Wolff v. Menard, Inc., Appeal No. 2018AP119

• Decision Date: 26 March 2019
• Docket Number: Appeal No. 2018AP119
• Citation: 927 N.W.2d 926 (Table),386 Wis.2d 629,2019 WI App 21
• Parties: Marvin W. WOLFF and Alice Wolff, Plaintiffs, v. MENARD, INC., Defendant-Appellant, 1st Auto & Casualty Insurance Company, Defendant-Respondent, Matthew Neumann, Sr., American Family Mutual Insurance Company and Franklin Public School District Medical Benefit Plan, Defendants.
• Court: Wisconsin Court of Appeals

386 Wis.2d 629
927 N.W.2d 926 (Table)
2019 WI App 21

Marvin W. WOLFF and Alice Wolff, Plaintiffs,
v.
MENARD, INC., Defendant-Appellant,

1st Auto & Casualty Insurance Company, Defendant-Respondent,

Matthew Neumann, Sr., American Family Mutual Insurance Company and Franklin Public School District Medical Benefit Plan, Defendants.

Appeal No. 2018AP119

Court of Appeals of Wisconsin.

DATED AND FILED March 26, 2019

PER CURIAM.

¶1 Menard, Inc., appeals from a summary judgment determining there was no coverage under a business auto insurance policy for claims of negligent ice and snow removal against Matthew Neumann, Sr., the named insured of 1st Auto & Casualty Insurance Company (1st Auto). Menard contends genuine issues of material fact precluded summary judgment.¹ We disagree and affirm.

BACKGROUND

¶2 Marvin Wolff alleged that he sustained injuries when he slipped and fell outside a Menard store. Wolff and his wife sued Menard and Neumann, advancing claims of negligence against both and a violation of Wisconsin’s Safe Place Statute against Menard. A second amended complaint added 1st Auto as a defendant, alleging it had issued a liability insurance policy to Neumann.² Neumann was allegedly responsible for snow and ice removal on portions of Menard’s premises pursuant to a written Snow Plowing Agreement.

¶3 The circuit court bifurcated the issue of insurance coverage from the underlying action on the merits and stayed liability proceedings pending resolution of the coverage issues. 1st Auto subsequently sought summary judgment, arguing that Wolff fell on a sidewalk reserved for pedestrian traffic, and that Neumann had no responsibility for removing snow or ice from the sidewalks on the property. 1st Auto further noted that its business auto insurance policy issued to Neumann provided coverage for damages "resulting from the ownership, maintenance or use of a covered ‘auto.’ " Therefore, 1st Auto argued there was no coverage under its policy for Wolff’s claim.

¶4 After a hearing, the circuit court determined there was no genuine issue of material fact regarding where Wolff fell, as Wolff had provided a direct, unequivocal statement in his deposition that the accident happened on the sidewalk. The court also determined there was no genuine issue of material fact that Neumann had no responsibility for removing snow or ice from the sidewalk, but rather only from the parking lot. Accordingly, the court concluded there was no coverage under 1st Auto’s business auto policy, and it granted summary judgment dismissing 1st Auto as a defendant. Menard now appeals.

DISCUSSION

¶5 Under WIS. STAT. § 802.08(2) (2017-18), summary judgment shall be entered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Green Spring Farms v. Kersten , 136 Wis. 2d 304, 315-17, 401 N.W.2d 816 (1987). We review summary judgments de novo. Lambrecht v. Estate of Kaczmarczyk , 2001 WI 25, ¶21, 241 Wis. 2d 804, 623 N.W.2d 751.

¶6 Menard argues a question of fact exists as to where Wolff fell. Menard concedes Wolff testified in his deposition that he fell on the sidewalk. Nevertheless, Menard argues "his pleadings, interrogatory answer, and medical records indicate that the fall occurred in the store’s parking lot." According to Menard, this "clearly contradicts" Wolff’s deposition testimony, presenting a genuine issue of material fact.

¶7 At his deposition, Wolff unequivocally testified as to the exact location of his fall. Wolff marked a red rectangle on an aerial photograph of the Menard’s location—marked for identification as deposition Exhibit 1—depicting where Wolff parked his car upon arriving at the Menard store. Wolff then drew a dotted line depicting his walk "from my car right over to the sidewalk, and that’s where I fell." Wolff indicated he fell "right near the doorway." He further stated, "There’s a difference between asphalt and concrete. The concrete is what I consider a sidewalk."

¶8 Wolff then specifically marked an "X" on Exhibit 1 where he actually fell to the ground, just to the left of the right-hand entrance to the store and well within the sidewalk area. The following exchange then occurred:

Q: There is a dot with a black X on the spot where you fell; is that correct?

A: Yes, sir.

Q: Earlier you were describing the difference between the sidewalk area and the parking lot area; is that right?

A: Yes, sir.

Q: And how did you describe that again? Could you repeat that.

A: The parking lot is asphalt. The sidewalk was concrete.

Q: Okay.

A: It’s a concrete surface.

Q: And right next to the sidewalk area where you

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