Klatt v. Zera

Decision Date01 November 1960
Citation11 Wis.2d 415,105 N.W.2d 776
PartiesJanice KLATT, Respondent, v. John Raymond ZERA et al., Respondents-Appellants, Jerome August Lang et al., Respondents, Gary Edward Klak, by gdn., Respondent, Milwaukee Automobile Mutual Ins. Co., Appellant.
CourtWisconsin Supreme Court

D. J. Regan, Milwaukee, for appellant.

Hoffman, Cannon, McLaughlin & Herbon, Milwaukee, Ellis R. Herbon, Milwaukee, Peter W. Bunde, Wausau, of counsel, for plaintiff-respondent.

Ray T. McCann, Leonard L. Loeb, Milwaukee, for defendants-respondents.

Stephen J. Hajduch, Milwaukee, for respondent John Lang.

CURRIE, Justice.

There are two issues before us on the appeal and cross-appeal. One is whether the policy issued by Milwaukee Auto affords coverage to the defendant John Lang, father of the minor operator of one of the two vehicles involved in the accident. The other is whether this policy affords coverage to the defendant Jerome Lang, who was such minor operator.

The facts establish that the vehicle operated by Jerome Lang was not the Chevrolet described in such policy, and it was not being driven with the consent or permission of John Lang. The policy of Milwaukee Auto issued to John Lang described a Chevrolet automobile which was not involved in the accident. However, the policy did contain a Use of Other Automobiles insuring clause, and it was because of such clause that the trial court held that there was coverage with respect to John Lang. The following are the policy provisions that are material to disposition of the contentions raised by the various parties with respect to the issue of coverage as to John Lang:

Insuring Agreements, Paragraph I, provides in part as follows:

'Coverage A--Bodily Injury Liability. To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury, sickness or disease, including death at any time resulting therefrom, sustained by any person, caused by accident and arising out of the ownership, maintenance or use of the automobile.'

Insuring Agreements, Paragraph V, provides in part as follows:

'Use of Other Automobiles. If the named insured is an individual or husband and wife and if during the policy period such named insured, or the spouse of such individual if a resident of the same household, owns a private passenger automobile covered by this policy, such insurance as is afforded by this policy under coverages A, B, division 1 of coverage K, G and I with respect to said automobile applies with respect to any other automobile, subject to the following provisions:

'(a) With respect to the insurance for bodily injury liability and for property damage liability the unqualified word 'insured' includes (1) such named insured and spouse. * * * Insuring agreement III [the omnibus coverage clause entitled 'Definition of Insured'] does not apply to this insurance.'

Exclusion (b) provides:

'This policy does not apply: under coverages A and B, to liability assumed by the insured under any contract or agreement.'

The significant fact to note with respect to the wording of Insuring Agreement A is that the policy extends coverage to John Lang, who is the named insured, for all sums he 'shall become legally obligated to pay as damages because of bodily injury * * * caused by accident and arising out of the * * * use of the [insured] automobile,' irrespective of who may be operating such automobile. It is the contention of counsel for Milwaukee Auto that we must read into such provision a requirement that such use must be by the insured. The importance of such contention becomes apparent when we attempt to interpret the Use of Other Automobiles clause. This is because such clause, under the facts of the instant case, unqualifiedly provides that the insurance afforded John Lang by Insuring Agreement A applies with respect to any other automobile. This is because he did own a private automobile insured by the policy. Therefore, if the use of the insured vehicle does not have to be by John Lang under Insuring Agreement A neither does the use under the Use of Other Automobiles clause.

We deem the decision in the case of Fazzino v. Insurance Company of North America, 1957, 152 Cal.App.2d 304, 313 P.2d 178, to be directly in point on the issue of whether the use of the other automobile must be by the named insured, or his spouse, in order that there be coverage under the Use of Other Automobiles clause of the policy. The plaintiffs husband and wife in that case were the insured under a policy issued by the defendant which contained the same Insuring Agreement A and Use of Other Automobiles provisions as did the Milwaukee Auto policy. The automobile described in the policy was a De Soto. The plaintiffs signed their minor son's application for driver's license pursuant to a statute similar in import to sec. 343.15, Wis.Stats.1957. 1 While such minor son was driving a Chevrolet automobile owned by one Smith he struck and injured a pedestrian. The injured pedestrian brought suit for damages against the plaintiffs, and the plaintiffs in turn instituted an action against the defendant insurance company to have the defendant's liability under the policy adjudicated. The court determined that there was coverage extended under the policy to the plaintiffs for any liability they might sustain in the action commenced by the injured pedestrian. The gist of the court's reasoning appears from the following paragraph of the opinion (313 P.2d at pages 180, 181):

'A study of paragraph V forces the conclusion that the coverage thereby provided is for bodily injury and property damage liability of the named insured in connection with automobiles other than the named automobile regardless of whether such automobile is used by the named insured. There is nothing in the policy to limit the coverage to the insured's use of other automobiles. It covers the named insured's liability arising from the use of other automobiles no matter who causes that liability, the named insured or some other person. Paragraph I of the policy extends coverage to the named insured for liability arising from the 'ownership, maintenance or use of the automobile' (the De Soto). Paragraph V extends to the 'named Insured' with respect to 'any other automobile' 'such insurance as is afforded by this policy' to 'said automobile' (the De Soto). Thereby any liability for bodily injury or property damage from the ownership, maintenance or use of the other automobile is covered. As the coverage for liability from the use of the De Soto is not dependent upon personal use by the named insured, so coverage for liability from the use of other automobiles is not dependent upon personal use of such other automobile by the named insured.'

The logic employed by the California court in arriving at the conclusion reached commends itself to this court, and such conclusion seems inescapable.

We are aware that a different California district court of appeal in the case of Osborne v. Security Insurance Company, 1957, 155 Cal.App.2d 201, 318 P.2d 94, decided a few months after the Fazzino case reached the opposite conclusion. However, nowhere in the Osborne case opinion is there any mention of the Fazzino case. In the Osborne case the facts are very similar to those in the instant appeal. However, the court there was required to determine coverage under the policy insuring the car driven by the minor, as well as the policy issued to the father of the minor, which insured a Ford automobile not involved in the accident that gave rise to the causes of action for damages. As to the first mentioned policy the issue was whether the minor was driving with the consent or permission of the named insured and most of the opinion is devoted to deciding such issue. When it came to deciding the coverage issue under the policy issued to Osborne, father of the minor driver, the court determined there was no coverage. The rationale of such holding appears from the following statement appearing in the opinion (318 P.2d at page 102):

'Careful scrutiny of the quoted portions of the policy discloses that the insurer studiously refrained from protecting any driver of an automobile other than the named Ford except Harold G. Osborne and his spouse, or to protect them or either of them against liability for driving such 'other automobile' by any other person.'

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