PUBLISHED OPINION
Case No.: 94-3353
† Petition
for Review filed.
Complete Title
of Case:
JOHN HINZ and BETH SAEMANN,
Plaintiffs,
v.
CHRISTOPHER LEET,
Defendant-Joint-Appellant,
ALL AMERICAN INSURANCE
COMPANY, a foreign
corporation,
Defendant,
TRANSPORTATION INSURANCE
COMPANY,
Defendant-Respondent,
THRESHERMEN'S MUTUAL
INSURANCE COMPANY,
Defendant-Appellant.
†
Submitted on Briefs: August 1, 1995
Oral Argument: ---
COURT COURT OF APPEALS OF WISCONSIN
Opinion Released: September 26, 1995
Opinion Filed: September
26, 1995
Source of APPEAL Appeal from a judgment
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Milwaukee
(If
"Special", JUDGE: MICHAEL J. SKWIERAWSKI
so indicate)
JUDGES: Wedemeyer, P.J., Fine and Schudson, JJ.
Concurred: ---
Dissented: ---
Appellant
ATTORNEYSFor the defendant-appellant, Threshermen's Mutual
Insurance Company, the cause was submitted on the briefs of Otjen, Van Ert,
Stangle, Lieb & Weir, S.C. with Thomas J. Binder, of Milwaukee
Joint-
Appellant
ATTORNEYSFor the defendant-joint-appellant, Christopher Leet, the
cause was submitted on the briefs of McClario & Helm, S.C. with Michael
Bertling, of Milwaukee.
Respondent
ATTORNEYSFor the defendant-respondent the cause was submitted on
the briefs of Godfrey, Braun & Hayes, with W. Patrick Sullivan
and Jane F. Brennan, of Milwaukee.
COURT OF APPEALS DECISION DATED AND RELEASED September
26, 1995 |
NOTICE |
A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals.
See § 808.10 and Rule
809.62, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 94-3353
STATE OF WISCONSIN IN
COURT OF APPEALS
JOHN
HINZ and BETH SAEMANN,
Plaintiffs,
v.
CHRISTOPHER
LEET,
Defendant-Joint-Appellant,
ALL
AMERICAN INSURANCE
COMPANY,
a foreign
corporation,
Defendant,
TRANSPORTATION
INSURANCE
COMPANY,
Defendant-Respondent,
THRESHERMEN'S
MUTUAL
INSURANCE
COMPANY,
Defendant-Appellant.
APPEAL
from a judgment of the circuit court for Milwaukee County: MICHAEL J. SKWIERAWSKI, Judge. Affirmed.
Before
Wedemeyer, P.J., Fine and Schudson, JJ.
SCHUDSON,
J. Christopher Leet and Threshermen's
Mutual Insurance Company appeal from a judgment dismissing their claims against
Transportation Insurance Company and Northland Insurance Company. The trial court concluded that Leet was a
non-permissive driver and, therefore, was not covered by a Transportation Insurance Company insurance
policy issued to his employer.[1] We affirm.
The
facts of this case are undisputed. On
October 27, 1990, Leet drove through a stop-sign and collided with the pickup
truck occupied by the plaintiffs, John Hinz and Beth Saemann. Leet was driving a dump-truck owned by his
employer, Lied's Nursery Company, Inc., which was insured by
Transportation. Hinz and Saemann
brought an action alleging that they were injured as a result of Leet's
negligence, and claiming that there was liability coverage for Leet under the
Transportation policy or, alternatively, under the uninsured motorist provision
of Hinz's Threshermen's policy.
At the time of the
accident, Leet was working on a three-week out-of-town job in Sheboygan, Wisconsin. Two days prior to the accident, David Held,
a production superintendent for Lied's, traveled to the work site in Sheboygan
and told Leet and Randy Nance, a Lied's foreman, that Leet could no longer
drive the company truck because the company's auto insurer had determined that
Leet was a high-risk driver.
On
October 27, 1990, after a full day of work, Nance drove Leet back to the motel
where they were staying. Later that
evening, they went to a tavern, with Nance driving the company truck. Leet testified that when they left the
tavern, Nance, too drunk to drive, asked him or told him to drive and handed
him the keys. Driving back to the
motel, Leet ran a stop-sign and struck the pickup in which the plaintiffs were
traveling.
The
trial court bifurcated the trial to first determine the issue of whether Leet
had permission to operate the vehicle, before trying the underlying cause of
action. Before the case was submitted
to the jury, Transportation moved for a directed verdict and the trial court took
the motion under advisement. The jury
returned an affirmative answer to the special verdict question: “Did Christopher Leet have express or
implied permission of Lied's Nursery to drive the truck at the time of the
accident on October 27, 1990?” After
verdict, Transportation brought motions “pursuant to Sec. 805.14(b), (c) and/or
(d)” (motion for judgment notwithstanding the verdict, motion to change the
jury's answer, and motion for a directed verdict, respectively). The trial court granted Transportation's
motion for a directed verdict, stating:
I took a motion
for directed verdict under advisement at the conclusion of this trial because
of my concerns about the issue and the facts.
And the Supreme Court's preferred procedure is to let the matter go to a
jury, take the motion under advisement, and deal with it after the jury's
returned its verdict.
Under these
circumstances, I am going to grant the motion for a directed verdict. I do not believe there is any evidence in
this record to support a verdict and finding of permission either express or
implied. There is clearly no express
permission from the owner under these circumstances.[2]
The trial court rejected the argument that Nance acted
on behalf of the corporation, noting that it was undisputed that Nance acted
outside his scope of authority. The
trial court explained: “There was a
specific order from a corporate supervisor that Leet was not to drive the
vehicle—that order cannot be countermanded by some lower corporate employee in
a drunken condition.”
We agree. Section 632.32(5)(a), Stats., provides, in part, that “[a]
policy may limit coverage to use that is with the permission of the named
insured.” Lied's policy with
Transportation provided coverage for persons using covered vehicles with Lied's
permission. Leet did not have Lied's
permission to drive its truck.
In
Prisuda v. General Casualty Co., 272 Wis. 41, 74 N.W.2d 777
(1956), a mother gave her son permission to use a car but specifically
instructed that no one else be allowed to drive it. Id. at 43-44, 74 N.W.2d at 778. When the son became tired, however, he let a
friend drive and an accident occurred. Id.
at 44, 74 N.W.2d at 779. The supreme
court held that there was no coverage under the mother's insurance policy
because the son's friend did not have permission to drive the car. Id. at 49-50, 74 N.W.2d at
782. “[S]ince the use to which the car
was put by the permittee was not in conformity with that permitted by the named
assured, we are compelled to determine that the coverage of the policy did not
extend to [the son's friend] when he drove the car at the time in
question.” Id. at 50, 74
N.W.2d at 782. Similarly, Lied's
Nursery had the authority to refuse to allow Leet to drive any of its vehicles,
and no coverage can be imposed where the named insured refused permission to a
particular individual.
The
appellants argue that Prisuda is distinguishable. They contend that because Leid's is a
corporation it necessarily acts by and through its employees. Therefore, they maintain, when Nance handed
over the keys to Leet and told him to drive, Nance provided the corporation's
permission to drive. We disagree. Held, superior to both Nance and Leet,
specifically told Nance and Leet that Leet could not drive the company
truck. To accept the appellants'
argument would be to conclude that a drunk corporate employee can violate a
superior's order and thus grant the very permission that the corporation has
explicitly refused. That would be
absurd.
The
trial court correctly concluded that no evidence supported a verdict that Leet
had either express or implied permission to drive the company truck. Therefore, we affirm.
By
the Court.—Judgment affirmed.
[1] Northland
Insurance Company, a third-party defendant, was Leet's personal auto liability
insurer, which the trial court determined provided excess coverage.
[2] The trial court
applied the correct standard in analyzing the motion for a directed verdict on
the issue of whether the permissive use question should have been submitted to
the jury. See § 805.14(1),
(4) & (5)(d), Stats.; City
of Omro v. Brooks, 104 Wis.2d 351, 358, 311 N.W.2d 620, 624 (1981)
(standard for granting a directed verdict is whether there is an absence of
material disputed fact and no credible evidence or reasonable inference in
support of non-movant); Liebe v. City Finance Co., 98 Wis.2d 10,
18-19, 295 N.W.2d 16, 20 (Ct. App. 1980) (directed verdict should be granted
only “where the evidence is so clear and convincing that a reasonable and
impartial jury properly instructed could reach but one conclusion,” or there is
an absence of disputed material fact).
Therefore, we need not analyze the trial court's ruling in terms of a
motion to change the jury's answer, see § 805.14(5)(c), Stats., (“Any party may move the court
to change an answer in the verdict on the ground of insufficiency of the
evidence to sustain the answer.”), or a motion notwithstanding the verdict, see
§ 805.14(5)(b), Stats., (“A
party against whom a verdict has been rendered may move the court for judgment
notwithstanding the verdict in the event that the verdict is proper but, for
reasons evident in the record which bear upon matters not included in the
verdict, the movant should have judgment.”).
See Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W.
663, 665 (1938) (only dispositive issue need be addressed).