Rosar v. General Ins. Co. of America

• Decision Date: 20 December 1968
• Citation: 163 N.W.2d 129,41 Wis.2d 95
• Parties: , 37 A.L.R.3d 1257 Ruth M. ROSAR, Appellant, v. GENERAL INS. CO. OF AMERICA, a foreign corp., et al., Respondents.
• Court: Wisconsin Supreme Court

Page 129

163 N.W.2d 129

41 Wis.2d 95, 37 A.L.R.3d 1257

Ruth M. ROSAR, Appellant, v. GENERAL INS. CO. OF AMERICA, a foreign corp., et al., Respondents.

Supreme Court of Wisconsin.

Dec. 20, 1968.

Rehearing Denied March 4, 1969.

Edward Rudolph, Milwaukee, for appellant.

Arnold, Murray & O'Neill, Milwaukee, for respondents.

BEILFUSS, Justice.

The issue is whether the insurer, under one family automobile policy issued to the insured covering and describing two separate automobiles at two separate and different rates, is liable for double the stated liability limits where the claimant is injured in a collision involving just one of the described vehicles by virtue of the negligence imputed to the father-owner under the sponsor's liability statute.

The sponsor's liability statute, in part, is as follows:

'343.15 Application of minors; liability of sponsors; release from liability. (1) The application of any person under 18 years of age for a license shall be signed and verifed before a person duly authorized to administer oaths, by the applicant's father, if he had custody of the applicant; or if the father does not have custody, then by the mother if she has custody; or if neither parent has custody, then by the person or guardian having such custody or by the applicant's employer, subject to the exception stated in sub. (4). If the adult sponsor is the applicant's parent, the application may be signed and verified before a traffic officer or before a duly authorized agent of the department in lieu of being signed and verified before a person duly authorized to administer oaths.

'(2) 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 person who signed the application for such person's license. The person who so signed is jointly and severally liable with such operator for any damages caused by such negligent or wilful misconduct.'

The insurer does not deny that its named insured, the father-sponsor, is vicariously liable for damages resulting from negligent operation of the motor vehicle by his seventeen-year-old son. The insurer also concedes it is liable to the extent of its stated policy limits--in this instance $10,000. These admissions are consistent with the holdings of this court in Klatt v. Zera (1960), 11 Wis.2d 415, 105 N.W.2d 776; Mancheski v. Derwae (1960), 11 Wis.2d 467, 105 N.W.2d 773; Asleson v. Hardware Dealers Mut. Fire Ins. Co. (1960), 11 Wis.2d 624, 106 N.W.2d 330.

The insurer contends that there is nothing in the sponsorship statute which in any way changes its liability to its assured.

The plaintiff-claimant concedes that if the father was not vicariously liable her claim against the insured would be limited to the coverage extended to the minor son and that the limits of that liability would be $10,000. However, the plaintiff asserts that because the father is vicariously liable for the son's negligent act protection afforded to the father is the $10,000 limit on both cars. She argues that under the terms of the policy both cars were insured, both were specifically described and two separate and different premiums were charged and paid, and the father had full coverage on both cars so that his protection was cumulative or double the amount of the stated limits of liability.

The insurer relies on the following terms and conditions as a defense to the plaintiff's claim:

'LIABILITY SECTION'

'* * *

'Limits of Liability. The limit of bodily injury liability stated in the declarations as applicable to 'each person' is the limit of the company's liability for all damages, including * * * arising out of bodily injury sustained by one person as the result of any one occurrence; that limit of such liability stated in the declarations as applicable to 'each occurrence' is, subject to the above provision respecting each person, the total limit of the company's liability for all such damages arising out of bodily injury sustained by two or more persons as the result of any one occurrence.

'* * *

'CONDITIONS'

'* * *

'4. Two or more Automobiles--Coverages A, R, C, D, E, and F: When two or more automobiles are insured hereunder, the terms of this policy shall apply separately to each, but an automobile and a trailer attached thereto shall be held to be one automobile as respects limits of liability under coverages A and B of this policy, and separate automobiles under coverages D, E, and F of this policy, including any deductible provisions applicable thereto.'

The plaintiff argues that Condition 4 creates an ambiguity by the use of the language that 'the terms of this policy shall apply separately to each' and that if an ambiguity exists the policy must be construed so as to afford the greatest protection to the assured.

These contentions were met by the Supreme Court of Washington, in a strongly similar situation, in Pacific Indemnity Co. v. Thompson (1960), 56 Wash.2d...