Blashaski v. Classified Risk Ins. Corp.

• Decision Date: 06 October 1970
• Docket Number: No. 172,172
• Citation: 48 Wis.2d 169,179 N.W.2d 924
• Parties: Elmer R. BLASHASKI, Plaintiff, v. CLASSIFIED RISK INSURANCE CORP., a Wisconsin corporation, Third-Party Plaintiff-Respondent, Farmers Insurance Exchange, a foreign corporation, Defendant, Clarence Mashak, Marlene Mashak, Peter Fink, Roger Schulter, James Hemker, and Hartford Accident and Indemnity Co., a foreign insurance corp., Third-Party Defendants, Cletus Cavadini, Third-Party Defendant-Appellant.
• Court: Wisconsin Supreme Court

Page 924

179 N.W.2d 924

48 Wis.2d 169

Elmer R. BLASHASKI, Plaintiff, v. CLASSIFIED RISK INSURANCE CORP., a Wisconsin corporation Third-Party Plaintiff-Respondent Farmers Insurance Exchange, a foreign corporation, Defendant Clarence Mashak, Marlene Mashak, Peter Fink, Roger Schulter James Hemker, and Hartford Accident and Indemnity Co., a foreign insurance corp., Third-Party Defendants, Cletus Cavadini, Third-Party Defendant-Appellant.

No. 172.

Supreme Court of Wisconsin.

Oct. 6, 1970.

This case arises out of an automobile accident which happened on May 5, 1967, on a county trunk highway in La Crosse county, in which five minors were killed and several persons injured. Elmer R. Blashaski, parent of one of the minors who was killed, commenced a suit against Classified Risk Insurance Corporation (Classified Risk) and Farmers Insurance Exchange. Classified Risk insured Roger Schulter, the owner of a Chevrolet automobile, which at the time of the accident was being operated by Peter Cavadini. Peter Cavadini was killed and the third-party defendant-appellant Cletus Cavadini is the administrator of his estate. Farmers Insurance Exchange it is alleged insured the Cavadinis.

Classified Risk answered the complaint and filed a third-party complaint in which these defendants were sued either for contribution or because they were claimants against Classified Risk and their claims exceeded the limits of Classified Risk's policy. Pursuant to this complaint Cletus Cavadini answered and asserted a claim against Classified Risk for damages for the death of Peter Cavadini. Classified Risk answered this cross-complaint, stipulated certain facts, and moved for its dismissal on the ground its policy did not provide coverage for Cavadini's claim. The motion was granted and Cletus Cavadini appeals.

Crosby & Esch, Fredric W. Crosby, La Crosse, for appellant.

Moen, Sheehan & Meyer, La Crosse, for respondent.

HALLOWS, Chief Justice.

This appeal involves the construction of a standard automobile liability policy, and although the facts are stipulated the parties do not seem to be in agreement upon the issue. No doubt this is due to the indefiniteness of the pleadings and the inadequacy of the stipulation of facts. Cavadini attempts to assert a cause of action by 'realleges the facts of the collision as contained in the third party complaint,' and then alleges that prior to the collision the defendant Roger Schulter provided beer and other intoxicating liquors to the extent that caused the intoxication of Peter Cavadini and thereafter he allowed Cavadini to drive the said automobile involved in the collision. By reference to Classified Risk's complaint we find Roger Schulter owned a Chevrolet automobile which was insured at the time of the accident by Classified Risk, that the accident happened on May 5, 1967, and other details. Cavadini's cross-complaint then alleges the intoxicated condition of Peter Cavadini was among the causes of the collision and that the said collision was caused solely by the negligence of Roger Schulter in 'giving liquor and beer to the said minor.'

It was stipulated that Peter Cavadini was operating the automobile owned by Roger Schulter with his permission and consent at the time of the accident; that the policy provided coverage to Peter Cavadini as an additional insured; that the policy insures against bodily injury sustained by any person 'caused by accident and arising out of the ownership, maintenance or use of the automobile' and that shortly before the time of the accident Roger Schulter either 'furnished or cooperated in furnishing beer to Peter Cavadini and that Peter Cavadini was under the influence of alcohol at the time of the accident in which he died.'

Cavadini argues his claim is based not only on the negligence of giving intoxicating liquor to a minor but also upon Schulter's having allowed the minor to drive his automobile. Classified Risk argues that an automobile owner who furnishes liquor to another is not thereby operating or using his automobile; that Peter Cavadini as an additional insured cannot recover on the policy for his damages caused by his own negligence.

If the issue is restricted to the acts of the furnishing of liquor or beer to Peter Cavadini who became intoxicated, there would be no liability under the standard automobile liability policy because the mere furnishing of intoxicating liquor does not constitute a use of the automobile by the owner and supplier of the liquor within the meaning of the policy. We need not discuss whether a supplier of liquor is liable to the person supplied if such person is injured. We recently held in Garcia v. Hargrove (1970), 46 Wis.2d 724, 176 N.W.2d 566, a tavern keeper was not liable to third parties injured in an auto accident for furnishing liquor to a driver of an automobile whom he had reason to believe had too much to drink and was going to drive an automobile.

Cavadini argues Schulter allowed Peter Cavadini to drive the...