Sass v. ACUITY

BROWN, C.J.

¶ 36. (concurring). While I agree with most of the lead opinion, I must respectfully disagree with the conclusion that "loading and unloading," as that term appears in Acuity's "Watercraft Liability" attachment to this homeowner's policy, means "the loading and unloading of the boat with persons or objects." Majority, ¶ 30. Rather, I agree with Acuity that *771the reasonable person in the position of the insured would believe that this term means being "actively engaged" in the actual loading and unloading of the boat. Therefore, the policy covers the process of transferring a boat onto or off of a vehicle, a trailer, a flat bed, a dry dock station or something similar. Numerous Wisconsin cases say as much and these cases are found at ¶ 27 of the majority opinion. In my opinion, when a person is entering onto or exiting off of a boat, that action is covered by the word "use" as it appears in a watercraft liability policy. Coming and going is such a normal part of boating that it stretches credulity to suggest otherwise. By defining "loading and unloading" to mean the act of entering or leaving a boat (or putting things on a boat and taking them off), we would be committing the sin of assigning surplusage to an insurance policy, something we should avoid.

¶ 37. For purposes of this case, once the boat was loaded and was in the process of being towed, the clause was not operative. I disagree with Sass that a person in the position of the reasonable insured would believe that "loading and unloading" includes the risk of something happening while a boat is being towed or carried from one destination to another.