Sprangers v. Greatway Ins. Co., LEARMAN-SCHALLER

CourtCourt of Appeals of Wisconsin
Writing for the CourtCANE
Citation175 Wis.2d 60,498 N.W.2d 858
PartiesJeffrey F. SPRANGERS, Plaintiff-Respondent, d v. GREATWAY INSURANCE COMPANY and Todd J. Zielke, Defendants, Threshermen's Mutual Insurance Company, Defendant-Petitioner,POST 2732, V.F.W. CLUBHOUSE, Defendant and Third-Party Plaintiff-Respondent, d v. The DIEDRICH AGENCY, INC., Third-Party Defendant-Petitioner, ABC Insurance Company, Curt Mc Sweyn, Vikki Mc Sweyn, and DEF Insurance Company, Third Party Defendants. Susan A. YOUNG, Individually and as personal representative for the Estate of Martin J. YOUNG, Plaintiff-Respondent, d v. GREATWAY INSURANCE COMPANY and Todd J. Zielke, Defendants, Threshermen's Mutual Insurance Company, Defendant-Appellant,POST 2732, V.F.W. CLUBHOUSE, Defendant-Third Party Plaintiff-Respondent, d v. The DIEDRICH AGENCY, INC., ABC Insurance Company, Curt Mc Sweyn, Vikki Mc Sweyn, and DEF Insurance Company, Third Party Defendants.
Docket NumberLEARMAN-SCHALLER,No. 92-1617
Decision Date02 March 1993

Page 858

498 N.W.2d 858
175 Wis.2d 60
Jeffrey F. SPRANGERS, Plaintiff-Respondent, d
v.
GREATWAY INSURANCE COMPANY and Todd J. Zielke, Defendants,
Threshermen's Mutual Insurance Company, Defendant-Petitioner,
LEARMAN-SCHALLER POST 2732, V.F.W. CLUBHOUSE, Defendant and
Third-Party Plaintiff-Respondent,d
v.
The DIEDRICH AGENCY, INC., Third-Party Defendant-Petitioner,
ABC Insurance Company, Curt Mc Sweyn, Vikki Mc Sweyn, and
DEF Insurance Company, Third Party Defendants.
Susan A. YOUNG, Individually and as personal representative
for the Estate of Martin J. YOUNG,
Plaintiff-Respondent, d
v.
GREATWAY INSURANCE COMPANY and Todd J. Zielke, Defendants,
Threshermen's Mutual Insurance Company, Defendant-Appellant,
LEARMAN-SCHALLER POST 2732, V.F.W. CLUBHOUSE,
Defendant-Third Party Plaintiff-Respondent,d
v.
The DIEDRICH AGENCY, INC., ABC Insurance Company, Curt Mc
Sweyn, Vikki Mc Sweyn, and DEF Insurance Company,
Third Party Defendants.
No. 92-1617.
Court of Appeals of Wisconsin.
Submitted on Briefs Feb. 2, 1993.
Opinion Released March 2, 1993.
Opinion Filed March 2, 1993.

Before CANE, P.J., and LaROCQUE and MYSE, JJ.

CANE, Presiding Judge.

Threshermen's Mutual Insurance Company appeals a nonfinal order 1 denying its motion for summary judgment. Threshermen's

Page 861

argues that it has no duty to defend or indemnify Learman-Schaller Post 2732, V.F.W. Clubhouse (VFW), against the claims for negligent distribution of liquor to a minor. Threshermen's claims that the plain language of the insurance policy's liquor liability exclusion excludes coverage. We agree that the policy provides no coverage. The VFW also argues that it is entitled to reform the policy and that Threshermen's is estopped from denying coverage [175 Wis.2d 65] because it failed to properly advise the VFW that it had no coverage for liquor liability. We reject these arguments and reverse the trial court's order denying Threshermen's motion for summary judgment.

Jeffrey Sprangers was injured and Martin Young was killed when a truck negligently operated by Todd Zielke collided with their motorcycles. Zielke had been drinking at the VFW before the accident. Both Young's estate and Sprangers sued the VFW, among others, and the two suits were consolidated. Each complaint alleged that the VFW was negligent in serving alcoholic beverages to Zielke, when it knew or should have known that he was under the legal drinking age, and that the VFW's negligence was a substantial factor in causing the accident and plaintiffs' injuries. The VFW's tavern is open to the public Thursdays, Fridays and most Saturdays from about two or three in the afternoon to two in the morning. Six of the VFW's eight employees are bartenders.

Threshermen's refused to defend the VFW, citing a liquor liability exclusion in the policy that read:

EXCLUSIONS

... This insurance does not apply to:

....

c. "Bodily injury" or "property damage" for which any insured may be held liable by reason of:

(1) Causing or contributing to the intoxication of any person;

(2) The furnishing of alcoholic beverages to a person under the legal drinking age or under the influence of alcohol; or

[175 Wis.2d 66] (3) Any statute, ordinance or regulation relating to the sale, gift, distribution or use of alcoholic beverages.

This exclusion applies only if you are in the business of manufacturing, distributing, selling, serving or furnishing alcoholic beverages. (Emphasis added

Threshermen's moved for summary judgment under the liquor liability exclusion. The trial judge denied the motion, stating that a better record on how the VFW was operated needed to be established to determine if the exclusion applied. Threshermen's petitioned for and received leave to appeal the nonfinal order denying its motion for summary judgment.

When reviewing a summary judgment decision, we follow the same methodology as the trial court. Kane v. Employer's Ins. of Wausau, 142 Wis.2d 702, 703, 419 N.W.2d 324, 325 (Ct.App.1987). The first step requires us to examine the pleadings to determine whether a claim for relief has been stated and a material issue of fact presented. Voss v. Middleton, 162 Wis.2d 737, 747, 470 N.W.2d 625, 628-29 (1991). If a claim for relief has been stated, inquiry then shifts to the moving party's affidavits or other proof to determine whether the moving party has made a prima facie case for summary judgment. Id. at 747-48, 470 N.W.2d at 629. If the moving party has made a prima facie case for summary judgment, we must examine the opposing party's affidavits and other proof to determine whether there exist disputed material facts or undisputed material facts from which reasonable alternative inferences may be drawn sufficient to entitle the opposing party to trial. Id. at 748, 470 N.W.2d at 629.

[175 Wis.2d 67] LIQUOR LIABILITY EXCLUSION

There is no dispute that the complaint states a claim for relief. Additionally, there are no disputed material facts. The first issue, therefore, is whether the policy's liquor liability exclusion applies to deny coverage for the VFW. Interpretation of an insurance contract is controlled

Page 862

by the general contract principles of construction, Lambert v. Wrensch, 135 Wis.2d 105, 115, 399 N.W.2d 369, 373 (1987), and is a question of law that we review independently of the trial court. Cunningham v. Metropolitan Life Ins. Co., 121 Wis.2d 437, 450, 360 N.W.2d 33, 39 (1985). The issue here is whether the liquor liability exclusion, which is limited to entities "in the business of ... distributing, selling, serving or furnishing alcoholic beverages," applies to a nonprofit business such as the VFW. This question is one of first impression in Wisconsin.

It is fundamental that insurance policy language should be given its common everyday meaning and should be interpreted as a reasonable person in the insured's position would understand it. Paape v. Northern Assur. Co., 142 Wis.2d 45, 51, 416 N.W.2d 665, 668 (Ct.App.1987). When a policy's terms are unambiguous and plain on their face, the policy must not be rewritten by construction. Smith v. Atlantic Mut. Ins. Co., 155 Wis.2d 808, 811, 456 N.W.2d 597, 599 (1990). Although ambiguity in policy language exists when the policy is reasonably susceptible to more than one construction from the viewpoint of a reasonable person of ordinary...

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13 practice notes
  • Capitol Indem. Corp. v. Blazer, No. CV-S-9801013PMP(RJJ).
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Nevada
    • 27 avril 1999
    ...Safeco Ins. Co. v. Shawnee Mechanical Contractors, Inc., 209 Ga.App. 165, 433 S.E.2d 66, 67 (1993); Sprangers v. Greatway Ins. Co., 175 Wis.2d 60, 498 N.W.2d 858, 863 (1993); see Fraternal Order of Eagles v. General Acc. Ins. Co., 58 Wash.App. 243, 792 P.2d 178, 181 (1990). Capitol Indemnit......
  • Sprangers v. Greatway Ins. Co., No. 92-1617
    • United States
    • United States State Supreme Court of Wisconsin
    • 18 avril 1994
    ...SHIRLEY S. ABRAHAMSON, Justice. This is a review of a published decision of the court of appeals, Sprangers v. Greatway Ins. Co., 175 Wis.2d 60, 498 N.W.2d 858 (Ct.App.1993), reversing an order of the circuit court for Waupaca County, Philip M. Kirk, Circuit Judge. The circuit court refused......
  • Samuels Recycling Co. v. CNA Ins. Companies, No. 97-3511
    • United States
    • Court of Appeals of Wisconsin
    • 25 novembre 1998
    ...of a mutual mistake, the policy does not contain provisions desired and intended to be included. 6 Sprangers v. Greatway Ins. Co., 175 Wis.2d 60, 70, 498 N.W.2d 858, 863 (Ct.App.1993). Mutual mistake is established when the party applying for insurance proves he or she made certain statemen......
  • Boehm v. Scheels All Sports, Inc., 15-cv-379-jdp
    • United States
    • United States District Courts. 7th Circuit. Western District of Wisconsin
    • 17 août 2016
    ...agent requesting the coverage desired, and that the agent failed to deliver what the insured asked for. Sprangers v. Greatway Ins. Co., 175 Wis.2d 60, 498 N.W.2d 858, 863 (Ct.App.1993), aff'd , 182 Wis.2d 521, 514 N.W.2d 1 (1994). "[A]bsent special circumstances, an insurer has no duty to a......
  • Request a trial to view additional results
13 cases
  • Capitol Indem. Corp. v. Blazer, No. CV-S-9801013PMP(RJJ).
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Nevada
    • 27 avril 1999
    ...Safeco Ins. Co. v. Shawnee Mechanical Contractors, Inc., 209 Ga.App. 165, 433 S.E.2d 66, 67 (1993); Sprangers v. Greatway Ins. Co., 175 Wis.2d 60, 498 N.W.2d 858, 863 (1993); see Fraternal Order of Eagles v. General Acc. Ins. Co., 58 Wash.App. 243, 792 P.2d 178, 181 (1990). Capitol Indemnit......
  • Sprangers v. Greatway Ins. Co., No. 92-1617
    • United States
    • United States State Supreme Court of Wisconsin
    • 18 avril 1994
    ...SHIRLEY S. ABRAHAMSON, Justice. This is a review of a published decision of the court of appeals, Sprangers v. Greatway Ins. Co., 175 Wis.2d 60, 498 N.W.2d 858 (Ct.App.1993), reversing an order of the circuit court for Waupaca County, Philip M. Kirk, Circuit Judge. The circuit court refused......
  • Samuels Recycling Co. v. CNA Ins. Companies, No. 97-3511
    • United States
    • Court of Appeals of Wisconsin
    • 25 novembre 1998
    ...of a mutual mistake, the policy does not contain provisions desired and intended to be included. 6 Sprangers v. Greatway Ins. Co., 175 Wis.2d 60, 70, 498 N.W.2d 858, 863 (Ct.App.1993). Mutual mistake is established when the party applying for insurance proves he or she made certain statemen......
  • Boehm v. Scheels All Sports, Inc., 15-cv-379-jdp
    • United States
    • United States District Courts. 7th Circuit. Western District of Wisconsin
    • 17 août 2016
    ...agent requesting the coverage desired, and that the agent failed to deliver what the insured asked for. Sprangers v. Greatway Ins. Co., 175 Wis.2d 60, 498 N.W.2d 858, 863 (Ct.App.1993), aff'd , 182 Wis.2d 521, 514 N.W.2d 1 (1994). "[A]bsent special circumstances, an insurer has no duty to a......
  • Request a trial to view additional results

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