Damp v. Zabel

• Decision Date: 18 September 1978
• Docket Number: No. 77-493,77-493
• Citation: 85 Wis.2d 383,270 N.W.2d 434
• Parties: Robert DAMP and Donald Damp, Plaintiffs-Respondents, v. Terry L. ZABEL and Robert Zabel, Defendants-Respondents and Farmers Insurance Exchange, a Foreign Corporation, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

Page 434

270 N.W.2d 434

85 Wis.2d 383

Robert DAMP and Donald Damp, Plaintiffs-Respondents, v. Terry L. ZABEL and Robert Zabel, Defendants-Respondents and Farmers Insurance Exchange, a Foreign Corporation Defendant-Appellant.

No. 77-493.

Court of Appeals of Wisconsin.

Argued Aug. 29, 1978.

Opinion Filed Sept. 18, 1978.

James L. Everson, Green Bay, for appellant; Everson, Whitney, Everson, Brehm & Pfankuch, S. C., Green Bay, on brief.

James H. Plier, Oconto, for plaintiffs-respondents; Plier & Judge, Oconto, on brief.

Howard Eslien, Oconto Falls, for defendants-respondents.

Before DEAN, P. J., and DONLIN and FOLEY, JJ.

DONLIN, Judge.

Farmers Insurance Exchange (Farmers) appeals from an interlocutory judgment of the circuit court for Oconto County finding coverage on four separate insurance policies, covering four different automobiles, issued by Farmers to various members of the family of Robert Zabel. The judgment finding coverage under a policy issued to Terry Zabel and two policies issued to Robert Zabel is reversed.

On January 15, 1972, a 1968 Camaro owned by James Zabel and driven by Terry Zabel with his brother's permission skidded out of control and overturned, causing injuries to the plaintiff, Robert Damp, a guest passenger in the car. At the time of the accident, Terry Zabel and the plaintiff, Robert Damp, were 17 years of age and were returning from their place of employment. Terry was driving his brother's Camaro because his car, a 1954 Ford, was inoperable due to mechanical problems. Both Terry Zabel and James Zabel resided in the household of their father, Robert Zabel.

Farmers issued four separate policies: one policy to Terry Zabel, the driver of the automobile involved in the accident, describing a 1954 Ford; one policy to James Zabel, the owner of automobile involved in the accident, describing said automobile, a 1968 Camaro; and two policies to Robert Zabel, Terry's father and the sponsor for Terry's operator's license under Sec. 343.15(2), Stats. describing a 1965 Buick and a 1972 Buick, respectively. Each of the four policies contained identical coverage provisions with respect to liability ¹ and medical expense. ² Each of the policies had $50,000 single injury limits plus $2,000 in medical payments limits.

Farmers Insurance conceded $52,000 coverage on the policy issued to James Zabel which described the 1968 Camaro involved in the accident, but denied coverage on Robert Zabel's two policies and Terry Zabel's single policy. The plaintiffs contended and the trial court found an additional $156,000 from the other three policies was

available to make payment to the plaintiffs for damages or medical expenses they may have sustained or incurred as a result of Robert Damp's injuries. The plaintiffs concede, aside from the omnibus auto insurance statutes, no coverage was available under Terry Zabel's policy or [85 Wis.2d 387] either of Robert Zabel's two policies, the 1968 Camaro not being "described" in the other three policies, and not being qualified under the definitions of nonowned or substitute automobile coverage since the Camaro was owned by James Zabel, a resident of the same household as Terry and Robert Zabel. The trial court's determination of coverage was based on the provisions of Sec. 204.30(3), Stats., (1973). The question on appeal is whether Sec. 204.30(3) or other provisions of the omnibus statutes provide coverage under either of the two policies issued to Robert Zabel, the father and sponsor of the minor driver, or under the policy issued to Terry Zabel, the driver.

POLICIES OF ROBERT ZABEL

It is the contention of the plaintiffs that to deny coverage under Robert Zabel's policies would violate the public policies of the State of Wisconsin and the provisions of the omnibus statutes. It is contended that the policies provide coverage pursuant to Sec. 343.15(2), the sponsorship statute, and Sec. 204.30(3), the omnibus coverage statute. The decision of the Wisconsin Supreme Court in Limpert v. Smith, ³ being controlling this argument fails.

In Limpert, a minor who resided in his sponsor-father's household was driving his own car at the time of an accident, and it was argued that the father's sponsorship liability was covered by the father's policy for another car, despite the definitions of a "drive other cars" provision designed to avoid multiple coverage under the father's policy as well as the son's policy. The court held that, apart from a definition that non-owned auto coverage did not extend to autos owned by any resident of the same household, a provision for coverage of "any person . . . legally responsible for the use of an automobile . . . not owned by such person" would have extended coverage to the father's sponsorship liability. The court then read the insurance policy as a whole and specifically upheld the policy definition limiting "drive other cars" coverage to cars not owned or regularly or frequently operated by members of the named insured's household.

Furthermore, in reiterating its approval of the basic purpose of such "drive other car" provisions, the court described their purpose as to prevent a person from insuring all the cars in one household by taking out just one policy and paying only one premium. ⁴ Thus, in Limpert and McDonald, the court upheld unambiguous "drive other cars" provisions virtually identical to those here, and refused to allow an increase in liability coverage available to one car in a household, described in and covered under one policy, by rejecting a construction of a second policy, describing a second car in the same household, which would have provided additional coverage for an accident involving the first car despite unambiguous policy definitions in the second policy.

The policy definition limiting "drive other cars" coverage in the present case being indistinguishable from that in Limpert, and the purpose of such provisions having been approved by the Wisconsin Supreme Court, the present case is clearly governed by Limpert. That the minor here was driving an automobile owned by his brother, rather than his own car as in Limpert is not material to the result of this case. Likewise, since it is undisputed that the 1968 Camaro was owned by a member of Terry Zabel's household, it is immaterial that there was evidence in the record that Terry Zabel did not regularly or frequently use his brother's Camaro and was using it at the time of the Furthermore, that the plaintiffs here rely on language of the omnibus coverage statute, rather than the policy language as in Limpert, is of no consequence. Sec. 204.30(3), Stats., (1973), sets forth mandatory minimum coverages ⁵ for policies issued or delivered in Wisconsin. ⁶ It is clear that "(S)uch automobile" refers to "any automobile described in this policy." The policies issued to Robert Zabel "describing" a 1965 Buick and 1972 Buick, respectively, the 1968 Camaro, was not described in either of Robert Zabel's policies, and thus was not within the mandatory minimum coverage required by the omnibus coverage statute.

accident only because his car was inoperable.

The plaintiffs also contend that the limitation "drive other cars" coverage to automobiles other than those owned by members of the named insured's household is an "exclusion" from coverage, proscribed by Secs. 204.34(2) ⁷ or 204.34(5), ⁸ Stats., (1973). A limitation of "drive other cars" coverage to automobiles not owned by members of the same household is clearly not an "exclusion" from coverage. ⁹

Unlimited "drive other cars" coverage not being required by Sec. 204.30(3) and not having been otherwise granted in Robert Zabel's policies, the limitation of such coverage by definition of policy's terms could not subtract anything from coverage previously granted by statute or in the policy. Because such definitional limits to coverage are not "exclusions," they are therefore not invalidated by operation of Secs. 204.34(2) or 204.34(5), Stats., (1973). Moreover, the Wisconsin Supreme Court has construed the "exclusion" of relatives prohibited by Sec. 204.34(2) as not applicable to provisions which extend coverage beyond that required by Sec. 204.30(3), the omnibus coverage statute. ¹⁰

POLICY OF TERRY ZABEL

It is also the contention of the plaintiffs that to deny coverage under Terry Zabel's policy would violate the public policy of the State of Wisconsin and the omnibus statutes. The trial court determined that the definitions which limited "drive other cars" coverage to cars other than those owned by members of the same household violated the provisions of Sec. 204.30(3), Stats., (1973), but on appeal the plaintiffs contend that the definitions violate Secs. 204.34(4), 204.34(2) and Secs. 204.34(5) The plaintiffs concede that there is no coverage under the policy itself, and, properly do not contend that Sec. 204.30(3) requires "drive other cars" coverage for the named insured. Thus, Terry Zabel's policy never afforded him coverage for use of a substitute automobile owned by members of his household, by statute or otherwise in the policy. Because limiting "drive other cars" coverage by defining the terms of such coverage were not "exclusions" from coverage, it follows that the Secs. 204.34(4), 204.34(2), and 204.34(5) do not invalidate the definitions of "Non-owned automobile" or "Substitute automobile."

Stats., (1973), ¹¹ and are therefore invalid. For reasons similar to those underlying our holding on Robert Zabel's policies, we find no violations of such omnibus provisions and hold that Terry Zabel's policy is not available to make any payments to which the plaintiffs may become entitled.

The plaintiffs cite a case involving a co-employee exclusion clause, as authority for their contentions with respect to Secs. 204.34(4) and 204.34(5), Stats., (1973). Subsequently, the Wisconsin Supreme Court modified its analysis of these statutory provisions. ¹² Neither case had occasion to consider the...