Garcia by Ladd v. Regent Ins. Co., 91-1100

• Citation: 167 Wis.2d 287,481 N.W.2d 660
• Decision Date: 19 February 1992
• Docket Number: No. 91-1100,91-1100
• Parties: Crystal J. GARCIA, a minor, by her guardian ad litem, Andrew C. LADD, and Nancy L. Lopez, Plaintiffs-Appellants-Cross Respondents, v. REGENT INSURANCE COMPANY, Defendant-Respondent-Cross Appellant, Badger State Mutual Casualty Company, Defendant-Respondent, Rene Lopez, Reynaldo G. Lopez, American Family Mutual Insurance Company, the City of Waukesha, Employers Insurance of Wausau, a mutual company, and Blue Cross and Blue Shield United of Wisconsin, Defendants.
• Court: Court of Appeals of Wisconsin

Page 660

481 N.W.2d 660

167 Wis.2d 287

Crystal J. GARCIA, a minor, by her guardian ad litem, Andrew

C. LADD, and Nancy L. Lopez, Plaintiffs-Appellants-Cross Respondents, v. REGENT INSURANCE COMPANY, Defendant-Respondent-Cross Appellant, Badger State Mutual Casualty Company, Defendant-Respondent, Rene Lopez, Reynaldo G. Lopez, American Family Mutual

Insurance Company, the City of Waukesha, Employers Insurance

of Wausau, a mutual company, and Blue Cross and Blue Shield

United of Wisconsin, Defendants.

No. 91-1100.

Court of Appeals of Wisconsin.

Submitted on Briefs Dec. 2, 1991.

Opinion Released Feb. 19, 1992.

Opinion Filed Feb. 19, 1992.

[167 Wis.2d 290] On behalf of the appellants, the cause was submitted on the briefs of Andrew C. Ladd, of Cappozzo, Ladd & Milaeger, of Waukesha.

On behalf of the respondent, Regent Insurance Company, the cause was submitted on the briefs of Stuart B. Eich, S.C. by: Jacqueline E. Frakes, of Milwaukee.

On behalf of the respondent, Badger State Mutual Casualty Company, the cause was submitted on the brief of Thomas N. Klug, of Borgelt, Powell, Peterson & Frauen, S.C. of Milwaukee.

Before NETTESHEIM, P.J., and ANDERSON and SNYDER, JJ.

NETTESHEIM, Presiding Judge.

The issue on appeal is insurance coverage under two motor vehicle liability policies, one issued by Badger State Mutual Casualty Company (Badger) and the other by Regent Insurance Company (Regent). At summary judgment, the trial court ruled that the insured driver, Rene Lopez, was not "using" a motor vehicle within the meaning of the policies when his stepdaughter, Crystal Garcia, was struck by an oncoming vehicle as she was preparing to enter the vehicle Rene was operating. The court therefore dismissed[167 Wis.2d 291] Crystal's complaint against Badger and Regent. ¹ Crystal appeals. We reverse the trial court's summary judgment ruling. We remand for further proceedings.

Regent offers an alternative ground for affirming the trial court's dismissal of Crystal's action against it. Regent contends that Rene failed to give Regent timely notice of Crystal's claim. The trial court rejected this argument. ² We affirm this ruling of the trial court.

FACTS AND PROCEDURAL HISTORY

Although Crystal and the insurance companies disagree as to whether coverage exists, they do not dispute the essential and controlling facts. On July 19, 1986, Crystal was at the Buchner Park swimming pool in the city of Waukesha. Rene, with his wife (Crystal's mother) as his passenger, drove a jeep motor vehicle to the park to find Crystal and to tell her that they were going to a grocery store. Upon seeing Crystal in the park, Rene pulled over to the curb. With the motor running and Rene still behind the wheel, Rene called across the street to Crystal, advising her of their plans. Crystal called back to Rene that she would like to come along. After securing Crystal's mother's approval, Rene gestured with his hand to Crystal that it was all right for her to come with them. Crystal was injured when she ran into the street and into the path of an oncoming car.

[167 Wis.2d 292] On March 21, 1989, about two years and nine months after the accident, Crystal brought this action against Rene for personal injuries. The complaint alleged, inter alia, that Rene negligently signaled Crystal to cross the street and failed to warn her of the oncoming vehicle. At the time of the accident, the jeep which Rene was driving was covered by liability insurance provided by both Badger and Regent. Hence, both Badger and Regent were eventually named as defendants in the lawsuit.

Regent first moved for summary judgment on the grounds that Rene had failed to timely provide it with notice of Crystal's claim as required by Regent's automobile liability policy. The trial court ruled that Rene's notice to Regent was timely and denied the motion.

Later, both Regent and Badger moved for summary judgment, contending that the accident was not covered under their respective policies of insurance because Crystal's injuries did not arise out of Rene's use of the insured vehicle. Following a hearing, the court granted the insurers' motions. ³ Crystal appeals.

THE COVERAGE LANGUAGE

Badger's policy covers "damages for which any insured person is legally liable because of bodily injury and property damage arising out of the ownership, maintenance or use of a car." (Emphasis added.) Regent's policy defines a covered person as the insured or "any family member for the ownership, maintenance [167 Wis.2d 293] or use of any auto." ⁴ (Emphasis added.) On appeal, Crystal maintains, as she did below, that coverage exists because the accident arose out of Rene's use of the jeep. ⁵ For their part, the insurers contend that the accident did not arise out of Rene's "use" of his jeep, as that term is meant within their respective policies of insurance.

STANDARDS OF REVIEW

Although Crystal and the insurers sharply differ as to whether the facts warrant insurance coverage, they do not dispute, for purposes of summary judgment, the factual record which we have already recited. Thus, we are presented with a situation where we apply the terms of an insurance policy to established facts. This is a question of law. Blackhawk Prod. Credit Ass'n v. Chicago Title Ins. Co., 144 Wis.2d 68, 77, 423 N.W.2d 521, 524 (1988). This court decides questions of law independently, without deference to the trial court's decision. Lambert v. Wrensch, 135 Wis.2d 105, 115, 399 N.W.2d 369, 374 (1987).

Additionally, we note that this issue was decided upon motions for summary judgment. Motions for summary judgment are governed by the standards articulated in sec. 802.08(2), Stats. Maynard v. Port Publications, Inc., 98 Wis.2d 555, 558, 297 N.W.2d 500, 502-03[167 Wis.2d 294] (1980). This court applies the methodology set forth in sec. 802.08(2) in the same manner as the trial court and our review is de novo. Schapiro v. Security Sav. & Loan Ass'n, 149 Wis.2d 176, 181, 441 N.W.2d 241, 244 (Ct.App.1989). That methodology has been repeated often, see In re Cherokee Park Plat, 113 Wis.2d 112, 115-16, 334 N.W.2d 580, 582-83 (Ct.App.1983), and we do not, therefore, recite it here. Summary judgment should be granted where there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Schapiro, 149 Wis.2d at 181, 441 N.W.2d at 244.

DISCUSSION

The Law Generally

There is a sizable body of case law in Wisconsin concerning "arising out of the ... use" language in an automobile liability policy. We begin, therefore, by stating some fundamental precepts which govern our interpretation of the use-of-vehicle language in the insurance policies.

Since we deal here with coverage clauses in an insurance policy, we are to broadly interpret the words as used in the policies so as to afford the greatest protection to the insured. Lawver v. Boling, 71 Wis.2d 408, 420-21, 238 N.W.2d 514, 521 (1976). The coverage phrases at issue in this case--"arising out of" and "use"--are words which are very broad, general and comprehensive. Id. at 415, 238 N.W.2d at 518. These words are commonly understood to mean "originating from, growing

out of, or flowing from, and require only that there be some causal relationship between the injury and the risk for which coverage is provided." Id. However, this causal relationship is not of the type [167 Wis.2d 295] which would ordinarily be necessary to warrant a finding of "proximate cause" or "substantial factor" as those terms are used in imposing liability for negligent conduct. Id. Rather, the focus of this "causation" inquiry is on the risk for which coverage has been afforded. Id. at 415-16, 238 N.W.2d at 518

Stated differently, our inquiry is whether the vehicle's connection with the activities which gave rise to the injuries is sufficient to bring those general activities, and the negligence connected therewith, within the risk for which the parties to the contract reasonably contemplated there would be coverage. Id. at 416, 238 N.W.2d at 518. This question is usually resolved by determining whether the alleged "use" is one which is reasonably consistent with the inherent nature or "use" of the vehicle. See id.; see also Thompson v. State Farm Mut. Auto. Ins. Co., 161 Wis.2d 450, 458, 468 N.W.2d 432, 435 (1991).

The Law Applied to This Case

Applying the above test, we ask in this case whether the use of Rene's vehicle was sufficiently connected with Crystal's accident such that the risk was one for which the parties reasonably contemplated coverage when they contracted. Lawver, 71 Wis.2d at 416, 238 N.W.2d at 518. ⁶ More particularly, the question is whether Rene's [167 Wis.2d 296] verbal cues and hand gesture to Crystal constituted "use" of the vehicle within the meaning of the insurance policies. We hold that they did.

As we have stated, the term "use" is to be broadly construed. See id. at 420-21, 238 N.W.2d at 521. It is well settled that the insured does not have to "use" the vehicle in the sense of moving it forward, backing it up, putting it in gear, etc., for coverage under the "use" language of an automobile insurance policy. Thompson, 161 Wis.2d at 458, 468 N.W.2d at 435. Neither does the insured have to be in direct physical contact with the vehicle to be using it. See, e.g., Tasker v. Larson, 149 Wis.2d 756, 761, 439 N.W.2d 159, 161 (Ct.App.1989).

Rather, in each instance we ask whether the injury "grew out of," "had its origin in," or "flowed from" the use of the vehicle. Id. (quoting Shinabarger v. Citizens Mut. Ins. Co., 90 Mich.App. 307, 282 N.W.2d 301, 305 (1979)). Thus, "use" takes in activities incidental to the actual operation of the vehicle. See Thompson, 161 Wis.2d at 458, 468 N.W.2d at 435. These authorities and others, however, do not suggest that the term "use" must be read so expansively as to include a boundless number of activities. Even incidental uses must be related to the "inherent nature of the vehicle." See id.

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