Mills v. Wisconsin Mut. Ins. Co.

• Decision Date: 09 June 1988
• Docket Number: No. 87-1474,87-1474
• Citation: 427 N.W.2d 397,145 Wis.2d 472
• Parties: Christopher S. MILLS, Plaintiff-Respondent-Cross Appellant, v. WISCONSIN MUTUAL INSURANCE COMPANY, Defendant-Appellant-Cross-Respondent, Economy Fire and Casualty Company, Defendant-Cross Respondent, Michael R. Wintz, Robert Wintz and Sandy Wintz, Defendants. d
• Court: Wisconsin Court of Appeals

Page 397

427 N.W.2d 397

145 Wis.2d 472

Christopher S. MILLS, Plaintiff-Respondent-Cross Appellant, v. WISCONSIN MUTUAL INSURANCE COMPANY,

Defendant-Appellant-Cross-Respondent,

Economy Fire and Casualty Company, Defendant-Cross Respondent,

Michael R. Wintz, Robert Wintz and Sandy Wintz, Defendants.

d

No. 87-1474.

Court of Appeals of Wisconsin.

Submitted on Briefs April 5, 1988.

Opinion Released June 9, 1988.

Opinion Filed June 9, 1988.

Richard J. Ward of Stern & Skiles, Madison, for defendant-appellant-cross respondent.

Daniel T. Flaherty and Jeffrey C. Mochalski, of Johns & Flaherty, S.C., La Crosse, for plaintiff-respondent-cross appellant.

G. Jeffrey George, of Steele, Klos & Flynn, Chartered, La Crosse, for defendant-cross respondent.

Robert J. Kasieta of Bell, Metzner & Gierhart, S.C., Madison, amicus curiae, on behalf of Wisconsin Insurance Alliance.

Before GARTZKE, P.J., and DYKMAN and SUNDBY, JJ.

SUNDBY, Judge.

In the one-car accident which is the subject of this action, Christopher Mills was injured while riding as a passenger in his father's car. The car was operated, with permission, by his seventeen-year old friend, Michael Wintz.

There were in effect at the time of the accident a motor vehicle insurance policy issued to Christopher's father, Charles Mills, by Wisconsin Mutual Insurance Company, and a motor vehicle insurance policy issued by Economy Fire and Casualty Company to Michael Wintz's parents, Robert and Sandra Wintz. Wisconsin Mutual appeals from an order determining the exposure of the two insurers. Mills cross-appeals. Briefs were filed as amici curiae by the Wisconsin Academy of Trial Lawyers and the Wisconsin Insurance Alliance.

We conclude that the trial court correctly determined the bodily injury liability exposure of Economy Fire and affirm the order in that respect. We reverse the order insofar as it determined Wisconsin Mutual's bodily injury liability exposure and medical services exposure.

I. BACKGROUND OF THE CASE

Wisconsin Mutual insured two vehicles owned by Charles Mills, the vehicle involved in the accident and another. It collected a separate premium for each vehicle. The limits of bodily injury liability were $50,000, each person, and $100,000, each occurrence. The limit of medical services coverage was $1,000, each person.

Economy Fire insured three vehicles owned by Robert and Sandra Wintz, none of which was involved in the accident. Michael Wintz was a "covered person" under the policy. Economy Fire collected a premium for each vehicle. The limits of bodily injury liability were $50,000, each person, and $100,000, each occurrence.

Each policy contained a clause limiting coverage for bodily injury sustained by one person to the amounts listed in the declarations. Wisconsin Mutual's policy also contained a clause limiting its liability for medical services. The parties stipulated for purposes of the summary judgment motions that Mills' damages exceeded policy limits.

Coverage of Michael Wintz is not disputed. The trial court held that the omnibus coverage statute, sec. 632.32(3), Stats., extended Wisconsin Mutual's bodily injury policy-limits coverage to Robert and to Sandra Wintz. As to Economy Fire's policy, however, the trial court held that sec. 632.32(3) did not extend coverage to Robert and Sandra Wintz because the policy did not cover the vehicle involved in the accident.

The trial court rejected Mills' claim that because the insureds paid separate premiums for coverage of each vehicle, sec. 631.43(1), Stats., required "stacking" of the liability coverages. It held, however, that because sec. 631.43(1) prohibits limitations The trial court therefore found that Wisconsin Mutual's bodily injury liability exposure to Mills was $150,000 and its medical services exposure to him $2,000, and Economy Fire's bodily injury liability exposure to Mills was $50,000.

on indemnity coverage, Mills was entitled to "stack" the medical services coverage under Wisconsin Mutual's policy.

II. THE ISSUES

(1) Does the omnibus coverage statute, sec. 632.32(3), Stats., extend bodily injury policy-limits coverage of a motor vehicle liability insurance policy to each parent-sponsor subject to sec. 343.15(2), Stats?

(2) Does the omnibus coverage statute extend coverage of a motor vehicle liability insurance policy to a parent-sponsor subject to sec. 343.15(2), Stats., for the negligence of the minor child in operating a motor vehicle not listed in the policy declarations?

(3) Where a motor vehicle insurance policy insures two or more vehicles and a separate premium is collected for each vehicle, does sec. 631.43(1), Stats., or public policy, invalidate a policy provision which limits the insurer's maximum liability and prevent the "stacking" of coverages?

III. COVERAGE OF PARENT-SPONSORS

A. Wisconsin Mutual's Policy

The trial court held that the omnibus coverage statute, sec. 632.32(3), Stats., extends Wisconsin Mutual's policy limits of $50,000 liability coverage each to Robert and Sandra Wintz to protect them against their liability under the sponsorship statute, sec. 343.15, Stats. Section 343.15(2) provides:

Any negligence or wilful misconduct of a person under the age of 18 years when operating a motor vehicle upon the highways is imputed to the parents where both have custody and either parent signed as sponsor, otherwise, it is imputed to the adult sponsor who signed the application for such person's license. The parents or the adult sponsor is jointly and severally liable with such operator for any damages caused by such negligent or wilful misconduct.

Sandra Wintz signed Michael Wintz's application for an operator's license.

Section 632.32(3), Stats., provides:

Except as provided in sub. (5), ¹ every policy subject to this section issued to an owner shall provide that:

(a) Coverage provided to the named insured applies in the same manner and under the same provisions to any person using any motor vehicle described in the policy when the use is for purposes and in the manner described in the policy.

(b) Coverage extends to any person legally responsible for the use of the motor vehicle.

The insurance contract between Wisconsin Mutual and Charles Mills provided:

We will pay no more than [the policy declaration] maximums regardless of the number of vehicles described in the Declarations, insured persons, claims, claimants or policies, or vehicles involved in the occurrence. (Emphasis in original.)

Wisconsin Mutual argues that this clause limiting its liability does not contravene any statute or public policy and is enforceable.

Mills does not argue that the language of Wisconsin Mutual's policy extends $50,000 coverage each to Robert and Sandra Wintz. He argues that the "interplay" of secs. 343.15(2) and 632.32(3), Stats., requires this result. We interpret Mills' argument to be that Wisconsin Mutual's limit-of-liability clause is superseded by these statutes.

We conclude that Landsinger v. American Family, 142 Wis.2d 138, 417 N.W.2d 899 (Ct.App.1987) controls. ² Landsinger Landsinger, 142 Wis.2d at 143, 417 N.W.2d at 901, holds that each person to whom the negligence of another is imputed is not entitled to policy-limits protection under sec. 632.32(3)(b), Stats. Because the liability of Robert and Sandra Wintz is based upon the imputed negligence of Michael, coverage is "extended" to them as required by sec. 632.32(3)(b) by Wisconsin Mutual's policy which protects them against liability to the extent of the bodily injury liability limits of its policy. Id. Wisconsin Mutual's limit-of-liability clause does not therefore conflict with the omnibus coverage statute. The trial court erred in determining Wisconsin Mutual's bodily injury liability exposure to Mills.

                involved injuries resulting from the negligent operation of a vehicle by a servant of the named insured.  American Family's policy limited its bodily injury liability coverage to $100,000 for each injured person.  The injured party argued that sec. 632.32(3)(b), Stats., required that American Family [145 Wis.2d 479] extend separate policy-limits coverage to the master and to the servant.  We held that because the master's negligence was based solely upon that of her servant,  Miller v. Amundson, 117 Wis.2d 425, 345 N.W.2d 494 (Ct.App.1984) did not apply.   Landsinger, 142 Wis.2d at 142, 417 N.W.2d at 900.   In Miller we held that where the named insured and an additional insured were each actively negligent, the omnibus coverage statute extended policy-limits protection to each, despite a limit-of-liability clause in the policy.   Miller, 117 Wis.2d at 430, 345 N.W.2d at 497
                

B. Economy Fire's Policy

Mills further argues that the omnibus coverage statute extends the coverage of Economy Fire's policy to Robert and Sandra Wintz. The automobile being operated by Michael Wintz at the time of the accident was, of course, not described in Economy Fire's policy. Economy Fire argues that under Damp v. Zabel, 85 Wis.2d 383, 270 N.W.2d 434 (Ct.App.1978), the omnibus coverage statute does not extend coverage to Robert or Sandra Wintz because, at the time of the accident, Michael was not using a motor vehicle described in its policy.

The court in Damp, 85 Wis.2d at 388, 270 N.W.2d at 436, found that Limpert v. Smith, 56 Wis.2d 632, 203 N.W.2d 29 (1973), controlled. In Limpert, 56 Wis.2d at 640, 203 N.W.2d at 33, the court held that an insurance policy issued to a father who sponsored his son's driver's license under sec. 343.15(1), Stats., did not extend coverage to him for his liability for the negligence imputed to him from the son's negligent operation of his own car, because the policy provided coverage only of cars described in the policy and nonowned automobiles.

Mills argues that Damp (and, presumably, Limpert ) is no longer precedential because of amendments to the omnibus coverage statute. He contends that amendments to the statute "sever[ed]" the connection between coverage and the...