Tasker by Carson v. Larson, 88-1756

• Decision Date: 28 March 1989
• Docket Number: No. 88-1756,88-1756
• Citation: 149 Wis.2d 756,439 N.W.2d 159
• Parties: Todd TASKER, a minor, by Cindra R. CARSON, G.A.L., and Carol Boote, Plaintiffs, v. Linda A. LARSON and General Casualty Company of Wisconsin, Defendants-Third-Party Plaintiffs-Appellants, Thomas B. Tasker, Third-Party Defendant, American Family Insurance Company, Third-Party Defendant-Respondent.
• Court: Wisconsin Court of Appeals

Page 159

439 N.W.2d 159

149 Wis.2d 756

Todd TASKER, a minor, by Cindra R. CARSON, G.A.L., and Carol Boote, Plaintiffs, v. Linda A. LARSON and General Casualty Company of Wisconsin Defendants-Third-Party Plaintiffs-Appellants Thomas B. Tasker, Third-Party Defendant American Family Insurance Company, Third-Party Defendant-Respondent.

No. 88-1756.

Court of Appeals of Wisconsin.

Submitted on Briefs Feb. 1, 1989.

Opinion Released March 28, 1989.

Opinion Filed March 28, 1989.

Roy S. Wilcox and Wilcox & Wilcox, Eau Claire, for defendants-third-party plaintiffs-appellants.

Michael L. Bertling and Carroll, Parroni, Postlewaite, Anderson & Graham, S.C., Eau Claire, for third-party defendant-respondent.

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

LaROCQUE, Judge.

Linda Larson and her insurer, General Casualty of Wisconsin, defendants in a personal injury action brought by two-year-old plaintiff, Todd Tasker, appeal a summary judgment dismissing their third-party contribution claim against American Family Insurance Company, which insured the pickup truck belonging to Todd's father. Mr. Tasker, after instructing his children to remain in the truck, walked forty-five to fifty feet away, briefly attending to a minnow trap in a nearby stream at the time of the mishap. Todd, left in the parked truck with his four-year-old brother, was injured after the youngster was either nudged or stepped out of the truck onto the highway where he was struck by the oncoming Larson vehicle. The circuit court held that Mr. Tasker's American Family auto liability coverage for injuries "due to the use of [an insured] car" was not applicable under the facts related. We conclude that coverage exists and reverse the summary judgment.

In response to Todd's lawsuit, Larson and General Casualty commenced a third-party action for contribution against Mr. Tasker and American Family. Following discovery, the circuit court granted American Family summary judgment as to its liability under both its homeowner and automobile liability policies. Larson and General Casualty appeal only that part of the summary judgment dismissing American Family under the auto policy.

When considering motions for summary judgment, we must first examine the pleadings and affidavits to determine whether any factual dispute exists or if conflicting inferences may be drawn from the undisputed facts. Lawver v. Boling, 71 Wis.2d 408, 413, 238 N.W.2d 514, 517 (1976). Summary judgment is appropriate where there is no dispute of material fact and the law resolving the issues is clear. Tomlin v. State Farm Mut. Auto. Liab. Ins. Co., 95 Wis.2d 215, 218, 290 N.W.2d 285, 287 (1980). The facts, insofar as they affect the coverage issue, are not disputed.

American Family's policy provided that it would "pay damages an insured person is legally liable for because of bodily injury ... due to the use [maintenance or ownership] of [the insured vehicle]." ¹ (Emphasis supplied.) We deem American Family's coverage to be no different from those policies that provide protection for accidents or injuries "arising out of ownership, maintenance or use" of an insured vehicle. (Emphasis supplied.) ²

Lawver v. Boling, 71 Wis.2d 408, 238 N.W.2d 514 (1976), holds:

The causal connection required to be established between the use of the automobile and the injuries is not of the type which would ordinarily be necessary to warrant a finding of "proximate cause" or "sustantial factor" as those terms are used in imposing liability for negligent conduct.

As it is used in the coverage clause of an automobile liability policy, the phrase "arising out of" is not so much concerned with causation as it is with defining the risk for which coverage will be afforded. 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. This question is usually resolved by determining whether the alleged "use" is one which is reasonably consistent with the inherent nature of the vehicle. That the activities could possibly have been carried on, and the accident taken place, without the use of the vehicle is irrelevant.

Id. at 415-16, 238 N.W.2d at 518 (footnotes omitted).

Lawver also held that this "use" provision in auto liability policies is not ambiguous simply because it is difficult to apply to the...