Summary
affirming summary judgment that an exclusion based on "furnishing for regular use" applied to exclude coverage
Summary of this case from Brudos v. Wis. Mut. Ins. Co.Opinion
No. 75-234.
Argued December 1, 1976. —
Decided January 6, 1977.
APPEAL from an order and judgment of the county court of Rock county: MARK J. FARNUM, Judge. Affirmed.
For the appellants there were briefs by Pfeil Graves of Elkhorn, and Thomas E. Greenwald of East Troy, of counsel, and, oral argument by Mr. Greenwald.
For the respondent there was a brief by Joseph D. McDevitt and Borgelt, Powell, Peterson Frauen, and oral argument by Mr. McDevitt, all of Milwaukee.
This is an appeal from an order which denied the appellants-third-party plaintiffs' motion to strike two paragraphs of the answer of, the respondent-third party defendant, and also granted the respondent-third party defendant's motion for summary judgment. The judgment was entered pursuant thereto.
The action arose out of an automobile collision, which occurred on December 7, 1970, and involved two vehicles. One of the vehicles was a Rock County Sheriff's Department squad car operated by Lawrence Call, a deputy sheriff, in the course of his employment. John M. Jones, also a deputy sheriff, was a passenger in this vehicle. The other car was operated by the appellant John P. Perkins, and carried as passengers Richard and Edna Schultz. Mr. and Mrs. Schultz died as a result of injuries sustained in the collision.
Three lawsuits were commenced for the recovery of damages sustained in this collision. The first action was commenced by the administrator of the estate of Richard Schultz against John Perkins and his insurer, Farmers Insurance Exchange, Lawrence Call and Employers Mutual Liability Insurance Company of Wisconsin, the automobile liability insurer of the Rock County Sheriff's Department. The second suit was brought by Lawrence Call and his wife against John Perkins and his insurer, Farmers Insurance Exchange. These two actions were consolidated and tried to a jury, which rendered a special verdict finding the deputy, Lawrence Call, 60 percent negligent and John Perkins 40 percent negligent.
The third action was commenced by John M. Jones, a deputy sheriff and passenger in the squad car, and his wife against the two drivers and their respective insurers. The matter now before this court is a third party action arising out of this suit.
While this third suit was pending, on December 13, 1973, the defendant Lawrence Call, by his attorney, notified the respondent-third party defendant, Aetna Casualty and Surety Company, hereinafter referred to as Aetna, of the accident and made demand upon Aetna to defend him and hold him harmless. Call had a policy with Aetna at the time of the accident. Aetna refused to defend or provide coverage under the policy.
This action by Jones was concluded by stipulation and agreement among the parties and by an order entered pursuant thereto. Under the stipulation, the parties agreed upon $23,000 as settlement for the claims of Jones and his wife. It was further agreed that upon payment of the whole amount by the defendants Perkins and his insurer, those defendants would receive judgment for contribution against the other defendant Call in the amount of $13,800. This figure for contribution was based upon the apportionment of negligence between Perkins and Call by the jury in the first two consolidated actions.
At the same time the defendants Perkins and his insurer obtained this judgment for contribution, Call assigned any and all rights that he had by reason of his contract for automobile liability insurance with Aetna to Perkins and his insurer, in exchange for a covenant that they would not enforce the contribution judgment against Call personally. Thus, Perkins and his insurer commenced a third party action, which is the subject of this appeal, against Aetna to recover the $13,800, alleging that under the policy issued to Call, Aetna agreed to pay all sums which Call should become legally obligated to pay as damages because of bodily injury arising out of the use of the squad car at the time the accident occurred.
In its answer to the third party complaint Aetna pleaded three affirmative defenses. First, Aetna claimed it was not bound by the apportionment of negligence determined in the two consolidated actions. Second, Aetna claimed Call had breached the policy provisions by failing to give timely notice of the accident to the company. Finally, Aetna alleged the squad car which Call operated was not a vehicle covered by the policy of insurance because it was furnished or available for the regular use of Call, and thus was excluded from coverage under the terms of the policy.
The third party plaintiffs, Perkins and his insurer, filed a motion to strike the paragraphs of the third party answer which alleged the affirmative defenses that Aetna was not bound by the previous apportionment of negligence and that Call had failed to give timely notice. Soon thereafter Aetna filed a motion for summary judgment based upon the defenses that the squad car was not covered by the policy and lack of timely notice. Aetna filed affidavits of five persons in support of this motion for summary judgment, but none were filed by Perkins and his insurer in opposition. The trial court denied the motion to strike and granted the motion for summary judgment on the ground that the squad car was not a vehicle covered under the policy in that it was a vehicle furnished for the regular use of deputy Call. Because of its decision as to the coverage of the squad car, the trial court declined to consider the question of timely notice to the insurance company.
Three issues are presented on this appeal:
1. Is the insurer entitled to summary judgment because the vehicle involved was "furnished or available for the regular use" of the insured?
2. Is the insurer entitled to summary judgment on the ground that the insurer failed to give timely notice under the policy?
3. Is the insurer collaterally estopped from challenging the apportionment of negligence?
Vehicle Furnished for Regular Use
The insurance policy under consideration in this case provides that"AETNA CASUALTY will pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of bodily injury or property damage, arising out of the ownership, maintenance or use of an owned automobile or a non-owned automobile. . . ." (emphasis added).
The squad car operated by the insured, Lawrence Call, at the time of the collision in this case was clearly not an "owned automobile," and hence to determine if there is coverage for liability, it is necessary to determine whether the squad car qualified as a "non-owned automobile" under the policy. The policy states:
". . . non-owned automobile means an automobile not owned by or furnished or available for the regular use of either the named Insured or any resident of the same household, and includes, while used therewith, a home trailer not owned by the named Insured or a utility trailer, but `non-owned automobile' does not include a temporary substitute automobile; . . ." (emphasis added).
Thus, if the squad car operated by Call was "furnished or available for the regular use" of Call, then it was not a "non-owned automobile," and no coverage was afforded under the policy while he was driving it.
The interpretation and application of the term "regular use" depends upon the particular facts and circumstances in each case, LeMense v. Thiel, 25 Wis.2d 364, 367, 130 N.W.2d 875, 876 (1964). As with all factual questions, however, the insufficiency of the proof may be a question of law. Where the material facts are not in dispute, the question of whether a vehicle was "furnished for the regular use" of its driver is proper for determination on a motion for summary judgment. Moutry v. American Mutual Liability Insurance Co., 35 Wis.2d 652, 151 N.W.2d 630 (1967); LeMense v. Thief, supra.
Appellants contend the regular use provision should be interpreted in favor of the insured because it is not clear whether it refers to personal or business use or both. Although some courts have concluded the "regular use" provision is ambiguous, the authorities indicate that the majority of the jurisdictions have not found such an ambiguity but have interpreted the provision in relation to the particular circumstances of each case. See 13 Couch on Insurance 2d secs. 45:1051, 45:1054 (1965); Annot. 86 A.L.R.2d 937, sec. 6 (1962).
This court has previously found this exclusion to be unambiguous. Giese v. Karstedt, 30 Wis.2d 630, 634, 141 N.W.2d 886, 888 (1966); Lontkowski v. Ignarski, 6 Wis.2d 561, 566-67, 95 N.W.2d 230, 233 (1959). In Moutry v. American Mutual Liability Insurance Co., supra, the court noted:
"`The general purpose and effect of this provision of the policy is to give coverage to the insured while engaged in the only infrequent or merely casual use of an automobile other than the one described in the policy, but not to cover him against personal liability with respect to his use of another automobile which he frequently uses or has the opportunity to do so.'" Moutry, supra at 657, 151 N.W.2d at 632, quoting Campbell v. Aetna Casualty Surety Co., 211 F.2d 732, 736 (4th Cir. 1954).
In the present case Aetna submitted the affidavit of Kenneth Curtis, a captain with the Rock County Sheriff's Department. The evidentiary matters contained in that affidavit must be deemed uncontroverted for the failure of appellant to file counteraffidavits. Leszczynski v. Surges, 30 Wis.2d 534, 539, 141 N.W.2d 261, 265 (1966); Hein v. State Farm Mutual Automobile Insurance Co., 29 Wis.2d 702, 706, 139 N.W.2d 611, 613 (1966). In his affidavit Curtis states that he is familiar with the procedures for assigning Rock County Sheriffs Department vehicles to deputy sheriffs and that it was the policy of the department to assign to a patrolman a specific vehicle which "would always be assigned to the same patrolman for his use throughout the course of his duties on any particular day, unless the vehicle were broken down or otherwise out of service." Curtis further states that at the time of the collision in this case deputy sheriff Call was operating Vehicle No. 52 which was the vehicle normally and routinely assigned to Call.
In many cases courts have held an employee's daily use of his employer's automobile to be regular use under this type of exception to automobile liability insurance. Aetna Casualty Surety Co. v. Sessions, 260 S.C. 150, 194 S.E.2d 877 (1973); Franey v. State Farm Mutual Automobile Insurance Co., 5 In. App.3d 1040, 285 N.E.2d 151 (1972); Seaboard Fire Marine Insurance Co. v. Gibbs, 392 F.2d 793 (4th Cir. 1968); Kern v. Liberty Mutual Insurance Co., 398 F.2d 958 (8th Cir. 1968); Dickerson v. Millers Mutual Fire Insurance Co. of Texas, 139 So.2d 785 (La. 1962); O'Brien v. Halifax Insurance Co. of Massachusetts, 141 So.2d 307 (Fla. 1962).
The case of O'Brien v. Halifax Insurance Co. of Massachusetts, supra, involved a factual situation very similar to the instant case. The plaintiff was a police officer who, at the time of the accident in which he was involved, was operating an automobile furnished by the city police department. On the day of the accident, the plaintiff had operated three different patrol cars which at different times had been assigned to him. Despite the use of different vehicles the court held a jury could only conclude that the patrol car operated by the plaintiff at the time of the accident was furnished for his regular use.
From the facts in the instant case we conclude that the patrol car which deputy Call operated at the time of the collision was furnished to him for his regular use. Not only was a vehicle provided to the deputy on a routine basis, daily for his duties as a deputy sheriff, but also the vehicle assigned was always the same vehicle. The regularity of this use is not diminished by the fact that the vehicle was not available for the personal use of deputy Call, as appellants contend. The policy obviously excepts the squad car from the definition of non-owned automobile, and therefore from coverage. Thus, the trial judge did not commit error by granting the respondent insurer's motion for summary judgment.
In view of the above conclusion, it is not necessary for the court to reach the two remaining issues.
By the Court. — Judgment and order affirmed.
DAY, J., took no part.