Allstate Ins. Co. v. Truck Ins. Exchange

• Decision Date: 02 April 1974
• Docket Number: No. 333,333
• Citation: 216 N.W.2d 205,63 Wis.2d 148
• Parties: ALLSTATE INSURANCE CO., Respondent, v. TRUCK INSURANCE EXCHANGE, Appellant.
• Court: Wisconsin Supreme Court

Page 205

216 N.W.2d 205

63 Wis.2d 148

ALLSTATE INSURANCE CO., Respondent, v. TRUCK INSURANCE EXCHANGE, Appellant.

No. 333.

Supreme Court of Wisconsin.

April 2, 1974.

Arnold, Murray & O'Neill, Milwaukee, Donald P. O'Meara, Milwaukee, of counsel for appellant.

Kivett & Kasdorf, Milwaukee, John M. Swietlik, Milwaukee, of counsel for respondent.

CONNOR T. HANSEN, Justice.

The basic dispute in this litigation concerns which of the two insurance policies covers this accident.

The general liability policy of Allstate excluded coverage for loss arising out of '. . . the ownership, maintenance, operation, use, loading or unloading . . .' of any automobile away from the residence of the insured.

The comprehensive liability policy of Truck provided coverage for bodily injury to any person '. . . arising out of the ownership, maintenance or use of any automobile, . . .'

The accident occurred September 25, 1964. Jaskowiak, the deceased owner of the vehicle and Truck's insured, was driving the panel truck which had only a driver's seat. Macsurak, Allstate's insured, was kneeling on the floor to the right of Jaskowiak. Apparently both men had their uncased, loaded rifles on the floor between them. An elk was sighted and Jaskowiak stopped the truck. Macsurak was in the process of removing his rifle from the truck when it accidentally discharged and killed Jaskowiak just as he was getting out of the truck.

In September, 1965, Mary T. Jaskowiak, widow of the deceased and executrix of his estate, commenced a wrongful death action against Macsurak. Allstate undertook the defense of the action.

Allstate settled the case with the widow and executrix and on July 8, 1966, commenced this action for indemnification. Allstate alleges that its policy did not provide coverage although it paid $18,000 to settle the case of the widow and executrix against its insured, and that Truck's policy of insurance afforded Macsurak coverage as an omnibus insured under Truck's policy issued to Jaskowiak.

ISSUES.

We are of the opinion the following issues are dispositive of this appeal:

1. Whether Allstate's general liability policy afforded coverage to Macsurak for this accident?

2. Whether the Truck Insurance Exchange automobile liability policy issued to Jaskowiak afforded coverage to Macsurak for this accident?

3. Whether recovery by Allstate is barred by laches?

4. Whether the sum paid by Allstate in settlement of the action of the widow and executrix against its insured, Macsurak, constituted liquidated damages such that interest should accrue on that judgment as of the date of the commencement of this action?

1. The trial court found that Allstate was not a 'volunteer' and no issue is raised on appeal as to this determination. The question is whether this particular accident which occurred while Macsurak was removing the rifle from the vehicle is excluded from the coverage of the Allstate policy. Truck argues that the exclusion of the policy relating to 'use, loading and unloading' away from the residence of the insured does not apply. The reason being that '. . . (t)he substantial factor causing the death of Mr. Jaskowiak was the defectively maintained gun and this did not involve the use, loading and unloading of a vehicle. . . .' There is evidence from which it could reasonably be inferred that Macsurak had knowledge that his rifle was defective before the accident. Thus, argues Truck, Macsurak was negligent in bringing the rifle along in the first instance and this was the negligent act that caused the death of Jaskowiak. This analysis of Macsurak's negligence is partially correct. Also knowingly leaving a loaded rifle in the vehicle under the facts of this case could constitute negligence.

However, these alleged acts of negligence of Macsurak do not go to the issue. What is important is the fact that Macsurak was negligent in the manner in which he was attempting to remove the rifle from the vehicle. The argument of Truck that there was no evidence that Macsurak pointed the gun at Jaskowiak ignores the fact that he was shot in the chest. Even though the rifle could have discharged when Macsurak was removing it from the vehicle, Jaskowiak would not have been hit in the chest if Macsurak had been properly removing the weapon.

Also, when Allstate commenced this action, its complaint in part alleged: '. . . MACSURAK negligently and carelessly fired a rifle he was then and there lifting out of the truck into the chest of VINCENT V. JASKOWIAK, causing his death.' The answer of Truck admits that Macsurak negligently and carelessly fired a rifle inflicting the injuries on Jaskowiak causing his death.

In considering a similar use of loading or unloading a vehicle, the court in Amery Motor Co. v. Corey (1970), 46 Wis.2d 291, 297 to 299, 174 N.W.2d 540, 545--546, stated:

'. . . In an automobile liability policy, as distinguished from a property liability policy, the purpose is coverage of causal negligence in the 'use' of the automobile. 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 and are covered by the loading and unloading provision of the policy. . . .

'. . .

'We think it is important for coverage that the negligence occur not only during the loading and unloading operation but that it be a part of that operation. . . .

'. . .

'Neither concept of loading or unloading in respect to coverage is concerned with causation but rather with the nature of the acts. Causation has to do with liability of the person covered. Naturally, negligence causing injury must occur while the truck is being loaded or unloaded under either view and the negligent act must be a part of the activity of loading or unloading which constitutes a use of the truck for insurance purposes. See Annot. (1946), 160 A.L.R. 1259. One engaged in loading or unloading a truck could be injured by a cause unconnected with the acts of loading and unloading and his cause of action could not be based upon the 'use' of the truck. It is likewise true negligent acts of loading or unloading need not result in an injury occurring during such loading or unloading. Normally, an injury is caused at the time of the occurrence of negligence; . . .'

In Keller v. Schuster (1972), 54 Wis.2d 738, 743, 196 N.W.2d 640, 643, the court recognized that, '. . . so-called loading operations have been given a rather broad definition in this state. . . .' This court must seek to give effect to the true intention of the parties when it construes the Allstate Homeowners policy. Schmidt v. Luchterhand (1974), 62 Wis.2d 125, 132, 214 N.W.2d 393. While most loading and unloading cases in Wisconsin are construing those terms as they are found in automobile policies, nonetheless, those cases are persuasive in defining the general meaning of those terms. In this case Macsurak was unloading a loaded rifle. Macsurak was careless and negligent in the manner in which he removed this rifle from the van and such action constituted the unloading of the vehicle within the exclusion of the Allstate policy.

There are cases from other jurisdictions which are persuasive authority for concluding that Jaskowiak was killed while Macsurak was unloading the vehicle. ¹ The exclusionary provisions as to loading and unloading in Allstate's general liability contract became effective when the act giving rise to the accident arises out of, and is incident to, the unloading. These men were on a hunting trip. The transportation of firearms on such an occasion is a customary and usual procedure. The removal of the firearms from the vehicle so that they may be used for hunting constitutes unloading and such act falls within the exclusion of the Allstate policy. The loaded rifle was pointed at Jaskowiak when it was being unloaded from the vehicle and his death was caused by this negligent act.

2. The Truck automobile insurance policy (issued to Jaskowiak) affords coverage under the omnibus insured provision for liability because of bodily injury to any person arising out of the ownership, maintenance or 'use' of this vehicle.

It is Truck's position that the undisputed facts in this case show that Macsurak was negligent in removing his rifle from the Chevrolet van and this constituted unloading of the vehicle and, therefore, did not come within the 'use' provisions as contemplated by the issuance of its automobile liability policy.

In considering the exclusionary provision of the Allstate policy, we determined that Macsurak was negligent in unloading his rifle from the vehicle. Hence Allstate did not provide coverage because the policy did not cover the unloading of an automobile away from the residence of the insured.

Under the terms of the Truck policy, we must decide whether the 'use' of this vehicle included this particular unloading operation although the policy did not specifically include or exclude unloading operations. In Ermis v. Federal Windows Mfg. Co. (1959), 7 Wis.2d 549, 97 N.W.2d 485, this court considered the provisions of a policy which provided coverage arising out of the ". . . use of any automobile, including the loading and unloading thereof." Ermis, supra, p. 553, 97 N.W.2d p. 487, stated:

'The words 'including the loading and unloading thereof' are an extension of the use clause and cover operations or acts in which the movement of the truck itself does not play a part. To make American liable there will have to be proof upon the trial that the plaintiff was injured during a loading operation.'

If the Truck policy specifically contained a 'loading and unloading' provision in the coverage section such terms would have to be considered an extension of the 'use' clause. Such a rationale is necessary lest the 'loading and unloading' be considered to mean nothing. However, that is not to say that by simply excluding the phrase 'loading and unloading' from its coverage se...