Opinion
No. 289.
Argued June 2, 1969. —
Decided July 3, 1969.
APPEAL from an order and judgment of the circuit court for Dane county: RICHARD W. BARDWELL, Circuit Judge. Affirmed.
For the appellant there was a brief by Martin J. Torphy and E. Campion Kersten, both of Milwaukee, and oral argument by Mr. Kersten.
For the respondents there was a brief by Schlotthauer, Johnson Mohs of Madison, and oral argument by Conrad H. Johnson.
This action arose out of a collision on October 30, 1966, between an automobile and a motorcycle at the intersection of South Park street and North avenue in the city of Madison, Wisconsin. Marvin Richardson, defendant, an eighteen-year-old son of Leonard Richardson, another defendant, was operating his father's 1959 De Soto automobile in connection with his father's garage business when he was involved in the collision with plaintiff's motorcycle. The plaintiff was seriously injured as a result of the collision and, on March 28, 1967, initiated an action against the two Richardsons by service of summons and notice of examination of adverse party. Thereafter, depositions were taken of both Marvin and Leonard Richardson and subsequent thereto the plaintiff served an amended summons and complaint on all parties, and Great Central Insurance Company was joined as a party defendant.
In paragraph 2 of the amended complaint it is alleged that:
"2. Upon information and belief, some time before October 30, 1966, the defendant Great Central Insurance Company, for good and sufficient consideration, issued an insurance policy to the defendant Leonard L. Richardson insuring him and the defendant Marvin Richardson against liability to members of the public, including the plaintiff, arising out of negligent operation of the automobile being operated by the defendant Marvin Richardson at the time of the collision hereinafter described. The insurance policy was in full force and effect at the time of said collision. By reason of said insurance policy and the laws of Wisconsin, Great Central Insurance Company is a proper party defendant herein."
The answer served and filed by the Richardsons admits the allegations contained in this paragraph of the amended complaint, but the answer served and filed by the Great Central Insurance Company denies those allegations and sets up an affirmative defense stating that although Great Central Insurance Company did have in full force and effect on October 30, 1966, a Garage Liability Hazard II policy the vehicle in question owned by the defendant, Leonard L. Richardson, and operated by the defendant, Marvin Richardson, was not insured under that policy.
On April 10, 1968, Great Central Insurance Company, made a motion for summary judgment and attached thereto:
(1) A certification by Harold S. Lang, assistant secretary of Great Central Insurance Company, that the only policy in force providing liability type coverage for Marvin Richardson and/or Leonard Richardson was garage liability policy No. AG955231;
(2) An affidavit made by Conrad H. Johnson, attorney for Great Central Insurance Company, incorporating the denials and defenses of the answer and stating that they were sufficient to defeat the cause of action of the plaintiff against defendant, Great Central Insurance Company; and
(3) A copy of the insurance policy.
The plaintiff then served upon the defendant an affidavit in opposition to the motion for summary judgment, setting forth various facts concerning the accident. In addition the affidavit provided that the defendant, Great Central Insurance Company, admitted that the policy in question was issued to defendant, Leonard Richardson; that the policy was in full force and effect at the time of the collision; and that the policy provided coverage for liability arising out of the collision.
The trial court granted the motion for summary judgment by order dated September 3, 1968, and ordered that judgment be entered dismissing the defendant, Great Central Insurance Company, from the case. Judgment was then entered to that effect.
Plaintiff appeals from that order and judgment.
This appeal presents two issues:
(1) Did the trial court err in, as a matter of law, construing the coverage provisions of the garage liability policy so as to exclude coverage on Leonard Richardson's owned automobile?
(2) Did the trial court err in concluding that no questions of estoppel or misrepresentation were involved demanding a trial?
The appellant contends that the trial court erred in granting respondent insurance company's motion for summary judgment. The provisions of the summary judgment statute (sec. 270.635, Stats.) are familiar. The rules governing the disposition of summary judgment motions are well settled. We think this controversy is one where Great Central's motion for summary judgment and its supporting affidavits, together with the opposing papers of the plaintiff, present only a question of law, namely, the scope of coverage under the policy.
See McWhorter v. Employers Mut. Casualty Co. (1965), 28 Wis.2d 275, 137 N.W.2d 49; Hyland Hall Co. v. Madison Gas Electric Co. (1960), 11 Wis.2d 238, 105 N.W.2d 305; Dottai v. Altenbach (1963), 19 Wis.2d 373, 120 N.W.2d 41.
Plaintiff-appellant contends now, as he did in the trial court, that the garage liability policy clearly covers the accident of October 30, 1966, or at least the policy is ambiguous and should be construed against the insurer. Respondent insurance company contends that the policy only covers automobiles "not owned or hired" by the named insured and since the automobile involved in the accident was owned by the named insured, the policy did not cover that accident.
It is well established, as stated in Rabinovitz v. Travelers Ins. Co., that "[g]enerally, the construction of words and clauses in an insurance policy is a question of law." In both Rabinovitz and Bauman v. Midland Union Ins. Co. this court quoted from Thurston v. Burnett Beaver Dam Farmers' Mut. Fire Ins. Co. wherein it was stated:
(1960), 11 Wis.2d 545, 549, 105 N.W.2d 807.
Id. at pages 549, 550.
(1952), 261 Wis. 449, 451, 452, 53 N.W.2d 529.
(1898), 98 Wis. 476, 74 N.W. 131.
"[W]here language is plain and unambiguous, the apparent import of the words must govern, and the rule that where there is no uncertainty as to the meaning of the words used in the contract, and where such uncertainty exists but there is no extrinsic evidence or circumstance bearing on the subject to be considered in determining the meaning attributed to them by the parties when the contract was made, the proper interpretation of the words and construction of the contract are solely for the court."
Id. at pages 478, 479.
Of course, in interpreting and construing the policy, the ultimate objective is to ascertain the true intention of the parties. Here, the issue of coverage can readily be resolved by a construction of the pertinent provisions of the third page of the insurance policy, a copy of which is attached to this opinion.
Home Mut. Ins. Co. v. Insurance Co. of North America (1963), 20 Wis.2d 48, 51, 121 N.W.2d 275; followed by Inter-Insurance Exchange v. Westchester Fire Ins. Co. (1964), 25 Wis.2d 100, 104, 130 N.W.2d 185.
With respect to limitation of coverage, item 3 of the policy provides:
"Item 3. The insurance afforded is only with respect to such of the following coverages and hazards thereunder as are indicated by specific premium charge or charges. The limit of the company's liability against each such coverage shall be as stated herein, subject to all the terms of the policy having reference thereto." (Emphasis added.)
Referring to the premium schedule, it is necessary to determine what "hazards" and "coverages" correspond to the various specific premium charges. The first line in the "advance premiums" column is not filled in. That line corresponds to the first line in the "hazards" column which contains "Garage operations including 1. All automobiles." The second line in the "advance premiums" column contains the figure "3.00." That figure corresponds to the second line in the "hazards" column which contains "2. Automobiles not owned or hired." The second lines in the "advance premiums" and "hazards" columns correspond to the first line in the "coverages" column. Thus it is apparent that the items in lines one and two of the "advance premiums" and "hazards" columns correspond to the first line in the "coverages" column which contains "A. Bodily injury liability."
Similarly, the third line of the "advance premiums" column is left blank. That line corresponds to the third
line in the "hazards" column which contains "Garage operations including 1. All automobiles." The fourth line in the "advance premiums" column contains the figure "$1.62." That figure corresponds to the fourth line in the "hazards" column which contains "2. Automobiles not owned or hired." The fourth lines in the "advance premiums" and "hazards" columns correspond to the second line in the "coverages" column. Thus lines three and four of the "advance premiums" and "hazards" columns correspond to the second line of the "coverages" column which contains "B. Property damage liability."
On this reading of the policy it is clear that it provides that a premium of $3 was paid for coverage of bodily injury arising out of incidents involving "automobiles not owned or hired" and that a premium of $1.62 was paid for coverage of property damage arising out of incidents involving "automobiles not owned or hired."
Thus the trial court properly concluded that the policy did not cover automobiles owned by the named insured.
Appellant argues that the premium charge of $3 is applicable to "bodily injury" coverage which is subdivided into two "hazards" — namely, "all automobiles" and "automobiles not owned or hired," and that there is no indication in the policy that the premium of $3 applies only to "automobiles not owned or hired." The answer to appellant's contention is that the premium charge appears on a line immediately corresponding to the line in the "hazards" column containing "automobiles not owned or hired." The line in the "advance premiums" column is blank which immediately corresponds to the line in the "hazards" column containing "Garage operations including 1. All automobiles." Appellant contends that if the stated premiums apply only to "automobiles not owned or hired," the meaning would be clearer if the hazards covered were located immediately adjacent to the premium amount or if the word "nil" were placed in the blank spaces in the "advance premium" column.
While it may be that there are ways to make the premium schedule clearer than it is, there is no doubt that the policy, as written, applies only to "automobiles not owned or hired" and does not cover the accident in question. There is no ambiguity.
Appellant contends that the insurance policy should be construed against the insurer, but that rule is applicable only when there is an ambiguity. Lontkowski v. Ignarski (1959), 6 Wis.2d 561, 95 N.W.2d 230; Vaudreuil Lumber Co. v. Aetna Casualty Surety Co. (1930), 201 Wis. 518, 520, 230 N.W. 704. See also Inter-Insurance Exchange v. Westchester Fire Ins. Co., supra, footnote 7, at pages 104, 105.
In granting summary judgment to the insurer the trial court concluded that plaintiff presented no other issue that required trial. It noted that on page 10 of his deposition, defendant Leonard Richardson stated that he felt that he was covered by Great Central Insurance Company at the time of his son's accident. However, the trial court concluded that Mr. Richardson's statement was a mere conclusion of law and did not raise an issue of fact on a motion for summary judgment. No mistake of fact, mistake of law, or issue of misrepresentation was alleged in the pleadings. No issue of estoppel was pleaded, although the father did state in his deposition that he reported the accident to Great Central, and they did nothing about denying coverage.
Thus, the only question presented to the trial court was the question of construction of the policy — a question of law properly resolved by motion for summary judgment.
By the Court. — Order and judgment affirmed.