Viсki L. BLASING, Plaintiff, v. ZURICH AMERICAN INSURANCE COMPANY and Menard, Inc., Defendants-Appellants, JEFFERSON COUNTY HUMAN SERVICES DEPARTMENT, Defendant, AMERICAN FAMILY MUTUAL INSURANCE COMPANY, Intervenor-Respondent-Petitioner.
No. 2012AP858
Supreme Court of Wisconsin
Oral argument October 15, 2013. Decided July 17, 2014.
2014 WI 73 | 356 Wis. 2d 63 | 850 N.W.2d 138
For the defendants-appellants, there were briefs by Jeffrey S. Fertl, Melissa J. Lauritch, and Hinshaw & Culbertson LLP, Milwaukee, and oral argument by Jeffrey S. Fertl.
An amicus curiae brief was filed by James A. Friedman, Jonathan T. Smies, and Godfrey & Kahn, S.C., Madison, on behalf of the Wisconsin Insurance Alliance.
¶ 1. SHIRLEY S. ABRAHAMSON, C.J. This is a review of a published decision of the court of appeals reversing an order of the circuit court for Jefferson County, William F. Hue, Judge, and remanding the cause for further proceedings.1 The circuit court granted American Family Insurance Company‘s motion for summary judgment, ruling that American Family had no duty to defend or indemnify under its automobile liability insurance policy. The court of appeals reversed the order of the circuit court, holding against American Family. We affirm the decision of the court of appeals.
¶ 3. The plaintiff, a named insured, brought a tort action for personal injury damages against Menard and Zurich American Insurance Company. The plaintiff did not sue the Menard employee. Menard‘s potential liability is vicarious liability for the torts of its employee. Menard claims its employee is an insured under the American Family policy, as a permissive user of the plaintiff‘s pickup truck. Menard is insured under a separate general liability insurance policy issued by Zurich Insurance to Menard.
¶ 4. Let us begin by stating what is and what is not at issue before the court.
¶ 5. The ultimate question before the court is whether American Family has a duty to defend and indemnify Menard when the injury was to the named insured under the American Family policy and the alleged tortfeasor (a Menard employee) was a permissive user of the vehicle insured under the American Family policy.
¶ 6. What is not before the court are the merits of the personal injury action; the plaintiff‘s personal injury action has been stayed pending resolution of this insurance policy dispute.
¶ 7. What is not before the court are the obligations of Zurich Insurance under its general liability insurancе policy insuring Menard and the respective duties of American Family and Zurich Insurance if the court holds that American Family has a duty to defend and indemnify in the present case. The Zurich Insurance policy is not in the record, and the parties are not
¶ 8. The issue presented in the present case, simply stated, is whether American Family is obliged under the policy it sold to the named insured-plaintiff in the present case to defend and indemnify an alleged tortfeasor when the tortfeasor is a permissive user of the insured vehicle and the plaintiff-injured victim is the named insured.2
¶ 9. In order to answer this question, the court must address three separate inquiries.
¶ 10. First: Do the alleged tortfeasor‘s actions constitute a “use” of the pickup truck under the American Family liability policy?
¶ 11. Second: Does American Family‘s automobile liability insurance policy require American Family to defеnd and indemnify a permissive user tortfeasor when the injured victim is the named insured under the policy? The key and sole argument made by American
¶ 12. Third: The third question as phrased by American Family is as follows: “Does the concept of a permissive user under the Omnibus Statute,
¶ 13. Zurich Insurance phrases the question somewhat differently, referring directly to the omnibus statute and omitting any reference to the permissive user having its own liability insurance: “Does the omnibus statute,
¶ 14. The court of appeals answered the first two questions in the affirmative and answered the third question by stating, “[P]ermissive user coverage is required in this case by the omnibus statutе,
¶ 15. American Family asks us to reverse the court of appeals and hold that the American Family policy does not cover the liability of a permissive user tortfeasor who injures a named insured because such a result is absurd; “insurance policies should be given a reasonable interpretation and not one which leads to an absurd result.”5
¶ 16. We are not convinced by American Family‘s argument that the result that the court of appeals reached and that we reach is absurd. Rather, the American Family policy explicitly provides coverage in the present case: The policy promises to cover any insured for liability for damages to any person. It does not exclude recovery by an injured victim who happens to be the named insured or who happens to be another insured under the policy.
¶ 18. Because we dispose of the instant case based on the text of the American Family policy, we need not and do not address the third question, namely whether exclusion of coverage of injury to the named insured contravenes the omnibus statute. An answer to this question would require us to determine the validity of a hypothetical provision in a hypothetical policy. We do not know the exact policy exclusion language or the facts.
¶ 19. For the reasons set forth, we affirm the decision of the court of appeals.
I
¶ 20. This case requires us to interpret and apply an insurance policy and a statute to undisputed facts. The interpretation of a statute and insurance policy and their application to undisputed facts ordinarily present questions of law that this court decides independently of the circuit court or court of appeals, but benefiting from their analyses. Showers Appraisals, LLC v. Musson Bros., 2013 WI 79, ¶ 21, 350 Wis. 2d 509, 835 N.W.2d 226; Schinner v. Gundrum, 2013 WI 71, ¶ 35, 349 Wis. 2d 529, 833 N.W.2d 685.8
¶ 21. We review a grant of summary judgment de novo, using the same methodology as the circuit court.
II
¶ 22. The facts surrounding the alleged incident and injuries are undisputed for purposes of this review. On September 16, 2008, the named insured-plaintiff, Vicki Blasing, visited a store owned and operated by Menard, Inc. in the Village of Johnson Creek, Jefferson County, Wisconsin, to pick up lumber she had purchased at Menard. She drove her 1990 Chevrolet pickup truck to the store and parked it in a lumberyard area.
¶ 23. An employee of Menard used a forklift to place the purchased lumber into the plaintiff‘s pickup truck, which was insured by the American Family policy. The plaintiff stood near the rear passenger side of her truck. While the employee was attempting to place the lumber into the pickup truck, some of the lumber fell and hit the plaintiff‘s foot.
¶ 24. The plaintiff initiated a personal injury action against Menard and Zurich Insurance, Menard‘s insurer, on January 24, 2011, for injuries arising out of the falling lumber incident, alleging both сommon-law negligence and a violation of the Wisconsin Safe Place Statute,
¶ 25. Menard tendered its defense to American Family on May 31, 2011, arguing that it was an insured
¶ 26. American Family subsequently intervened in the plaintiff‘s tort action against Menard and Zurich Insurance. It moved for summary judgment, requesting a ruling that American Family is not required to defend or indemnify Menard for the activities of the Menard employee under either the American Family policy or the omnibus statute.
¶ 27. Menard and Zurich Insurance moved for declaratory judgment, seeking a declaration that American Family has a duty to indemnify and defend Menard under the permissive user provisions of the American Family policy and under the omnibus statute.
¶ 28. The circuit court granted American Family‘s summary judgment motion and denied Menard‘s motion for a declaratory judgment, reasoning that the parties to the policy did not contemplate that there wоuld be coverage for a permissive user tortfeasor injuring the named insured premium-paying policyholder.
¶ 29. The court of appeals reversed the order of the circuit court, holding that American Family had a duty to defend and indemnify Menard under the American Family automobile liability policy insuring the plaintiff and under the omnibus statute.
III
¶ 30. We first determine whether the tortfeasor‘s actions constituted a “use” of the pickup truck under the American Family automobile liability insurance policy.
¶ 31. The American Family policy provides coverage to permissive users. The American Family policy includes the following relevant coverage language:
We will pay compensatory damages an insured person is legally liable for because of bodily injury and property damage due to the use of a car or utility trailer.
We will defend any suit or settle any claim for damages payable under this policy as we think proper (emphasis added).
¶ 32. The American Family policy defines “bodily injury” to mean bodily injury to, sickness, disease, or death of any person. In other words, the policy does not exclude bodily injury to a named insured or any other insured.
¶ 33. The policy goes on to define “insured person” or “insured persons” to meаn the named insured (i.e., the policyholder), the named insured‘s relatives, or persons using the insured car with the named insured‘s permission, as follows:
Insured person or insured persons means:
1. You or a relative.
2. Any person using your insured car.
3. Any other person or organization. This applies only to legal liability for acts or omissions of:
a. Any person covered under this Part while using your insured car. . . .
¶ 34. The policy enumerates some users who are not insureds under the policy, such as persons using the vehicle without the permission of the policyholder or persons exceeding the scope of the permission. None of these persons is involved in the present case. The alleged user in the present case is the Menard employee who dropped the lumber.
¶ 35. The policy defines “use” to mean “ownership, maintenance, or use” and provides that American Fam-
¶ 36. The courts have had several opportunities to interpret the phrase “use of a vehicle” under both insurance policies and the omnibus statute.
¶ 37. Courts have interpreted “use” broadly. Use is not limited to the driving of the vehicle. “One does not have to be driving or operating an automobile to be using it.”9 Our courts havе interpreted “use” of a vehicle to include a wide range of non-driving activities, including: unloading a rifle from the vehicle, Allstate Ins. Co. v. Truck Ins. Exchange, 63 Wis. 2d 148, 216 N.W.2d 205 (1974);10 loading and unloading a vehicle, Amery Motor Co. v. Corey, 46 Wis. 2d 291, 297, 174 N.W.2d 540 (1970); gesturing to a child to assist her in crossing a road, Garcia v. Regent Ins. Co., 167 Wis. 2d 287, 481 N.W.2d 660 (Ct. App. 1992); shooting game from the insured vehicle, Kemp v. Feltz, 174 Wis. 2d 406, 497 N.W.2d 751 (Ct. App. 1993); and loading a scrapped dump truck tailgate into a pickup truck under uninsured motorist coverage, Austin-White ex rel. Skow v. Young, 2005 WI App 52, 279 Wis. 2d 420, 694 N.W.2d 436.
¶ 38. A lead case defining “use” in an insurance policy is Lawver v. Boling, 71 Wis. 2d 408, 238 N.W.2d
¶ 39. The Lawver court explained that the question presented was whether the vehicle‘s connection with the conduct that gave rise to the injuries (and the negligence connected therewith) was sufficient to bring the conduct within the risk for which the parties to the insurance policy reasonably contemplated there would be coverage.11 The Lawver court then stated that the reasonable contemplation of the parties to the insurance policy is usually determined by examining whether the alleged use is reasonably consistent with the inherent use of the vehicle. The Lawver court declared: “This question [of the reasonable contemplation of the parties] is usually resolved by determining whether the alleged ‘use’ is one which is reasonably consistent with the inherent nature of the vehicle.”12
¶ 41. Similarly, we conclude that loading an insured pickup truck with lumber is reasonably contemplated by the insured and insurer because it is consistent with the ordinary transportation of persons and goods inherent in the purpose of the pickup truck. Thus, we conclude that under the American Family policy, the Menard employee was a permissive user and as such was an insured under the American Family policy. Accordingly, we answer the first question in the affirmative.
IV
¶ 42. We now address the second issue: Does American Family‘s policy require American Family to defend and indemnify a permissive user tortfeasor when the injured victim is a named insured under the policy?
¶ 43. American Family relies solely on the argument that if the court requires American Family to defend and indemnify Menard, the result would be absurd, thus violating a cardinal rule of interpretation: A court‘s interpretation should avoid absurd or unreasonable results.14
¶ 45. One way of stating the anomaly is that American Family would be required to defend and possibly indemnify a tortfeasor who has injured the premium-paying named insured policyholder. The court of appeals recognizes that this result can be viewed as troubling because “an injured policyholder bringing suit against a tortfeasor would face an attorney supplied by her own insurance company, and . . . an eventual payout might come from her insurer.”15
¶ 46. Put in perspective, this result is neither troubling nor anomalous. American Family drafted the policy, which the named insured accepted. In the policy, Americаn Family “has a contractual duty to defend its insured. . . .”16 An insured under the American Family policy is the Menard employee. Thus, the result we reach is in accord with the policy.
¶ 47. American Family is not representing both the injured insured and the tortfeasor in the present case. The injured named insured must hire her own attorney to represent her against any tortfeasor; thus,
349 Wis. 2d 529, ¶ 91 (refusing on absurdity grounds to interpret a policy in such a way that defies “common sense“). For a general discussion of the absurdity case law, see 1 Anderson, supra note 5, § 1.34.
¶ 48. Similarly, if the named insured were injured in a car collision with a third party who also had American Family liability automobile insurance, the named insured would face an attorney supplied by her own insurance company.17 In such a case, both the injured named insured and the tortfeasor are paying premiums that support the defense of the tortfeasor against the injured named insured. This result may happen with some frequency and is not viewed as absurd.
¶ 49. A second way of stating the anomaly is that an automobile liability insurance policy ordinarily covers the liability of an insured for injury to third parties who are not insureds under the policy, rather than liability of an insured for an injury to an insured.18 In other words, ordinarily the liability provisions of an automobile liability insurance policy do not insure the insured against an injury to the insured.
¶ 50. But in the instant case the named insured plaintiff is not making a claim against American Family for her injuries. The plaintiff is suing Menard and Zurich Insurance for her injuries as a third-party victim
¶ 51. A third way of stating the anomaly is that providing coverage under an automobile liability insurance policy for a permissive user tortfeasor who allegedly negligently injures a named insured seems to provide greater coverage to the permissive user than to the named insured herself. In other words, providing coverage in the present case to the permissive user seems to give the permissive user coverage when injuring the named insured but would not give the named insured coverage when the named insured injured herself. The named insured cannot be liable to herself.19 If the plaintiff in the present case had injured herself while loading her pickup truck at Menard, the American Family policy would not have been triggered. Thus it appears that the permissive user receives coverage for an injury to the named insured, when the named insured cannot receive coverage for an injury to herself.
¶ 52. Yet a closer look reveals that the coverage for the permissive user is no broader than for the named insured. No insured (including the named insured or a permissive user) is covered for negligently inflicted self-injury. If the named insured had injured herself, her injury would not be covered, and if the permissive user had injured himself, his injury similarly would not be covered. The American Family policy treats all insureds alike, including a named insured and
¶ 53. A fourth way of describing the anomaly is that the Menard employee and Menard have liability insurance coverage with Zurich Insurance covering any possible liability to the plaintiff. American Family places great emphasis in its absurdity argument on the fact that Menard and the Menard employee are covered by Zurich Insurance. It is not clear whether American Family would be making the same argument that it has no duty to defend or indemnify if Zurich Insurance were not capable of fully indemnifying Menard and capable of paying the plaintiff‘s damages. It is not for this court in the present case to assign relative responsibility to the insurance companies for indemnification or defense. The only issue before us is whether American Family‘s policy provides coverage in the instant case. The issue before us at this stage of the proceedings is independent of the existence of the Zurich Insurance coverage and multiple applicable liability policies.
¶ 54. With regard to all four claimed anomalies, their roots are in the language of the American Family policy itself. The policy provides coverage to a permissive user tortfeasor for liability for personal injury to all persons. The policy does not except or exclude an insured‘s liability for an injury to another insured.
¶ 55. Our case law demonstrates that our holding today is not novel and has not been viewed as absurd or unreasonable in past cases. Several Wisconsin cases have held that the named insured under an automobile liability insurance policy is not precluded from recovering on the policy when an additional insured inflicts injury upon the named insured while using the vehicle
within the terms of the policy.20 Indeed, as we have stated previously, Wisconsin case law has followed what appears to be the majority rule “recognizing that the named insured under an automobile liability insurance policy may recover from the insurer when injured by another insured under the policy.”21 “In the greater number of cases, the courts . . . have sustained the right of the named insured . . . to recover under an automo- bile liability policy for an injury to . . . such insured.” 7A Steven Plitt et al., Couch on Insurance 3d § 110:14 (2013).¶ 56. The Wisconsin rule is best illustrated by
Archer v. General Casualty Co. of Wisconsin, 219 Wis. 100, 261 N.W. 9 (1935), reh‘g denied, 219 Wis. 103, 262 N.W. 257 (1935). In Archer, the wife and husband were
both named insureds on their automobile liability insur-
ance policy. While the husband was driving, the wife
suffered injuries when their car collided with a train.
The wife sued her husband and the railway company for
damages. After she recovered a judgment against her
husband, she began an action against their insurer to
recover the amount of the judgment. The insurer argued
that because the wife was a named insured, she could not
recover for her injuries under the policy. The court was
unconvinced by the insurer‘s reasoning, stating that by
the terms of the policy, protection is as much for the
Plaintiff makes no claim in this case on account of the policy having been issued to her. Her claim is based upon the fact that she has a claim against her husband, who is insured against loss by reason of the ownership and use of the automobile.
It is true . . . that a third party has no greater nor more extensive right under the terms of the policy than the original parties to the contract, but there is no limitation contained in the policy which excludes the right of recovery by the plaintiff under the facts of this case . . . .
Archer, 219 Wis. at 103. In Archer, that the victim was a named insured and that the tortfeasor was a named insured were irrelevant. The victim brought the claim as a third-party rather than as a named insured.22
¶ 57. In the case at bar, the injured victim, the plaintiff, like the injured victim in Archer, is also the named insured. The injured victim brings her claim in the instant case, as in Archer, as a third-party victim, not as the named insured. Adhering to the principles of Archer, we conclude that under the facts and circum- stances of the instant case, the plaintiff‘s identity as the named insured does not affect the coverage American Family affords to the permissive user tortfeasor.23
¶ 59. In the Allstate case, a passenger in an in- sured vehicle shot and killed the named insured driver when the passenger removed a hunting rifle from the insured vehicle. Clearly the insured driver, had he removed the rifle himself and injured himself, would not have been indemnified under his automobile liabil- ity insurance policy. Yet, the court determined that the driver‘s automobile liability policy afforded coverage to the permissive user passenger who allegedly negligently killed the named insured driver when the widow of the named insured brought a wrongful death action against the permissive user.
¶ 60. When the injured party was an insured but not the named insured, courts have concluded that the liability insurance policy provided coverage to the per- missive user tortfeasor who injured an insured.
¶ 61. In Nelson v. Ohio Casualty Insurance Co., 29 Wis. 2d 315, 139 N.W.2d 33 (1966), both thе injured person and the tortfeasor were employees of the city of Hartford. The injured person was unloading a garbage truck, while the tortfeasor was driving it. The court held that the city‘s insurance policy was required to defend and indemnify the permissive user tortfeasor. Although the case was decided on different grounds, the victim‘s status as another insured did not trouble the Nelson court.
¶ 63. Our case law demonstrates that although an injured person cannot recover under an automobile insurance liability policy for self-inflicted injury, an in- jured person who is an insured can recover under an automobile insurance liability policy if injured by a fellow insured. Coverage is not based on the identity of the victim absent language in the policy stating other- wise.
V
¶ 64. The parties frame the third question differ-
ently, as we explained in paragraphs 12 and 13 above.
Both parties can, however, be interpreted as asking:
Does the omnibus statute,
¶ 65. The omnibus statute,
Required provisions. Except as provided in sub. (5), every policy subject to this section issued to an owner shall provide that:
(a) Coverage provided to the named insured applies in the same manner and under the same provisions to any person using any motor vehicle described in the policy when the use is for purposes and in the manner described in the policy.
(b) Coverage extends to any person legally responsible for the use of the vehicle.
¶ 67. Nevertheless, we note that the court has decided a number of cases in which the parties dispute the validity of exclusion clauses under the omnibus statute. See, e.g., Schenke v. State Farm Mut. Auto. Ins. Co., 246 Wis. 301, 16 N.W.2d 817 (1944); Frye v. Theige, 253 Wis. 596, 34 N.W.2d 793 (1948);24 Musselman v. Mut. Auto Ins. Co., 266 Wis. 387, 63 N.W.2d 691 (1954); Havlik v. Bittner, 272 Wis. 71, 74 N.W.2d 798 (1956); Bauman v. Gilbertson, 7 Wis. 2d 467, 96 N.W.2d 854 (1959);
¶ 68. In Frye v. Theige, 253 Wis. 596, 601, 34 N.W.2d 793 (1948), the named insured was a passenger in an automobile driven by another with his permis- sion. The named insured was hurt in an automobile collision and sought to recover against his own automo- bile liability insurance company for damages caused by the negligence of the permittee driver. The insurance policy had an exclusion providing that the policy did not apply to bodily injury of a named insured. The insur- ance company contended that because the provision was a general exclusion of coverage that applied equally to the named insured and additional insureds, it did not violate the omnibus statute.
¶ 69. The Frye court upheld the exclusion, reason- ing that the exclusion did not necessarily result in giving the additional insured (the permittee driver) less protec- tion than was given the named insured. The court emphasized the language in what is now subsection (3)(a) of the omnibus statute, reasoning that the clause did not necessarily result in giving to an insured less protection than the policy gave to the named insured.
¶ 70. The Frye court explained:
The additional assured is not protected in case plaintiff is the named assured. Neither, however, is the named assured protected in that same situation. The mere fact that the situation does not come up in respect to the named assured because he is ordinarily driving his car
and injured by his own negligence appears to us to be wholly immaterial. Nobody can or does receive protec- tion against liability for injuries to the named assured. The named assured is excluded from protection as well as the additional assured.26
¶ 71. In dissent in Frye, Justice Fairchild ex- plained that the named insured as a passenger had a cause of action against the driver for his injuries due to the driver‘s negligence. Nevertheless, the exclusion did not indemnify the permittee driver for the damages that the named insured may recover against the driver. Yet the legislature had said that insurance policies shall extend equal coverage to anyone driving the car with the owner‘s permission. Had the nаmed insured been the driver, he would have been indemnified for all damages recovered against him, But the permittee driver was not indemnified for liability for all damages recovered against him. According to Justice Fairchild, such an exclusion would “defeat the avowed purpose of the statute.”27
¶ 72. The parties seem to think that whether the permissive user has other insurance coverage affects the validity of a hypothetical policy exclusion under the omnibus statute. We do not know whether the argu- ments about the omnibus statute change if the permis- sive driver is not fully insured under a policy other than the policy acquired by the named insured.
¶ 73. Past cases inform us that we should not rule
on the omnibus statute without the exact language of
the exclusion proposed, the facts of the case, and briefs
and oral argument—none of which is present here with
¶ 74. In sum, American Family asks us to reverse the court of appeals and hold that the American Family policy does not cover the liability of a permissive user tortfeasor who injures a named insured. We are not persuaded to do so. Such а holding contravenes the terms of the American Family insurance policy and settled case law of this state. Our case law makes no distinction between injured parties who are named insureds and other insureds. Accordingly, we affirm the decision of the court of appeals.
By the Court.—The decision of the court of appeals is affirmed.
¶ 75. PATIENCE DRAKE ROGGENSACK, J. (dis-
senting). I write in dissent because, based on the
pleadings and the materials submitted in the summary
judgment and declaratory judgment motions, I con-
clude that the majority opinion erroneously decides
that American Family Insurance Company, Vicki
Blasing‘s automobile liability carrier, must assume the
defense and indemnification of Menard, Inc. that was
initially undertaken by Zurich American Insurance
Company, Menard‘s liability carrier.1 The majority opin-
ion errs because it does not fully address the issue
American Family presented: “Does the concept of a
permissive user under the Omnibus Statute,
¶ 76. I conclude that the majority opinion should not avoid American Family‘s stated issue, but rather, address it and conclude that when a direct action has been commenced against the insurer of a named defen- dant, as is the case here, the defendant‘s insurer must provide the defense unless that insurer first can prove there is no coverage for any of the claims made. Public policy requires that order of proceeding in the case at hand to meet American Family‘s stated issue and to prevent the conversion of Blasing‘s personal automo- bile policy into comprehensive liability insurance for Menard.
¶ 77. By ignoring American Family‘s stated issue and Blasing‘s direct action claims against Zurich3 and then permitting Zurich and Menard to shift the court‘s focus to whether Menard‘s employee was a “permissive user” of Blasing‘s vehicle under the policy American Family issued to Blasing,4 the majority opinion contra- venes basic summary judgment principles and decides disputed issues of material fact relative to Blasing‘s direct action against Zurich.5
¶ 78. I would reverse the court of appeals and
remand the matter to the circuit court, with Zurich
providing the defense to Blasing‘s claims because
Zurich has provided nothing to disprove Blasing‘s alle-
gation that Zurich insured Menard for her claims.
Because the majority opinion chooses not to address
American Family‘s stated issue and then ignores
I. BACKGROUND
¶ 79. This lawsuit against Menard involves Blasing‘s safe-place claims, which are based on Menard‘s conduct, and her common law negligence claim, which seeks to impose vicarious liability on Menard based on Menard‘s employee‘s conduct. This dispute is not about whether an injured person will be compensated for the injuries sustained. Rather, it concerns who will defend Menard and if Blasing is successful, who will pay.7
¶ 80. Stated otherwise, we are concerned with
whether American Family‘s automobile liability policy,
for which Blasing paid, will be converted into compre-
hensive liability insurance for Menard, by causing
American Family to defend and indemnify Menard. It is
also about whether Blasing‘s direct action against Zur-
ich will be overlooked by focusing on the coverage
provisions of Blasing‘s automobile policy, rather than on
the summary judgment procedure applicable to motions
under
¶ 81. Blasing‘s injuries arose on September 16, 2008, when she purchased boards from Menard and proceeded to a loading area to have them placed in her vehicle. She was standing near the rear passenger side of her vehicle as a Menard employee began to load the boards with a forklift. During the loading, some of the boards fell onto Blasing‘s foot, causing her injury.
¶ 82. On January 24, 2011, Blasing sued Menard
based on two theories: (1) liability for Menard‘s viola-
tions of the safe-place statute,
¶ 83. On March 7, 2011, Zurich and Menard an- swered, admitting that Zurich “issued a policy of liabil- ity insurance” to Menard, but denying Blasing‘s allega- tions of safe-place violations and negligence.8
¶ 84. On May 31, 2011, Menard tendered its de-
fense to American Family, who was Blasing‘s automo-
bile liability carrier at the time of the accident.
Menard‘s tender ignored Blasing‘s safe-place claims.
Instead, Menard focused on the common law negligence
claim and contended that its employee was “using”
Blasing‘s vehicle with her permission while loading the
boards; and therefore, there was coverage for Blasing‘s
¶ 85. On August 2, 2011, American Family moved to intervene in the action to defend against Menard‘s tender. On January 23, 2012, American Family moved for summary judgment that it had no duty to defend or indemnify Menard for Blasing‘s claims. American Fam- ily submitted the automobile liability policy it issued to Blasing for court interpretation.
¶ 86. On January 24, 2012, Menard and Zurich moved for declaratory judgment asking the court to summarily hold that American Family had a duty to defend and indemnify Menard for liability arising from Blasing‘s claims. Although documents were submitted in support of their motion, Zurich chose not to submit the liability policy it admitted that it issued to Menard. Therefore, Zurich‘s liability policy is not in the record for us to interpret.
¶ 87. The circuit court granted American Family‘s motion, holding that it had no duty to defend or to indemnify Menard for Blasing‘s injuries under her automobile liability policy. The circuit court concluded that it would not have been within the reasonable expectation of Blasing when she purchased the Ameri- can Family policy that American Family would defend tortfeasors who injured her and provide indemnity to Menard if Blasing succeeded on her claims against Menard and Zurich. The circuit court found Lawver v. Boling, 71 Wis. 2d 408, 238 N.W.2d 514 (1976), most persuasive.
¶ 88. The court of appeals reversed, concluding
that American Family had both a duty to defend and to
indemnify Menard, relying largely on the omnibus
II. DISCUSSION
A. Standard of Review
¶ 89. In this review of summary judgment, we apply the same standard of review as did the court of appeals and the circuit court, but benefitting from their analyses.9 Hoida, Inc. v. M&I Midstate Bank, 2006 WI 69, ¶ 16, 291 Wis. 2d 283, 717 N.W.2d 17. Summary judgment begins with a review of the complaint to determine whether it states a claim. Westphal v. Farmers Ins. Exch., 2003 WI App 170, ¶ 9, 266 Wis. 2d 569, 669 N.W.2d 166. Next, “we review the answer to determine whether it joins a material issue of fact or law.” Id. If we determine that issue has been joined, we examine the submissions of the parties to determine whether there are material facts in dispute that would require a trial and whether the evidence is sufficient to decide the legal issues that have been joined. See id.
B. Blasing‘s Claims
1. Safe-place violations
¶ 90. Blasing sued Menard for violations of the
safe-place statute,
- Failed to furnish a place for employees, frequent-ers, and/or invitees, which was safe, as that term is defined in
Wis. Stat. § 101.01 ; - Failed to furnish and use safety devices and safeguards and failed to adopt and use methods and processes reasonably adequate to render the subject property safe, as that term is defined in
Wis. Stat. § 101.01 ; - Failed to do every other thing reasonably neces-sary to protect the life, health, safety, and welfare of employees, invitees and/or frequenters at the subject property where the Plaintiff, Vicki L. Blasing, was injured;
- Failed to properly construct the subject property/parking lot/surrounding areas, inspect, main-tain, repair, safeguard, and warn so as to render the subject property safe, as those terms are defined in
Wis. Stat. § 101.01 [.]
¶ 91. Pursuant to
¶ 93. In Amery Motor Co. v. Corey, 46 Wis. 2d 291, 174 N.W.2d 540 (1970), we also concluded that unsafe loading facilities are not part of loading or unloading a vehicle. We explained that faulty construction of the premises “was not a part of the loading and unloading operation but resulted in a condition of the premises which would normally be covered under a comprehen- sive liability policy on the premises.” Id. at 300. We said that “loading and unloading coverage added to an automobile liability policy . . . was not intended to take the place of comprehensive insurance on the premises.” Id. at 301.
¶ 94. In Sampson v. Laskin, 66 Wis. 2d 318, 224 N.W.2d 594 (1975), we again considered the differing
factual predicates between safe-place claims and those
based on the “use” of a vehicle. There, prior to the
accident, two employees were loading barrels of waste
¶ 95. The injured employee and the estate of the deceased employee sued the owners of the building alleging violations of the safe-place statute because of the availability of the bypass switch that the plaintiffs used to override a safety feature of the elevator. Id. at 326. The jury found for the plaintiffs and that deter- mination was not appealed. Id.
¶ 96. The defendant-owners, in turn, filed a third- party complaint against Liberty Mutual Insurance Com- pany under the automobile liability policy issued to the plaintiffs’ employer, into whose truck the barrels were being loaded. Id. at 334. The defendant-owners claimed that they were covered under the automobile policy because the accident occurred during the loading of the truck. Id. In dismissing the defendant-оwners’ claim under the automobile policy, we explained that the “[I]oading and unloading coverage, added to an automo- bile liability policy, . . . ‘was not intended to take the place of comprehensive insurance on the premises,’ particu- larly not so in safe-place cases.” Id. at 336 (citation omitted).
¶ 98. Accordingly, safe-place violations are not part of loading or unloading a vehicle or a “use” of a vehicle. Id. Therefore, in regard to Blasing‘s safe-place claims, there is no basis for coverage under Blasing‘s automobile policy. Sampson, 66 Wis. 2d at 335-36; Continental, 55 Wis. 2d at 536-37; Amery, 46 Wis. 2d at 301.
2. Common law negligence
¶ 99. Blasing also sued Menard for the common law negligence of its employee in loading boards onto her vehicle. On that claim, Menard has potential liabil- ity based on vicarious liability under the doctrine of respondeat superior, which imposes liability on an em- plоyer for the acts of its employee within the scope of the employee‘s employment. Brown v. Acuity, Mut. Ins. Co., 2013 WI 60, ¶ 27, 348 Wis. 2d 603, 833 N.W.2d 96; Peters v. Menard, Inc., 224 Wis. 2d 174, 193 n.8, 589 N.W.2d 395 (1999).
¶ 100. Respondeat superior imposes vicarious li-
ability based on the existence of a master-servant
relationship. Kerl v. Dennis Rasmussen, Inc., 2004 WI 86, ¶ 4, 273 Wis. 2d 106, 682 N.W.2d 328. “Vicarious
liability under respondeat superior is a form of liability
without fault.” Id. Vicarious liability may result from
¶ 101. There is a difference between an employer‘s vicarious liability for an employee‘s conduct and the conduct of the employee, himself. For example, an employer who is liable due to the doctrine of respon- deat superior is not a tortfeasor;12 rather, the employer‘s liability stems from the particular type of agency relationship created when the employee is act- ing within the scope of his employment. See Schinner v. Gundrum, 2013 WI 71, ¶ 47 n.13, 349 Wis. 2d 529, 833 N.W.2d 685; Restatement (Second) of Agency § 219 (1958); see also St. Paul Fire & Marine Ins. Co. v. MAG Mut. Ins. Co., 433 S.E.2d 112, 113 (Ga. Ct. App. 1993).13
¶ 102. In Schinner, we recently explained that an employer,
is subject to the liability for damages flowing from the tortious conduct of its employee. This liability is im- posed upon [the] assured by law under the rule of respondeat superior. Although the [employer] may be held liable for such tort, it cannot be said that [the employer] committed the assault.
Schinner, 349 Wis. 2d 529, ¶ 47 n.13 (quoting Fox Wis. Corp. v. Century Indem. Co., 219 Wis. 549, 551-52, 263 N.W. 567 (1935)). The conclusion that an employer who
has vicarious liability under the doctrine of respondeat
¶ 103. It is only the common law negligence claim for which there potentially could be coverage under the American Family policy. American Family focuses on this claim with two facts that are significant, one of which the majority does not address. American Family questions whether the “concept of use” should be ap- plied to the insured‘s policy under the omnibus statute when (1) the insured is injured by a tortfeasor and (2) the tortfeasor has insurance of its own.
¶ 104. The second fact, that the tortfeasor has its own insurance for the accident, is extremely significant because the omnibus statute has as its purpose assuring that accident victims have insurance coverage. Nordahl v. Peterson, 68 Wis. 2d 538, 551, 229 N.W.2d 682 (1975); Venerable v. Adams, 2009 WI App 76, ¶ 14, 318 Wis. 2d 784, 767 N.W.2d 386. Therefore, construing the “con- cept of use” narrowly under the pоlicy to exclude those tortfeasors who injure the insured and also have their own insurance will not conflict with the omnibus statute‘s purpose of providing insurance coverage to injured persons because of Zurich‘s insurance policy.
C. Summary Judgment
¶ 105. Zurich moved for summary declaration
that American Family has the duty to defend and
indemnify Menard. Consistent with summary judgment
methodology, I begin with an examination of the com-
plaint to determine what it alleges in regard to the duty
to defend and indemnify. See Admanco, Inc. v. 700 Stanton Drive, LLC, 2010 WI 76, ¶ 28, 326 Wis. 2d 586, 786 N.W.2d 759.
¶ 106. The second step in summary judgment de- terminations is to examine the answer. Admanco, 326 Wis. 2d 586, ¶ 28. Zurich admits that it “issued a policy of liability insurance” to Menard, with unstated condi- tions.15 Accordingly, issues of material fact were joined in regard to whether Zurich insured Menard for the alleged safe-place violations and the negligence claim set out in the complaint.
¶ 107. The third step in summary judgment meth- odology is to examine the materials submitted by the moving party to see whether that party has made a prima facie showing that there are no material issues of fact in dispute and that that party should prevail on a question of law without a trial. Id. In regard to Zurich, it submitted no evidence that it does not insure Menard “against the liability of the type” set out in the complaint, i.e., safe-place violations and vicarious liability for com- mon law negligence.
¶ 109. If Zurich‘s obligations to defend and indem-
nify Menard are not determined before this matter
proceeds, Zurich and Menard will have succeeded in
converting American Family‘s automobile liability policy
into a comprehensive liability policy for Menard because
American Family will have to shoulder a defense to
claims, at least one of which falls outside of the scope of
its policy and the omnibus statute. See Sampson, 66 Wis. 2d at 336. Failing to first address Zurich‘s obliga-
tions also will prevent court consideration of the issue
American Family presented for our review: “Does the
concept of a permissive user under the Omnibus Statute,
¶ 110. In conclusion, I write in dissent because,
based on the issue American Family submitted for our
rеview, the pleadings and the materials submitted in
the summary judgment and declaratory judgment mo-
tions, I conclude that the majority opinion erroneously
decides that American Family, Vicki Blasing‘s automo-
bile liability carrier, must assume the defense and
indemnification of Menard that was initially under-
taken by Zurich, Menard‘s liability carrier. The majority
opinion errs because it does not fully address the issue
American Family presented: “Does the concept of a
permissive user under the Omnibus Statute,
¶ 111. I conclude that the majority opinion should not avoid American Family‘s stated issue, but rather, address it and conclude that when a direct action has been commenced against the insurer of a named defen- dant, as is the case here, the defendant‘s insurer must provide the defense unless that insurer first can prove there is no coverage for any of the claims made. Public policy requires that order of proceeding in the case at hand to meet American Family‘s stated issue and to prevent the conversion of Blasing‘s personal automo- bile policy into comprehensive liability insurance for Menard.
¶ 112. By ignoring American Family‘s stated issue
and Blasing‘s direct action claims against Zurich and
then permitting Zurich and Menard to shift the court‘s
focus to whether Menard‘s employee was a “permissive
¶ 113. I would reverse the court of appeals and remand the matter to the circuit court, with Zurich providing the defense to Blasing‘s claims because Zur- ich has provided nothing to disprove Blasing‘s allega- tion that Zurich insured Menard for her claims. Be- cause the majority opinion chooses not to address American Family‘s stated issue and then ignores Blasing‘s direct action against Zurich in this summary judgment proceeding and erroneously converts Blasing‘s automobile liability policy into comprehensive liability insurance for Menard, I respectfully dissent.
¶ 114. I am authorized to state that Justices AN- NETTE KINGSLAND ZIEGLER and MICHAEL J. GABLEMAN join this dissent.
Notes
The court of appeals concluded that American Family has a duty to defend and indemnify Menard in the present case under its policy. Blasing, 346 Wis. 2d 30, ¶ 31.
The dissent addresses issues not argued or briefed. American Family brief, p. 1.
Required provisions. Except as provided in sub. (5), every policy subject to this section issued to an owner shall provide that:
(a) Coverage provided to the named insured applies in the same manner and under the same provisions to any person using any motor vehicle described in the policy when the use is for purposes and in the manner described in the policy.
(b) Coverage extends to any person legally responsible for the use of the motor vehicle.
All subsequent references to the Wisconsin Statutes are to the 2011-2012 version unless otherwise indicated. Majority op., ¶ 74.
Two jurisdictions have apparently ruled that named insureds are not covered for injuries resulting from the actions of permissive user tortfeasors. See MacBey v. Hartford Accident & Indem. Co., 197 N.E. 516 (Mass. 1935); Cain v. Am. Policyholders’ Ins. Co., 183 A. 403 (Conn. 1936). Compare MacBey (holding that a named insured was not covered for injuries sustained while the car was operated by a permissive user), with Transamerica Ins. Co. v. Norfolk & Dedham Mut. Fire Ins. Co., 279 N.E.2d 686, 688 (Mass. 1972) (holding that the omnibus clause‘s use of the words “‘by any person’ includes the insured“). It is also about Erickson v. Menard, Inc., La Crosse County Case No. 10CV324, which is pending in La Crosse County and presents the same issue, i.e., whether Menard will be permitted to convert an injured party‘s automobile liability policy into comprehensive insurance for Menard. Petition for Review, p. 19.
See also 8 Lee R. Russ & Thomas F. Segalla, Couch on Insurance 3d § 111.31 (2005) (” ‘Use’ of a vehicle includes more than driving or riding in an automobile; it extends to utilizing the vehicle as an instrumental means to an end in any manner intended or contemplated by the insured.“). See also Suter, Loading and Unloading, 31 Ins. Couns. J. 112 (Jan. 1964); Cosmopolitan Mut. Ins. Co. v. Balt. & Ohio R.R., 240 N.Y.S.2d 88 (1963).
“When a policy does not include the terms loading and unloading, the issue is whether the act in question was a natural and reasonable incident or a consequence of the use of the vehicle.” 1 Anderson, supra note 5, § 2.51. A tortfeasor is “[o]ne who commits a tort,” i.e., a legally cognizable wrong. Black‘s Law Dictionary 1627 (9th ed. 2009).
“Being an additional insured does not bar one from recovery from the insurer for the negligence of the insured.” Blashaski, 48 Wis. 2d at 176.