberg, 11 Wis. 2d 506, 105 N.W.2d 560 (1960).25
¶68 In Frye v. Theige, 253 Wis. 596, 601, 34 N.W.2d 793
(1948), the named insured was a passenger in an automobile
driven by another with his permission. The named insured was
hurt in an automobile collision and sought to recover against
his own automobile liability insurance company for damages
caused by the negligence of the permittee driver. The insurance
policy had an exclusion providing that the policy did not apply
to bodily injury of a named insured. The insurance company
contended that because the provision was a general exclusion of
coverage that applied equally to the named insured and
additional insureds, it did not violate the omnibus statute.
24
The court in Frye v. Theige, 253 Wis. 596, 34 N.W.2d 793
(1948), distinguished Archer v. General Casualty Co. of
Wisconsin, 219 Wis. 100, 261 N.W. 9 (1935), which accorded
coverage for liability for injury to a named insured, from
Munsert v. Farmers Mutual Automobile Insurance Co., 229
Wis. 581, 281 N.W. 671 (1938), which did not accord coverage for
liability for injury to a named insured, on the ground that the
policy in Munsert contained such an exclusion clause.
25
For a collection of cases on provisions of an automobile
liability insurance policy excluding from coverage injury or
death of an insured, see Jonathan M. Purver, Validity,
Construction, and Application of Provision of Automobile
Liability Policy Excluding from Coverage Injury or Death of
Insured, 46 A.L.R. 3d 1061 (1972).
26
No. 2012AP858
¶69 The Frye court upheld the exclusion, reasoning that
the exclusion did not necessarily result in giving the
additional insured (the permittee driver) less protection than
was given the named insured. The court emphasized the language
in what is now subsection (3)(a) of the omnibus statute,
reasoning that the clause did not necessarily result in giving
to an insured less protection than the policy gave to the named
insured.
¶70 The Frye court explained:
The additional assured is not protected in case
plaintiff is the named assured. Neither, however, is
the named assured protected in that same situation.
The mere fact that the situation does not come up in
respect to the named assured because he is ordinarily
driving his car and injured by his own negligence
appears to us to be wholly immaterial. Nobody can or
does receive protection against liability for injuries
to the named assured. The named assured is excluded
from protection as well as the additional assured.26
¶71 In dissent in Frye, Justice Fairchild explained that
the named insured as a passenger had a cause of action against
the driver for his injuries due to the driver's negligence.
Nevertheless, the exclusion did not indemnify the permittee
driver for the damages that the named insured may recover
against the driver. Yet the legislature had said that insurance
policies shall extend equal coverage to anyone driving the car
with the owner's permission. Had the named insured been the
driver, he would have been indemnified for all damages recovered
against him, But the permittee driver was not indemnified for
26
Frye, 253 Wis. at 601.
27
No. 2012AP858
liability for all damages recovered against him. According to
Justice Fairchild, such an exclusion would "defeat the avowed
purpose of the statute."27
¶72 The parties seem to think that whether the permissive
user has other insurance coverage affects the validity of a
hypothetical policy exclusion under the omnibus statute. We do
not know whether the arguments about the omnibus statute change
if the permissive driver is not fully insured under a policy
other than the policy acquired by the named insured.
¶73 Past cases inform us that we should not rule on the
omnibus statute without the exact language of the exclusion
proposed, the facts of the case, and briefs and oral argument——
none of which is present here with regard to this issue. This
court does not issue advisory opinions based on non-existent
facts.28
¶74 In sum, American Family asks us to reverse the court
of appeals and hold that the American Family policy does not
cover the liability of a permissive user tortfeasor who injures
a named insured. We are not persuaded to do so. Such a holding
contravenes the terms of the American Family insurance policy
and settled case law of this state. Our case law makes no
distinction between injured parties who are named insureds and
27
Frye, 253 Wis. At 605 (Fairchild, J., dissenting).
28
See State ex rel. La Follette v. Dammann, 220 Wis. 17,
22, 264 N.W. 627 (1936).
28
No. 2012AP858
other insureds. Accordingly, we affirm the decision of the
court of appeals.
By the Court.——The decision of the court of appeals is
affirmed.
29
No. 2012AP858.pdr
¶75 PATIENCE DRAKE ROGGENSACK, J. (dissenting). I write
in dissent because, based on the pleadings and the materials
submitted in the summary judgment and declaratory judgment
motions, I conclude that the majority opinion erroneously
decides that American Family Insurance Company, Vicki Blasing's
automobile liability carrier, must assume the defense and
indemnification of Menard, Inc. that was initially undertaken by
Zurich American Insurance Company, Menard's liability carrier.1
The majority opinion errs because it does not fully address the
issue American Family presented: "Does the concept of a
permissive user under the Omnibus Statute, § 632.32(3)(a),
Stats., require an injured person's own liability insurer to
defend and indemnify the tortfeasor who injured the insured, and
where the tortfeasor has its own liability insurance?"2 It also
errs in failing to follow proper summary judgment procedure.
¶76 I conclude that the majority opinion should not avoid
American Family's stated issue, but rather, address it and
conclude that when a direct action has been commenced against
the insurer of a named defendant, as is the case here, the
defendant's insurer must provide the defense unless that insurer
first can prove there is no coverage for any of the claims made.
Public policy requires that order of proceeding in the case at
hand to meet American Family's stated issue and to prevent the
conversion of Blasing's personal automobile policy into
comprehensive liability insurance for Menard.
1
Majority op., ¶8.
2
American Family brief, p. 1.
1
No. 2012AP858.pdr
¶77 By ignoring American Family's stated issue and
Blasing's direct action claims against Zurich3 and then
permitting Zurich and Menard to shift the court's focus to
whether Menard's employee was a "permissive user" of Blasing's
vehicle under the policy American Family issued to Blasing,4 the
majority opinion contravenes basic summary judgment principles
and decides disputed issues of material fact relative to
Blasing's direct action against Zurich.5
¶78 I would reverse the court of appeals and remand the
matter to the circuit court, with Zurich providing the defense
to Blasing's claims because Zurich has provided nothing to
disprove Blasing's allegation that Zurich insured Menard for her
claims. Because the majority opinion chooses not to address
American Family's stated issue and then ignores Blasing's direct
action against Zurich in this summary judgment proceeding and
erroneously converts Blasing's automobile liability policy into
comprehensive liability insurance for Menard, I respectfully
dissent.6
3
Majority op., ¶74.
4
Id., ¶5.
5
Complaint, ¶2; Zurich's and Menard's answer, ¶2.
6
The majority opinion misperceives the dissent when it
asserts that "[t]he dissent addresses issues not argued or
briefed." Majority op., ¶8 n.2. The focus of American Family's
question and of the dissent are whether an injured party's
automobile policy should be converted into liability insurance
for a tortfeasor who has insurance of its own for the accident.
2
No. 2012AP858.pdr
I. BACKGROUND
¶79 This lawsuit against Menard involves Blasing's safe-
place claims, which are based on Menard's conduct, and her
common law negligence claim, which seeks to impose vicarious
liability on Menard based on Menard's employee's conduct. This
dispute is not about whether an injured person will be
compensated for the injuries sustained. Rather, it concerns who
will defend Menard and if Blasing is successful, who will pay.7
¶80 Stated otherwise, we are concerned with whether
American Family's automobile liability policy, for which Blasing
paid, will be converted into comprehensive liability insurance
for Menard, by causing American Family to defend and indemnify
Menard. It is also about whether Blasing's direct action
against Zurich will be overlooked by focusing on the coverage
provisions of Blasing's automobile policy, rather than on the
summary judgment procedure applicable to motions under Wis.
Stat. § 802.08. Accordingly, it is critically important to
recognize that the context in which this case arises includes a
tortfeasor who has its own insurance and a direct action claim
against the tortfeasor's insurer. It is this context that
drives my dissent from the majority opinion.
¶81 Blasing's injuries arose on September 16, 2008, when
she purchased boards from Menard and proceeded to a loading area
7
It is also about Erickson v. Menard, Inc., La Crosse
County Case No. 10CV324, which is pending in La Crosse County
and presents the same issue, i.e., whether Menard will be
permitted to convert an injured party's automobile liability
policy into comprehensive insurance for Menard. Petition for
Review, p. 19.
3
No. 2012AP858.pdr
to have them placed in her vehicle. She was standing near the
rear passenger side of her vehicle as a Menard employee began to
load the boards with a forklift. During the loading, some of
the boards fell onto Blasing's foot, causing her injury.
¶82 On January 24, 2011, Blasing sued Menard based on two
theories: (1) liability for Menard's violations of the safe-
place statute, Wis. Stat. § 101.01 et seq.; and (2) liability
for the acts of its employee in negligently handling the boards
while loading Blasing's vehicle. Blasing also brought a direct
action against Zurich, Menard's liability carrier. She did not
sue the Menard employee who loaded the boards onto her vehicle.
¶83 On March 7, 2011, Zurich and Menard answered,
admitting that Zurich "issued a policy of liability insurance"
to Menard, but denying Blasing's allegations of safe-place
violations and negligence.8
¶84 On May 31, 2011, Menard tendered its defense to
American Family, who was Blasing's automobile liability carrier
at the time of the accident. Menard's tender ignored Blasing's
safe-place claims. Instead, Menard focused on the common law
negligence claim and contended that its employee was "using"
Blasing's vehicle with her permission while loading the boards;
and therefore, there was coverage for Blasing's injuries under
her own automobile liability policy due to the requirements of
the omnibus statute, Wis. Stat. § 632.32(3).
¶85 On August 2, 2011, American Family moved to intervene
in the action to defend against Menard's tender. On January 23,
8
Zurich answer, ¶¶2-12.
4
No. 2012AP858.pdr
2012, American Family moved for summary judgment that it had no
duty to defend or indemnify Menard for Blasing's claims.
American Family submitted the automobile liability policy it
issued to Blasing for court interpretation.
¶86 On January 24, 2012, Menard and Zurich moved for
declaratory judgment asking the court to summarily hold that
American Family had a duty to defend and indemnify Menard for
liability arising from Blasing's claims. Although documents
were submitted in support of their motion, Zurich chose not to
submit the liability policy it admitted that it issued to
Menard. Therefore, Zurich's liability policy is not in the
record for us to interpret.
¶87 The circuit court granted American Family's motion,
holding that it had no duty to defend or to indemnify Menard for
Blasing's injuries under her automobile liability policy. The
circuit court concluded that it would not have been within the
reasonable expectation of Blasing when she purchased the
American Family policy that American Family would defend
tortfeasors who injured her and provide indemnity to Menard if
Blasing succeeded on her claims against Menard and Zurich. The
circuit court found Lawver v. Boling, 71 Wis. 2d 408, 238 N.W.2d
514 (1976), most persuasive.
¶88 The court of appeals reversed, concluding that
American Family had both a duty to defend and to indemnify
Menard, relying largely on the omnibus statute, Wis. Stat.
§ 632.32(3). Blasing v. Zurich Am. Ins. Co., 2013 WI App 27,
¶33, 346 Wis. 2d 30, 827 N.W.2d 909.
5
No. 2012AP858.pdr
II. DISCUSSION
A. Standard of Review
¶89 In this review of summary judgment, we apply the same
standard of review as did the court of appeals and the circuit
court, but benefitting from their analyses.9 Hoida, Inc. v. M&I
Midstate Bank, 2006 WI 69, ¶16, 291 Wis. 2d 283, 717 N.W.2d 17.
Summary judgment begins with a review of the complaint to
determine whether it states a claim. Westphal v. Farmers Ins.
Exch., 2003 WI App 170, ¶9, 266 Wis. 2d 569, 669 N.W.2d 166.
Next, "we review the answer to determine whether it joins a
material issue of fact or law." Id. If we determine that issue
has been joined, we examine the submissions of the parties to
determine whether there are material facts in dispute that would
require a trial and whether the evidence is sufficient to decide
the legal issues that have been joined. See id.
B. Blasing's Claims
1. Safe-place violations
¶90 Blasing sued Menard for violations of the safe-place
statute, Wis. Stat. § 101.01 et seq. Blasing alleged that she
was a frequenter or invitee within the meaning of the safe-place
statute and that Menard:
a. Failed to furnish a place for employees,
frequenters, and/or invitees, which was safe, as that
term is defined in Wis. Stat. § 101.01;
9
Actions for declaratory judgment relief may be determined
in summary judgment proceedings. Northernaire Resort & Spa, LLC
v. Northernaire Condo. Ass'n, 2013 WI App 116, ¶12, 351 Wis. 2d
156, 839 N.W.2d 117 (concluding that a motion for declaratory
judgment is better described as one for summary judgment).
6
No. 2012AP858.pdr
b. Failed to furnish and use safety devices and
safeguards and failed to adopt and use methods and
processes reasonably adequate to render the subject
property safe, as that term is defined in Wis. Stat.
§ 101.01;
c. Failed to do every other thing reasonably
necessary to protect the life, health, safety, and
welfare of employees, invitees and/or frequenters at
the subject property where the Plaintiff, Vicki L.
Blasing, was injured;
d. Failed to properly construct the subject
property/parking lot/surrounding areas, inspect,
maintain, repair, safeguard, and warn so as to render
the subject property safe, as those terms are defined
in Wis. Stat. § 101.01[.]
¶91 Pursuant to Wis. Stat. § 101.11, "[e]very employer and
every owner of a place of employment or a public building . . .
shall so construct, repair or maintain such place of employment
or public building as to render the same safe." Accordingly, a
safe-place claim may be based on the allegation that an employer
or owner of a place of employment or public building failed to
maintain the building as safely as the nature of the facility
would reasonably permit. Kochanski v. Speedway SuperAmerica
LLC, 2014 WI 72, ¶30, __ Wis. 2d __, __ N.W.2d __; Megal v.
Green Bay Area Visitor & Convention Bureau, Inc., 2004 WI 98,
¶22, 274 Wis. 2d 162, 682 N.W.2d 857. What constitutes a safe-
place violation depends on "the facts and conditions present,
and the use to which the place 'was likely to be put.'" Gross
v. Denow, 61 Wis. 2d 40, 47, 212 N.W.2d 2 (1973) (citations
omitted).
¶92 Blasing's safe-place claim arises from Menard's
policies and facilities at the time the boards were loaded onto
7
No. 2012AP858.pdr
her vehicle.10 This claim is grounded in a failure of Menard,
not in a failure of its employee. See Megal, 274 Wis. 2d 162,
¶9. Blasing's safe-place claims do not constitute use or
operation of her vehicle. Cont'l Nat'l Ins. Co. v. Carriers
Ins. Co., 55 Wis. 2d 533, 536-37, 200 N.W.2d 584 (1972)
(concluding that unsafe loading and unloading facilities that
violated the safe-place statute were not part of the act of
unloading and therefore, did not constitute use or operation of
a vehicle). In addition, there are different tortfeasors for
Blasing's two claims. Menard is the putative tortfeasor for
Blasing's safe-place claim, while Menard's employee is the
putative tortfeasor for her negligence claim, as explained
below.
¶93 In Amery Motor Co. v. Corey, 46 Wis. 2d 291, 174
N.W.2d 540 (1970), we also concluded that unsafe loading
facilities are not part of loading or unloading a vehicle. We
explained that faulty construction of the premises "was not a
part of the loading and unloading operation but resulted in a
condition of the premises which would normally be covered under
a comprehensive liability policy on the premises." Id. at 300.
We said that "loading and unloading coverage added to an
automobile liability policy . . . was not intended to take the
place of comprehensive insurance on the premises." Id. at 301.
¶94 In Sampson v. Laskin, 66 Wis. 2d 318, 224 N.W.2d 594
(1975), we again considered the differing factual predicates
between safe-place claims and those based on the "use" of a
10
Complaint, ¶¶8-12.
8
No. 2012AP858.pdr
vehicle. There, prior to the accident, two employees were
loading barrels of waste material from an elevator into a truck
owned by their employer. Id. at 321. In order to get the last
of the barrels into the truck, they employed a bypass switch on
the elevator so it rose without the door being closed. Id. at
322. When they raised the elevator to the level of the truck
bed, there was an 18-inch gap between the truck and the elevator
floor on which the barrels sat. Id. In an effort to move the
barrels from the elevator over the gap and into the truck, the
employees placed a loose sheet of metal as a make-shift bridge
over the gap. Id. Unfortunately, as the employees were using
this makeshift bridge, it slipped and both employees fell 26
feet into the pit of the elevator. Id. at 322-23.
¶95 The injured employee and the estate of the deceased
employee sued the owners of the building alleging violations of
the safe-place statute because of the availability of the bypass
switch that the plaintiffs used to override a safety feature of
the elevator. Id. at 326. The jury found for the plaintiffs
and that determination was not appealed. Id.
¶96 The defendant-owners, in turn, filed a third-party
complaint against Liberty Mutual Insurance Company under the
automobile liability policy issued to the plaintiffs' employer,
into whose truck the barrels were being loaded. Id. at 334.
The defendant-owners claimed that they were covered under the
automobile policy because the accident occurred during the
loading of the truck. Id. In dismissing the defendant-owners'
claim under the automobile policy, we explained that the
9
No. 2012AP858.pdr
"[l]oading and unloading coverage, added to an automobile
liability policy, . . . 'was not intended to take the place of
comprehensive insurance on the premises,' particularly not so in
safe-place cases." Id. at 336 (citation omitted).
¶97 Other jurisdictions also adhere to our view that safe-
place claims based on loading and unloading facilities and
policies are excluded from use or operation of a vehicle
"because the owner's duty to maintain a safe place 'was not a
step in the specific operation of unloading a truck.'" Amery,
46 Wis. 2d at 301 (citation omitted).11
¶98 Accordingly, safe-place violations are not part of
loading or unloading a vehicle or a "use" of a vehicle. Id.
Therefore, in regard to Blasing's safe-place claims, there is no
basis for coverage under Blasing's automobile policy. Sampson,
66 Wis. 2d at 335-36; Continental, 55 Wis. 2d at 536-37; Amery,
46 Wis. 2d at 301.
2. Common law negligence
¶99 Blasing also sued Menard for the common law negligence
of its employee in loading boards onto her vehicle. On that
claim, Menard has potential liability based on vicarious
liability under the doctrine of respondeat superior, which
imposes liability on an employer for the acts of its employee
within the scope of the employee's employment. Brown v. Acuity,
Mut. Ins. Co., 2013 WI 60, ¶27, 348 Wis. 2d 603, 833 N.W.2d 96;
11
See also Suter, Loading and Unloading, 31 Insurance
Counsel Journal 112 (Jan. 1964); Cosmopolitan Mut. Ins. Co. v.
Balt. & Ohio R.R., 240 N.Y.S.2d 88 (1963).
10
No. 2012AP858.pdr
Peters v. Menard, Inc., 224 Wis. 2d 174, 193 n.8, 589 N.W.2d 395
(1999).
¶100 Respondeat superior imposes vicarious liability based
on the existence of a master-servant relationship. Kerl v.
Dennis Rasmussen, Inc., 2004 WI 86, ¶4, 273 Wis. 2d 106, 682
N.W.2d 328. "Vicarious liability under respondeat superior is a
form of liability without fault." Id. Vicarious liability may
result from the right to control the activities of another, such
as is found in the control of an employee by an employer during
the scope of the employee's employment. Lewis v. Physicians
Ins. Co. of Wis., 2001 WI 60, ¶12, 243 Wis. 2d 648, 627 N.W.2d
484; see also Restatement (Second) of Agency § 219 (1958).
¶101 There is a difference between an employer's vicarious
liability for an employee's conduct and the conduct of the
employee, himself. For example, an employer who is liable due
to the doctrine of respondeat superior is not a tortfeasor;12
rather, the employer's liability stems from the particular type
of agency relationship created when the employee is acting
within the scope of his employment. See Schinner v. Gundrum,
2013 WI 71, ¶47 n.13, 349 Wis. 2d 529, 833 N.W.2d 685;
Restatement (Second) of Agency § 219 (1958); see also St. Paul
Fire & Marine Ins. Co. v. MAG Mut. Ins. Co., 433 S.E.2d 112, 113
(Ga. Ct. App. 1993).13
12
A tortfeasor is "[o]ne who commits a tort," i.e., a
legally cognizable wrong. Black's Law Dictionary 1627 (9th ed.
2009).
13
See also 18B Am. Jur. 2d Corporations § 1832 (2014);
Restatement (Third) of Agency § 2.04 (2006).
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¶102 In Schinner, we recently explained that an employer,
is subject to the liability for damages flowing from
the tortious conduct of its employee. This liability
is imposed upon [the] assured by law under the rule of
respondeat superior. Although the [employer] may be
held liable for such tort, it cannot be said that [the
employer] committed the assault.
Schinner, 349 Wis. 2d 529, ¶47 n.13 (quoting Fox Wis. Corp. v.
Century Indem. Co., 219 Wis. 549, 551-52, 263 N.W. 567 (1935)).
The conclusion that an employer who has vicarious liability
under the doctrine of respondeat superior is not a tortfeasor is
consistent with our conclusion that vicarious liability under
respondeat superior is liability without fault. Kerl, 273
Wis. 2d 106, ¶4.
¶103 It is only the common law negligence claim for which
there potentially could be coverage under the American Family
policy. American Family focuses on this claim with two facts
that are significant, one of which the majority does not
address. American Family questions whether the "concept of use"
should be applied to the insured's policy under the omnibus
statute when (1) the insured is injured by a tortfeasor and (2)
the tortfeasor has insurance of its own.
¶104 The second fact, that the tortfeasor has its own
insurance for the accident, is extremely significant because the
omnibus statute has as its purpose assuring that accident
victims have insurance coverage. Nordahl v. Peterson, 68 Wis.
2d 538, 551, 229 N.W.2d 682 (1975); Venerable v. Adams, 2009 WI
App 76, ¶14, 318 Wis. 2d 784, 767 N.W.2d 386. Therefore,
construing the "concept of use" narrowly under the policy to
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exclude those tortfeasors who injure the insured and also have
their own insurance will not conflict with the omnibus statute's
purpose of providing insurance coverage to injured persons
because of Zurich's insurance policy.
C. Summary Judgment
¶105 Zurich moved for summary declaration that American
Family has the duty to defend and indemnify Menard. Consistent
with summary judgment methodology, I begin with an examination
of the complaint to determine what it alleges in regard to the
duty to defend and indemnify. See Admanco, Inc. v. 700 Stanton
Drive, LLC, 2010 WI 76, ¶28, 326 Wis. 2d 586, 786 N.W.2d 759.
The complaint shows that Blasing sued Menard. She also brought
a direct action against Zurich, as is permitted by Wis. Stat.
§ 632.34. Backus Elec., Inc. v. Petro Chem. Sys., Inc., 2013 WI
App 35, ¶12, 346 Wis. 2d 668, 829 N.W.2d 516. In regard to
Menard, Blasing pled safe-place violations based on allegations
that Menard did not make the loading facility as safe as it
would reasonably permit. She also pled a common law negligence
claim based on the acts of Menard's employee during the scope of
his employment. In regard to Zurich, she claimed that Zurich
provided insurance to Menard and its employees "against the
liability of the type" for which she had claimed, i.e., for
safe-place violations and for negligence. Blasing adequately
stated her claims.14
¶106 The second step in summary judgment determinations is
to examine the answer. Admanco, 326 Wis. 2d 586, ¶28. Zurich
14
Complaint, ¶2.
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admits that it "issued a policy of liability insurance" to
Menard, with unstated conditions.15 Accordingly, issues of
material fact were joined in regard to whether Zurich insured
Menard for the alleged safe-place violations and the negligence
claim set out in the complaint.
¶107 The third step in summary judgment methodology is to
examine the materials submitted by the moving party to see
whether that party has made a prima facie showing that there are
no material issues of fact in dispute and that that party should
prevail on a question of law without a trial. Id. In regard to
Zurich, it submitted no evidence that it does not insure Menard
"against the liability of the type" set out in the complaint,
i.e., safe-place violations and vicarious liability for common
law negligence.
¶108 Instead, Zurich artfully shifted all court focus to
American Family's automobile liability policy, which prevented a
summary judgment analysis of Blasing's direct claim against
Zurich.16 Zurich's skillful approach also prevented the court
from fully addressing the issue American Family presented for
our review. However, when I apply summary judgment procedures,
it becomes apparent that Zurich has not met the standard
necessary to negate Blasing's direct action claim that Zurich
15
Answer, ¶2.
16
Menard has used this same approach in other venues to
shift its insurer's obligation to defend and indemnify for harm
a Menard employee caused to a customer who had automobile
liability insurance. See Menard, Inc. v. Country Preferred Ins.
Co., 992 N.W.2d 643 (Ill. App. Ct. 2013).
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insured Menard for Blasing's claims. Summary judgment should be
denied and Zurich must proceed to defend Menard unless it first
can prove that the liability policy it admits it provided to
Menard covers none of Blasing's claims.
¶109 If Zurich's obligations to defend and indemnify Menard
are not determined before this matter proceeds, Zurich and
Menard will have succeeded in converting American Family's
automobile liability policy into a comprehensive liability
policy for Menard because American Family will have to shoulder
a defense to claims, at least one of which falls outside of the
scope of its policy and the omnibus statute. See Sampson, 66
Wis. 2d at 336. Failing to first address Zurich's obligations
also will prevent court consideration of the issue American
Family presented for our review: "Does the concept of a
permissive user under the Omnibus Statute, § 632.32(3)(a),
Stats., require an injured person's own liability insurer to
defend and indemnify the tortfeasor who injured the insured, and
where the tortfeasor has its own liability insurance?"
III. CONCLUSION
¶110 In conclusion, I write in dissent because, based on
the issue American Family submitted for our review, the
pleadings and the materials submitted in the summary judgment
and declaratory judgment motions, I conclude that the majority
opinion erroneously decides that American Family, Vicki
Blasing's automobile liability carrier, must assume the defense
and indemnification of Menard that was initially undertaken by
Zurich, Menard's liability carrier. The majority opinion errs
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because it does not fully address the issue American Family
presented: "Does the concept of a permissive user under the
Omnibus Statute, § 632.32(3)(a), Stats., require an injured
person's own liability insurer to defend and indemnify the
tortfeasor who injured the insured, and where the tortfeasor has
its own liability insurance?" It also errs in failing to follow
proper summary judgment procedure.
¶111 I conclude that the majority opinion should not avoid
American Family's stated issue, but rather, address it and
conclude that when a direct action has been commenced against
the insurer of a named defendant, as is the case here, the
defendant's insurer must provide the defense unless that insurer
first can prove there is no coverage for any of the claims made.
Public policy requires that order of proceeding in the case at
hand to meet American Family's stated issue and to prevent the
conversion of Blasing's personal automobile policy into
comprehensive liability insurance for Menard.
¶112 By ignoring American Family's stated issue and
Blasing's direct action claims against Zurich and then
permitting Zurich and Menard to shift the court's focus to
whether Menard's employee was a "permissive user" of Blasing's
vehicle under the policy American Family issued to Blasing, the
majority opinion contravenes basic summary judgment principles
and decides disputed issues of material fact relative to
Blasing's direct action against Zurich.
¶113 I would reverse the court of appeals and remand the
matter to the circuit court, with Zurich providing the defense
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to Blasing's claims because Zurich has provided nothing to
disprove Blasing's allegation that Zurich insured Menard for her
claims. Because the majority opinion chooses not to address
American Family's stated issue and then ignores Blasing's direct
action against Zurich in this summary judgment proceeding and
erroneously converts Blasing's automobile liability policy into
comprehensive liability insurance for Menard, I respectfully
dissent.
¶114 I am authorized to state that Justices ANNETTE
KINGSLAND ZIEGLER and MICHAEL J. GABLEMAN join this dissent.
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