February 6, 1951 —
March 6, 1951.
APPEAL from an order of the circuit court for Winnebago county: HELMUTH F. ARPS, Circuit Judge. Affirmed.
For the appellant there was a brief by Toebaas, Hart, Kraege Jackman of Madison, and oral argument by W. L. Jackman.
F.W. Cosgrove, attorney, and S. Richard Heath of counsel, both of Fond du Lac, for the respondent.
This action to recover damages for personal injuries was begun September 10, 1946, against the alleged tort-feasor and his insurer. The insurer answered separately to the effect that its policy did not afford coverage under the facts of the case. On the pleadings and the policy it moved for summary judgment. On September 11, 1950, the court entered an order denying the motion and the defendant insurer has appealed.
The facts are agreed upon as stated in appellant's brief, to wit:
"Hardware Mutual Casualty Company (hereinafter referred to as `Hardware Mutual') insured William H. Clausen. Clausen, at the time of the automobile accident complained of, was an employee of the Minneapolis, St. Paul Sault Ste. Marie Railroad Company (hereinafter referred to as `Soo Line') and was in the course of his employment when the accident occurred. Plaintiff at the time he was injured rode with Clausen and was also an employee of the Soo Line at the time of injury and was in the course of his employment. Soo Line is an interstate railroad.
"Plaintiff claims that he was injured as the result of the negligent operation by Clausen, who is now deceased, of his car at and about the time and place of the accident.
"The policy of insurance provided that the named insured was William H. Clausen. It insured him `subject to the limits of liability, exclusions, conditions, and other terms of this policy' by agreeing (Coverage A) `To pay on behalf of the insured all sums which the insured shall become obligated to pay by reason of the liability imposed upon him by law for damages . . . because of bodily injury . . . sustained by any person . . . caused by accident and arising out of the ownership, maintenance, or use of the automobile.'
"The policy provides, `Definition of "Insured." The unqualified word "insured" wherever used in coverages A and B and in other parts of this policy, when applicable to such coverages, includes the named assured and, except where specifically stated to the contrary, also includes any person while using the automobile and any person or organization legally responsible for the use thereof . . . .'
"The policy under the heading `Exclusions,' expressly provided: `This policy does not apply: . . . d. under coverages A and K, to bodily injury to or death of any employee of the insured while engaged in the employment, other than domestic, of the insured, or while engaged in the operation, maintenance, or repair of the automobile.'
"The accident occurred in 1944 and hence is covered by the statutes of 1943."
sec. 204.30 (3), Stats., has remained unchanged since 1943. Numerous cases have come before us requiring its interpretation and have resulted in decisions which it now seems impossible to reconcile. In such a situation we consider it advisable to re-examine the statute with as little bias as possible because of what we have said on other occasions. So viewed, and in the light of our experience with many cases which have presented various aspects of the problems which the statute is designed to treat, we conclude that by the purchase and sale of a policy such as the one described in the foregoing statement of facts the insurer and the named insured have agreed that the latter shall not have insurance against claims brought by his own employees against him. By the "Definition of `Insured'" in the policy and by the omnibus coverage of sec. 204.30 (3) incorporated in the policy by law, the indemnity which the named insured has is extended to apply in the same manner and under the same provisions as it is applicable to the named assured to those who operate the automobile with the named assured's consent, and also to those who are legally responsible for its operation, provided that operation is with the consent of the named assured. That is, assuming such consent, just as the named assured has no insurance protection if the claim is by his own employee but is protected against the claims of all others, so an additional insured has no protection when the claim is by his employee but is protected against the claims of persons not so related to him, no matter who else may be the employer of the claimant.
Insurance companies have consistently attempted to limit their liability by proposing that if any possible party against whom the injured person might have made a claim was such person's employer, then the actual defendant, regardless of such relationship, is excluded from coverage. We do not think that this was the intent of the legislature when it enacted sec. 204.30 (3), Stats., nor that such a result is required by the language of that section.
To direct our attention to the instant case, Clausen bought a policy which did not provide coverage for him if claim was made arising from the bodily injury or death of any of his employees while engaged in the employment but which did protect him against the claims of others. Sandstrom was such another and the insurer must give to Clausen the protection specified. If Sandstrom had sued the Soo Line, as the principal of Clausen, the tort-feasor, the insurer would not have had to protect that defendant since it had covenanted not to insure against claims brought by the employee of the party calling for protection. The lack of coverage accorded the actual employer of the plaintiff cannot be carried over to withdraw protection when the claim is made by the employee of any other than the party against whom the action is brought. Accordingly, Clausen's insurer, Hardware Mutual Casualty Company, must protect him to the limits of its policy against the claim of Sandstrom who was not his employee, and the learned trial court committed no error in denying the company's motion for summary judgment dismissing plaintiff's complaint against it. It has been urged upon us that Narloch v. Church (1940), 234 Wis. 155, 290 N.W. 595, and Vick v. Brown (1949), 255 Wis. 147, 38 N.W.2d 716, have already overruled Brandt v. Employers' Liability Assur. Corp. (1938), 228 Wis. 328, 280 N.W. 403. Whether they did or not, we recognize and expressly state that our instant decision does so.
By the Court. — Order affirmed. Cause remanded for further proceedings according to law.