Pulvermacher v. Sharp

• Decision Date: 09 April 1957
• Citation: 82 N.W.2d 163,275 Wis. 371
• Parties: Howard PULVERMACHER, Respondent, v. Raymond SHARP et al., Appellants.
• Court: Wisconsin Supreme Court

Page 163

82 N.W.2d 163

275 Wis. 371

Howard PULVERMACHER, Respondent, v. Raymond SHARP et al., Appellants.

Supreme Court of Wisconsin.

April 9, 1957.

Frank M. Coyne, Madison, for appellant.

Kopp & McKichan, Platteville, Roberts, Roe, Boardman, Suhr & Bjork, Madison, for respondent insurance company.

Edwin Conrad, George Mc D. Schlotthauer, Madison, amici curiae.

CURRIE, Justice.

The memorandum opinion of the learned trial court so well covers the issues presented on this appeal that we adopt the same as the opinion of this court:

This is a motion by the impleaded defendant State Farm Mutual Automobile Insurance Company for summary judgment dismissing on the merits the amended complaint of the plaintiff and the cross-complaint of the original defendants as to said movant. Subsequent to the filing of this motion the original defendants made settlement of plaintiff's claim, reserving, however, their rights as to their cross-complaint for contribution against the impleaded defendants and pursuant thereto plaintiff's amended complaint was dismissed on the merits. This leaves for disposition the cross-complaint of the settling (original) defendants for contribution against the impleaded defendants and it is this issue which State Farm Mutual presently seeks to determine, so far as it is concerned, by its motion for summary judgment.

There is attached to the moving papers a stipulation of facts signed by counsel for all parties which, in the view of such counsel, sets forth all of the agreed facts which are necessary to a determination of this motion and which stipulation specifically recites that 'there are no facts in dispute on the issues raised by this motion for summary judgment.'

From this stipulation and the pleadings herein the following facts appear which the Court believes are material to a determination of the problem at hand:

(a) The plaintiff sustained personal injuries as a result of an automobile accident which occurred on March 2, 1954, while he was riding as a guest in his own automobile and which automobile as then being driven by the impleaded defendant Jay Anderson with the plaintiff's permission and consent. This action was brought by plaintiff to recover damages for such personal injuries.

(b) There was in existence at the time of said accident an automobile liability policy issued by the impleaded defendant State Farm Mutual to the plaintiff as named-insured therein, which policy described the vehicle above mentioned and which policy contained an omnibus coverage clause extending coverage to the said Jay Anderson as an additional insured.

(c) Said policy further contained a general 'exclusion clause' providing that the policy did not apply to injury to or death of the named-insured (plaintiff) therein.

(d) On April 8, 1954, upon completing its investigation of said accident, State Farm Mutual, for the purpose of complying with the provisions of section 85.09 (5)(d), Stats., filed with the Motor Vehicle Commissioner of the State of Wisconsin an SR-21 form to which no limitations, restrictions or conditions were attached and which contained the usual information required by said commissioner in such cases and which was in the usual form required by him. This SR-21 was signed and filed on behalf of said insurance company by a person who had actual authority to so sign and file the same and was not filed as a result of any mistake on the part of said company. This SR-21 contained the following:

'The company signatory hereto gives notice that its policy numbered 347-820-D27-49 issued on the date of January 25, 54 and issued to Howard Pulvermacher, 990 Central Ave. Richland Center is an automobile liability policy as defined in Section 85.09 of the Wisconsin statutes, affording limits of $10,000/$20,000 bodily injury and $5000 property damage, which policy was in effect on the date of the above described accident.

'Does this policy apply to the above owner in the above accident' Yes.

'Does this policy apply to the above operator in the above accident' Yes.

(e) State Farm Mutual did not withdraw or revoke said SR-21 at any time.

(f) Because of the filing of said SR-21 neither the operator's license of Jay Anderson nor the registration certificate and plates of plaintiff have been suspended by the Commissioner of Motor Vehicles.

(g) State Farm Mutual, at the time of the filing of said SR-21, had knowledge that the plaintiff (named-insured) was the sole person injured in said accident.

On the facts State Farm Mutual contends that it is not liable for contribution because of the 'exclusion clause' above mentioned which prevents the plaintiff (named-insured) from recovering under his policy for his own personal injuries and hence there is no common liability between the cross-complaining (original) defendants and State Farm Mutual upon which a judgment for contribution could be based.

The original defendants contend, however, that the filing of the SR-21 by State Farm Mutual precludes the granting of its motion for summary judgment for the following reasons:

(1) Under the rule of Laughnan v. Griffiths, 271 Wis. 247, 73 N.W.2d 587, and Prisuda v. General Casualty Company, 272 Wis. 41, 74 N.W.2d 777. State Farm Mutual has made itself liable by the filing of an SR-21 pursuant to section 85.09(5)(d), Stats.

(2) The automobile liability policy required by sections 85.09(5)(b), and 85.09(5)(c), Stats., in order to prevent the suspension of the operator's license of Anderson and the registration of plaintiff must cover any judgment which may be recovered against Anderson to the extent of the limits prescribed by said subsection (5)(c) and cannot validly contain the 'exclusion clause' above mentioned.

(3) The filing of the SR-21 by the insurer constituted a waiver of the 'exclusion clause' contained in said policy.

The Court is of the opinion that the rule of the Laughnan and Prisuda cases does not require the denial of this motion for summary judgment. Those cases do not hold that an insurer, by the filing of an SR-21, thereby absolutely precludes itself from relying on any and every defense it might have under the terms of the policy. They merely hold that under certain circumstances an SR-21 becomes admissible in evidence as an admission against interest on the part of the insurer with respect to the issue as to whether the insurer assumed and acknowledged liability for the operation of the vehicle in question.

In both of those cases the insurer claimed, after the filing of an SR-21, that its policy afforded no coverage or protection of any kind to the person operating the vehicle at the time of the collision involved therein, that he was not an additional insured under the terms of the policy. In both of those cases the insurer claimed that the SR-21 was filed through mistake and in the Laughnan case it was further claimed that the SR-21 was not signed nor filed by a person who had either actual or ostensible authority to so file or sign the same. In the instant case the insurer claims no mistake or error in the signing...