Jones v. Sears Roebuck & Co.
| Decision Date | 01 November 1977 |
| Docket Number | No. 75-629,75-629 |
| Citation | 259 N.W.2d 70,80 Wis.2d 321 |
| Parties | Harold E. JONES, Plaintiff-Respondent, v. SEARS ROEBUCK & CO., a Foreign Corporation, and Globe-Union, Inc., a Foreign Corporation, and Employers Insurance of Wausau, a Domestic Insurance Corporation, Defendants and Third-Party Plaintiffs-Respondent, Malsack and Sons Auto Salvage, Third-Party Defendant-Respondent, The Western Casualty and Surety Company, a Foreign Insurance Corporation, Third-Party Defendant-Appellant. |
| Court | Wisconsin Supreme Court |
This is an action for damages for personal injuries sustained when a car battery exploded. The appeal is from an order denying a motion for summary judgment by the third-party defendant Western Casualty and Surety Company.
This action was commenced by the plaintiff, Harold E. Jones, who was severely injured when an automobile battery he was inspecting exploded. Jones commenced this action against the defendant Sears Roebuck & Co. (hereinafter Sears), which allegedly participated in the design of the battery; Globe-Union, Inc. (hereinafter Globe), which allegedly helped design and manufactured the battery; and Employer's Insurance of Wausau (hereinafter Employers), which allegedly is Globe's liability insurer. Sears, Globe and Employers subsequently impleaded Malsack & Sons Auto Salvage (hereinafter Malsack), and the appellant, Western Casualty & Surety Company (hereinafter Western) which is Malsack's liability insurer.
Both Malsack and Western brought motions for summary judgment. The basis of Western's motion was that the insurance policy issued by it to Malsack did not cover Malsack's alleged liability. Western supported its motion with affidavits, but no other party filed counter-affidavits to this motion. The trial court denied both motions, but only Western has appealed.
Additional facts will be stated in the opinion.
S. Michael Wilk and Heide, Sheldon, Hartley, Thom & Wilk, Kenosha, on brief for appellant.
Foley & Capwell, S.C., Racine, on brief for respondents Sears Roebuck & Co., Globe-Union, Inc., and Employers Ins. of Wausau.
The issue in the case involves liability coverage under an insurance policy. The question to be determined is whether the trial court committed error in denying Western's motion for summary judgment.
Summary judgment is frequently used by defendant insurers to raise the question of whether the policy issued to the insured covers the injuries, damages or liabilities alleged. Garriguenc v. Love, 67 Wis.2d 130, 133, 226 N.W.2d 414 (1975). Under sec. 270.635, Stats. (1973), the trial court has discretion to grant or deny summary judgment, and its determination will not be reversed on appeal unless it is clear the trial court has abused this discretion. United Farm Agency, Inc. v. Niemuth, 47 Wis.2d 1, 5, 176 N.W.2d 328 (1970). To decide a motion for summary judgment, a trial court must generally determine whether all material facts are present, whether material facts are in dispute and whether reasonable inferences leading to conflicting results can be drawn from undisputed facts. Federal Deposit Insurance Corp. v. First Mortgage Investors, 76 Wis.2d 151, 154-55, 250 N.W.2d 362 (1976).
In the instant case, the plaintiff's complaint alleges that on February 2, 1974, the plaintiff drove his automobile to a gas station, and that while he was using a lighted match to determine if the battery contained sufficient water, it exploded. The complaint further alleged that the defendants had been negligent in designing, manufacturing and distributing an unreasonably dangerous battery, and had been negligent in failing to adequately warn of the battery's dangerous propensities. Sears, Globe and Employers answered denying these allegations and, as an affirmative defense, alleged that the plaintiff was negligent in the manner in which he inspected the battery.
In its third-party complaint, Sears, Globe and Employers alleged that the battery in question was purchased by the plaintiff from Malsack; that Malsack sold the battery without the warning tag which was attached to it at the time of sale by Sears; that Malsack installed the battery in the plaintiff's automobile in a negligent manner; that Malsack was negligent in selling the battery without warning of the battery's dangerous propensities, and that Western, by reason of a liability insurance policy issued by it to Malsack, was liable for contribution and indemnity. Western answered denying liability and, as its affirmative defense, alleged that the injuries pleaded were not covered by the policy. Western thereupon sought a determination of the issue of lack of coverage by motion for summary judgment and submitted, by affidavit, a copy of the policy.
Western's first contention is that the trial court erred in not granting its motion for summary judgment because no other party filed counter-affidavits. Western cites Fox v. Wand, 50 Wis.2d 241, 184 N.W.2d 81 (1971), for the proposition that on a motion for summary judgment, when the moving party submits by affidavit documentary material which is not controverted by competing affidavits, the motion should be granted. This is only partially correct. While it is true that evidentiary matters in affidavits accompanying such a motion are deemed uncontroverted when competing evidentiary facts are not set forth in counter-affidavits (Leszczynski v. Surges, 30 Wis.2d 534, 539, 141 N.W.2d 261 (1966)), and that in general the burden shifts to the plaintiff to produce evidentiary facts creating a triable issue of fact (Spitz v. Continental Can Co., 40 Wis.2d 439, 445-46, 162 N.W.2d 1 (1968)), the failure of the opponent to submit counter-affidavits does not, of itself, entitle the movant to summary judgment. The movant must by evidentiary facts establish a prima facie defense sufficient to defeat the plaintiff. Marshall v. Miles, 54 Wis.2d 155, 160-61, 194 N.W.2d 630 (1972); sec. 270.635, Stats. (1973). If the movant's affidavits do not contain sufficient material evidentiary facts, or if uncontroverted evidentiary facts give rise to conflicting inferences, a prima facie case for summary judgment has not been established. Walter Kassuba, Inc. v. Bauch, 38 Wis.2d 648, 655-56, 158 N.W.2d 387 (1968).
Western next argues that it has made a prima facie case for summary judgment, that there were no disputed material facts nor conflicting inferences and that only a question of law the extent of the policy's coverage remained. Generally, the construction of words and clauses in an insurance policy is a question of law which is properly decided on a motion for summary judgment. Garriguenc v. Love, supra, 67 Wis.2d at 132, 226 N.W.2d 414. The trial court denied Western's motion because it believed that there was an unsettled rule of law applicable to this action and that, as a consequence, a question of fact as to the existence of implied warranties was present.
The rule of law with which the trial court was concerned was set forth in Reed Roller Bit v. Pacific Employers Insurance Co., 198 F.2d 1 (5th Cir. 1952). In that case, the Fifth Circuit Court of Appeals construed the term "operations" as used in a liability policy's exclusionary language to include negligent operations made for the purpose of inducing action (in that case, the purchase of machinery) which could not be completed until the person to whom those representations were made acted in reliance on them. This court has heretofore not construed a contract provision of this type in such a manner. It is apparent, however, that if this construction is applied to the policy in the instant case, a material disputed issue of fact concerning the existence and nature of warranties and representations would arise which would constitute grounds for denying the motion for summary judgment. Federal Deposit Insurance Corp. v. First Mortgage Investors, supra, 76 Wis.2d at 154-55, 250 N.W.2d 362. However, to determine whether this construction is appropriate in the instant case, the insurance contract must be examined.
The policy in question provides that Western will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury or property damage for which coverage is afforded. It further sets forth:
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