Lecus v. American Mut. Ins. Co. of Boston

• Decision Date: 13 December 1977
• Docket Number: No. 75-676,75-676
• Citation: 81 Wis.2d 183,260 N.W.2d 241
• Parties: Henny Barney LECUS, Appellant, v. AMERICAN MUTUAL INSURANCE COMPANY OF BOSTON, Respondent, Firemen's Fund Insurance Company, Defendant.
• Court: Wisconsin Supreme Court

Page 241

260 N.W.2d 241

81 Wis.2d 183

Henny Barney LECUS, Appellant, v. AMERICAN MUTUAL INSURANCE COMPANY OF BOSTON, Respondent Firemen's Fund Insurance Company, Defendant.

No. 75-676.

Supreme Court of Wisconsin.

Submitted on Briefs Nov. 2, 1977.

Decided Dec. 13, 1977.

The action arises from a two-car automobile accident. The trial court granted the motion for summary judgment by the defendant, American Mutual Insurance Company of Boston, made upon policy defenses, and entered judgment dismissing the complaint as to that defendant. The plaintiff appeals.

Jerome E. Randall, Milwaukee, on brief, for appellant.

Donald R. Peterson, Terry E. Johnson, and Borgelt, Powell, Peterson & Frauen, S. C., Milwaukee, on brief, for respondent.

BEILFUSS, Chief Justice.

The overriding issue is whether there are disputed material facts or competing inferences in the record that entitle the plaintiff to a trial. We conclude there are and that summary judgment was not appropriate.

The accident occurred on July 14, 1972, in Winnebago county. The plaintiff, then Henny Barney, was a passenger in a 1963 Mercury. The automobile was owned by her but was being driven by Edward Lecus. Lecus and Barney were on their way from Milwaukee to Green Bay to attend an American Legion convention. The 1963 Mercury and a vehicle driven by Arnold Larson, Sr., and insured by the Firemen's Fund Insurance Company, were the vehicles involved in the collision. Neither Henny Barney nor the 1963 Mercury were insured.

Edward Lecus owned a 1964 Buick which was insured by the defendant-respondent American Mutual Insurance Company of Boston.

Henny Barney was seriously injured in the accident and commenced this action against Larson's insurer, Firemen's Fund, and Lecus' insurer, American Mutual.

After an answer to the complaint and depositions by Edward Lecus and Henny Barney, American Mutual brought on its motion for summary judgment claiming affirmative policy defenses. The policy defenses are that the non-owned vehicle driven by Lecus was owned by Barney, that Lecus and Barney were residents of the same household and thus the non-owned vehicle driven by Lecus was excluded from coverage under his policy. A further policy defense is that the 1963 Mercury was not a temporary substitute vehicle for the disabled 1964 Buick. The pertinent policy provisions appear in the footnote. ¹

Under the terms of the policy, insurance coverage was not available if Henny Barney was a resident of Edward Lecus' household as claimed by American Mutual. Nor would coverage be extended if Henny Barney's 1963 Mercury was furnished for Edward's regular use unless it was a temporary substitute vehicle.

From the depositions and affidavits in support of and in opposition to the motion for summary judgment, the following appears:

Henny Barney was divorced on March 1, 1972. She and Edward Lecus began a social relationship which culminated in marriage, just after the statutory waiting period on March 2, 1973.

Lecus owned a "cottage" on West Lapham Street in Milwaukee. On June 1, 1972, six weeks before the accident, Barney and her three children moved into the cottage. Lecus remodeled the recreation room in the basement to be used for his living quarters. Barney and the three children occupied the first and second floors. She paid Lecus $70 per month rent with funds obtained from the welfare department. She had lived there for two weeks on an earlier occasion but moved out when she found another apartment; she returned to the cottage on June 1, 1972 because the apartment she had rented was bug infested.

In Barney's affidavit she stated her occupancy was intended to be temporary; that she was actively looking for another apartment; and that most of her personal belongings remained unpacked at the time of the accident. Lecus also stated Barney was looking for another apartment prior to the accident.

Although some of the doors were lockable, Lecus stated he could pass freely from the basement to the first and second floors.

Lecus generally left for work before Barney and the children were up but on a few occasions she did get up and get breakfast for him. He generally ate the evening meal with Barney and her children. She did the cooking and the children washed the dishes. One or two nights a week Barney and Lecus would eat out together. Lecus cleaned the basement and Barney the first and second floors. She did the laundry, including his.

The starter on the 1964 Buick owned by Lecus and insured by American Mutual broke about one month or four months before the accident. The vehicle was inoperable and parked next to the cottage. He stated he intended to have the starter fixed but did not have the necessary funds to do so.

Lecus took the bus to work but used Barney's car to do errands and on their evenings out. He asked for permission each time he used the car but was never denied the use of it nor were any restrictions placed on its use. How often and how extensive this use was does not appear. Lecus states the use was only occasional because of all of his shopping needs were within walking distance.

The trip to Green Bay was the first time he had driven the 1963 Mercury outside of the city of Milwaukee.

Lecus was the commander of a local American Legion post. The convention at Green Bay was to last three days. Lecus and Barney were to stay in a dormitory with separate facilities for men and women.

The trial court concluded there were no material facts in dispute and that Barney's automobile was for the regular use of Lecus, that Barney and Lecus were residents of the same household and that the Mercury was not a temporary substitute automobile. Upon these facts it was concluded that American Mutual Insurance Company of Boston, by virtue of its policy provision, did not afford insurance coverage to Lecus while driving the 1963 Mercury on the day in question and was not liable to the plaintiff Henny Barney.

We have often stated summary judgment is a drastic remedy and should not be granted unless the material facts are not in dispute, no competing inferences can arise, and the law that resolves the issue is clear. Summary judgment is not to be a trial on affidavits and depositions. ²

The American Mutual policy provides in substance that the policyholder is not protected when operating a non-owned vehicle that is owned by a resident of the same household.

In Pamperin v. Milwaukee Mut. Ins. Co., 55 Wis.2d 27, 37, 197 N.W.2d 783, 788 (1972), three factors to consider in determining residency were set forth:

"(1) Living under the same roof; (2) in a close, intimate and informal relationship; and (3) where the intended duration is likely to be substantial, where it is consistent with the informality of the relationship, and from which it is reasonable to conclude that the parties would consider the relationship ' . . . in contracting about such matters as insurance or in their conduct in reliance thereon.' (Case cited.)"

However, the Pamperin test is somewhat qualified:

"The listing of three factors to be considered does not result in a threefold test with each to be required." Belling v. Harn, 65 Wis.2d 108, 113, 221 N.W.2d 888, 891 (1974).

The question upon review of an order granting a motion for summary judgment is not necessarily whether the inferences that have been drawn are reasonable but whether the record reveals there are competing inferences that could be considered reasonable. We have no quarrel with the inferences drawn by the trial court nor the findings of fact it did make, but that is not the function of a motion for summary judgment. We have stated innumerable times a motion for summary judgment does not contemplate nor permit a trial upon affidavits or depositions, and that if there are any material facts in dispute or competing reasonable inferences the party resisting the motion is entitled to a trial.

Certainly upon the question of residency in a given household the intention of the parties is one of the most important evidentiary questions to be considered. While it is true the "actions sometimes speak louder than words" intention is a subjective state of mind to be determined upon all of the facts including the declarations of the person inquired about.

We have stated " . . . the issue of . . . intent is not one that properly can be decided on a motion for summary judgment. Credibility of a person with respect to his subjective intent does not lend itself to be determined by affidavit." ³

Without restating the factual excerpts from the depositions and affidavits as set forth above, we conclude there are competing reasonable inferences as to the residence question and that the plaintiff is entitled to have these resolved after a trial by the trier of fact whether it be by a judge or jury.

We are next concerned with whether Barney's car was available for Lecus' regular use. Although he did not use it to go to work, Edward was allowed to use it whenever he wished to. His requests were always granted, and no restrictions were placed on his use of it.

This court has held that where a case concerning regular use presents no questions of fact the issue is appropriate for determination by summary judgment. Moutry v. American Mut. Liability Ins. Co., 35 Wis.2d 652, 656, 151 N.W.2d 630 (1967); Jones v. Perkins, 75 Wis.2d 18, 23, 248 N.W.2d 468 (1977). Here the only issue is whether Edward's use was a regular use.

Le Mense v. Thiel, 25 Wis.2d 364, 367, 130 N.W.2d 875, 876 (1964), delineated the spectrum of possible situations in a regular use case:

"The meaning of the words 'regular use' in an automobile insurance policy such as is involved here is one that has frequently been before the courts. Obviously, each case which arises under this clause must turn on its own peculiar facts. On each end of the spectrum are the easy cases. If the use of the auto is sporadic and rigidly restricted, there is coverage under the policy. At the other end...