COURT OF APPEALS DECISION DATED AND RELEASED DECEMBER 27, 1996 |
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(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-1113
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
NAO S. THAO and LIA V.
THAO,
Plaintiffs-Co-Appellants,
CARVER BOAT CORPORATION,
Involuntary Plaintiff,
v.
THE TRAVELERS
INSURANCE COMPANY,
EXPERIENCE MARINE,
INC., KENNETH J.
BERNA, SECURA
INSURANCE, a mutual
company, and AMERICAN
PREMIER
INSURANCE COMPANY,
Defendants.
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MAI KHO LEE; YOUA THAO and
BRENDA THAO, minors, by
their guardian ad litem,
RANDALL E. REINHARDT,
Plaintiffs-Appellants,
v.
THE TRAVELERS INSURANCE COMPANY,
EXPERIENCE MARINE, INC., and KENNETH
R. BERNA,
Defendants,
SECURA INSURANCE, a mutual company,
Defendant-Respondent.
APPEAL from a judgment
of the circuit court for Brown County:
WILLIAM C. GRIESBACH, Judge. Affirmed.
Before Cane, P.J., Myse
and Carlson, JJ.
CANE, P.J. Nao S. Thao, Lia V. Thao, Mai Kho Lee, Youa
Thao and Brenda Thao (appellants) appeal a summary judgment granted to Secura
Insurance, applying Secura's car insurance policy exclusion for the regular or
frequent use of a vehicle, thus barring coverage for Kenneth Berna's use of his
employer's truck in the automobile accident in which appellants were
injured. Secura had issued a personal
car insurance policy to Berna. The
court concluded that Berna's use of his employer's truck fell within Secura's
regular or frequent use exclusion, dismissed all claims against Secura, and
decided that Secura had no duty to defend or indemnify Berna.
Appellants argue that
the court erred when it considered Berna's use of the employer's truck for both
business and personal purposes in order to determine that his use was regular
or frequent. They assert that Berna's
use of the truck on the night of the accident was restricted, isolated, of
limited duration and, therefore, insufficient as a matter of law to constitute
regular or frequent use. Because we
conclude that Berna's indisputably consistent use of the truck to commute to
and from work in the weeks preceding the accident constituted both personal and
regular or frequent use, we affirm the judgment.
The accident occurred on
March 16, 1994, on State Highway 32 near Quarry Road in the town of
Pittsfield. Berna drove his employer's
Ford pickup truck from work to a restaurant to meet with his boss, another
employee, and a truck driver from another company for a drink. As Berna was on his way home from the
restaurant, he strayed into oncoming traffic and hit a vehicle driven by Cheng
Thao head on, killing Cheng Thao and injuring Nao S. Thao, a passenger. Berna was arrested at the scene for
operating a motor vehicle while intoxicated, and subsequently entered a plea of
no contest to one count of homicide by intoxicated use of a vehicle. Appellants sued Berna and his insurer,
Secura, whose policy contained an exclusion for Berna's regular or frequent use
of a vehicle not insured in Berna's name by Secura.
Berna
was an employee of Experience Marine, Inc. (EMI). EMI owned the Ford truck involved in the accident and a Ford
Bronco. Berna testified that as a
regular part of his job, he used the vehicles to pick up or move supplies
around. His use of the vehicles for
business purposes fluctuated, depending on the duties he performed for
EMI. Berna testified that sometimes he
would use an EMI vehicle once a week, and sometimes he would use one five times
a week. In the weeks preceding the
accident, EMI was moving to a new location, and the truck was being used
frequently because the employees were driving it back and forth between the two
facilities. Additionally, as a part of
his job and upon EMI's owner's request, Berna would sometimes take the truck
home to his residence in Pulaski, pick up supplies at Carver Boat in Pulaski
the next morning, and then drive twenty-two miles to EMI in Ashwaubenon.
During the three or four
weeks preceding the accident, EMI's owner, Leonard J. Ginter, gave Berna
permission to use the truck as a replacement for his own vehicle when Berna's
own vehicle, a Ford Pinto, would not start and then was in a repair shop for
one week because of transmission and electrical problems.[1] Berna testified that the repairs were
completed approximately one week after the accident. While the Pinto was out of service and in the repair shop, Berna
drove the truck during the three to four weeks leading up to the accident to
commute to and from work, with Ginter's permission to use the truck, without
restriction, as a substitute for the Pinto for whatever purpose he may have
needed it. When Ginter gave Berna
permission to use the truck, he knew that Berna's Pinto was broken down and
would subsequently be in the repair shop.
Although Ginter testified that he asked Berna to get the Pinto fixed as
soon as possible, he did not set a finite time period for Berna to use the
truck for his usual, everyday activities.
The issue on appeal is
whether Secura's regular or frequent use exclusion applies to Berna's use of
his employer's truck. Here, both
parties moved for summary judgment.
Summary judgment is appropriate if "the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the
affidavits ... show that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of law." Section 802.08(2), Stats. However,
"[w]hen both parties move by cross-motions for summary judgment, it is
'the equivalent of a stipulation of facts permitting the trial court to decide
the case on the legal issues.'" Friendship
Village v. Milwaukee, 181 Wis.2d 207, 219, 511 N.W.2d 345, 350 (Ct.
App. 1993) (citation omitted). The interpretation
of an exclusionary clause in an insurance policy presents a question of law,
which we review independently of the trial court. See American
States Ins. Co. v. Skrobis Painting & Decor., Inc., 182 Wis.2d 445,
450, 513 N.W.2d 695, 697 (Ct. App. 1994).
The pertinent provision
of Secura's insurance policy excludes liability coverage for the following:
Bodily
injury or property damage resulting from the ownership,
maintenance or use of a vehicle, other than your insured car, which is
owned by, registered in the name of or furnished or available for regular or
frequent use by you, a relative, or any other person living in your
household. (Emphasis in original.)
Our supreme court has
decided that regular or frequent use exclusions in car insurance policies are
unambiguous. Jones v. Perkins,
75 Wis.2d 18, 23, 248 N.W.2d 468, 471 (1977).
The purpose of a regular or frequent use exclusion is to cover the
insured for infrequent or casual use of a vehicle not described in the
insurance policy, but not to provide liability coverage to the insured who
regularly or frequently uses such a vehicle "as that increases the risk to
an insurance company without a corresponding increase in premium." Hochgurtel v. San Felippo, 78
Wis.2d 70, 81, 253 N.W.2d 526, 530 (1977).
Additionally, we are mindful that the "signposts" of
"regular use" include "continuous use rather than sporadic use;
frequent use rather than infrequent or merely casual use; unqualified use
rather than restricted use; use for an indefinite period rather than a definite
period; usual use rather than unusual use." See id. at 82, 253 N.W.2d at 531.
Secura contends that
Berna now seeks liability coverage from Secura for his use of EMI's truck as a
replacement for the Pinto when he had canceled coverage and stopped paying an
insurance premium to Secura for the Pinto more than three months prior to the
accident. Had Berna been driving his
uninsured Pinto at the time of the accident, there appears to be no dispute
that Secura's regular and frequent use exclusion would apply. However, Berna did continue insurance
coverage for his Corsica, and the issue remains whether Berna's use of the
company vehicle falls within the regular and frequent use exclusion.
Our interpretation and
application of the term "regular use" depends upon the particular
facts and circumstances of this case. See
Le Mense v. Thiel, 25 Wis.2d 364, 367, 130 N.W.2d 875, 876
(1964). It is undisputed that Berna
used the truck to drive to and from work at least five days a week for the
entire three to four week period before the accident. In Moutry v. American Mut. Liab. Ins. Co., 35
Wis.2d 652, 151 N.W.2d 630 (1967), our supreme court decided that the regular
use exclusion in a car insurance policy applied when the defendant-insured used
a non-owned vehicle not named in his insurance policy for a two and a half week
period to commute between Milwaukee and Kenosha for work. Id. at 658-59, 151 N.W.2d at
633. In the words of the court,
[I]t
is manifest the automobile furnished [to defendant-insured] without restriction
and for an indefinite period was "furnished for his regular use"
.... That [the defendant-insured] used
the automobile as a mode of transportation to and from his employment and
apparently not on other occasions does not negate a finding of "regular
use."
Id. Pursuant to Moutry, the
exclusion applies because Berna had regular or frequent use of the truck for
the commute in the three or four weeks before the accident. See id. at 659, 151 N.W.2d at
633. We consider Berna's consistent use
of the truck for the commute between work and home to be his personal use of
the truck. See Doering v. LIRC,
187 Wis.2d 472, 479, 523 N.W.2d 142, 145 (Ct. App. 1994) ("An employee
going to work is ordinarily in the prosecution of his or her own business, not
performing services incidental to employment."). Because we are satisfied that Berna's personal use of the truck
for the commute falls within Secura's regular or frequent use exclusion, we do
not address the distinction between Berna's use of the vehicle for business and
personal purposes.
In summary, we conclude
that the court did not err when it decided that Berna had regular or frequent
use of the vehicle. The court properly
granted summary judgment to Secura, and we therefore affirm the judgment.
By the Court.—Judgment
affirmed.
Not recommended for
publication in the official reports.
No. 96-1113(C)
MYSE, J. (concurring). I agree with the majority that the regular
use of the vehicle to drive back and forth from work, five days a week for a
three- or four-week period constitute regular use of the vehicle. Moutry v. American Mut. Liab. Ins. Co.,
35 Wis.2d 652, 151 N.W.2d 630 (1967), involved comparable facts over a shorter
period of time and was determined to be regular use by our supreme court. While it is unusual to grant summary
judgment when the resolution is very fact specific, we are compelled to
conclude that Berna's use of an employer's vehicle for personal purposes is
sufficient to constitute regular use.
I write separately
because the trial court combined business and personal use in reaching its
determination that Berna had the regular use of his employer's vehicle. I believe that this combination is infirm
and that personal use and business use are discrete functions which must be
analyzed independently of each other.
While the issue is unresolved in Wisconsin, several states have written
persuasively that in applying the regular use exclusion it is first necessary
to determine whether the use was for business or personal purposes. The Illinois Supreme Court in Auto
Owners Ins. Co. v. Miller, 561 N.E.2d 630 (Ill. 1990), the California
Court of Appeals in Safeco Ins. Co. v. Thomas, 249 Cal. App.2d
204 (Cal. Ct. App. 1966), and the Louisiana Appellate Court in Nevels v.
Hendrix, 367 So.2d 33 (La. Ct. App. 1978), each explained the reasons
such a distinction must be made. If an
employe regularly uses an employer's vehicle for business purposes only and is
prohibited from using the vehicle for his personal use at any time, the regular
use exclusion should not apply if for a single day the employer allows the
vehicle to be used for personal business.
The regular use exclusion in an insurance policy seeks to prohibit an
insurer from covering other vehicles used by the insured without the payment of
an additional premium. When used as a
temporary substitute vehicle for his own vehicle, and the use is singular and
limited, it is irrelevant that he had access to that vehicle for business
purposes previously. I find the
reasoning of these cases to be persuasive.
The trial court's
analysis should properly be to determine the purpose for which the vehicle was
being used at the time of the accident.
If, as here, the use was personal, the court should determine whether
the personal use of the employer's vehicle transformed the vehicle into a
temporary replacement for the insured's personal automobile. If the accident had occurred during a
business use of the vehicle, the court should examine the regularity with which
the individual drove the business vehicle.
In this case, three to four weeks of daily use of the vehicle to commute
to and from work is sufficient to be categorized as a regular use of the
employer's vehicle for personal purposes and, accordingly, the trial court
could properly grant Secura's motion to dismiss based on the regular or
frequent use exclusion contained in Berna's policy. The trial court's failure to make this discrete analysis was in
my view error, but because the evidence is sufficient to support the conclusion
that Berna had the regular and frequent use of his employer's vehicle for
personal purposes the error was harmless.
I therefore concur in the result.