Miller by Grindell v. Amundson, s. 82-1773

Decision Date10 January 1984
Docket NumberNos. 82-1773,82-1893,s. 82-1773
PartiesJodi MILLER, by his Guardian Ad Litem, John GRINDELL and Gregory Miller, Plaintiffs, Judith Miller, Plaintiff-Respondent, and Cross-Appellant, v. Vera AMUNDSON, Defendant-Respondent, The Insurance Company of North America, Defendant-Appellant, and Cross-Respondent. Jodi MILLER, by his Guardian Ad Litem John GRINDELL, Gregory Miller, Plaintiff, Judith Miller, Plaintiff-Respondent, v. Vera AMUNDSON and The Insurance Company of North America, Defendants-Appellants.
CourtWisconsin Court of Appeals

Garvey, Anderson, Kelly & Ryberg, S.C., and Richard J. Kelly, Eau Claire, for defendant-appellant and cross-respondent The Ins. Co. of North America.

Thrasher, Doyle & Pelish, Ltd., Rice Lake, Davis, Witkin, Weiby, Maki & Durst, S.C., Superior, for plaintiff, respondent and cross-appellant Judith Miller.

Doar, Drill & Skow and James A. Drill, New Richmond, for plaintiffs Jodi Miller and Gregory Miller.

Faegre & Benson and Martin N. Burke, Margaret S. Angle and Mary H. Terzino, Minneapolis, Minn., for defendant-respondent Vera Amundson.

Before FOLEY, P.J., and DEAN and CANE, JJ.

DEAN, Judge.

The Insurance Company of North America (INA) appeals a judgment awarding damages to Jodi Miller and his parents, Judith and Gregory Miller, for injuries Jodi received when he fell from the back of a pickup truck driven by his grandmother, Vera Amundson. Judith was a passenger in the truck. The judgment requires INA to provide $100,000 of automobile liability insurance coverage each to Vera and Judith, who were both found causally negligent, even though the policy, issued to Vera's husband, provided $100,000 single limit coverage per occurrence. INA contends that it should provide a total of only $100,000 coverage. Because the omnibus coverage statute, sec. 632.32(2)(b), Stats. (1977), required INA to provide $100,000 of coverage each to Vera and Judith, we affirm the judgment.

Judith cross-appeals a judgment against her for contribution. This judgment stems from a counterclaim Vera filed against Judith for contribution, since Jodi brought his action only against Vera and her insurer, INA. Judith contends that her contribution is not due until Vera actually pays more than her proportionate share of the damages. Vera appeals the trial court's order denying offset of the judgments in favor of and against Judith. Because both results are equitable under the circumstances, we also affirm these appeals.

The jury attributed seventy-five percent of the causal negligence to Vera for not safely securing the truck's load and for allowing Jodi to ride in the back of the truck. The remaining twenty-five percent they apportioned to Judith, who had a duty to supervise Jodi, for allowing him to ride in the back of the truck. The damage awards were as follows: 1

The court then entered the following judgments: (1) for Jodi and Gregory against INA for $100,000 and against Vera for $107,164.81; (2) for Vera against Judith and INA for $51,791.20 contribution; and (3) for Judith against Vera and INA for $35,373.60. 2 The court refused to offset the judgments in favor of and against Judith.

A number of the issues originally raised on appeal were settled by stipulation. Three issues remain: (1) Does INA's policy provide $100,000 coverage each to Vera and Judith or only $100,000, either to Vera alone or to be divided in some manner between them; (2) Did the trial court err in rendering a final judgment for contribution before any payment of an inequitable share of the judgment was made; and (3) Should the judgments in favor of and against Judith be offset against each other. This appeal was certified to the supreme court, and certification was denied.

The following clauses in the INA policy are representative of those that specify the coverage involved. The declarations page states:

The limit of the company's liability against each coverage afforded shall be as stated herein, subject to all the terms of the policy having reference thereto.

Single Limit: Bodily Injury and Property Damage.

Each Occurrence: $100,000. 3

The policy later states:

The insurance afforded under Bodily Injury and Property Damage Liability Coverages applies separately to each Insured against whom claim is made or suit is brought, but the inclusion herein of more than one Insured shall not operate to increase the limits of the Company's liability.

These coverage clauses must be interpreted in light of the omnibus coverage statute, sec. 632.32(2)(b), Stats. (1977), which provided, in part:

Every [auto liability] policy ... shall contain a provision substantially as follows: "The coverage provided by this policy applies, in the same manner and under the same provision as it is applicable to the named insured, to any person while riding in or operating any automobile described in this policy when the automobile is being used for purposes and in the manner described in the policy."

The interpretation of this statute is a question of law that we will independently review. See Nelson v. Union National Bank, 111 Wis.2d 313, 315, 330 N.W.2d 225, 226-27 (Ct.App.1983). The legislative policy behind this statute was to increase, not decrease, coverage. Groth v. Farmers Mutual Automobile Insurance Co., 21 Wis.2d 655, 659, 124 N.W.2d 606, 608 (1963). The omnibus coverage should not subtract from the named insured's coverage. Mancheski v. Derwae, 11 Wis.2d 467, 471, 105 N.W.2d 773, 775 (1960). The word "coverage" includes the policy's dollar limits of liability. Smith v. National Indemnity Co., 57 Wis.2d 706, 712, 205 N.W.2d 365, 368 (1973). This omnibus coverage is imputed to every automobile policy whether or not it is written there. Drewek v. Milwaukee Automobile Insurance Co., 207 Wis. 445, 448, 240 N.W. 881, 882 (1932).

Vera, the named insured, 4 contracted for and expected $100,000 of liability coverage. Judith, as an additional insured, must be provided with coverage "in the same manner and under the same provision as it is applicable to" Vera. See sec. 632.32(2)(b), Stats. (1977). If only $100,000 coverage is available, as INA contends, two options are possible. First, the $100,000 coverage could be divided in some manner between Vera and Judith. This would, however, deny Vera the $100,000 coverage that she believed she was paying for and reasonably expected under the policy. This is contrary to the policy behind the omnibus statute and seems fundamentally unfair. See 8C Appleman, Insurance Law & Practice § 5108 n. 9 (1981). The other option would be to allocate the entire $100,000 toward Vera's liability of over $242,000, leaving none for Judith. This would also violate the policy of the omnibus statute, since Judith would not be receiving the same coverage as provided to Vera, the named insured. Judith would, in fact,...

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