Severin v. Luchinske

• Decision Date: 06 December 1955
• Citation: 73 N.W.2d 477,271 Wis. 378
• Parties: Oscar SEVERIN, Plaintiff-Respondent, v. Benjamin LUCHINSKE, Defendant-Respondent, Milwaukee Automobile Insurance Company, Ltd., Defendant-Appellant.
• Court: Wisconsin Supreme Court

Page 477

73 N.W.2d 477

271 Wis. 378

Oscar SEVERIN, Plaintiff-Respondent, v. Benjamin LUCHINSKE, Defendant-Respondent Milwaukee Automobile Insurance Company, Ltd., Defendant-Appellant.

Supreme Court of Wisconsin.

Dec. 6, 1955.

Rehearing Denied Feb. 7, 1956.

McCue & Regan, Milwaukee, Evrard, Evrard, Duffy, Holman & Faulds, Green Bay, for appellant.

Fisher, Peickert, Anderson & Fisher, Stevens Point, John E. Shannon, Jr., Stevens

Point, of counsel, Morgan L. Midthun, Wisconsin Rapids, for respondent.

GEHL, Justice.

The policy provides, among other things, that:

'The company agrees with the insured, named in the declarations made a part hereof, in consideration of the payment of the premium and in reliance upon the statements in the declarations and subject to the limits of liability, exclusions, conditions and other terms of this policy:

'Insuring Agreements

'I. Coverage A--Bodily Injury Liability: To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury, sickness or disease, including death at any time resulting therefrom, sustained by any person and caused by accident.'

Sec. 204.30(3), Stats., provides:

'No such policy [of insurance against loss or damage resulting from injury to a person, and for which the insured is liable] shall be issued or delivered in this state to the owner of a motor vehicle, unless it contains a provision reading substantially as follows: The indemnity provided by this policy is extended to apply, in the same manner and under the same provisions as it is applicable to the named assured, to any person or persons while riding in or operating any automobile described in this policy when such automobile is being used for purposes and in the manner described in said policy. Such indemnity shall also extend to any person, firm or corporation legally responsible for the operation of such automobile. The insurance hereby afforded shall not apply unless the riding, use or operation above referred to be with the permission of the assured named in this policy, * * *.'

The provisions of the statute would afford to the defendant Luchinske the protection of the policy for which plaintiff contends, unless other policy provisions operate to make the statutory provisions ineffective or inapplicable.

Under the heading Exclusions, appear the following provisions:

'This policy does not apply: * * *

'(c) under coverage A, ....., to bodily injury to ....., ..... any employee of the insured while engaged in the employment of the insured, .....; or to any obligation for which the insured or any company as his insurer may be held liable under any workmen's compensation law;'

Defendant Milwaukee Automobile Insurance Company contends that these provisions are effective to preclude recovery.

Zippel v. Country Gardens, Inc., 1952, 262 Wis. 567, 55 N.W.2d 903 was an action in every material factual respect identical with the instant case. Plaintiff and defendant Derocher were co-employees of Country Gardens, Inc. A truck owned by the employer, insured by Firemen's Fund Indemnity Company, occupied by the plaintiff and being operated by Derocher, was involved in a collision resulting in injuries to plaintiff. At the time of the accident plaintiff and Derocher were performing work in the course of their employment. Derocher, the common employer, and Firemen's Fund Indemnity Company were joined as defendants. The policy involved, which had been issued by Firemen's Fund Indemnity Company to the employer, contained an exclusion clause identical in its terms with that presently before the court. We held in accord with the decision in Sandstrom v. Estate of Clausen, 1951, 258 Wis. 534, 46 N.W.2d 831, that the clause is repugnant to the provisions of sec. 204.30(3) Stats., and that the insurer was subject to...