Opinion
January 4, 1960 —
February 2, 1960.
APPEAL from a judgment of the circuit court for Chippewa county: CLARENCE E. RINEHARD, Circuit Judge. Affirmed.
For the appellant there was a brief and oral argument by Frank E. Huettner of Cadott.
For the respondent there was a brief by Stafford, Pfiffner Stafford of Chippewa Falls, and oral argument by Robert F. Pfiffner.
Action to recover damages for personal injuries and for a complete loss of plaintiff's automobile as a result of a collision between vehicles driven by the plaintiff and one Michael Richdorf. The collision occurred on August 18, 1956, in Chippewa county. Richdorf was a resident of the state of Minnesota. The defendant, State Farm Mutual Automobile Insurance Company, is an Illinois corporation licensed to do business both in Wisconsin and Minnesota.
Prior to the date of the accident the defendant issued to Richdorf in Minnesota a policy of automobile liability insurance. The policy was in effect at the time of the accident. Richdorf was not named as a party defendant in the action. The insurance policy contained a no-action clause which is effective in Minnesota. The defendant filed an answer in which it denied the allegations of negligence on the part of Richdorf that were made in the complaint, and included in its answer a plea in abatement setting out that the contract of insurance between Richdorf and the defendant was entered into in Minnesota and setting out the no-action clause. Thereafter the defendant moved for summary judgment and by affidavit again set out the no-action clause in the policy; that no judgment had been obtained by the plaintiff against Richdorf; that no direct action upon such policy may be maintained against the defendant in Minnesota; and that the automobile was never at any time garaged or used in Wisconsin regularly, nor was Richdorf a resident of the state of Wisconsin.
The trial court granted defendant's motion for summary judgment and a judgment was entered on January 27, 1959, dismissing the complaint with costs. The plaintiff appealed.
The plaintiff cites secs. 85.93 and 260.11 (1), Stats. 1955, as authorizing direct action against the defendant. He contends that the decision in Ritterbusch v. Sexmith (1950), 256 Wis. 507, 41 N.W.2d 611, was based upon an opinion that to, permit direct action against an insurance company in an automobile accident case where the policy of insurance was written in another state recognizing the validity of a no-action clause would violate the due-process clause of the federal constitution. He then points to the case of Watson v. Employers Liability Assur. Corp., 348 U.S. 66, 75 Sup. Ct. 166, 99 L.Ed. 74, in which it was held that a statute of the state of Louisiana permitting direct action against an insurance company even though the policy contained a no-action clause did not violate the federal constitution. Plaintiff argues that the Watson Case in effect overruled the Ritterbusch Case.
The Louisiana statute, the material parts of which appear as a footnote in the printed decision in the Watson Case, had many provisions not contained in secs. 85.93 and 260.11 (1) of the Wisconsin statutes. Our 1959 legislature has enacted a statute that embraces many of the provisions of the Louisiana statute but it is not effective until July 1, 1960.
Our decision in the Ritterbusch Case was based upon a general rule for the construction of statutes involved where there is a conflict between the laws of our state and that of a sister state. In Schultz v. Hastings, 5 Wis.2d 265, 92 N.W.2d 846, this court expressly approved the decision in the Ritterbusch Case with the exception of one sentence, which was withdrawn. That decision was in 1958 and about four years after the decision in the Watson Case by the United States supreme court. At the time of the commencement of this action the Ritterbusch Case was still the law of this state.
There have been some cases where the insurance company waived or was estopped from setting up its no-action clause by filing an SR-21, a power of attorney, or some other document within this state. The defendant in this case did nothing to waive its rights under the no-action clause, and the trial court correctly determined the issue.
By the Court. — Judgment affirmed.