Groth v. Farmers Mut. Auto. Ins. Co.

Citation21 Wis.2d 655,124 N.W.2d 606
PartiesAdolph GROTH, Plaintiff-Respondent, v. FARMERS MUTUAL AUTOMOBILE INSURANCE CO., et al., Defendants-Respondents, Milwaukee Automobile Mutual Insurance Co., Appellant. James R. BLATTNER, a minor by gdn. ad litem, et al., Plaintiffs-Respondents, v. Gerald ROUER et al., Defendants-Respondents, Milwaukee Automobile Mutual Insurance Co., Appellant.
Decision Date26 November 1963
CourtUnited States State Supreme Court of Wisconsin

Evrard, Evrard, Duffy, Holman & Faulds, Green Bay, for appellant.

Everson, Whitney, O'Melia & Everson, Green Bay, for United States Fidelity & Guaranty Co.

CURRIE, Justice.

The issue on this appeal is whether either Milwaukee Auto or U.S.F. & G. is entirely liable under its policy for the amounts paid in settlement to the two plaintiffs, or whether each must bear a pro rata portion thereof under the 'other insurance' clauses of the two policies.

The Milwaukee policy issued to plaintiff Groth contains the following 'other insurance' provision:

'If the insured has other insurance against a loss covered by this policy the company shall not be liable under this policy for a greater proportion of such loss than the applicable limit of liability stated in the declarations bears to the total applicable limit of liability of all valid and collectible insurance against such loss; provided, however, under coverages A and B the insurance with respect to temporary substitute automobiles under insuring Agreement IV or other automobiles under Insuring Agreement V shall be excess insurance over any other valid and collectible insurance.'

A similar provision is found in the policy issued by U.S.F. & G. to defendant L. B. Graff:

'If the Insured has other insurance against a loss covered by Part 1 of this policy the Company shall not be liable under this policy for a greater proportion of such loss than the applicable limit of liability stated in the declarations bears to the total applicable limit of liability of all valid and collectible insurance against such loss; provided, however, the insurance with respect to a temporary substitute automobile or non-owned automobile shall be excess insurance over any other valid and collectible insurance.'

The Milwaukee Auto policy contained an insuring clause which is in compliance with sec. 204.30(3), Stats., commonly referred to as the 'omnibus coverage statute.' 1 Under this clause both L. B. Graff and his minor son, Thomas Graff, were assureds within the insuring clause of this policy. Thomas Graff was an additional assured because, at the time of the accident, he was operating the insured automobile with the permission of plaintiff Groth, the named assured. L. B. Graff was an additional assured inasmuch as he was 'legally responsible for the operation' of the insured automobile, since he had signed as sponsor for his son's application for a driver's license pursuant to subd. (1) of sec. 343.15, Stats. 2 Subd. (2) of this same section provides that any negligence of a person under eighteen years of age while driving a motor vehicle upon the highways 'is imputed to the person who signed the application for such person's [the minor's] license.'

The liability imposed by sec. 343.15(2), Stats., has been held by this court to be a direct statutory one and not the result of contract. Behringer v. State Farm Mut. Automobile Ins. Co. (1957), 275 Wis. 586, 595, 82 N.W.2d 915. Milwaukee Auto contends that where the liability for the operation of a motor vehicle is thus imposed by statute, as is the sponsorship liability of L. B. Graff, this court should construe the statutory words 'legally responsible for the operation of such automobile' appearing in sec. 204.30(3), Stats., as excluding liability imposed by statute as distinguished from that created by contract or arising out of an agency, partnership, or joint venture relationship. There are two reasons why we decline to adopt such a restrictive interpretation of this provision of the...

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