2010 WI App 165
court of appeals of
published opinion
Case No.: |
2009AP2385 |
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Complete Title of Case: |
†Petition for Review Filed |
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Todd Olson, Plaintiff, v. Robert Farrar, Defendant-Appellant, Mt. Morris Mutual Insurance Company, Intervenor-Defendant-Respondent.† |
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Opinion Filed: |
November 18, 2010 |
Submitted on Briefs: |
August 6, 2010 |
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JUDGES: |
Lundsten, Higginbotham and Sherman, JJ. |
Concurred: |
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Dissented: |
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Appellant |
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ATTORNEYS: |
On behalf of the defendant-appellant Robert Farrar, the
cause was submitted on the brief of Michael L. Stoker, |
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Respondent |
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ATTORNEYS: |
On behalf of the intervenor-defendant-respondent Mt.
Morris Mutual Insurance Company, the cause was submitted on the brief of Jeffrey
T. Nichols, Stacy K. Luell, and Daniel
K. Mullin of |
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2010 WI App 165
COURT OF APPEALS DECISION DATED AND FILED November 18, 2010 A. John Voelker Acting Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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Appeal No. |
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STATE OF |
IN COURT OF APPEALS |
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Todd Olson, Plaintiff, v. Robert Farrar, Defendant-Appellant, Mt. Morris Mutual Insurance Company, Intervenor-Defendant-Respondent. |
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APPEAL
from an order of the circuit court for
Before Lundsten, Higginbotham and Sherman, JJ.
¶1 Sherman, J. Robert Farrar appeals from an order of
summary judgment in favor of Mt. Morris Mutual Insurance Company (
BACKGROUND
¶2 Todd Olson filed a complaint against Farrar for damages allegedly sustained to Olson’s mobile home and truck when Farrar moved Olson’s mobile home to a new location with Farrar’s tractor. Olson was following behind the tractor and the mobile home in his truck. The complaint alleged that while Farrar was pulling the mobile home, the tractor “stalled on a hill causing the trailer home to go backwards on the road and crash into [Olson’s truck].” Olson alleged that as a result, his vehicle and the mobile home “were extensively damaged.”
¶3 On the date that Farrar moved Olson’s mobile home, Farrar was
insured by an insurance policy issued by
INCIDENTAL
LIABILITY COVERAGES
This policy provides the following Incidental Liability Coverages. They are subject to all of the “terms” of Coverages L and M….
….
5. Motorized Vehicles—“We” pay for the “bodily injury” or the “property damage” which:
….
b. results from:
….
2) a utility, boat, camp, or mobile home trailer. However, this coverage does not apply to “bodily injury” or “property damage” resulting from a trailer which:
a) is carried on, towed by, or attached to a “motor vehicle” or a “recreational motor vehicle” ….
¶4
¶5 The circuit court granted
STANDARD OF REVIEW
¶6 “We review summary judgments de novo, applying the same
methodology as the circuit court.” Hardy
v. Hoefferle, 2007 WI App 264, ¶6, 306
¶7 This appeal requires us to interpret an insurance policy
which presents a question of law reviewed independently of the circuit court’s
determination. Johnson Controls, Inc. v. London
Market, 2010 WI 52, ¶24, 325
DISCUSSION
¶8
Scope of Our Review
¶9 Before we address the question of whether coverage for the
accident existed under the policy, we first clarify the extent of our review in
this case. Both Farrar and
¶10 When a court is charged with determining whether an insurer has
an initial duty to defend its insured, the court review is limited to the
language of the insurance contract and the allegations contained within the
four corners of the complaint. Estate
of Sustache v. American Family Mut. Ins. Co., 2008 WI 87, ¶20, 311
¶11 Prior to a determination of coverage, an insurer may be
required to furnish a free defense to its insured, Kenefick v. Hitchcock,
187 Wis. 2d 218, 235, 522 N.W.2d 261 (Ct. App. 1994), and a refusal to do so
may be a breach of the insurer’s duty to defend. Baumann, 286
Coverage Under the Policy
¶12 When determining whether coverage is provided under the terms
of an insurance policy, we first “examine the facts of the insured’s claim to
determine whether the policy’s insuring agreement makes an initial grant of
coverage. If it is clear that the policy
was not intended to cover the claim asserted, the analysis ends there.” American Family Mut. Ins. Co. v. American
Girl, Inc., 2004 WI 2, ¶24, 268
¶13 Under provision 5.b.2) of the policy’s “Motorized Vehicles” incidental coverage, the policy provides incidental liability coverage for property damage “result[ing] from … a … mobile home trailer” unless the property damage “result[ed] from a trailer which: a) is carried on, towed by, or attached to a ‘motor vehicle’ or a ‘recreational motor vehicle.’” The policy excludes from coverage property damage resulting from a motorized vehicle unless coverage was provided under the policy’s incidental motorized vehicle provisions. The policy also excludes from coverage property damage if the property is “occupied by, used by, or in the care of an ‘insured.’” There appear to be no exceptions to these exclusions.
¶14 Thus, for there to be coverage in the present case under the policy’s motorized vehicle incidental liability coverage: (1) the property damage must have resulted from a “mobile home trailer”; (2) the “trailer” must not have been “towed by, or attached to a ‘motor vehicle’”; and (3) the property damaged must not have been “occupied by, used by, or in the care of” Farrar.
1. Whether
Olson’s Property Damage Resulted
from a
“Mobile Home Trailer”
¶15 Farrar contends that the policy provides coverage because,
under the policy language in provision 5.b.2), the property damage to Olson’s
mobile home and truck “result[ed] from … a … mobile home trailer.”
¶16
¶17 If words or phrases in a policy of insurance are susceptible to
more than one reasonable interpretation, that language is ambiguous. Donaldson v. Urban Land Interests, Inc.,
211
2. Whether the “Trailer” was Attached to a
“Motor Vehicle”
¶18 Provision 5.b.2) contains an exception to coverage that applies
when the trailer is “attached to a ‘motor vehicle.’”
¶19 “Motor vehicle” is defined by the policy as a motorized vehicle
designed for use on public roads. The
question in this case is whether Farrar’s tractor was designed for use on
public roads. Unless a term is technical
or specially defined, it is construed according to its common and approved
usage, which may be established by resort to recognized dictionaries. Northwest Properties v.
¶20 The flaw in
¶21 The tractor at issue is a Massey Ferguson model number 1130. The manual for the tractor makes plain that the manufacturer anticipates that a user will sometimes operate the tractor on public roads. For example, the manual asks: “Will you at all times use the SLOW MOVING VEHICLE sign and warning lights when moving your equipment on the highway?” The manual also recommends that the operator of the tractor “[u]se safety lights and SMV Emblem when equipment is being driven on the road or highway.” But the relevant question is not whether the manufacturer anticipated that the tractor would be operated on public roads, but whether the tractor, or some aspect of it, was designed for such use. On this topic the submissions are bare. Nothing in the manual suggests that the tractor has any features designed to make it more road worthy. For example, there is no evidence that it came equipped with warning lights designed for safer travel on highways. In addition, undisputed averments show that Farrar’s tractor had “never had brake lights, tail lights, turn signals or other safety devices for highway use,” and that it had always been outfitted with “field tires,” rather than tires meant for highway use. Although the submissions describe the tractor’s current equipage, they do not address how the tractor was originally equipped.
¶22 Because Mt. Morris fails to point to any undisputed facts showing Farrar’s tractor, or any aspect of it, was designed for use on a highway, we conclude it does not meet the policy’s definition of a “motor vehicle,” namely, a motorized vehicle “designed for use on public roads.” The circuit court erred in concluding otherwise.
3. Whether Coverage is Precluded by an Exclusion
in the Mt. Morris Policy Concerning Property Used by or in the Care of the
Insured
¶23
2. Additional Exclusions That Apply Only to Coverage L – Coverage L does not apply to:
….
d. damage to property that is rented to, occupied by, used by, or in the care of an “insured,” except for “property damage” to an “insured premises” caused by fire, smoke, or explosion.
¶24
¶25 In Silverton, the court stated that “if the property damaged is
under the supervision of the insured and that supervision is a necessary
element of the work involved, the property is in the care, custody or control
of the insured.”
¶26 According to
¶27 The present situation is distinguishable from that in Silverton. In Silverton, the automobiles were left by their owners in the sole possession of the insureds for repairs to be done by the insureds, not the owners. Here, however, the undisputed facts show that Olson’s mobile home had not been left in Farrar’s sole possession. The mobile home was being towed by Farrar, but Olson was also present—he apparently assisted in the moving of the mobile home by following behind Olson’s trailer as it towed the mobile home.
¶28 Because the circumstances in this case do not fall within the exception carved out by Silverton to the controlling law in Wisconsin that “care, custody, or control” exclusions are ambiguous, see Silverton, 143 Wis. 2d at 670, we conclude that the “occupied by, used by, or in the care of an ‘insured’” provision in the policy at issue in this case is ambiguous and construe it in favor of Farrar.
CONCLUSION
¶29 For the reasons discussed above, we conclude that the damage in
this case resulted from a “mobile home trailer” and that the property damaged
was not “occupied by, used by, or in the care of” Farrar. We further conclude that
By the Court.—Order reversed and cause remanded with directions.
[1] Provision 5.b. of the policy also provided:
3) a “motorized vehicle” which is designed only for use off public roads and which is used mainly to service the “insured premises.” However, this coverage does not apply to “bodily injury” or “property damage” which results from a “motorized vehicle” owned by an “insured” while used for recreational purposes away from the “insured premises,” other than a golf cart while used for golfing purposes.
The circuit court ruled that there is no coverage under this provision of the policy because the tractor was not designed for use only off public roads. Farrar does not challenge on appeal this determination. We therefore do not address that issue.
[2] All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.
[3] The
circuit court questioned whether a “mobile home trailer” was involved in the
accident and stated that it could “make [a] reasonable inference from the facts
listed in the complaint that a mobile home trailer wasn’t used.” Farrar maintains that Olson’s mobile home was
a “mobile home trailer” under the terms of the policy and this assertion is not
disputed by
[4] Although
the circuit court did not reach this issue, it was raised by