Reyes v. Greatway Ins. Co.

• Decision Date: 27 May 1998
• Docket Number: No. 97-1587,97-1587
• Citation: 582 N.W.2d 480,220 Wis.2d 285
• Parties: Leon M. REYES, Plaintiff-Respondent, d v. GREATWAY INSURANCE COMPANY, a domestic insurance corporation, Defendant-Appellant, Aaron S. Rothering, Defendant-Co-Appellant, Cheryl L. Rothering, State Farm Fire & Casualty Company, a foreign insurance corporation, Farm Mutual Automobile Insurance Company, a foreign insurance corporation, and Wisconsin Department of Health and Social Services, Defendants.
• Court: Wisconsin Court of Appeals

Page 480

582 N.W.2d 480

220 Wis.2d 285

Leon M. REYES, Plaintiff-Respondent, ^d v. GREATWAY INSURANCE COMPANY, a domestic insurance corporation, Defendant-Appellant Aaron S. Rothering, Defendant-Co-Appellant Cheryl L. Rothering, State Farm Fire & Casualty Company, a foreign insurance corporation, Farm Mutual Automobile Insurance Company, a foreign insurance corporation, and Wisconsin Department of Health and Social Services, Defendants.

No. 97-1587.

Court of Appeals of Wisconsin.

Submitted on Briefs April 10, 1998.

Opinion Released May 27, 1998.

Opinion Filed May 27, 1998.

On behalf of the defendant-appellant Greatway Insurance Company, the cause was submitted on the briefs of Arthur P. Simpson of Simpson & Deardorff of Milwaukee.

On behalf of the defendant-co-appellant Aaron S. Rothering, the cause was submitted on the briefs of Rodney W. Carter of Hinshaw & Culbertson of Milwaukee.

On behalf of the plaintiff-respondent Leon M. Reyes, the cause was submitted on the brief of Timothy S. Knurr of Schoone, Fortune, Leuck, Kelley & Pitts, S.C.. of Racine.

Before SNYDER, P.J., BROWN and NETTESHEIM, JJ.

BROWN, Judge.

Our legislature has decided that a minor is eligible to obtain a motor vehicle operator's license only if the minor is sponsored by a parent or guardian. The sponsor is then liable for "[a]ny negligence or wilful misconduct of a person under the age of 18 years when operating a motor vehicle upon the highways." Section 343.15(2)(b), STATS. We construe this statute to apply in all situations involving the "skill" of driving an automobile and the "mental discretion" in exercising that skill. Because engaging in a drive-by shooting does not involve the "skill" of driving, the sponsor is not responsible under the statute for injuries to the victim of a drive-by shooting. We reverse the trial court's ruling to the contrary. We also reverse that portion of the damages concerning future medical expenses and order that the award be reduced to a figure we have determined conforms to the proof. In all other respects, we affirm the verdict.

On the night of October 6, 1993, Aaron S. Rothering was driving in his car with a companion, Marlon Jamison, when they passed by several people standing on a sidewalk. Although they apparently did not recognize any one individual in the group, they identified them as members of a rival gang. Aaron then drove a couple of blocks away, stopped the car and both young men armed themselves with shotguns stored in the trunk of the car. Aaron then drove back to where the group of people was standing. As Aaron approached the group, he turned off the car's headlights and both fired into the group as they drove by. Aaron fired twice, and some of the pellets Aaron fired struck Reyes in his left eye, neck, side, hand and ribs. As a result, Reyes permanently lost his vision in his left eye. Aaron was seventeen years old at the time of the shooting.

As a result of this incident, Aaron later pled guilty to first-degree reckless injury, party to a crime, along with six other felony charges. He was sentenced to twenty-seven years in prison. ¹

Reyes then brought a civil action against Aaron and Greatway Insurance Company (Greatway), which insured Aaron's automobile. ² Aaron was the owner of the car and it was insured in his name with Greatway. Under this policy, Greatway agreed to pay damages up to the policy limit "for which an insured person is legally liable...." However, the policy also stated that it did not provide coverage for an insured who intentionally caused the damage. As a result, although Aaron was clearly an insured person and legally liable for the damage, Greatway claimed it was not liable under the policy for Aaron's intentional act.

Reyes, however, claimed that Aaron's mother, Cheryl, was also an insured person under the Greatway policy. He further claimed that because she signed the application for Aaron's driver's license, she was legally liable under the sponsorship statute, § 343.15(2)(b), STATS., for the damages caused by Aaron's act. In its response to Reyes' motion for summary judgment, Greatway argued that § 343.15(2)(b) did not impose liability upon Cheryl for Aaron's criminal act. The trial judge presiding at the time, the Honorable Dennis J. Flynn, disagreed and held that the sponsorship statute imputed liability for Aaron's conduct to Cheryl. ³

A jury trial followed, which was presided over by the Honorable Stephen A. Simanek. The jury found Aaron to have committed an intentional tort and returned a verdict for Reyes, awarding him approximately $350,000 in damages, of which $50,000 represented an award for future medical expenses. From this amount, Greatway was to pay $25,000 plus costs for Cheryl's liability in the shooting. Also, the jury awarded Reyes $100,000 in punitive damages.

Both Aaron and Greatway filed motions after verdict. Aaron asked the court to reduce the award of future medical expenses and to strike the punitive damages award as excessive. Greatway asked the court to reverse Judge Flynn's earlier ruling that Cheryl was liable under the sponsorship statute. Judge Simanek denied all of the motions and this appeal followed.

We address Greatway's appeal first. We assume, arguendo, that Cheryl is "an insured person" under Aaron's automobile insurance policy with Greatway. The issue before us then is whether Cheryl is liable under § 343.15(2)(b), STATS., for the damages Aaron caused in the drive-by shooting. The interpretation of a statute is a question of law which we review without deference to the decision of the trial court. See Wassenaar v. Panos, 111 Wis.2d 518, 525, 331 N.W.2d 357, 361 (1983).

Section 343.15(2)(b), STATS., provides in relevant part:

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 ... either parent signed as sponsor.... The parents ... [are] jointly and severally liable with such operator for any damages caused by such negligent or wilful misconduct.

Reyes' argument is that because Aaron "was operating the motor vehicle ... at the very same time he was shooting [the shotgun] out the window," Cheryl is liable under the statute for the damages caused by his conduct. But we are convinced that the ratio decidendi of two cases interpreting the statute leads to a different result. Those two cases are Mikaelian v. Woyak, 121 Wis.2d 581, 360 N.W.2d 706 (Ct.App.1984), and Employers Mutual Fire Insurance Co. v. Haucke, 267 Wis. 72, 64 N.W.2d 426 (1954).

In Mikaelian, we discussed the legislature's rationale for passing § 343.15(2)(b), STATS. There, the issue was whether the parents were liable for damages caused by their seventeen-year-old son who had hit another vehicle during an illegal automobile race on the highway. See Mikaelian, 121 Wis.2d at 592, 360 N.W.2d at 712. In finding the parents liable for their child's reckless driving, we made the following observations about the scope and object of the statute.

First, we noted that driving was a skill which required mental discretion and physical dexterity. See id. at 594, 360 N.W.2d at 713. Because juveniles generally do not possess mental discretion to the same degree as an adult and because they also generally lack adequate finances to cover any potential damages they may cause, the legislature determined that juvenile drivers posed an increased risk to public safety. See id. As a result, the legislature concluded that in order to protect the public, the best course of action was to allow juveniles to drive only if an adult sponsor agreed to accept responsibility for the increased risk upon the public. See id.

That responsibility generally falls upon parents. It is the parents who can limit the amount of driving and the times of day the car is to be driven, and it is the parents who can inculcate their children with the need to use correct discretion when driving. See id. at 594-95, 360 N.W.2d at 713. In other words, parents are likely to have the requisite personal knowledge of the minor's characteristics and have an opportunity to exercise some degree of control over the minor's driving to make an informed decision on whether to allow their children to drive on the public highways. See id. at 594, 360 N.W.2d at 713. Thus, under the sponsorship statute, if parents believe their children can shoulder the responsibility of driving sensibly, then they must assume the risk of their decision being wrong. See id. at 595, 360 N.W.2d at 713. This is the conduct upon which parental liability is predicated--the parents' voluntary conduct in allowing their children to drive. See id.

In Employers, our supreme court addressed the issue of whether the sponsorship statute ⁴ imputed liability to a parent for the damage caused when the child stole a vehicle and then drove it into a ditch while trying to evade capture. See Employers, 267 Wis. at 72-73, 64 N.W.2d at 426-27. The father claimed that he was absolved from liability because the negligence or wilful misconduct occurred while the juvenile attempted to escape capture during the commission of a crime. See id. at 74, 64 N.W.2d at 427. The court concluded otherwise.

The court noted that under the sponsorship statute, liability does not depend on either consent of the owner or knowledge of the parents with respect to the operation of an automobile by a minor. See id. at 75, 64 N.W.2d at 427-28. Thus, it was of no consequence that the father did not know his son was driving on that particular occasion or that the owner did not give his consent. See id.

More importantly, the court noted that the father's liability was not premised on the son's criminal act of stealing the car. The father's liability was based not on the theft but on the child's negligent operation of the car. See id. at 74, 64 N.W.2d at 427. Therefore, because the damage resulted from the son's negligent driving, the father was liable for...