Westerman v. Richardson

• Decision Date: 03 July 1969
• Docket Number: No. 289,289
• Citation: 168 N.W.2d 851,43 Wis.2d 587
• Parties: Irvin T. WESTERMAN, Jr., Appellant, v. Marvin RICHARDSON et al., Respondents.
• Court: Wisconsin Supreme Court

Page 851

168 N.W.2d 851

43 Wis.2d 587

Irvin T. WESTERMAN, Jr., Appellant, v. Marvin RICHARDSON et al., Respondents.

No. 289.

Supreme Court of Wisconsin.

July 3, 1969.

This action arose out of a collision on October 30, 1966, between an automobile and a motorcycle at the intersection of South Park street and North avenue in the city of Madison, Wisconsin. Marvin Richardson, defendant, an eighteen-year-old son of Leonard Richardson, another defendant was operating his father's 1959 De Soto automobile in connection with his father's garage business when he was involved in the collision with plaintiff's motorcycle. The plaintiff was seriously injured as a result of the collision and, on March 28, 1967, initiated an action against the two Richardsons by service of summons and notice of examination of adverse party. Thereafter, depositions were taken of both Marvin and Leonard Richardson and subsequent thereto the plaintiff served an amended summons and complaint on all parties, and Great Central Insurance Company was joined as a party defendant.

In paragraph 2 of the amended complaint it is alleged that:

'2. Upon information and belief, some time before October 30, 1966, the defendant Great Central Insurance Company, for good and sufficient consideration, issued an insurance policy to the defendant Leonard L. Richardson insuring him and the defendant Marvin Richardson against liability to members of the public, including the plaintiff, arising out of negligent operation of the automobile being operated by the defendant Marvin Richardson at the time of the collision hereinafter described. The insurance policy was in full force and effect at the time of said collision. By reason of said insurance policy and the laws of Wisconsin, Great Central Insurance Company is a proper party defendant herein.'

The answer served and filed by the Richardsons admits the allegations contained in this paragraph of the amended complaint, but the answer served and filed by the Great Central Insurance Company denies those allegations and sets up an affirmative defense stating that although Great Central Insurance Company did have in full force and effect on October 30, 1966, a Garage Liability Hazard II policy the vehicle in question owned by the defendant, Leonard L. Richardson, and operated by the defendant, Marvin Richardson, was not insured under that policy.

On April 10, 1968, Great Central Insurance Company, made a motion for summary judgment and attached thereto:

(1) A certification by Harold S. Lang, assistant secretary of Great Central Insurance Company, that the only policy in force providing liability type coverage for Marvin Richardson and/or Leonard Richardson was garage liability policy No. AG955231;

(2) An affidavit made by Conrad H. Johnson, attorney for Great Central Insurance Company, incorporating the denials and defenses of the answer and stating that they were sufficient to defeat the cause of action of the plaintiff against defendant, Great Central Insurance Company; and

(3) A copy of the insurance policy.

The plaintiff then served upon the defendant an affidavit in opposition to the motion for summary judgment, setting forth various facts concerning the accident. In addition the affidavit provided that the defendant, Great Central Insurance Company, admitted that the policy in question was issued to defendant, Leonard Richardson; that the policy was in full force and effect at the time of the collision; and that the policy provided coverage for liability arising out of the collision.

The trial court granted the motion for summary judgment by order dated September 3, 1968, and ordered that judgment be entered dismissing the defendant, Great Central Insurance Company, from the case. Judgment was then entered to that effect.

Plaintiff appeals from that order and judgment.

Martin J. Torphy, E. Campion Kersten, Milwaukee, for appellant.

Schlotthauer, Johnson & Mohs, Madison, for respondents.

WILKIE, Justice.

This appeal presents two issues:

(1) Did the trial court err in, as a matter of law, construing the coverage provisions of the garage liability policy so as to exclude coverage on Leonard Richardson's owned automobile?

(2) Did the trial court err in concluding that no questions of estoppel or misrepresentation were involved demanding a trial?

The appellant contends that the trial court erred in granting respondent insurance company's motion for summary judgment. The provisions of the summary judgment statute (sec. 270.635, Stats.) are familiar. The rules governing the disposition of summary judgment motions are well settled. ¹ We think this controversy is one where Great Central's motion for summary judgment and its supporting affidavits, together with the opposing papers of the plaintiff, present only a question of law, namely, the scope of coverage under the policy.

Plaintiff-appellant contends now, as he did in the trial court, that the garage liability policy clearly covers the accident of October 30, 1966, or at least the policy is ambiguous and should be construed against the insurer. Respondent insurance company contends that the policy only covers automobiles 'not owned or hired' by the named insured and since the automobile involved in the accident was owned by the named insured, the policy did not cover that accident.

It is well established, as stated in Rabinovitz v. Travelers Ins. Co., ² that '(g)enerally, the construction of the words and clauses in an insurance policy is a question of law.' In both Rabinovitz ³ and Bauman v. Midland Union Ins. Co. ⁴ this court quoted from Thurston v. Burnett & Beaver Dam Farmers' Mut. Fire Ins. Co., ⁵ wherein it was stated:

'(W)here language is plain and unambiguous, the apparent import of the words must govern, and the rule that where there is no uncertainty as to the meaning of the words used in the contract and where such uncertainty exists, but there is no extrinsic evidence or circumstance bearing on the subject to be considered in determining the meaning attributed to them by the parties when the contract was made, the proper interpretation of the words and construction of the contract are solely for the court.' ⁶

Of course, in interpreting and constructing the policy, the ultimate objective is to ascertain the true intention of the parties. ⁷ Here, the issue of coverage can readily be resolved by a construction of the pertinent provisions of the third page of the insurance policy, a copy of which is appended to this opinion.

With respect to limitation of coverage, item 3 of the policy provides:

'Item 3. The insurance afforded is only with respect to such of the following coverages and hazards thereunder as are indicated by specific premium charge or charges. The limit of the company's liability against each such coverage shall be as stated herein, subject to all the terms of the policy having reference thereto.' (Emphasis added.)

Referring to the premium schedule, it is necessary to determine what 'hazards' and 'coverages' correspond to the various specific premium charges. The first line in the 'advance premiums' column is not filled in. That line corresponds to the first line in the 'hazards' column which contains 'Garage operations including 1. All automobiles.' The second line in the 'advance premiums' column contains the figure '$3.00.' That figure corresponds to the second line in the 'hazards' column which contains '2. Automobiles not owned or hired.' The second lines in the 'advance premiums' and 'hazards' columns correspond to the first line in the 'coverages' column. Thus it is apparent that the items in lines one and two...