Blasing v. Zurich American Insurance
827 N.W.2d 909
Wis. Ct. App.2013Background
- Biasing was injured by a Menards employee while loading Biasing's truck with lumber.
- Biasing holds an American Family automobile policy; Menards seeks defense and coverage under Biasing's policy for its employee.
- Two potential insurers are involved: Biasing's American Family policy and Menards' Zurich commercial general liability policy.
- Circuit court granted American Family's defense but later summary judgment held no duty to defend or indemnify Menards.
- Wisconsin omnibus statute Wis. Stat. § 632.32 requires permissive users to receive the same coverage as the named insured, unless a policy limitation applies.
- This appeal resolves whether the omnibus statute obligates American Family to defend/indemnify Menards as a permissive user of Biasing's vehicle.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the omnibus statute require coverage for permissive users of an insured's vehicle? | Biasing argues permissive user coverage applies to Menards as the vehicle user. | American Family contends the statute creates an absurd result and should not force defense for an unrelated tortfeasor. | Yes; omnibus statute requires coverage for permissive users like Menards. |
| Is loading Biasing's truck within the meaning of 'using' under the policy and statute? | Loading constitutes use, so the permissive user is covered. | None beyond the general absurdity concern; but argues use may be restricted by policy limits. | Loading/ unloading fits within 'using' under the statute and policy. |
| Should the result be considered absurd, justifying an exception to the omnibus statute? | No absurd result; coverage should extend to the permissive user. | The result is absurd because the injured party is the policyholder and would be defended by her own insurer. | Absurd result exception not applied; statute requires coverage. |
| Does American Family have a duty to defend and indemnify Menards under Biasing's policy? | Omnibus statute requires protection for permissive users; Menards should be covered. | Policy language and standard of review limit or narrow coverage for permissive users. | Yes; American Family must defend and indemnify Menards. |
Key Cases Cited
- Allstate Ins. Co. v. Truck Ins. Exch., 63 Wis. 2d 148 (1974) (use includes loading/unloading; permissive use acknowledged)
- Austin-White v. Young, 279 Wis. 2d 420 (2005) (loading constitutes use; reasonably consistent with inherent vehicle nature)
- Kalal v. Circuit Court for Dane Cnty., 271 Wis. 2d 633 (2004) (statutory interpretation; plain meaning with absurdity exception)
- Lawver v. Boling, 238 N.W.2d 514 (Wis. 1976) (claims guidance on coverage aligned with vehicle's inherent nature)
- Frye v. Theige, 34 N.W.2d 793 (Wis. 1948) (policy against general exclusions that defeat consistent protection)
- Carrell v. Wolken, 496 N.W.2d 651 (Wis. Ct. App. 1993) (omnibus statute coverage to named insured applies to others using the vehicle)
- Lukaszewicz v. Concrete Research, Inc., 168 N.W.2d 581 (Wis. 1969) (permissive use and exclusions constrained by omnibus statute)
- Worachek v. Stephenson Town Sch. Dist., 70 N.W.2d 657 (Wis. 1955) (duty to avoid absurd results in statutory interpretation)
- Teschendorf v. State Farm Ins. Cos., 717 N.W.2d 258 (Wis. 2006) (duty to interpret statute to avoid absurd results)
- Jessica M.F. v. Liberty Mut. Fire Ins. Co., 209 Wis. 2d 42 (Ct. App. 1997) (standard of review for summary judgment)