Lawver v. Boling

Decision Date19 February 1976
Docket NumberNo. 548,548
Citation71 Wis.2d 408,238 N.W.2d 514
PartiesJames H. LAWVER, Plaintiff-Respondent, v. Clarence E. BOLING, Defendant-Respondent, Cumis Insurance Society, Inc., Defendant-Appellant, and Homestead Mutual Insurance Co., Defendant-Respondent. (1974).
CourtWisconsin Supreme Court

L. E. Sheehan, and Moen, Sheehan & Meyer, Ltd., La Crosse, for appellant.

LaVerne Michalak, and Kulig, Luethi & Michalak, Independence, for respondent Clarence E. Boling.

Frederic J. Berns, and Tarrant, Mattka & Robertson, Whitehall, for respondent James H. Lawver.

Ruth J. Weber, and Byrne, Bubolz & Spanagel, Appleton, for respondent Homestead Mut. Ins. Co.

BEILFUSS, Justice.

The broad issues on this appeal are whether the trial court abused its discretion in denying summary judgment to Cumis and granting summary judgment to Homestead. The underlying question, however, is whether either or both of the policies here involved provide coverage for this accident. The resolution of the coverage question requires a construction and application of particular provisions contained in those policies. In considering motions for summary judgment the court must examine the pleadings and affidavits to determine whether any question of fact exists or if conflicting inferences might be drawn from the undisputed facts which would require a trial on the issue of coverage. 1 Summary judgment is proper only where there is no material issue of fact and the question presented is solely one of law. 2 If there is a dispute as to the material facts, if different inferences might be drawn from the facts, or if the application of the controlling law to the facts is uncertain, summary judgment should not be granted. 3

Cumis' primary contention on appeal is that Lawyer was Boling's employee at the time of the accident as a matter of law. As it is used in the exclusion in Cumis' policy, the term 'employee' is to be given its ordinary and commonly accepted meaning. 4 In determining the commonly understood meaning, it is appropriate to look to definitions in a recognized dictionary. 5 Webster's Third International Dictionary defines an employee as 'one employed by another usually in a position below the executive level and usually for wages.' From a review of the record we conclude that the trial court was correct in concluding that the question of whether Lawver was Boling's employee at the time of the accident was one of fact to be determined at trial.

The record shows that there had been no prior discussion about the job, that Lawver and his family were on a surprise visit to Boling's farm, and that Boling requested Lawver's help on the afternoon of his arrival. Boling provided the materials for the chair, the two men decided on the type of rig to be constructed, and both men assembled it. No discussion of any wages to be paid took place until after Lawver's release from the hospital following the accident. Conflicting inferences could be drawn from these facts as to whether the parties originally contemplated that Lawver would be compensated for his assistance. It is for the trier of fact to draw the proper inference and not for the court, upon affidavits, to determine which of two permissible inferences should prevail. 6

Cumis also contends that Lawver's injuries did not arise out of the use of Boling's truck. It argues that the injuries are more properly attributable to negligence in the selection of materials for and manner of assembling the rigging. As used in a liability insurance policy, the words 'arising out of' are very broad, general and comprehensive. They are commonly unmderstood 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. 7

The Cumis policy provides coverage for injuries arising out of the use of an automobile. There is no dispute that Boling's truck was an intergral part of the apparatus employed in repairing the barn. It was in operation at the time of the accident and, had it not been, the accident would not have happened. There can be no doubt that, for the purpose of the coverage clause in Cumis' policy, the accident arose out of the use of the truck. The causal connection required to be established between the use of the automobile and the injuries is not of the type 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. 8

As it is used in the coverage clause of an automobile liability policy, the phrase 'arising out of' is not so much concerned with causation as it is with defining the risk for which coverage will be afforded. The issue 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. This question is usually resolved by determining whether the alleged 'use' is one which is reasonably consistent with the inherent nature of the vehicle. 9 That the activities could possibly have been carried on, and the accident taken place, without the use of the vehicle is irrelevant.

Likewise, once the general activities which involve the vehicle can be said to constitute a covered 'use' of that vehicle, it makes no difference, for coverage purposes, whether the negligent act for which liability attaches occurs in the actual operation of the vehicle or in some other aspect of that 'use.' In this case the insured vehicle is a pickup truck in the farm setting. It is reasonably to be expected that it will be put to a variety of uses beyond the ordinary transportation of persons and goods from place to place. Included within that range of reasonable uses is its use as a power source in performing necessary farm repairs. Whether Boling was negligent in the manner in which he moved the truck forward or in his selection of materials for and construction of the rigging, the injuries arose out of a use of the truck and are therefore covered under the Cumis policy.

Two arguments are made in support of the contention on the cross-appeals that the trial court abused its discretion in granting summary judgment to Homestead. First, the cross-appellants assert that whether the truck was being 'used' at the time of the accident within the meaning of the exclusion in the Homestead policy is a question of fact which must be resolved at trial. Secondly, it is argued that at the time of the accident the pickup truck was being used as a 'farm implement' for 'ordinary farm purposes' and that it was therefore not an 'automobile' as defined by the policy.

The exclusionary clause in the Homestead policy provides that the coverage provided by the policy does not apply to the 'ownership, maintenance, operation, use, loading or unloading of' an automobile. The cross-appellant contends that Boling's negligence was connected with his choice of materials for and manner of construction of the rigging and not with his actual operation of the truck. Liability for such negligence, it is argued, is within the coverage of Homestead's all-risk policy. The question raised by these arguments is whether a conclusion that the injuries arose out of the use of the truck for purposes of establishing coverage under Dumis' automobile liability policy is determinative of whether the truck was 'used' so as to exclude coverage under Homestead's policy. 10 Prior decisions of this court tend to indicate that it is.

In Luck v. Hardware Mut. Casualty Co. (1954), 268 Wis. 223, 67 N.W.2d 306, a pedestrian was killed when struck by a truck driven by a village employee. The village was insured under a general liability policy which excluded coverage for accidents caused by the operation, maintenance or use of a motor vehicle. The plaintiff's complaint alleged negligence both in the operation of the truck and in the manner in which the village had maintained its streets and signs. In affirming a summary judgment for the insurer, the court stated at page 227, 67 N.W.2d at page 308:

'The restrictive provision of the policy is plain and unambiguous. It declares that the policy will not apply to any accident caused by the operation of an automobile or truck. The restriction manifestly is applicable regardless of how the accident occurred or whose negligence, if any, contributed thereto. Here the factor governing the insurer's liability and its obligation to defend is the particular risk covered. While the village of Luck may have been liable under the circumstances for failure to provide signs of furnish a safe place for crossing or in failing to properly warn its employees in manner as alleged in the Tollefson complaint, nevertheless there is no escape from the fact as indicated by the complaint and agreed to upon the trial by the parties, that Mr. Tollefson was struck by a truck and that the claim did not fall within the insurance provided.'

In Allstate Ins. Co. v. Truck Ins. Exchange (1974), 63 Wis.2d 148, 216 N.W.2d 205, the owner and driver of a panel truck was killed while on a hunting trip when a rifle which a passenger was in the process of removing from the truck accidentally discharged. At the time of the accident the passenger was insured under a policy of homeowners insurance which excluded coverage for loss arising out of ". . . the ownership, maintenance, operation, use, loading or unloading . . ." of an automobile away from the residence of the insured. The passenger was also an omnibus insured under the automobile liability policy covering the truck which provided coverage for bodily injury ". . . arising out of the ownership, maintenance or use of any automobile, . . ."

The homeowner's insurer settled the case with the deceased driver's estate and sought...

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