Summary
In Nelson, a City of Hartford employee was killed while in the course of his employment when he was run over by a city-owned dump truck.
Summary of this case from Rocker v. USAA Casualty InsuranceOpinion
November 29, 1965 —
January 4, 1966.
APPEAL from an order of the circuit court for Washington county: MILTON L. MEISTER, Circuit Judge. Affirmed.
For the appellant there was a brief by Stanley F. Schellinger, attorney, and James G. Doyle of counsel, both of Milwaukee, and oral argument by Mr. Schellinger.
For the respondent there was a brief by O'Meara O'Meara of West Bend, and oral argument by Stephen O'Meara.
On December 31, 1962, Robert Roemer was fatally injured when he was run over by a city of Hartford garbage truck during the process of unloading the truck at a city-owned refuse dump. At the time of the accident decedent was an employee of the city of Hartford and was acting within the scope of his employment. The truck involved was operated by Melvin Derge, also an employee of the city. A third employee, Clifford Reason, was also present. Subsequently plaintiff administratrix of Roemer's estate and plaintiff Shelby Mutual Insurance Company, the workmen's compensation insurer for the city of Hartford, commenced this action pursuant to sec. `102.29, Stats., against defendant Ohio Casualty Insurance Company (hereinafter "Ohio Casualty"), which had issued an automobile liability policy to the city covering the truck involved. Plaintiffs alleged that Derge and Reason had been negligent in operating the truck. Defendant Ohio Casualty then impleaded United Fire Casualty Company (hereinafter "United").
Erroneously termed "interpleaded" in the title to the case. See sec. 260.11(2), Stats.
United had issued a comprehensive general liability policy to the city of Hartford. The cross complaint alleged that if it were found upon trial that either or both plaintiffs are entitled to recover from Ohio Casualty, that Ohio Casualty is entitled to contribution from United. United answered denying that its policy afforded any coverage to Reason and Derge.
The following are pertinent provisions of United's policy:
"1. COVERAGE A. — BODILY INJURY LIABILITY:
"To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury, sickness or disease, including death at any time resulting therefrom, sustained by any person and caused by accident. . . .
"III. DEFINITION OF INSURED:
"The unqualified word `insured' includes the named insured and also includes any executive officer, director or stockholder thereof while acting within the scope of his duties as' such, and any organization or proprietor with respect to real estate management for the named insured. If the named insured is a partnership, the unqualified word `insured' also includes any partner therein but only with respect to his liability as such. . . .
"EXCLUSIONS'
"This policy does not apply:
". . .
"(c) except with respect to operations performed by independent contractors and except with respect to liability assumed by the insured under a contract as defined herein, to the ownership, maintenance, operation, use, loading or unloading of (1) watercraft if the accident occurs away from premises owned by, rented to or controlled by the named insured, except insofar as this part of this exclusion is stated in the declarations to be inapplicable, (2) automobiles' if the accident occurs away from such premises or the ways immediately adjoining, or (3) aircraft;
". . .
"(f) under coverage A, to any obligation for which the insured or any carrier as his insurer may be held liable under any workmen's compensation, unemployment compensation or disability benefits law, or under any similar law."
United served and filed a motion for summary judgment dismissing the cross complaint. The circuit court by order entered April 21, 1965, denied this motion and United has appealed therefrom.
Plaintiffs' complaint seeks recovery from Ohio Casualty on the basis that the two fellow employees of the deceased were additional insureds under Ohio Casualty's policy of automobile liability insurance. Plaintiffs' cause of action could not be grounded on any negligence of the city of Hartford as the named insured because the city's liability arising by reason of the instant accident is confined solely to that imposed by the Workmen's Compensation Act. For this reason Ohio Casualty's cross complaint against United is also grounded upon the liability of United under its policy for the alleged negligent acts of the two fellow employees. Inasmuch as these two fellow employees are not encompassed within the definition of "insured" contained in United's policy, Ohio Casualty grounds its claim, that United's policy extended coverage to these two fellow employees, on the omnibus coverage statute, sec. 204.30(3), Stats.
This statute provides in part: "No such policy [insuring against damage to person or property caused by any motor vehicle] shall be issued or delivered in this state to the owner of a motor vehicle, unless it contains a provision reading substantially as follows: The indemnity provided by this policy is extended to apply, in the same manner and under the same provisions as it is applicable to the named assured, to any person or persons while riding in or operating any automobile described in this policy when such automobile is being used for purposes and in the manner described in said policy. . . ."
United advances these three contentions as to why the omnibus coverage statute is not applicable under the instant facts:
(1) This statute does not apply to general liability policies such as United's policy.
(2) The truck which fatally injured the deceased was not "any automobile described in this policy" within the meaning of the words of this statute.
(3) The accident did not occur on a public highway.
Type of Policy.
United maintains that the omnibus coverage statute does not apply to a comprehensive liability policy which only insures motor vehicles operated on private premises or ways adjoining thereto. It has been stressed that this policy is modeled after the form drafted by the National Bureau of Casualty Underwriters which has been on file for the past twenty years with the commissioner of insurance. During that time the commissioner has never questioned the absence of an omnibus coverage clause to meet the requirement of sec. 204.30(3), Stats. Long-continued administrative interpretation of a statute is a significant aid in statutory interpretation. Here there is no showing of a positive act of administrative interpretation but only a passive failure to act. Disregarding this feature, administrative interpretation is only of significance where there is an ambiguity in the statute. It cannot overcome the plain wording of a statute where there is no ambiguity.
Frankenthal v. Wisconsin Real Estate Brokers' Board (1958), 3 Wis.2d 249, 255, 88 N.W.2d 352, 89 N.W.2d 825; Dunphy Boat Corp. v. Wisconsin Employment Relations Board (1954), 267 Wis. 316, 326, 64 N.W.2d 866.
Beghin v. State Personnel Board (1965), 28 Wis.2d 422, 430, 137 N.W.2d 29.
We find no ambiguity in sub. (3) of sec. 204.30, Stats., with respect to the type of policy to which it is applicable. The commencing words, "No such policy . . ." plainly relate back to the type of policy described in sub. (1), which reads:
"No policy of insurance against loss or damage resulting from accident or injury to a person, and for which the insured is liable, or against loss or damage to property caused by animals or by any motor vehicle, and for which the insured is liable, . . ."
We interpret this language to apply to any policy which extends coverage to damage caused by motor vehicle for which the insured is liable. It is conceded that the instant policy does insure the city of Hartford against claims for damage caused by motor vehicle accidents on the city's premises and adjoining ways. We deem it immaterial that this coverage is provided by a comprehensive liability policy rather than one confined to coverage of motor vehicles. This interpretation of sec. 204.30(3), Stats., is consistent with that given the direct-liability statute, sec. 204.30(4).
The exclusion clause excludes coverage of "automobiles if the accident occurs away from such [the insured's] premises or the ways immediately adjoining." The word "automobiles" is a generic term which embraces trucks. Schmude v. Hansen (1965), 28 Wis.2d 326, 330, 137 N.W.2d 61; Wiese v. Polzer (1933), 212 Wis. 337, 343, 248 N.W. 113.
Snorek v. Boyle (1962), 18 Wis.2d 202, 208, 118 N.W.2d 132; Goller v. White (1963), 20 Wis.2d 402, 406, 122 N.W.2d 193.
Truck Not Described in Policy.
Sub. (3) of sec. 204.30, Stats., extends coverage to "any person or persons while riding in or operating any automobile described in this policy. . ." subject to after-stated limitations. Because the motor truck which fatally injured the deceased was not described in its policy, United contends the statute is not applicable to the instant situation. We had this same question before us in Snorek v. Boyle with respect to the statutory words', "the vehicle described therein" appearing in sub. (4) of sec. 204.30, the direct-liability statute. It was there determined that if the policy extends coverage to the vehicle involved in a particular accident, then such vehicle is a "vehicle described therein" within the meaning of such direct-liability statute. In reaching such result we stressed the broad remedial purpose that motivated the legislature in enacting sub. (4) of sec. 204.30. We have also interpreted sub. (3) of sec. 204.30 as having a broad remedial purpose which requires it to be liberally construed. Therefore, we interpret "automobile described in this policy" appearing in sub. (3) as having the same meaning as "vehicle described therein" found in sub. (4) of sec. 204.30, i.e., as any vehicle to which the policy extends coverage. This is in accord with the statement made by this court in Culver v. Webb, wherein the court was considering the omnibus coverage statute:
That the word "automobile" embraces a truck, see footnote 5. Cf. Snorek v. Boyle, supra, footnote 6, at page 210.
Supra, footnote 6.
Pavelski v. Roginski (1957), 1 Wis.2d 345, 349, 351, 84 N.W.2d 84. See also Ducommun v. Inter-State Exchange (1927), 193 Wis. 179, 184, 212 N.W. 289, 214 N.W. 616; and Groth v. Farmers Mut. Automobile Ins. Co. (1963), 21 Wis.2d 655, 659, 124 N.W.2d 606.
(1944), 244 Wis. 478, 12 N.W.2d 731.
"Neither is the description of a particular automobile owned by the assured of essential importance."
Id. at page 490.
Accident Not Occurring on Public Highway.
We find no merit to the further contention made by United that sec. 204.30(3), Stats., is limited to motor vehicle accidents occurring on a public highway. In Snorek v. Boyle and Smedley v. Milwaukee Automobile Ins. Co. we emphasized the operation of a vehicle on a public street or highway in considering whether it fulfilled the category of a "motor vehicle" within the meaning of sub. (4) of sec. 204.30, the direct-liability statute. However, as made clear in the recent case of Rice v. Gruetzmacher, we were in those cases dealing with a class of motor-propelled vehicles so designed that they might never be used for transporting or drawing persons or property on a public highway. The Rice Case established that such a class of vehicles were not motor vehicles within the meaning of sec. 204.30(4) unless operated on a public highway at the time the accident occurred.
Supra, footnote 6, at page 208.
(1961), 12 Wis.2d 460, 466, 107 N.W.2d 625.
(1965), 27 Wis.2d 46, 51, 133 N.W.2d 401.
A United States district court sitting in Minnesota in Travelers Ins. Co. v. American Fidelity Casualty Co. was called upon to consider the applicability of sec. 204.30 (3), Wis. Stats., in connection with an off-the-highway motor vehicle accident where the insurance policy, although issued in Wisconsin, contained no omnibus coverage clause. The court held that the statute applied even though the accident occurred off the highway. We approve of this holding as it is consistent with the liberal interpretation of this omnibus coverage statute which has been employed by our court.
(D.C. Minn. 1958), 164 F. Supp. 393.
It is our considered determination that sec. 204.30(3), Stats., is applicable to a policy of insurance extending liability coverage to a motor-propelled vehicle which is designed to transport or draw persons or property on the public highways, and it is immaterial whether the accident which triggers the claim of liability arose on private premises. The truck involved in the accident which fatally injured the deceased obviously was such type of vehicle.
By the Court. — Order affirmed.