Swanigan v. State Farm Ins. Co.

• Decision Date: 25 November 1980
• Docket Number: No. 79-235,79-235
• Citation: 99 Wis.2d 179,299 N.W.2d 234
• Parties: Leon SWANIGAN, Plaintiff-Respondent, v. STATE FARM INSURANCE COMPANY, a Foreign Corporation, Defendant-Appellant- Petitioner.
• Court: Wisconsin Supreme Court

Page 234

299 N.W.2d 234

99 Wis.2d 179

Leon SWANIGAN, Plaintiff-Respondent, v. STATE FARM INSURANCE COMPANY, a Foreign Corporation Defendant-Appellant- Petitioner.

No. 79-235.

Supreme Court of Wisconsin.

Argued Sept. 30, 1980.

Decided Nov. 25, 1980.

Jeffrey A. Schmeckpeper (argued) and Kasdorf, Dall, Lewis & Swietlik, S.C., Milwaukee, on brief, for defendant-appellant-petitioner.

Peter S. Balistreri (argued) of Shapiro, Gorsky & Dubin, Ltd., and Burke & Schoetz, Milwaukee, on brief, for plaintiff-respondent.

ABRAHAMSON, Justice.

The issue presented is whether an instrument which states that it is intended to release only the parties specifically named and which expressly reserves any other claim of whatever kind or nature against any other persons also releases as a matter of law the mother of a minor (who was released in the instrument) from liability imposed on her pursuant to sec. 343.15(2), Stats., as sponsor on the minor's application for a driver's license. The circuit court concluded that the mother was not released from liability. The court of appeals affirmed the judgment of the circuit court, and we affirm the decision of the court of appeals.

On July 4, 1977, the plaintiff, Leon Swanigan, was injured while riding in a vehicle owned by Dorothy A. Laurence, insured by American Family Insurance Company, and driven by Jimmy Zollicoffer, a minor under the age of eighteen. Brooksie Zollicoffer was the sponsor on her son Jimmy's application for a driver's license. The other vehicle in the collision was operated by Maria C. Busalacchi and insured by Allstate Insurance Company.

In December, 1977, American Family paid the plaintiff $15,000, the full amount for which it was liable under the policy. As consideration for this payment, plaintiff executed an instrument by which he released and discharged Dorothy A. Laurence, Jimmy Zollicoffer, and the American Family Insurance Company from all claims arising out of the accident, reserved his rights against other parties, agreed to indemnify the parties released and save them harmless from any claims for contribution and further agreed to satisfy any judgment which might be rendered in his favor against the parties released to the extent of the percentage that the causal negligence of the parties bears to the causal negligence of all adjudged tortfeasors.

The instrument provides as follows:

"RELEASE

"FOR THE SOLE CONSIDERATION OF Fifteen thousand and no/100 DOLLARS ($15,000.00), the receipt of which is hereby acknowledged, I/we hereby fully and forever release and discharge Dorothy A. Laurence and Jimmy L Zollicoffer and the American Family Mutual Insurance Group of Madison, Wisconsin, their heirs, administrators, executors, successors and assigns from all claims, demands, damages, actions, rights of action of whatever kind or nature which I/we now have or may hereafter have arising out of, in consequence of or on account of all injuries to person, including any latent injuries and all developments and results therefrom, know and unknown injuries, whether developed or undeveloped, and anticipated and unanticipated consequences of all such injuries, and damages to property resulting to me/us in any way from an accident which occurred on or about the 4th day of July, 1977, at or near North 68th Street & West Ruby St., Milwaukee, Milwaukee County, Wisconsin. In accepting said sum I/we hereby release and discharge that fraction, portion or percentage of the total cause of action of claim for damages I/we now have or may hereafter possess against all parties responsible for my/our damages which shall by trial or other disposition, be determined to be the sum of the fractions, portions or percentages of causal negligence for which the parties herein released are found to be liable to me/us as a consequence of the above accident.

I/We hereby accept said sum as a compromise and settlement of all claims on account of the dispute between the parties hereto as to whether the above named parties are liable to me/us or not, and also as to the nature, extent and permanency of the injuries sustained by me/us.

I/We agree that in making this release, I/we am/are relying on my/our own judgment, belief and knowledge as to all phases of my/our claims and that I/we am/are not relying on representations or statements made by any of the persons hereby released or anyone representing them or physicians or surgeons employed by them.

I/We agree that the payment of the above sum is not to be construed as an admission of any liability whatsoever by or on behalf of the above named parties, by whom liability is expressly denied.

I/We further agree that any claim of whatever kind or nature the above named parties might have or hereafter have growing out of the above accident, is hereby expressly reserved to them.

This release is intended to release only the parties specifically named. The undersigned expressly reserve the balance of the whole cause of action or any other claim of whatever kind or nature not released hereby which I/we may have or hereafter have against any other person or persons arising out of the above accident.

As a further consideration, we the undersigned, agree to indemnify said parties released and save them harmless from any claims for contribution made by others so adjudged jointly liable with said parties released, and the undersigned agrees to satisfy any judgment which may be rendered in favor of the undersigned, satisfying such fraction, portion or percentage of the judgment as the causal negligence of the parties released is adjudged to be of all causal negligence of all adjudged tort-feasors. In the event the undersigned fails to immediately satisfy any such judgment to the extent of the fraction, portion or percentage of the negligence as found against the parties released, the undersigned hereby consents and agrees that upon filing a copy of this agreement, without further notice, an order may be entered by the court in which said judgment is entered directing the Clerk thereof to satisfy said judgment to the extent of such fraction, portion or percentage of the negligence as found against the parties released and discharged under this release.

[SIGNED Leon Swanigan]" After signing the instrument, plaintiff learned that Brooksie Zollicoffer, Jimmy's mother, was insured at the time of the accident under a policy of automobile insurance issued by State Farm Insurance Company. The plaintiff then sought recovery from State Farm on the grounds that Brooksie Zollicoffer, as sponsor on Jimmy's application for a driver's license pursuant to sec. 343.15(1), Stats., was jointly and severally liable with Jimmy to an injured party for any damages caused by Jimmy's negligent operation of a motor vehicle pursuant to sec. 343.15(2), Stats. Sec. 343.15(1) and (2), Stats., provide as follows:

"343.15 Application of persons under 18; liability of sponsors; release from liability; notification of juvenile violation. (1) The application of any person under 18 years of age for a license shall be signed and verified before a person duly authorized to administer oaths, by either of the applicant's parents; 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 parents where both have custody and either parent signed as sponsor, otherwise, it is imputed to the adult sponsor who signed the application for such person's license. The parents or adult sponsor is jointly and severally liable with such operator for any damages caused by such negligent and wilful misconduct."

State Farm responded by saying that, as a matter of law, the instrument executed by plaintiff operated to release Brooksie Zollicoffer and her insurer, State Farm, from any liability and refused to pay any sum to the plaintiff. Plaintiff then brought a declaratory judgment action against State Farm to determine the effect of the release. The complaint states that the parties stipulated that State Farm would pay plaintiff $10,000 if plaintiff were successful in the action. ¹

State Farm moved for summary judgment. The circuit court granted summary judgment in favor of the plaintiff for the amount stipulated after concluding that sec. 343.15(2), Stats., imputes the negligence of a minor driver to the adult sponsor and makes the minor driver and the adult sponsor jointly and severally liable for any damages caused by the minor's negligent operation of a motor vehicle; that the release is to be treated as a contract; and that plaintiff, by the terms of the contract, reserved his rights to sue any and all parties not named in the document. The court of appeals affirmed the circuit court, and we affirm the decision of the court of appeals.

Both the plaintiff and State Farm begin their arguments by characterizing the relationship of sponsor and minor under sec. 343.15, Stats., as equivalent to a relationship recognized in the common law. The plaintiff describes the relationship as that existing between joint tort-feasors. Defendant describes the relationship as synonymous to the relationship of master and servant. The parties then look to the common law applicable to joint tort-feasors and master and servant to resolve the question of the legal effect of a release.

Plaintiff contends that the relationship of joint tort-feasor is created between Jimmy Zollicoffer and Brooksie Zollicoffer by sec. 343.15(2), Stats., which makes the sponsor jointly and severally liable with the minor tort-feasor for any...