Gorzalski v. Frankenmuth Mut. Ins. Co., 87-2302

CourtCourt of Appeals of Wisconsin
Citation145 Wis.2d 794,429 N.W.2d 537
Docket NumberNo. 87-2302,87-2302
PartiesJack GORZALSKI, and Eileen Gorzalski, Plaintiffs-Appellants, v. FRANKENMUTH MUTUAL INS. CO.,d a foreign corporation, and John R. Luebbe, Jr., Defendants-Respondents, Lumbermens Mutual Casualty Company, a foreign insurance corporation, Defendant.
Decision Date19 July 1988

Cannon & Dunphy, S.C. by William M. Cannon and Joanne Swieciak, Milwaukee, for plaintiffs-appellants.

Arnold, Murray, O'Neill & Schimmel by Donald P. O'Meara, Milwaukee, for defendant-respondent Frankenmuth Mut. Ins. Co.

Borgelt, Powell, Peterson & Frauen, S.C. by W. Ted Tornehl and James M. Fredericks, Milwaukee, for defendant-respondent John R. Luebbe, Jr.


MOSER, Presiding Judge.

Jack and Eileen Gorzalski (the Gorzalskis) appeal from a judgment dismissing their complaint for damages due to the negligent operation of an automobile by John R. Luebbe, Jr. (Luebbe). The trial court dismissed the complaint on the grounds that sec. 102.03(2), Stats., of the worker's compensation law provided the exclusive right of recovery for the Gorzalskis. The trial court also held that the coemploye limitation of liability found in Frankenmuth Mutual Ins. Co.'s (Frankenmuth) insurance policy did not violate sec. 632.32, Stats. We agree with this latter holding of the trial court and affirm that portion of the judgment dismissing the complaint against Frankenmuth. However, we hold that the worker's compensation statute does not provide the exclusive right of recovery for the Gorzalskis. We therefore reverse that portion of the judgment dismissing the complaint against Luebbe.

On March 17, 1986, Jack Gorzalski, an employe of Bob Tolkan Buick, Inc. (Tolkan), was seriously injured when Luebbe, another Tolkan employe, drove an automobile into him. The automobile had been left by its owner at Tolkan's garage for repairs. As a result of this accident, the Gorzalskis brought suit against Luebbe, Frankenmuth (Tolkan's insurance carrier), Home Insurance Company (Luebbe's insurance carrier), United States Fidelity & Guaranty Co. (the automobile owner's insurance carrier), and Lumbermens Mutual Casualty Company (Tolkan's worker's compensation carrier). United States Fidelity & Guaranty Co. and Home Insurance Company were later dismissed by stipulation of the parties. Frankenmuth and Luebbe then moved for and were granted a summary judgment dismissing the Gorzalskis' complaint against them.

The Gorzalskis first argue that the trial court erred in holding that sec. 102.03(2), Stats., limited their right of recovery to worker's compensation benefits. We agree with the Gorzalskis' argument.

Section 102.03(2), Stats., states:

Where such conditions exist the right to the recovery of compensation under this chapter shall be the exclusive remedy against the employer, any other employe of the same employer and the worker's compensation insurance carrier. This section does not limit the right of an employe to bring action against any coemploye for an assault intended to cause bodily harm, or against a coemploye for negligent operation of a motor vehicle not owned or leased by the employer, or against a coemploye of the same employer to the extent that there would be liability of a governmental unit to pay judgments against employes under a collective bargaining agreement or a local ordinance. [Emphasis added.]

The trial court held that by agreeing to take the car in for repairs, Tolkan had exclusive possession of and control over the car and that it had, in essence, leased it. Since the car was leased by Tolkan, worker's compensation benefits were the exclusive remedy for the Gorzalskis' damages.

Because the construction of a statute is a question of law, this court gives no deference to the trial court's decision. 1 Our first duty is to look to the language of the statute itself. If its meaning is clear on its face, we may not look to collateral sources to determine legislative intent. 2 A statute is ambiguous where reasonable persons differ as to its meaning. 3

We can discern no ambiguity in sec. 102.03(2), Stats. The statute states that an injured employe is not limited to worker's compensation benefits when he is injured by a coemploye's negligent operation of a motor vehicle "not owned or leased by the employer." Both parties concede that the car was not owned by Tolkan. However, contrary to the trial court's holding, Tolkan had not leased the car either.

"When used with reference to tangible personal property, [the] word 'lease' means a contract by which one owning such property grants to another the right to possess, use and enjoy it for [a] specified period of time in exchange for periodic payment of a stipulated price, referred to as rent." 4 The transaction between the automobile owner and Tolkan cannot reasonably be termed a lease. Tolkan was not given possession of the car to "possess, use and enjoy", it was given the car to repair. Moreover, Tolkan was not required to make any payment to the car owner in exchange for the right to possess the car. Far from being a lease, this transaction was merely a repair agreement between Tolkan and the car owner.

Frankenmuth and Luebbe argue that even if the car was not leased by Tolkan, it was loaned to Tolkan. Since the Department of Industry, Labor and Human Relations (DILHR) has interpreted sec. 102.03(2), Stats., to limit liability when the motor vehicle is owned by or leased or loaned to the employer, Frankenmuth and Luebbe argue that the trial court correctly dismissed the case.

In an interpretive footnote to sec. 102.03(2), Stats., DILHR states:

The exceptions permit the right of recovery against a fellow employe of the same employer who is negligent in the operation of a motor vehicle owned by, leased or loaned to the fellow employe. The exception does not apply to a vehicle owned by, leased or loaned to the employer. 5

If we were to conclude that this interpretation of the statute is binding on this court, we would then need to address the issue of whether the automobile was loaned to Tolkan. However, since we conclude that DILHR improperly included the word "loaned" in its interpretation, we need not decide whether the transaction constituted a loan.

In construing a statute, this court does give some deference to the interpretation of the statute by the enforcing agency. Such an interpretation will not be reversed where it is one of several reasonable interpretations that can be made. 6 However, that agency "may not issue a rule that is not expressly or impliedly authorized by the legislature." 7

An administrative agency has only those powers which are expressly conferred or which are fairly implied from the four corners of the statutes under which it operates. Any reasonable doubt as to the existence of an implied power of an administrative agency should be resolved against the exercise of such authority. 8

In the present case, DILHR went beyond its statutory powers in including the word "loaned" in its interpretation of sec. 102.03(2), Stats. By not restricting its interpretation to the words "owned" and "leased", DILHR has usurped the legislature's power by further limiting an injured employe's right to recovery in a manner which cannot be supported by the language of the statute. Since DILHR's interpretation is not in accord with the plain language of the statute, it is unreasonable 9 and is not binding on this court.

In conclusion, we hold that sec. 102.03(2), Stats., is unambiguous. It does not limit the Gorzalskis' right to recover against Luebbe because the automobile involved in the accident was not owned or leased by Tolkan. Therefore, the trial court erred in dismissing the complaint against Luebbe.

The next argument made by the Gorzalskis is that the trial court erred in dismissing their complaint against Frankenmuth. The trial court concluded that the coemploye exclusion in Frankenmuth's insurance policy was valid and precluded recovery against it. The Gorzalskis argue, however, that the exclusion violates sec. 632.32(6)(a), Stats., and is invalid. We disagree.

The Frankenmuth policy states:

This insurance does not apply, under the Garage Liability coverages:


(c) to any obligation for which the insured or any carrier as his insurer may be held liable under any workmen's compensation, unemployment compensation or disability benefits law, or under any similar law;

(d) to bodily injury to any employee of the insured arising out of and in the course of his employment by the insured or to any...

To continue reading

Request your trial
5 cases
  • McNeil v. Hansen
    • United States
    • Wisconsin Supreme Court
    • 18 d5 Maio d5 2007
    ...injury. Id., ¶ 49, 711 N.W.2d 634. ¶ 27 However, we were also asked in Rocker to decide whether Gorzalski v. Frankenmuth Mutual Insurance Co., 145 Wis.2d 794, 429 N.W.2d 537 (Ct.App.1988) was still good law. Rocker, 289 Wis.2d 294, ¶ 50, 711 N.W.2d 634. In Gorzalski, a coemployee had driven......
  • State ex rel. Treat v. Puckett, 00-2712.
    • United States
    • Wisconsin Court of Appeals
    • 21 d4 Fevereiro d4 2002
    ...as has this court. See, e.g., Watkins v. LIRC, 117 Wis. 2d 753, 761, 345 N.W.2d 482 (1984); Gorzalski v. Frankenmuth Mut. Ins. Co., 145 Wis. 2d 794, 801, 429 N.W.2d 537 (Ct. App. 1988). However, we understand the substance of the standard to be the same under both formulations: the court's ......
  • Rocker v. Usaa Casualty Ins. Co.
    • United States
    • Wisconsin Supreme Court
    • 30 d4 Março d4 2006
    ...payments and coverage, and prohibits exclusion of coverages for relatives of the insured?; (3) Was Gorzalski v. Frankenmuth Mutual Insurance Co., 145 Wis.2d 794, 429 N.W.2d 537 (Ct.App.1988), decided correctly when it failed to enforce the requirement of coverage for a motor vehicle handler......
  • Bauer v. Piper Industries, Inc.
    • United States
    • Wisconsin Court of Appeals
    • 20 d2 Fevereiro d2 1990
    ... ... Fehring v. Republic Ins. Co., 118 Wis.2d 299, 305-06, 347 N.W.2d 595, 598 (1984). We are even ... Milbauer v. Transport Employes' Mut. Benefit Soc., 56 Wis.2d 860, 867, 203 N.W.2d 135, 139[154 Wis.2d 765] ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT