Wyman v. Threshermen's Mut. Ins. Co.

• Court: Wisconsin Court of Appeals
• Writing for the Court: DEAN
• Citation: Wyman v. Threshermen's Mut. Ins. Co., 362 N.W.2d 447, 122 Wis.2d 776 (Wis. App. 1984)
• Decision Date: 27 December 1984
• Parties: NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. CHARLES R. WYMAN, a/k/a CARL R. WYMAN, and CECELIA J. WYMAN, his wife, Plaintiffs-Appellants, v. THRESHERMEN'S MUTUAL INSURANCE COMPANY, a domestic insurance corporation, and VETERANS OF FOREIGN WARS, POST #9379, Pound, Coleman, Wisconsin, Defendants-Respondents. 84-841.

Page 447

362 N.W.2d 447

122 Wis.2d 776

NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES.

CHARLES R. WYMAN, a/k/a CARL R. WYMAN, and CECELIA J. WYMAN his wife, Plaintiffs-Appellants, v. THRESHERMEN'S MUTUAL INSURANCE COMPANY, a domestic insurance corporation, and VETERANS OF FOREIGN WARS, POST #9379, Pound, Coleman, Wisconsin Defendants-Respondents.

84-841.

Court of Appeals of Wisconsin.

Dec. 27, 1984.

Circuit Court, Marinette County

Affirmed

Appeal from a judgment of the circuit court for Marinette county: William M. Donovan, Judge.

Before CANE, P.J., DEAN and BROWN, JJ.

DEAN, Judge.

Charles Wyman, a member of Veterans of Foreign Wars, Post #9379, and his wife appeal the summary judgment dismissing their complaint against the post and its insurer. The Wymans brought the action after Charles was struck by a clay pigeon launched from a trap machine owned and operated by the post, an unincorporated association. The only issue raised on appeal is whether Chrles is precluded from pursuing this action by his membership in the post. Because a member has no cause of action against an unincorporated association that is without attributes of a legal entity, and because there is no evidence that the post waived its immunity or that the post or the insurer should be estopped from raising the defense, we affirm the summary judgment.

Summary judgment shall be rendered when no genuine issue as to any material fact exists and the moving party is entitled to a judgment as a matter of law. Section 802.08(2), Stats. An appellate court reviewing a grant of summary judgment employs the same stanard. Wright v. Hasley, 86 Wis.2d 572, 579, 273 N.W.2d 319, 323 (1979). It is undisputed that the post is an unincorporated association and that Charles Wyman is a post member. It is also undisputed that post members operated the trap machine. The legal effect of these undisputed facts is a question of law, State v. Ascencio, 92 Wis.2d 822, 835, 285 N.W.2d 910, 916 (Ct. App. 1979), decidable by summary judgment. Kania v. Airborne Freight Corp., 99 Wis.2d 746, 763, 300 N.W.2d 63, 70 (1981).

Charles has no cause of action against the post. At common law, an unincorporated association could not be sued as a legal entity; suit could be brought only against the individual members. Crawley v. American Society of Equity, 153 Wis. 13, 17-18, 139 N.W. 734, 736 (1913). In Hromek v. Gemeinde, 238 Wis. 204, 209, 298 N.W. 587, 589 (1941), the court recognized that for convenience the group comprising the association could be sued in the association's name. This right is now accorded by statute. Section 801.11(7), Stats. The court in Hromek, however, emphasized that this was merely a procedural change and that an association continues to have no entity or existence apart from its members. Id. at 209, 298 N.W. at 589. In substance, the action remains against the association's members.

Charles's cause of action will not lie against the group comprising the post. Because an unincorporated association has no existence apart from its members, the members are in effect co-principals. Id. The members responsible for the trap machine were acting for all the post members including Charles. Although a nonmember could sue the association and state a cause of action, Fray v. Amalgamated Meat Cutters, 9 Wis.2d 631, 633, 101 N.W.2d 782, 784 (1960), Charles is precluded from suing co-principals for the dereliction of a common agent, see Hromek, 238 Wis. at 209-10, 238 N.W. at 589-90; cf. sec. 178.10, Stats. (a partner may not sue the partnership for a partner's wrongful act or omission). Charles may sue, however, the member or members actually guilty of the tort as private individuals. See 6 Am. Jur.2d Associations and Clubs § 31 (1963).

Since Hromek, substantive exceptions to the common law rule have been recognized. ¹ Unincorporated associations cannot deny legal status when sued on their contracts. Teubert v. Wisconsin Interscholastic Athletic Association, 8 Wis.2d 373, 375, 99 N.W.2d 100, 101 (1959). A union member can sue an unincorporated union for failing to file an employee grievance. Fray, 9 Wis.2d at 640-41, 101 N.W.2d at 787. A member can sue an unincorporated condominium association. Section 703l25, Stats. Whenever an unincorporated association has statutory attributes of legal entities, it may be sued as such and its funds used to discharge a liability. Elections Board v. Ward, 105 Wis.2d 543, 550, 314 N.W.2d 120, 124 (1982); Racine Fire and Police Commission v. Stanfield, 70 Wis.2d 395, 401, 234 N.W.2d 307, 311 (1975). If the post were treated as a legal entity, Charles could maintain this action.

The post, however, does not have statutory attributes of a legal entity. A V.F.W. post may acquire a legal corporate existence by filing a statement of intent with the secretary of state and a duplicate copy with the register of deeds of the county in which the organization or is principal office is located. Section 188.11(1), Stats. Such a filing was not made. No express powers or duties are otherwise conveyed by statute upon a V.F.W. post that would indicate legal status. In the absence of other statutory provisions, we interpret sec. 188.11, Stats., to provide the exclusive method of becoming a legal entity. Because a filing was not made, the post is not a legal entity that a member may sue in an action for tort.

The post did not waive its immunity to suit by members by obtaining general liability insurance. The purchase of liability insurance does not waive an immunity...