Opinion
No. 134.
Submitted November 2, 1972. —
Decided November 28, 1972.
APPEAL from an order of the circuit court for Brown county: DONALD W. GLEASON, Circuit Judge. Affirmed.
For the appellant the cause was submitted on the brief of Lontkowski Lontkowski of Green Bay.
For the plaintiffs-respondents the cause was submitted on the brief of Robert P. Stebbins of Green Bay.
For the defendants-respondents The Western Casualty Surety Company and Robert A. Saharsky the cause was submitted on the brief of Richard J. Gould of Green Bay, and for the defendant-respondent Rural Casualty Insurance Company on the brief of Denissen, Kranzush, Stodola Mahoney of Green Bay.
The action arises from an automobile accident. This appeal is from an order dated February 19, 1971, which set aside a prior order and judgment entered November 24, 1970, granting summary judgment in favor of one of the insurance carriers, Mutual Service Casualty Insurance Company. The order of February 19, 1971, also denied Mutual Service's original motion for summary judgment.
The accident was a two-car head-on type collision which occurred on a county highway east of Green Bay about midnight on April 8, 1967.
The injured minor plaintiff-respondent, Rosann Woelfel, was a guest passenger in a 1961 Chevrolet owned by Walter Saharsky and insured by the defendant-respondent, Western Casualty Surety Company. Mr. Saharsky's son Robert, a respondent, eighteen years of age, was driving that vehicle. The other vehicle was a 1962 Chevrolet driven by defendant-respondent Darel Tielens, sixteen years of age. This second vehicle was owned by Arthur Van Den Plas and insured by defendant-respondent, Rural Casualty Insurance Company. Darel Tielens had his own car insured by the defendant-appellant Mutual Service Casualty Insurance Company, and Darel's mother, Mrs. Wallace Tielens, also had another automobile insurance policy with appellant which included Darel as a member of the Tielens family.
In its answer and motion for summary judgment the appellant, Mutual Service, alleged that Darel did not have permission from the owner to drive the Van Den Plas automobile and therefore the policy issued to Darel and the family policy issued to Mrs. Tielens did not cover Darel for any negligence arising out of the accident. Mutual Service, in support of its motion for summary judgment, offered the affidavits of Arthur Van Den Plas and his wife Florence, both of whom stated that at no time did Darel have permission to drive their car on the date of the accident. In opposition to this motion the plaintiffs submitted a certificate from the department of transportation, division of motor vehicles, which disclosed Mutual Service's failure to deny liability and failure to raise the policy defense of lack of permission to drive the Van Den Plas vehicle pursuant to sec. 344.15, Stats., after it was notified that Darel Tielens had named it as his public liability insurance carrier in the statutory accident report.
On November 17, 1970, the trial court granted the appellant's motion for summary judgment. On January 4, 1971, it was ordered that the appellant show cause why the judgment should not be reviewed, reconsidered, set aside and the motion for summary judgment denied. The plaintiffs had correctly pointed out in their affidavit that the reason for requesting a review was because the court failed to consider the legal effects of appellant Mutual Service's failure to comply with the SR-21 filing procedure in respect to the motion for summary judgment. On February 17, 1971, the court handed down its supplemental decision setting aside and vacating the prior order and judgment and denying Mutual Service's original motion for summary judgment. The order giving effect to the decision was entered February 19, 1971.
The pertinent provisions of both automobile policies issued by Mutual Service to Darel and his mother provide:
"Part I — Liability
"Coverage A — Bodily Injury Liability; Coverage B — Property Damage Liability: To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of:
"A. bodily injury, sickness or disease, including death resulting therefrom, hereinafter called `bodily injury,' sustained by any person;
"B. injury to or destruction of property, including loss of use thereof, hereinafter called `property damage':
arising out of the ownership, maintenance or use of the owned automobile or any non-owned automobile, and the Company shall defend any suit alleging such bodily injury or property damage and seeking damages which are payable under the terms of this policy, even if any of the allegations of the suit are groundless, false or fraudulent; but the Company may make such investigation and settlement of any claim or suit as it deems expedient.
". . .
"Persons Insured: The following are insured under Part I:
"(a) With respect to the owned automobile,
"(1) the named insured,
"(2) any other person using such automobile, provided the actual use thereof is with the permission of the named insured;
"(b) With respect to a non-owned automobile,
"(1) the named insured,
"(2) any relative, but only with respect to a private passenger automobile,
provided the actual use thereof is with the permission of the owner."
In addition, it is an undisputed fact that Mutual Service did not notify the division of motor vehicles that it denied coverage and did not file an affidavit signed by the owner of the 1962 Chevrolet, Mr. Van Den Plas, stating that Darel did not have his permission to operate the vehicle at the time of the accident pursuant to sec. 344.15 (4), Stats.
The applicable statute is sec. 344.15 (4) and (5):
"(4) After receipt of the report of an accident of the type specified in s. 344.12, the administrator shall forward to the insurance company or surety company named therein, that portion of the report which pertains to an automobile liability policy or bond. The administrator shall assume that an automobile liability policy or bond as described in this section was in effect and applied to both the owner and operator with respect to the accident unless the insurance company or surety company notifies the administrator otherwise within 30 days from the mailing to the company of that portion of the report pertaining to the automobile liability policy or bond . . . As respects permission to operate the vehicle, the company may correct the report only if it files with the administrator within the 30-day period specified in this subsection an affidavit signed by the owner stating that the operator did not have the owner's permission to operate the vehicle. Where the company's failure to notify the administrator within 30 days of a correction in that portion of the report pertaining to an automobile liability policy or bond is caused by fraud, the company shall notify the administrator of the correction within 30 days of the time the fraud is discovered.
"(5) Nothing in this chapter shall be construed to impose any obligation not otherwise assumed by the insurance company or surety company in its automobile liability policy or bond except that if no correction is made in the report within 30 days after it is mailed to the insurance company or surety company, the company, except in case of fraud, whenever such fraud may occur, is estopped from using as a defense to its liability the insured's failure to give permission to the operator. . . .
The defendant-appellant, Mutual Service, has appealed from the order of February 19, 1971.
The appellant, Mutual Service, has not contested the right of the court to reconsider its first decision on the motion for summary judgment nor the procedure used. The issue, therefore, can be stated as follows:
Did the trial court abuse its discretion in denying the motion for summary judgment?
The appellant, Mutual Service, contends that because Darel Tielens did not have permission to use the Van Den Plas vehicle there is no liability coverage either under the policy issued to Darel or the one issued to Darel's mother.
The respondents contend that because Mutual Service, named by Darel as the public liability carrier in the accident report filed with the division did not deny coverage and did not file the affidavit of nonpermission, it is estopped from using the defense of no permission by the owner to drive. The respondents base their contention on sec. 344.15 (4) and (5), Stats.
The trial court concluded that because Mutual Service did not notify the division of its denial of coverage on the ground of no permission to operate, and failed to file the affidavit of the owners of the vehicle as required by sec. 344.15 (4), Stats., Mutual Service was estopped from using failure to give permission to the operator as a defense pursuant to sec. 344.15 (5).
Mutual Service attempts to avoid the statutory estoppel by asserting the coverage extended in both the Tielens' policies was more than required by the legislature for a "motor vehicle liability policy," and as such was excess or additional coverage, and that as to such excess coverage it is not subject to the financial responsibility chapter by virtue of sec. 344.33 (7), Stats.
See sec. 344.33 (1), (2) (c), (3), Stats.
In the policy issued to Darel Tielens as the named insured, he is also designated as an insured when operating a nonowned automobile. Under these terms and the circumstances here, we believe the policy is an operator's policy as defined in sec. 344.33 (3), Stats., and, as such, is not excess or additional insurance and is subject to the provisions of ch. 344.
"OPERATOR'S POLICY. An operator's policy of liability insurance shall insure the person named as insured therein against loss from the liability imposed upon him by law for damages arising out of the use by him of any motor vehicle not owned by him, within the same territorial limits and subject to the same limits of liability as are set forth in sub. (2) with respect to an owner's policy of liability insurance."
It follows then that Mutual Service is estopped from denying coverage at least on the policy issued to Darel Tielens. Such being the case, the trial court was required, under the law, to deny the motion for summary judgment.
Other issues and arguments have been raised by the appellant but because the motion for summary judgment was properly denied a discussion of these arguments would be only advisory, which this court has consistently refused to do. By the Court. — Order affirmed.
Zimmer v. Daun (1968), 40 Wis.2d 627, 162 N.W.2d 626; Cadden v. Milwaukee County (1969), 44 Wis.2d 341, 171 N.W.2d 360.