Walburg v. Skrzeczkoski
| Decision Date | 08 May 2003 |
| Docket Number | No. 02-0063.,02-0063. |
| Parties | LISA WALBURG, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF JOHN R. MENTE AND DONNA M. MENTE, LORI BINDER, LYNN KUSS, AND JOHN T. MENTE, PLAINTIFFS-APPELLANTS, v. ROGER M. SKRZECZKOSKI, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, MILWAUKEE CASUALTY INSURANCE COMPANY, TOUCHPOINT HEALTH PLAN, DEFENDANTS, RANDOLPH A. PETERS, DEFENDANT-CO-APPELLANT, WAUSAU-STETTIN MUTUAL INSURANCE COMPANY AND PROGRESSIVE NORTHERN INSURANCE COMPANY, DEFENDANTS-RESPONDENTS. |
| Court | Wisconsin Court of Appeals |
APPEAL from a judgment of the circuit court for Outagamie County: JOHN A. DES JARDINS, Judge. Affirmed in part and reversed in part.
Before Dykman, Roggensack and Lundsten, JJ.
Randolph Peters and the Estate of John and Donna Mente appeal summary judgment granted to Progressive Northern Insurance Company and Wausau-Stettin Mutual Insurance Company. The circuit court reasoned that Peters's automobile liability policy through Progressive did not cover the accident that occurred when the trailer detached from a pickup truck and collided with John and Donna Mente's vehicle because Peters was not "using" a motor vehicle within the meaning of the policy when he loaded and attached the trailer to the pickup truck prior to the accident. The circuit court also concluded that Peters's homeowner's insurance through Wausau-Stettin did not cover the accident because the policy excluded coverage for accidents resulting from the use of an automobile. Because Peters's attaching the trailer to the pickup truck was an act reasonably consistent with a contemplated use of the truck, i.e., hauling, his acts constitute "use" of a motor vehicle. Additionally, because the accident is alleged to have arisen out of that use, we conclude that the Progressive policy provides coverage, if Peters's negligence is proven. Accordingly, we reverse the circuit court's summary judgment order with regard to Progressive. However, we affirm the circuit court's judgment with regard to Wausau-Stettin because the homeowner's policy excludes coverage for accidents arising out of the use of a motor vehicle.
¶2 Donna Mente and her husband, John Mente, were killed in an automobile accident when a loaded trailer detached from the pickup truck that was
pulling it, crossed the centerline and collided with their vehicle. The truck was owned and operated by Roger Skrzeczkoski. The activities leading up to the accident are as follows.
¶3 Skrzeczkoski met with Peters to discuss the purchase of a small metal farm shed owned by Peters. Peters stored the metal shed in his barn and advertised its sale in an effort to clean out the barn. Skrzeczkoski agreed to purchase the shed, but stated that he would need to make arrangements to pick it up at a later date. Because Peters "had to make room in [his] barn" and sought to sell the shed to do so, he suggested to Skrzeczkoski that he purchase a large trailer, also stored in his barn, to transport the shed. Skrzeczkoski agreed and paid Peters a $1000 down payment for the trailer and shed, with the remainder due at a later date.
¶4 After reaching agreement, Skrzeczkoski backed his truck up to the barn to connect the trailer. Because he did not have the correct size ball hitch, Peters agreed to loan him the required two-inch ball, and he attached it to the hitch. Skrzeczkoski used a pipe wrench to tighten its hold. Together, Peters and Skrzeczkoski pulled the trailer towards the truck and Peters coupled the trailer to the truck's trailer hitch. Peters and Skrzeczkoski loaded the shed materials onto the trailer and Skrzeczkoski drove away.
¶5 Two hours later, while being pulled on the highway, the trailer detached from Skrzeczkoski's truck and collided with the Mentes' vehicle. Following the collision, the trailer was found in a field, the latching mechanism open and the safety "pin" missing. Lisa Walburg, individually and as the Mentes' personal representative, brought a wrongful death suit against Peters and his insurers, Progressive and Wausau-Stettin, on behalf of the Mentes' adult children.
Progressive issued Peters's automobile liability policy and Wausau-Stettin issued Peters's homeowner's policy. Both Progressive and Wausau-Stettin moved for summary judgment on the ground that there was no coverage for the accident under either policy. The circuit court agreed and granted summary judgment to both insurers. Walburg and Peters appeal.
Standard of Review.
¶6 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.
¶7 Interpretation of a written insurance policy is a question of law, which we review without deference to the decision of the circuit court. Guenther, 223 Wis. 2d at 210, 588 N.W.2d at 377.
The Progressive Policy.
¶8 Progressive asserts that the plain language of its automobile policy does not provide coverage for the accident1 on two grounds: first, Peters is not an "insured person" under subsec. (4) because the trailer that collided with the Mentes is not a "vehicle" as defined by the policy; and second, the policy does not provide coverage for accidents that did not arise out of the "use" of a vehicle. We
do not address whether the policy's definition of a vehicle includes coverage for the trailer2 because Skrzeczkoski's pickup truck unequivocally fits within the policy's definition of a vehicle, and Peters is covered for his use of any vehicle. Therefore, we confine our inquiry to whether the accident arose out of Peters's "use" of Skrzeczkoski's pickup truck.
¶9 Walburg and Peters contend that Peters's act of attaching the loaded trailer to Skrzeczkoski's truck constituted a "use" of a vehicle warranting coverage under the Progressive policy because the truck pulling the trailer was used to haul goods. In contrast, Progressive argues that Peters did not "use" the truck because he performed only a "service function" by assisting Skrzeczkoski in attaching and loading the trailer.
¶10 The interpretation of an insurance policy is governed by rules of construction that are similar to those applied to other contracts. Vogel v. Russo, 2000 WI 85, ¶14, 236 Wis. 2d 504, 613 N.W.2d 177. If words or phrases in a policy are susceptible to more than one reasonable construction, they are ambiguous, Smith v. Atlantic Mutual Insurance Co., 155 Wis. 2d 808, 811, 456 N.W.2d 597, 598-99, and we will construe the policy as it would be interpreted by a reasonable insured. Holsum Foods v. Home Ins. Co., 162 Wis. 2d 563, 568-69, 469 N.W.2d 918, 920 (Ct. App. 1991). However, if the policy is not ambiguous, we will not rewrite it by construction to impose liability for a risk the insurer did not contemplate and for which it has not been paid.
Taylor v. Greatway Ins. Co., 2001 WI 93, ¶10, 245 Wis. 2d 134, 628 N.W.2d 916; Smith v. Katz, 226 Wis. 2d 798, 807, 595 N.W.2d 345, 350.
¶11 As a practical matter, this type of coverage clause is standard in many automobile liability policies, and it has been previously interpreted by the courts. In Lawver v. Boling, 71 Wis. 2d 408, 238 N.W.2d 514, the supreme court held that such a policy provision is "very broad, general and comprehensive," thereby concluding it is ambiguous in regard to what type of fact-sets fall within its ambit. See id. at 415, 238 N.W.2d at 518.
¶12 In Lawver, Lawver sustained injuries when he fell from a platform rigged to a pickup truck by a rope and pulley. Id. at 411, 238 N.W.2d at 516. The rope was tied to Boling's truck and Boling had been moving his truck forward and backward when the rope snapped and Lawver fell. Id. Boling's automobile liability insurance policy covered damages for bodily injury "arising out of the ... use" of the truck. Id. at 412, 238 N.W.2d at 516. In interpreting the insurance policy, the court established the following test for "use" of a vehicle:
[W]hether 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 parities 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.
Id. at 416, 238 N.W.2d at 518.
¶13 Therefore, according to Lawver, the coverage question presented here is whether Peters's attaching the trailer to Skrzeczkoski's pickup was sufficiently connected with an expected use of a pickup truck, such that the risk of the accident was one for which Peters reasonably contemplated coverage. See id.
We begin our analysis by considering the expected use of a pickup truck to determine whether attaching a trailer to it is one that is reasonably consistent with the inherent nature of this vehicle. See id.
¶14 Several Wisconsin cases have addressed the issue of whether an act is reasonably consistent with the inherent nature of the vehicle. In Thompson v. State Farm Mutual Automobile Insurance Co., 161 Wis. 2d 450, 459, 468 N.W.2d 432, 435, the supreme court determined that a deer hunter's use of the bed of a truck to hunt...
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