Thompson v. State Farm Mutual Automobile Insurance

STEINMETZ, J.

(dissenting). The majority concludes that the injury in this case was covered under the underinsured motorist clause of Mr. Thompson's insurance policy. While I regard the majority's analytical framework as acceptable, I consider its conclusion erroneous. Specifically, the injury was not "caused by an accident arising out of the operation, maintenance or use of an UNDERINSURED MOTOR VEHICLE" as was required for coverage. (Emphasis added.) I would therefore not affirm the judgment of the circuit court.

*464It is clear that Mr. Yndestad was negligent for shooting his hunting rifle in the direction of a public highway. It is also clear that this negligence was a cause of bodily injury to Thompson. As Thompson's spouse, the plaintiff is thus legally entitled to collect damages from Mr. Yndestad for her husband's wrongful death resulting from that bodily injury. The issue for purposes of this case is whether she also is entitled to proceeds under her husband's insurance contract with the defendant. To answer this question, the court must look to the contract itself.

Words used in an insurance policy should be given their common everyday meaning and should be interpreted as a reasonable person in the insured's position would have interpreted them. Paape v. Northern Assur. Co., 142 Wis. 2d 45, 51, 416 N.W.2d 665 (Ct. App. 1987), citing Garriguenc v. Love, 67 Wis. 2d 130, 134-35, 226 N.W.2d 414 (1975). In other words, the reasonable expectation of the parties to the contract at the time the contract was formed is controlling. If those parties did not contemplate a particular risk when they entered into the contract, any injury resulting from that risk is not covered.

The accident that occurred in the case at bar arose out of the use of a hunting rifle. A reasonable person would not consider accidents "arising out of the . . . use of an UNDERINSURED MOTOR VEHICLE,” to include accidents arising out of the use of a hunting rifle. No reasonable person would contemplate such a risk in agreeing to the motor vehicle insurance contract at issue here. The language of the contract, given its common, everyday meaning, indicates that the parties could not reasonably have contemplated the coverage claimed by the plaintiff. It follows that the plaintiff should not be awarded the insurance proceeds she seeks.

*465This correct conclusion can be reached via various avenues of analysis. For example, this court has said with regard to the term "arising out of the use of a motor vehicle" that the accident "producing the injury must have some causal relationship to the inherent use of the vehicle" in order for there to be coverage. Tomlin v. State Farm Mut. Auto. Ins. Co., 95 Wis. 2d 215, 225, 290 N.W.2d 285 (1980). In this case, the injury has no causal relationship to the inherent use of the vehicle.

In the first place, this is clear from the fact that the term "inherent use" for our purposes includes only those uses which are "reasonably consistent with the inherent nature of the vehicle." Lawver v. Boling, 71 Wis. 2d 408, 416, 238 N.W.2d 514 (1976). " 'Use' as contemplated by an automobile liability policy means the use of a vehicle as such and does not include a use which is completely foreign to a vehicle's inherent purpose." Tomlin, 95 Wis. 2d at 224-25. Unlike the situation in Tasker v. Larson, 149 Wis. 2d 756, 761, 439 N.W.2d 159 (Ct. App. 1989), relied upon by the majority, Yndestad was not "using" his vehicle by temporarily leaving a young child in its passenger compartment while conducting a "brief errand" away from the vehicle, which use was consistent with the inherent nature of the vehicle, and not foreign to its purpose. Indisputably, Yndestad was not even using the passenger compartment, the only part of a vehicle where a person's presence might raise a presumption of "use." He was using only the truck bed, and he was not using it as a vehicle but rather as a hunting perch. See National Farmers Union Property and Casualty Co. v. Gibbons, 338 F. Supp. 430, 434 (D.N.D. 1972) (automobile roof was used as a gun rest and not as a vehicle). This was a use of the vehicle inconsistent with its inherent nature and foreign to its purpose.

*466To whatever extent the legislative enactments upon which the majority relies are relevant as to the matter of a vehicle's inherent use, those enactments support my view that Yndestad's firing his rifle while in the truck bed did not constitute an inherent use of the vehicle. That is, the very fact that the legislature has said, pursuant to sec. 167.31(2)(c), Stats., that "no person may load or discharge a firearm or shoot a bolt or an arrow from a bow or crossbow in or from a vehicle" indicates that the legislature considers shooting from a vehicle not to be included within the inherent use of the vehicle. While the majority is correct that sec. 167.31 (2) (c) also indicates that sec. 167.31 (4) (c) provides an exception to this rule for handicapped individuals who hold a hunting permit under sec. 29.09(9) (c) as did Yndestad, this is a case of the exception proving the rule.

Specifically, the exception provides that the vehicle must be "standing" and "stationary." See secs. 167.31(4)(c) and 29.09(9)(a)2, Stats. While not conclusive evidence, these restrictions provide some indication that the legislature did not consider the exception to create any new or broader inherent nature of the vehicle. Rather, they indicate that the legislature considered the exception to allow merely a strictly proscribed incidental use of a vehicle which incidental use normally is altogether prohibited. Stronger evidence of this can be garnered by reference to certain other "exceptions" provided in sec. 167.31(4).

For instance, sub. (d) of that section indicates that no person is prohibited "from leaning an unloaded firearm against a vehicle." See sec. 167.31(4)(d). If the majority opinion is to be logically followed, the legislative enactment means that one who leans an unloaded firearm against a vehicle "uses" the vehicle for purposes of insurance coverage. Clearly, leaning an unloaded fire*467arm against a vehicle does not constitute "use" of a vehicle. Nor is there a "use" of a vehicle solely because an individual hunts from the bed of a truck. "Using" a vehicle as a hunting perch is completely foreign to a vehicle's inherent purpose. Such an activity constitutes only an incidental use of the vehicle, which the insurance policy does not cover. Would Ynestad's resting the rifle on an outside rearview mirror be an activity arising out of the use of the vehicle? I would hold "no," but it is in doubt what the majority would hold.

In addition, there was no causal relationship to any inherent use of the vehicle as required under Tomlin. Unlike the situation in Allstate Ins. Co. v. Truck Ins. Exchange, 63 Wis. 2d 148, 216 N.W.2d 205 (1974), relied upon by the majority, nobody in the case at bar was "actively engaged in loading or unloading the automobile" when the negligent act occurred, and, contrary to the express language of this court, the negligent act was not "a part of the loading or unloading activity." Tomlin, 95 Wis. 2d at 223-24, citing Allstate at 155. Moreover, unlike the situation in Lawver, majority op. at 456-457, there was no integral chain of events involving the vehicle that led to the accident. See Smedley v. Milwaukee Automobile Ins. Co., 12 Wis. 2d 460, 107 N.W.2d 625 (1961); Norton v. Huisman, 17 Wis. 2d 296, 116 N.W.2d 169 (1962); Neumann v. Wisconsin Natural Gas Co., 27 Wis. 2d 410, 134 N.W.2d 474 (1965); Schmidt v. Luchterhand, 62 Wis. 2d 125, 214 N.W.2d 393 (1974).

The situation in the case at bar is most analogous to what occurred in Saunders v. National Dairy Products Corp., 39 Wis. 2d 575, 159 N.W.2d 603 (1968). In Saunders, the plaintiff truck driver slipped and fell on some ice on the loading dock where he parked to unload his truck. This court effectively determined that there was *468no causal connection upon which to base automobile insurance coverage, reasoning that:

At the most, the insured vehicle merely provided [the truck driver] with the means to transport himself to [the] premises, where independent factors cause him to slip and fall . . .. [W]here there is no causal connection between the use and the acts causing liability, there is no coverage under the 'use' clause.

Id. at 582-83. As the court of appeals said in Snouffer v. Williams, 106 Wis. 2d 225, 229, 316 N.W.2d 141 (Ct. App. 1982), in which insurance coverage was precluded where the injury resulted from a shot intentionally fired into the vehicle, " 'it is not enough that an automobile be the physical situs of an injury or that the injury occur incidentally to the use of an automobile.' " ” ’[T]he mere fact that the use of the vehicle preceded the harm ... is not sufficient to bring such harm within the coverage of the policy.' " Id. at 228.

Similar to Saunders and Snouffer, the "use" of the vehicle here, although it was an essential feature of the circumstances leading up to the accident, was not responsible for the activity actually causing the accident. Ynestad's use of the hunting rifle from the bed of his stationary truck took place after Ynestad already had completed the transportation and unloading activities associated with the start of his hunt, and it constituted an independent cause of the accident. See also, Hutchins v. Mills, 363 So. 2d 818, 821 (Fla. App. 1978) (no causal connection where hunter, in bed of parked truck, accidentally shot another hunter).

As a practical matter, the impact of the majority decision will be to create a lack of certainty in the marketplace as well as elsewhere1 as to what constitutes *469"use" of a vehicle for purposes of insurance coverage.2 This uncertainty, in turn, will without a doubt lead to higher insurance premiums for all Wisconsin motorists. See generally, R. Berger, The Impact of Tort Law Development on Insurance: The Availability/Affordability Crisis and Its Potential Solutions, 37 Am. U.L. Rev. 285 (1988) (society's insurance mechanisms, in order to effectively function as such, need to be based upon predictable risks, and where risks are not predictable, problems of availability and affordability of insurance *470ensue).3 In addition, this uncertainty, and the unpredictable damage awards from the courts that accompany it, will encourage automobile insurers to withdraw from the Wisconsin market, as they have from other states. See generally, Id. and E. Berg, Insurance Giants No Longer Ask To Be All Things to All People, N.Y. Times, Feb. 7, 1991, at 1 col. 1 (faced with heavy losses, many automobile insurers across the country have retreated from the marketplace).4

In a nutshell, the impact of the majority decision is to push the situation in Wisconsin in the direction of those states, such as California and New Jersey, where skyrocketing automobile insurance premiums have led to veritable insurance crises. See generally, J. Gold, Last Tango in Trenton, Financial World, Sept. 4, 1990 (LEXIS, Nexis library, current file) (skyrocketing automobile insurance premiums accompanied by possibility of insurers being in effect forced out of the market). By all appearances, such states will be sorting out their insurance crises for years to come. The vast majority of the citizenry of those states lose out.

In conclusion, the injury was not "caused by an accident arising out of the operation, maintenance or use of an UNDERINSURED MOTOR VEHICLE” as was required for coverage. (Emphasis added.) Moreover, coverage is not warranted on policy grounds. It was therefore incorrect for the majority to affirm the judg*471ment of the circuit court. I would reverse the decision of the circuit court. I therefore dissent.

The trial court itself in this case admitted having great *469difficulty understanding under Tasker, which case the majority here purports to follow as to what does and what does not constitute an accident "arising out of. . . use" of a motor vehicle. The trial court indicated that, at present, the test as to whether a particular vehicle use is a "use" covered by insurance is "utterly subjective." Undoubtedly, other courts attempting to follow the majority here will have difficulty understanding what constitutes "use."

For example, the majority opinion logically implies that leaning a firearm against a vehicle constitutes "use" of the vehicle. Is the majority opinion to be taken to this extreme end? If so, does leaning one's body against a vehicle also constitute "use" of the vehicle? Does standing some distance from a vehicle in order to photograph it constitute "use" of the vehicle? Does parking a vehicle in such a way that a strong glare from the sun reflects off of the vehicle's windshield constitute "use" of the vehicle? Under any of these circumstances, to follow the majority's reasoning, there could be "use" of the vehicle covered under the insurance policy if such circumstances are involved in producing an accident by, e.g., creating a physical or optical obstruction to the driver of a passing second vehicle who is injured from some impact resulting from the obstruction. Should the majority opinion be followed to its logical extreme? If not, there is no assistance in drawing a reasonable line.

In the case of uncertainty in the courts, the fair and equal administration of justice will be placed into jeopardy.

If uncertainty in the meaning of the term "arising out of the use" continues to broaden, the meaning will become all inclusive. While society's insurance mechanisms can provide a valuable service under certain circumstances, they do not efficiently serve as a comprehensive social welfare system.