From Casetext: Smarter Legal Research

D'Angelo v. Cornell Paperboard Products Co.

Supreme Court of Wisconsin
Jun 5, 1973
207 N.W.2d 846 (Wis. 1973)


stating the rule of interpreting a contract against its drafter is inapplicable where the contract is unambiguous

Summary of this case from Am. Family Mut. Ins. Co. v. Hollander


No. 315.

Submitted under sec. (Rule) 251.54 May 3, 1973. —

Decided June 5, 1973.

APPEAL from a judgment of the circuit court for Milwaukee county: ROBERT M. CURLEY, Circuit Judge. Affirmed.

For the intervening plaintiff-appellant the cause was submitted on the briefs of Gibbs, Roper Fifield of Milwaukee.

For the respondent the cause was submitted on the brief of Kivett Kasdorf, attorneys, and Clifford C. Kasdorf and Russell M. Ware of counsel, all of Milwaukee.

The facts for the purpose of this appeal are this suit was brought by Employers Mutual Liability Insurance Company (Employers), a comprehensive liability insurer of Cornell Paperboard Products Company (Cornell), defendant-appellant; the interpleaded defendant was the Indemnity Insurance Company of North America (Indemnity), which issued an automobile liability policy to. Cornell; the facts are stipulated. On January 9, 1958, James D'Angelo, an employee of Fred Olson Motors, Inc., was making a delivery of bales of paper to Cornell by truck. The bales were unloaded by an employee of Cornell using a forklift, and in the process D'Angelo sustained serious personal injuries.

In June, 1961, Employers paid D'Angelo $120,000 in a third-party liability suit brought by him, accepted subrogation rights from him and his employer's workmen's compensation insurance carrier, and based on this assignment Employers sought to recover from Indemnity $300,000. In the first appeal to this court, we approved the subrogation by way of assignment to Employers but restricted any recovery to the $120,000 paid. Thereafter, a second appeal was taken involving the pleadings as they then stood. On this appeal we reversed the trial court and held that a forklift truck being operated on private property was not a "motor vehicle" for the purpose of the direct-action statute, but that Indemnity had waived such a defense by first asserting a defense of no-policy coverage.

D'Angelo v. Cornell Paperboard Products Co. (1963), 19 Wis.2d 390, 120 N.W.2d 70.

D'Angelo v. Cornell Paperboard Products Co. (1967), 33 Wis.2d 218, 147 N.W.2d 321.

This case then found itself at trial on the separate issue concerning the insurance coverage afforded by Indemnity's automobile liability policy to Cornell. The trial court held the policy did not cover forklifts and dismissed Employers' cross complaint. From this judgment, Employers appeals.

The only issue presented is whether Indemnity's comprehensive automobile liability policy extended extended insurance coverage when a forklift was involved. Employers contends the court has already intimated that the forklift in this accident was an automobile within the definition of Indemnity's policy; in the second D'Angelo Case, this court only considered whether a forklift was a motor vehicle for the purpose of the direct-action statute as it was then written. Whatever construction we gave the direct-action statute does not decide whether an insurance policy covers a specific vehicle.

Sec. 260.11 (1), Stats., was amended by ch. 198, Laws of 1969, to apply to liability insurers generally. For a discussion of the history of this section, see Shipman v. Kenosha Unified School District No. 1 (1973), 57 Wis.2d 697, 205 N.W.2d 399.

In interpreting and construing an insurance contract, ". . . the objective should be to ascertain the true intention of the parties." Home Mut. Ins. Co. v. Insurance Co. of North America (1963), 20 Wis.2d 48, 51, 121 N.W.2d 275; Inter-Insurance Exchange v. Westchester Fire Ins. Co. (1964), 25 Wis.2d 100, 104, 130 N.W.2d 185. Ambiguities in an insurance contract are to be resolved against the insurer who drafted it and in favor of the insured. Kopp v. Home Mut. Ins. Co. (1959), 6 Wis.2d 53, 94 N.W.2d 224; Luckett v. Cowser (1968), 39 Wis.2d 224, 159 N.W.2d 94.

However, where no such ambiguity exists, the rule of strict construction against insurers is not applicable. Leatherman v. American Family Mut. Ins. Co. (1971), 52 Wis.2d 644, 190 N.W.2d 904; Westerman v. Richardson (1969), 43 Wis.2d 587, 168 N.W.2d 851. To do otherwise would be ". . . to bind an insurer to a risk which it did not contemplate and for which it was not paid . . . ." Inter-Insurance Exchange v. Westchester, supra, at p. 104.

These general rules apply between insurance companies where one insurance company's rights depend upon subrogation of the insured. In this case we do not think it makes any difference whether a strict construction or a regular construction is given Indemnity's policy. We find no ambiguity calling for strict construction and we cannot apply that rule of interpretation to create one.

In ascertaining the intention of Cornell and Indemnity, the contract should be construed whenever possible so that each sentence, phrase or word used will have some meaning, and none of the language discarded as superfluous or meaningless. Rabinovitz v. Travelers. Ins. Co. (1960), 11 Wis.2d 545, 105 N.W.2d 807; Lontkowski v. Ignarski (1959), 6 Wis.2d 561, 95 N.W.2d 230; Inter-Insurance Exchange v. Westchester Fire Ins. Co., supra.

In construing a contract, the particular construction given to it by the parties thereto is of some importance, that is, the conduct of a contracting party while acting under the contract — can be on some facts a "most persuasive" element in construing an insurance contract. Taylor v. Hill (1893), 86 Wis. 99, 56 N.W. 738; Home Mut. Ins. Co. v. Insurance Co. of North America, supra; Inter-Insurance Exchange v. Westchester Fire Ins. Co., supra. Here, Cornell, the insured, immediately notified its public liability carrier Employers of the forklift accident. However, Cornell did not notify its automobile liability carrier for over a year and a half; indeed it is stipulated that Cornell felt its public liability insurance provided the applicable coverage. As late as July 29, 1959, Cornell's assistant secretary-treasurer informed the automobile liability carrier that Cornell assumed its automobile policy with it was not relevant to this accident.

We do not need to decide whether a forklift is or is not an automobile within the policy definition. On appeal, Employers contends the trial court, in making its decision, used the word "coverages" in its conclusory sense, i.e., whether or not a person or vehicle is "covered" by the policy. Coverage or coverages as that word is generally used refers to the sum of risks which an insurance policy covers. See: Smith v. National Indemnity Co. (1973), 57 Wis.2d 706, 205 N.W.2d 365; Freimuth v. Glens Falls Ins. Co. (1957), 50 Wn.2d 621, 314 P.2d 468; Seabaugh v. Sisk (Mo.App. 1967), 413 S.W.2d 602. Employers argues that it is because of the policy's reference to "any automobile" in the insurance clause and therefore any accident caused by the use of the forklift comes within the coverage of the policy. Assuming a forklift is an automobile, we do not read the policy or find the intention of the parties to cover them in the automobile policy, nor can we accept Employers' argument that the insuring clause overrides other parts of the contract. The insuring clause is broad and must be read with all the terms of the policy. Insurance policies are "created" by taking standard forms and adding standard endorsements in the hopes that the basic form and all the endorsements attached express the intent of the parties. The exclusions and additions in a policy are as much a part of the policy as the insuring clause. Declarations of the risks or hazards covered also qualify the broad language of an insuring clause. In this case, a declaration added to the policy listed 22 automobiles. Cornell had 15 forklifts, but they were not listed.

It is argued by Employers that the scheduling of the automobiles was merely for the convenience of rate-making and not a limitation of the hazards assumed. We think this is a misconstruction of the purpose of an insurance policy. Premiums are based upon the hazards assumed. Where the premium cannot be determined at flat rate, it is under some policies determined as an advance premium with retrospective adjustment depending upon the actual risk the automobiles created. It is impossible for us to see how the retrospective-rating feature includes other risks than those specified. We can see substitutions and perhaps additions of automobiles on the schedules if the endorsement so provides, but we cannot adopt a rule of construction that retrospective determination of premiums enlarges the hazards assumed.

Cases are cited by Employers from other states seemingly holding that the insuring agreement part of the insurance contract is controlling, but such a rule has not been adopted in this state and other states are to the contrary.

Iowa National Mut. Ins. Co. v. Fidelity Casualty Co. (1964), 256 Iowa 723, 128 N.W.2d 891; Indiana Lumberman's Mut. Ins. Co. v. Russell (1962), 243 La. 189, 142 So.2d 391; Murry v. Bankers Fire Marine Ins. Co. (La.App. 1967), 198 So.2d 532.

We must conclude that the construction of the automobile policy contended for by Employers is neither logical nor desirable and does not comport with the conduct of the parties under the agreement. The trial court committed no error in holding Indemnity's policy did not in fact cover the forklifts.

By the Court. — Judgment affirmed.

Summaries of

D'Angelo v. Cornell Paperboard Products Co.

Supreme Court of Wisconsin
Jun 5, 1973
207 N.W.2d 846 (Wis. 1973)

stating the rule of interpreting a contract against its drafter is inapplicable where the contract is unambiguous

Summary of this case from Am. Family Mut. Ins. Co. v. Hollander

In D'Angelo v. Cornell Paperboard Products Co., 59 Wis.2d 46, 207 N.W.2d 846 (1973), the Court points out that an exclusion serves the purpose of taking out persons or events otherwise included in the defined scope of insurance coverage, and coverage refers to the sum of the risk against which the policy provides protection.

Summary of this case from Dallas Glass, Etc. v. Bituminous F. M. Ins. Co.

In D'Angelo v. Cornell Paperboard Products Co., 59 Wis.2d 46, 51, 207 N.W.2d 846, 849 (1973), the court said, "Coverage or coverages as that word is generally used refers to the sum of risks which an insurance policy covers."

Summary of this case from Employers Ins. v. Blue Cross Blue Shield

In D'Angelo, the Supreme Court of Wisconsin held that where an automobile policy referred to "any automobile" in the insuring clause but included a schedule listing 22 specific vehicles, it did not cover a forklift owned by the defendant which was not among the vehicles listed.

Summary of this case from Harbor Ins. Co. v. United Services Auto. Ass'n
Case details for

D'Angelo v. Cornell Paperboard Products Co.

Case Details


Court:Supreme Court of Wisconsin

Date published: Jun 5, 1973


207 N.W.2d 846 (Wis. 1973)
207 N.W.2d 846

Citing Cases

Schroeder v. Blue Cross Blue Shield

Coverage refers to the sum of risks which an insurance policy covers. D'Angelo v. Cornell Paperboard Prods.…

LeBlanc v. State Farm Ins. Co.

"Coverage", a word of precise meaning in the insurance industry, refers to protection afforded by an…