Schofield v. Smith
| Decision Date | 31 July 2003 |
| Docket Number | Appeal No. 02-2062.,Appeal No. 02-2984. |
| Parties | JAMES R. SCHOFIELD, PLAINTIFF-APPELLANT, v. RAYMOND E. SMITH AND SOCIETY INSURANCE, A MUTUAL COMPANY, DEFENDANTS, AMERICAN FAMILY MUTUAL INSURANCE COMPANY, DEFENDANT-RESPONDENT. |
| Court | Wisconsin Court of Appeals |
APPEAL from a judgment of the circuit court for Clark County, No. 01-CV-55, DUANE H. POLIVKA, Judge. Affirmed in part; reversed in part and cause remanded.
Before Vergeront, P.J., Roggensack and Lundsten, JJ.
¶1 James Schofield was injured when Raymond Smith's gun discharged as he was unloading it in anticipation of placing it in Schofield's van. Schofield and Smith appeal summary judgment granted to American Family Mutual Insurance on its denial of coverage under Smith's auto liability policies and to Society Insurance on its denial of coverage under Smith's businessowners policy. We conclude that the act of loading a gun into a vehicle includes the preparatory act of removing ammunition from it, and as such, it constitutes a "use" of a vehicle. Therefore, there is potential coverage for Smith's injuries under the auto policies. However, because we conclude that Smith was not engaged in the "conduct of a business" when he joined Schofield in deer hunting, the businessowners policy does not provide coverage for Schofield's injuries. Accordingly, we reverse the circuit court's summary judgment in regard to American Family and affirm in regard to Society Insurance.
¶2 Raymond Smith and his wife, Emily Smith, are the sole proprietors of the Glass House Tavern where James Schofield was a frequent customer. Schofield spent three hours most evenings at the bar, talking to other patrons and occasionally buying a round of drinks. During one of his trips to the bar, Schofield invited Smith to go deer hunting with him, and Smith accepted the invitation. Smith met Schofield at his property where he entered Schofield's van that was parked in a field to wait for deer. Approximately an hour later, deer were spotted; the hunters exited the van; and Schofield shot a deer. Smith and Schofield returned to the van to unload their guns prior to placing them in the van and returning to get the deer. Regarding the accident, Smith explained, Schofield was shot in the right shoulder.
¶3 In his complaint against Smith, Schofield alleged that he was injured as a result of a deer hunting accident caused by Smith's negligence. The amended complaint alleged that Smith's negligence "arose out of the conduct of [Smith's] business, The Glass House." Smith tendered his defense to Society under a businessowners policy that insured the Glass House Tavern. The policy defines the insured as "you and your spouse ... but only with respect to the conduct of a business of which you are the sole owner." Society intervened as an additional defendant; moved to bifurcate the issue of liability from the issue of coverage; and moved for summary judgment, declaring that the policy did not provide coverage.
¶4 Smith's affidavit in opposition to summary judgment alleged that his tavern business was a "hospitality" business where his "goodwill" activities went beyond the premises for a valued customer. Smith stated that Schofield was a valued customer and as such, Smith treated him with "expressed and recognized goodwill and friendship." Therefore, when Schofield requested that Smith join him deer hunting, Smith agreed for the sole reason that the activity would promote and protect his tavern business. In short, Smith's deer hunting was a "goodwill" activity with Schofield, a friend and valued customer, that he claims constituted part of the conduct of his business.1
¶5 Smith also had two automobile liability policies issued by American Family that provided coverage for bodily injury due to the use of an automobile. Therefore, Schofield moved to join American Family as a defendant, alleging that the policies provided coverage to Smith because Schofield's injury arose out of the use of a vehicle. Smith tendered his defense to American Family, and American Family moved for summary judgment, contending that the policies did not provide coverage.
¶6 Schofield's and Smith's deposition testimony asserted the following undisputed facts. Both Schofield and Smith exited the van with the intent to shoot the deer. Schofield shot a deer. The hunters returned to the van with the intent to unload their guns and place them back in the van prior to bringing in the deer Schofield shot. The accident occurred while Smith was in the process of unloading ammunition from his gun in anticipation of placing it in the van.
¶7 In response to the pending summary judgment motions, the court first granted Society summary judgment, concluding, "the hunting activity by Smith had nothing to do with the conduct of the tavern business." Accordingly, the court concluded that Smith was not an insured within the businessowners policy definition. Subsequently, the court granted American Family summary judgment, reasoning, "there is a difference between loading and unloading a vehicle and loading and unloading a gun while standing near a vehicle." Accordingly, the court concluded that Schofield's injuries were not "due to the use" of a vehicle. Smith appeals the circuit court's grant of summary judgment to Society and Schofield appeals the court's grant of summary judgment to American Family.2
Standard of Review.
¶8 We review summary judgment decisions de novo, applying the same standards employed by the circuit court. Guenther v. City of Onalaska, 223 Wis. 2d 206, 210, 588 N.W.2d 375, 376 (Ct. App. 1998). We first examine the complaint to determine whether it states a claim, and then we review the answer to determine whether it joins a material issue of fact or law. Smith v. Dodgeville Mut. Ins. Co., 212 Wis. 2d 226, 232, 568 N.W.2d 31, 34 (Ct. App. 1997). If we conclude that the complaint and answer are sufficient to join issue, we examine the moving party's affidavits to determine whether they establish a prima facie case for summary judgment. Id. at 232-33, 568 N.W.2d at 34. If they do, we look to the opposing party's affidavits to determine whether there are any material facts in dispute that entitle the opposing party to a trial. Id.
¶9 The resolution of this case requires interpretation of insurance policies to determine if potential coverage exists, causing the insurers to be subject to a duty to defend. The interpretation of an insurance policy is also a question of law that we review de novo. Guenther, 223 Wis. 2d at 210, 588 N.W.2d at 377.
Auto Liability Policies.
¶10 Schofield argues that Smith's American Family automobile liability policies provide coverage for his injuries because the hunting accident arose out of the use of an automobile. The policies contain identical provisions that provide coverage for "bodily injury and property damage due to the use of a car or utility trailer." It is not contested that the term "car" as defined in the policy includes Schofield's van.3 The relevant inquiry therefore is whether the discharge of Smith's gun while preparing to load it into the van constitutes a "use" of the vehicle under the policies.
¶11 American Family's coverage of injuries "due to the use" of the insured vehicle has been interpreted the same as policies providing coverage of injuries "arising out of the use" of an insured vehicle. Kemp v. Feltz, 174 Wis. 2d 406, 411, 497 N.W.2d 751, 753 (Ct. App. 1993). The cases interpreting both policy phraseologies are therefore instructive. See e.g., Allstate Ins. Co. v. Truck Ins. Exch., 63 Wis. 2d 148, 216 N.W.2d 205 (1974); Lawver v. Boling, 71 Wis. 2d 408, 238 N.W.2d 514 (1976); Tomlin v. State Farm Mut. Auto. Liab. Ins. Co., 95 Wis. 2d 215, 290 N.W.2d 285 (1980).
¶12 In Lawver, the supreme court held that "the words `arising out of' are very broad, general and comprehensive" and should be broadly construed in favor of coverage. Lawver, 71 Wis. 2d at 415, 238 N.W.2d at 518; see also Tomlin, 95 Wis. 2d at 225, 290 N.W.2d at 290-91. The Lawver court explained:
They are commonly understood to mean originating from, growing out of, or flowing from, and require only that there be some causal relationship between the injury and the risk for which coverage is provided.... The issue is whether the vehicle's connection with the activities which gave rise to the injuries is sufficient to bring those general activities, and the negligence connected therewith, within the risk for which the parties to the contract reasonably contemplated there would be coverage.
Lawver, 71 Wis. 2d at 415-16, 238 N.W.2d at 518. The relevant test for coverage, therefore, is whether the "use" of the vehicle was sufficiently connected with the accident such that the risk was one for which the parties reasonably contemplated coverage. We resolve this question by determining whether the alleged "use" is one that is reasonably consistent with the inherent nature of the vehicle. Id.
¶13 Wisconsin courts have consistently held that the use of a truck for hunting is reasonably consistent with the inherent nature of the vehicle. Thompson v. State Farm Mut. Auto Ins. Co., 161 Wis. 2d 450, 459, 468 N.W.2d 432, 435 (1991); Kemp, 174 Wis. 2d at 412, 497 N.W.2d at 754. Additionally, in Allstate, the Wisconsin Supreme Court held that a death resulting from the accidental discharge of a weapon as a passenger removed the weapon from a van "arose out of the use" of the van. The court reasoned that the use of a van for hunting was reasonable and could be expected. Allstate, 63 Wis. 2d at 158, 216 N.W.2d at 210. Therefore, using the van to transport rifles and ammunition to facilitate hunting was "a reasonable `use' of this vehicle, and loading...
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