820 N.W.2d 494
Wis. Ct. App.2012Background
- Lowe, employee of Unlimited, used Unlimited's minivan to deliver pizzas for Pizza Hut on part-time basis.
- Minivan was owned titled insured by Unlimited, with keys kept by Unlimited for others' use.
- November 2007 management told Lowe not to use the van for pizza deliveries; offered him a Taurus instead.
- Lowe continued delivering pizzas with the van until the April 2008 accident, after which he was no longer permitted to use the van.
- Lang sued Lowe, Pizza Hut, Pizza Hut's insurers, and Unlimited's insurer Frankenmuth; Frankenmuth sought a declaration it had no duty to defend/indemnify.
- Jury found Lowe did not have express or implied permission to use the minivan to deliver pizzas; policy coverage issue bifurcated and tried separately.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was there credible evidence Lowe lacked permission to drive the minivan? | Lowe contends Heaton requires considering his perspective; evidence shows absence of express prohibition. | Frankenmuth argues management's explicit statements and conduct show no permission for pizza deliveries. | Yes; credible evidence supports no permission to deliver pizzas. |
| Was Lowe the minivan's 'real owner' under Osusky to imply permission? | Lowe claims Osusky factors show he was the real owner and thus permission implied. | Osusky factors favor Unlimited; Lowe was not real owner, so no implied permission. | No; Osusky factors place ownership with Unlimited, so no implied permission. |
| Did the trial court err in not giving Lowe's expanded implied-ownership instruction? | Expanded Osusky-based instruction was needed to capture implied consent. | Wis JI 3112 sufficiently states law; Osusky factors inapplicable here due to lack of real-ownership. | No; proper instruction given; expanded instruction would have been inaccurate. |
Key Cases Cited
- Heaton v. Mountin, 233 Wis.2d 154 (Wis. Ct. App. 2000) (perspective of the driver not controlling; credibility of witnesses governed by trial evidence)
- Osusky v. State Farm Mut. Auto. Ins. Co., 90 Wis.2d 142 (Ct. App. 1979) (five-factor test for 'real owner' and implied permission)
- Christiansen v. Schenkenberg, 204 Wis. 323 (Wis. 1931) (instruction adequacy for automobile user's implied consent)
- Morden v. Continental AG, 235 Wis.2d 325 (Wis. 2000) (narrow-review standard for jury verdicts; credibility evaluations belong to jury)
- Stunkel v. Price Elec. Coop., 229 Wis.2d 664 (Ct. App. 1999) (role of jury credibility and weighing evidence)
- K&S Tool & Die Corp. v. Perfection Mach. Sales, Inc., 295 Wis.2d 298 (Wis. Ct. App. 2006) (broad discretion in jury instruction adequacy; prejudicial error analysis)
- Hanson v. American Family Mut. Ins. Co., 294 Wis.2d 149 (Wis. 2006) (instruction must accurately state law and reflect facts; harmless error standard)