Lemon v. Federal Ins. Co., 81-1546

• Decision Date: 29 March 1983
• Docket Number: No. 81-1546,81-1546
• Citation: 111 Wis.2d 563,331 N.W.2d 379
• Parties: Vern R. LEMON, Plaintiff-Appellant, Karen Lemon, his wife, Plaintiff, v. FEDERAL INSURANCE COMPANY, Dane County, and Ronald L. Zurbuchen, Defendants-Respondents-Petitioners, Aetna Casualty and Surety Company, Defendant-Respondent.
• Court: Wisconsin Supreme Court

Page 379

331 N.W.2d 379

111 Wis.2d 563

Vern R. LEMON, Plaintiff-Appellant Karen Lemon, his wife, Plaintiff, v. FEDERAL INSURANCE COMPANY, Dane County, and Ronald L Zurbuchen, Defendants-Respondents-Petitioners Aetna Casualty and Surety Company, Defendant-Respondent.

No. 81-1546.

Supreme Court of Wisconsin.

Argued Feb. 3, 1983.

Decided March 29, 1983.

Barrett J. Corneille, Madison, argued, for defendants-petitioners; John M. Moore and Bell, Metzner & Gierhart, S.C., Madison, on brief.

Peter E. Hans, Madison, argued, for plaintiff Vern R. Lemon; Bradford W. Wilcox and Vance, Wilcox & Short, S.C., Fort Atkinson, and Kenneth T. McCormick, Jr. and Boardman, Suhr, Curry & Field, Madison, on brief.

STEINMETZ, Justice.

The issue in this case is whether a tractor that was repairing a roadside culvert and subsequently involved in a traffic accident is a "motor vehicle" within the meaning of sec. 345.05(2)(a), Stats.1975. ¹ Sec. 345.05 governs actions against a municipality arising from the negligent operation of a "motor vehicle." No limitation on the amount of damages which may be recovered against the municipality is imposed by that statute. Sec. 895.43, Stats.1975, ² governs all other tort actions against municipalities. It limits the recovery of damages to $25,000. Thus, if the tractor involved in this accident is determined to be a "motor vehicle," the defendant county's liability exposure is unlimited.

This case is an action for personal injuries arising out of a collision which occurred on Highway 73 in Dane county on May 14, 1975, between an automobile owned and operated by the plaintiff, Vern R. Lemon, and a John Deere JD500-C tractor owned by the defendant Dane county and operated by one of its employees, Ronald Zurbuchen. Defendant Federal Insurance Company is Dane county's liability insurer. Plaintiffs' amended complaint alleges that the cause of the collision was the negligence of Zurbuchen.

The vehicle operated by Zurbuchen at the time of the accident is a John Deere tractor with a backhoe on one end and a loader at the other end. It has four wheels, the rear wheels being oversized. The tractor is rated at 80 horsepower, has eight forward and four reverse gears, and has a top forward speed of 18 miles per hour. The tractor has an enclosed cab, a revolving light on top, headlights and flashing lights on all four corners.

On the day of the accident, Zurbuchen drove the tractor to the scene of the accident from another job site. Normally the practice was to transport the tractor to a work site by trailer when one was available to haul it. The tractor was at the site repairing a roadside culvert.

At the time of the accident, the bucket of the tractor was located approximately at or over the center line of the highway. Just prior to the accident, the tractor had been moved, and it may still have been moving at the time of impact, in order to gain position to change buckets.

The Dane county circuit court, the Honorable William F. Eich, granted a motion for summary judgment finding the tractor was not a motor vehicle within the meaning of sec. 345.05(2)(a), Stats.1975. The trial judge rested his determination on the fact that the tractor "was not travelling on the roadway in any fashion but rather was in a working position."

The plaintiffs appealed to the court of appeals which reversed the trial court. Lemon v. Federal Ins. Co., 107 Wis.2d 351, 320 N.W.2d 33 (Ct.App.1982). The court of appeals held the tractor was a "motor vehicle" within the meaning of sec. 345.05(2)(a), Stats.1975, and that defendants' liability was not governed by sec. 895.43, Stats.1975. We agree with this holding.

Sec. 345.05(2)(a), Stats.1975, provided that any person may file a claim for damages against the state or a municipality if that person has suffered any damage proximately resulting from the negligent operation of a motor vehicle owned and operated by the state or municipality, which damage was occasioned by the operation of such motor vehicle in the course of its business. The statutory criteria for making a claim against the state or a municipality are that the damage must result from:

(1) negligent operation of a motor vehicle owned and operated by the state or municipality;

(2) an operation of the motor vehicle in the course of the state's or municipality's business.

Thus, we must determine whether the tractor involved is a motor vehicle and whether the motor vehicle was being operated in the course of the county's business.

Sec. 345.01, Stats., states that the definitions found in sec. 340.01 are applicable to ch. 345 "unless a different definition is specifically provided." Ch. 345 does not contain a specific definition of "motor vehicle." Thus, the definition in sec. 340.01 applies to the term "motor vehicle" found in sec. 345.05(2)(a), Stats.1975. Sec. 340.01 contains the following definition of "motor vehicle:"

"(35) 'Motor vehicle' means a vehicle which is self-propelled, including a trackless trolley bus, except that a snowmobile shall only be considered a motor vehicle for purposes made specifically applicable by statute."

Subsec. (35) refers to the term "vehicle," which is defined as follows in sec. 340.01, Stats.:

"(74) 'Vehicle' means every device in, upon or by which any person or property is or may be transported or drawn upon a highway, except railroad trains. A snowmobile shall not be considered a vehicle except for purposes made specifically applicable by statute."

The tractor in the instant case is self-propelled and is therefore a "motor vehicle" as defined by statute. To be a vehicle it need not be transporting a person or property at the time of the accident, but only that it be capable of such transportation on a highway.

The tractor in this case also fits the definition of "road machinery" as that term is defined in sec. 340.01(52), Stats.:

"(52) 'Road machinery' means a piece of mobile machinery or equipment not covered by s. 341.26(1)(d), such as ditch digging apparatus, power shovels, drag lines and earth-moving equipment, or a piece of road construction or maintenance machinery, such as asphalt spreaders, bituminous mixers, bucket loaders, ditchers, leveling graders, finishing machines, motor graders, paving mixers, road rollers, scarifiers, gravel crushers, screening plants, scrapers, tractors, earth movers, front- or rear-end loaders, conveyors, road pavers, or construction shacks. The foregoing enumeration is intended to be illustrative and does not exclude other similar vehicles which are within the general terms of this subsection, whether used for road construction and maintenance or not, which are not designed or used primarily for transportation of persons or property and only incidentally operated or moved upon a highway."

Whether the tractor also satisfies the requirements of sec. 340.01(52), Stats., may be relevant for certain purposes under chs. 341 and 347 for registration and equipment requirements, but it is not relevant for purposes of sec. 345.05. For purposes of sec. 345.05(2)(a), Stats.1975, the John Deere tractor is a motor vehicle, even though it might be a piece of road machinery for purposes of other statutes.

When a plain meaning of a word in a statute is apparent, the court need not resort to either construction or case law. Amidzich v. Charter Oak Fire Ins. Co., 44 Wis.2d 45, 51, 170 N.W.2d 813 (1969). Thus, if a certain vehicle constitutes a "motor vehicle" as that term is plainly defined by sec. 340.01(35), there is no need to look beyond that definition. It is self-propelled and therefore it is by statutory definition a "motor vehicle."

It is also apparent that the tractor was being operated in the course of the county's business within the meaning of sec. 345.05(2)(a), Stats.1975. Digging ditches and repairing culverts along highways are activities within Dane county's course of business.

The defendants maintain that past cases that have defined "motor vehicle" as it applied to the direct action statutes ³ support its contention that the tractor is not a motor vehicle. These cases include Smedley v. Milwaukee Automobile Ins. Co., 12 Wis.2d 460, 107 N.W.2d 625 (1961); Norton v. Huisman, 17 Wis.2d 296, 116 N.W.2d 169 (1962); Neumann v. Wisconsin Natural Gas Co., 27 Wis.2d 410, 134 N.W.2d 474 (1965). These decisions are distinguishable from the present action.

In Smedley, Norton and Neumann, the issue was the interpretation of "motor vehicle" as it appeared in the direct action statutes, which did not provide a definition. Therefore, the court was not restricted in any manner in formulating a definition for the term "motor vehicle." The test created was "whether at the time of the accident the unit [was] being used, managed, controlled, or operated as a motor vehicle in the ordinary meaning of those words." Smedley, 12 Wis.2d at 467, 107 N.W.2d 625. In contrast to the direct action statutes, the motor vehicle code contains a definition of "motor vehicle" for purposes of ch. 345.

Those three cases also involved the negligent operation of independent machines mounted on a truck chassis: a hydraulic crane in Smedley, a sewer cleaning machine in Norton, and a "Hy-Hoe" excavator in Neumann. Once the truck arrived at the job site, the...