Estate of Ernst v. Berndt Buick Co., 95-0760

Decision Date30 January 1996
Docket NumberNo. 95-0760,95-0760
Citation546 N.W.2d 579,199 Wis.2d 524
PartiesNOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. Estate of John W. ERNST, Plaintiff-Appellant, v. AMERICAN STANDARD INSURANCE, Defendant-Appellant, Berndt Buick Company, Defendant-Respondent, Keith D. Thornton and Laurie Thornton, Third Party Plaintiffs-Co-Appellants, Estate of Anthony M. Rehbein, Gloria Erickson and Lee Rehbein, Third Party Plaintiffs, West Bend Mutual Insurance Company and Berndt Buick Co., Third Party Defendants-Respondents, v. AMERICAN STANDARD INSURANCE COMPANY OF WISCONSIN and Estate of John W. Ernst, Third Party Defendants-Appellants, American Family Mutual Insurance Co. and Estate of Anthony M. Rehbein, Third Party Defendants. Estate of John W. ERNST, Plaintiff-Appellant, v. BERNDT BUICK COMPANY, Defendant-Respondent, Keith D. Thornton and Laurie Thornton, Third Party Plaintiffs-Co-Appellants, Lee Rehbein, Gloria Erickson and Anthony M. Rehbein (Estate of), Third Party Plaintiffs, v. WEST BEND MUTUAL INS. CO. and Berndt Buick Co., Third Party Defendants-Respondents, American Standard Insurance Company of Wisconsin, Third Party Defendant-Appellant, American Family Mutual Insurance Co., John W. Ernst and Anthony M. Rehbein (Estate of), Third Party Defendants.
CourtWisconsin Court of Appeals

APPEAL from an order and a judgment of the circuit court for Milwaukee County: THOMAS P. DOHERTY, Judge. Reversed and cause remanded.

Before WEDEMEYER, P.J., FINE and SCHUDSON, JJ.

PER CURIAM.

At issue in this appeal is the ownership of an automobile at the time of a fatal traffic accident. John W. Ernst had agreed to trade the automobile to Berndt Buick Company as partial payment for another vehicle. While driving the trade-in vehicle, Ernst was involved in an automobile accident that resulted in the death of Anthony M. Rehbein and injury to Keith D. Thornton.

The Estate of John W. Ernst, American Standard Insurance Company, which provided liability insurance to Ernst, Thornton, and Laurie Thornton, appeal from an order dismissing their claims against Berndt Buick, and its insurer, West Bend Mutual Insurance Company, and a judgment assessing costs. They contend that the undisputed facts establish that ownership of the trade-in vehicle was transferred to Berndt Buick when Ernst endorsed and delivered the vehicle's certificate of title to Berndt Buick's salesman. They argue that delivery of possession is not required to transfer ownership, or if it is required, Berndt Buick's salesman waived delivery or acquired constructive possession. Finally, Ernst and American Standard argue that, at a minimum, a jury issue remains on the question of ownership. 1 We conclude that a question of material fact is in dispute. Therefore, we reverse the order and the judgment and remand the case for a new trial.

Eighty-five-year-old Ernst visited Berndt Buick and discussed the purchase of a used Buick with Carlos Micale. Ernst intended to trade-in a car he owned, and Micale gave Ernst an approximate trade-in value. Two days later, and at Ernst's request, Micale drove the Buick to Ernst's place of business. Ernst apparently wanted the opinion of David Gilpatrick, his business associate. Gilpatrick test drove the vehicle, and Micale inspected the proposed trade-in vehicle. After Ernst and Micale negotiated the final terms of the sale, which were approved by Micale's supervisor, they executed a motor vehicle purchase agreement for the sale of the Buick to Ernst. Without entering the buyer's name, Ernst also signed the assignment on the certificate of title for the trade-in vehicle and gave the certificate to Micale. There is a dispute as to whether Micale asked Ernst to complete and deliver the title at that time. In addition, Ernst gave Micale a check for the remainder of the purchase price. Ernst did not disclose the odometer reading on the title or on the special form automobile dealers are required to use.

After signing the purchase contract and receiving the title certificate and check, Micale returned to Berndt Buick to have the Buick "finished." This customary practice involved a pre-delivery inspection, as well as washing and cleaning the car. The Buick was to be ready for Ernst to pick up approximately three hours later.

When Micale returned to Berndt Buick, he gave the certificate of title for the trade-in vehicle and Ernst's check to Robin Wistl, title and billing clerk. Wistl testified that she completed the buyer information on the certificate of title by writing in Berndt Buick's name. She recorded the certificate in the company's title book and placed the certificate in the safe. She testified that she followed these procedures to prevent theft of the certificate of title.

Wistl also testified that the Department of Motor Vehicles would not issue a new certificate of title for the trade-in vehicle unless the application was accompanied by Ernst's certificate of title and a completed odometer disclosure statement signed by Ernst. Micale testified that office personnel generally typed the seller's name and address on the odometer form before it was completed. Micale also testified that had Ernst brought the trade-in vehicle to Berndt Buick to complete the transaction, the form would have been completed and signed by Ernst at that time.

When Micale left Ernst's place of business, Ernst retained the trade-in vehicle. There was no testimony that Ernst had offered Micale the keys or that he had removed any personal items from the vehicle. Also, Gilpatrick was to obtain a Buick tire rim and mount the spare tire from the trade-in vehicle onto the rim. He did so because Ernst wanted a full-sized spare tire.

Ernst did not go to the dealership. Several hours after he was to do so, he was involved in the fatal accident. The sale of the Buick was never completed, and several months later Berndt Buick refunded the amount of the check and, later, returned the certificate of title.

Ernst subsequently brought a declaratory judgment action seeking to have Berndt Buick declared the owner of the trade-in vehicle. Because the insurance policy carried by Berndt Buick provided greater liability coverage than the one issued by American Standard, Thornton, his wife, and the Estate of Rehbein, intervened as third-party plaintiffs and, on the issue of ownership, sided with Ernst. Ernst died prior to trial, and his estate replaced him as plaintiff.

At trial, the parties were not in agreement as to whether the ownership issue presented an issue of law or a question of fact. The trial court had denied summary judgment and set the case for a jury trial because Ernst's Estate and American Standard argued that Ernst had constructively delivered the trade-in vehicle or, alternatively, that Berndt Buick had waived delivery. In any event, after the close of testimony, the trial court was forced to declare a mistrial when a juror became ill. Prior to the court's declaring a mistrial, all parties had moved for a directed verdict in their favor. The court subsequently decided the motions for directed verdict, ruling in favor of Berndt Buick as a matter of law. The court reasoned that because Ernst never transferred possession of the trade-in vehicle, legal title never passed to Berndt Buick.

Title to an automobile is evidenced by a certificate of title issued by the Department of Motor Vehicles pursuant to ch. 342, Stats. The statute identifies the information to be included in an application for a certificate of title, see § 342.06, and the grounds the department may use to reject an application, see § 342.11.

The statute also includes a specific provision that identifies when transfer of ownership is complete for purposes of owner liability to third parties. Section 342.15(3), Stats., provides, in part, that "[a]n owner who has delivered possession of the...

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