Schilling by Foy v. Employers Mut. Cas. Co.

• Decision Date: 14 August 1997
• Docket Number: No. 96-2165,96-2165
• Parties: , 121 Ed. Law Rep. 1145, 13 IER Cases 189 Andrew William SCHILLING, a minor, by Briony Jean FOY, Guardian ad Litem, William Schilling, Barbara Schilling and Student Assurance Services, Inc., Time Insurance Company, Plaintiffs-Respondents,d v. EMPLOYERS MUTUAL CASUALTY COMPANY, Darlington Community School District, Darlington High School and Michael Dinges, Defendants-Appellants.
• Court: Wisconsin Court of Appeals

Page 776

569 N.W.2d 776

212 Wis.2d 878, 121 Ed. Law Rep. 1145,

13 IER Cases 189

Andrew William SCHILLING, a minor, by Briony Jean FOY, Guardian ad Litem, William Schilling, Barbara Schilling and Student Assurance Services, Inc., Time Insurance Company, Plaintiffs-Respondents,d v. EMPLOYERS MUTUAL CASUALTY COMPANY, Darlington Community

School District, Darlington High School and

Michael Dinges, Defendants-Appellants.

No. 96-2165.

Court of Appeals of Wisconsin.

Submitted on Briefs July 9, 1997.

Opinion Released Aug. 14, 1997.

Opinion Filed Aug. 14, 1997.

On behalf of the defendants-appellants, the cause was submitted on the briefs of Mark J. Mingo and Douglas W. Lehrer of Mingo & Yankala, S.C. of Milwaukee.

On behalf of the plaintiffs-respondents, the cause was submitted on the brief of John F. Jenswold and Briony Jean Foy of Jenswold, Studt & Hanson of Madison.

Before VERGERONT, ROGGENSACK and DEININGER, JJ.

VERGERONT, Judge.

The dispositive issue on this appeal is whether Andrew Schilling, a high school student injured at school, is a third party beneficiary of the employment contract between the school district and one of its teachers. The trial court granted a partial summary judgment in Schilling's favor, concluding that he was a third party beneficiary of the employment contract and a third party beneficiary of the school district's insurance contract. Therefore, the trial court held he and his parents could recover up to the $1,000,000 policy limits on a breach of contract claim because the $50,000 limit on tort claims in § 893.80, STATS., is inapplicable to the contract claim. We granted leave to appeal this nonfinal order pursuant to § 808.03(2), STATS. We conclude that Schilling is not a third party beneficiary of the teacher's employment contract, and this makes it unnecessary for us to address the insurance contract. We reverse.

BACKGROUND

Schilling was injured when a metal fragment struck him in the eye while he was working in the Darlington High School Technical Education Shop. The shop was under the supervision of Michael Dinges, employed by the school as a teacher of technical education. At the time of the injury, Schilling was working on independent study in the agriculture room, which was adjacent to the machine shop area where Dinges was lecturing to a class. Schilling was having difficulty removing the bearing from a piece of farm equipment and asked Dinges to assist him. Schilling was not wearing safety glasses. Dinges filed a wrench for Schilling to use, putting on safety glasses to do so, and gave the wrench to Schilling, who still could not remove the bearing. As Dinges was assisting Schilling in trying to remove the bearing, it blew apart, striking Schilling in the eye.

The original complaint alleged negligence but was amended to assert a claim for breach of contract on the theory that Schilling was a third party beneficiary of the employment contract between Dinges and the school district and a third party beneficiary of the insurance contract between Employers Mutual Casualty Company and the school district. In response to preliminary motions, the trial court ruled that the cap of $50,000 in § 893.80(3), STATS., ¹ applied to tort actions but not to actions for breach of contract.

Schilling and defendants ² both filed motions for partial summary judgment, agreeing that there were no factual issues in dispute but only the legal question of whether Schilling was a third party beneficiary of the employment and insurance contracts. ³

The facts relevant to the motion came from the depositions of Dinges, David Chellevold, principal of Darlington High School, and Dennis Pratt, superintendent of Darlington School District, as well as the contracts at issue. According to these materials, Dinges had a written contract for the school year during which the injury occurred, signed by Dinges and officers of the Board of Education of Darlington Community School District. The signed written contract consists of Principal Chellevold testified that Dinges's duties include classroom instruction in technical education, and part of those duties include instructing the students in safety. Dinges prepares the curriculum plans for his classes, which include a unit on safety, and those curriculum plans are periodically audited or reviewed. The students in his classes are given materials on safety practices prepared by him or other technical education teachers and are tested on these materials. One of the instructions in those materials is to wear eye protection in any activity where eye hazards may exist. Chellevold testified that it is the responsibility of the teacher in charge to see that the students working under his or her supervision follow the safety procedures.

two pages primarily dealing with the term of the contract and Dinges's compensation, and incorporates by reference a Master Contract Agreement between the Darlington Community School District and the Darlington Education Association. Neither the Master Contract nor the two pages state what Dinges is to teach or what his duties are. There is a statement that: "[T]his contract or agreement is subject to ... the rules, regulations and policies of the School Board. The School Board agrees to make available to the Teacher a written copy of all such rules and regulations."

The high school faculty handbook, in a section entitled "Staff Guidelines for the Work Day" states: "You are responsible for your share of supervision. You are personally liable in the eyes of the law if injuries take place in school when proper supervision is not provided." In a section entitled "Classroom Responsibilities," the handbook provides:

Liabilities and Responsibilities: There is no question that injuries are more likely to occur when an instructor is absent from his/her teaching station. In the interest of student safety and protection, responsibility has been placed justifiably upon teachers and administrators who are in charge. With practically no exceptions this means being physically present at all times when students are under your supervision. It should be understood that the teachers are responsible for corridor supervision outside their assigned rooms during passing periods, before school, and at dismissal time. Your presence can prevent most of the disorders.

Chellevold testified that this handbook is given to each faculty member. He described the portions just cited as "precautions or guidelines for our teachers." He described the handbook in general as "a document of teachers' schedules. I mean, it covers everything from the bus times to the daily schedules to lunch schedules--just about the general operating procedure." This faculty handbook is not the district policy manual, but whatever is in the faculty handbook "has to come off a larger district policy manual." Chellevold is not free, he testified, to develop "policies operational for the high school contradictory to what the district manual would be."

Superintendent Pratt's testimony concerning the teachers' contracts, the faculty handbook and safety rules was as follows:

Q: Mr. Pratt, with respect to the contracts that you have with our teachers, are there any particular provisions within them as to the responsibilities of the teacher other than merely teaching?

A: The contract itself does not cover any particular direction. Each individual area of teaching, in other words, the elementary and the secondary, have separate categories which are covered in the faculty handbook, which is handed out by the principals at the beginning of each school year.

Q: I see. With respect to, let's say, your teachers in the certain types of fields such as physical education or mechanical arts or industrial arts, are there any responsibilities other than the general ones for all teachers because of the particular area in which they are teaching?

A: I would say that any of the areas in which a teacher teaches which requires student safety that they are required to go over and instruct on safety and test accordingly before a student is allowed to use the equipment and the material that we have provided at the school.

Q: It is set forth in some kind of a guideline or handbook?

A: The faculty handbook covers safety. This is not--I would say that each division or each department of the--I believe as far as dealing with safety--would be covered on their own. In general every teacher has a degree in those areas, and safety is one of the first things that they teach.

Q: Your principal has shown us Exhibit 3 [safety rules], which apparently is a manual or a handbook. Is that what you are referring to?

A: This is developed by the tech ed teachers themselves. This is not something that would go out to every teacher in the school district, but this would be to the individual department.

Q: And this would be applicable to your tech ed teachers?

A: I believe so. I believe that is where it came from.

Relying in large part on Mercado v. Mitchell, 83 Wis.2d 17, 264 N.W.2d 532 (1978), the trial court determined that Schilling was a third party beneficiary of the employment and insurance contracts. The court stated that, since § 893.80, STATS., "confers immunity for tort claims over $50,000, it would seem this million dollar policy must have been acquired to provide assurance that injured persons would not be left without a meaningful remedy and that students were third party beneficiaries of the contract for insurance." ⁴

DISCUSSION

We review summary judgments de novo, employing the same methodology as the trial court. Green Spring Farms v. Kersten, 136 Wis.2d 304, 315, 401 N.W.2d 816, 820 (1987). Generally, summary judgment is proper where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Id.

Although the general rule is that only a party to a contract may recover under it, there is an exception for a contract specifically made for the benefit of...