PUBLISHED OPINION
Case No.: 94-2326
†Petition for review filed.
Complete Title
of Case:THOMAS DERSE,
LINDA DERSE,
JENNIFER L. DERSE,
LISA MARIE DERSE, BY THEIR GUARDIAN
AD LITEM, DOUGLAS W. KAMMER,
Plaintiffs-Co-Appellants-Cross Respondents,
THE STATE OF WISCONSIN,
Plaintiff,
v.
LEONARD HODERA
AND SUE A. HODERA,
Defendants-Appellants-Cross Respondents,†
ALLSTATE PROPERTY & CASUALTY
INSURANCE COMPANY,
Defendant-Respondent-Cross Appellant,
ALLSTATE INSURANCE COMPANY,
Defendant.
Submitted on Briefs: July
27, 1995
COURT COURT OF APPEALS OF WISCONSIN
Opinion Released: August
31, 1995
Opinion Filed: August 31, 1995
Source of APPEAL Appeal and Cross-Appeal from orders
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Columbia
(If "Special" JUDGE: Daniel
George
so indicate)
JUDGES: Gartzke,
P.J., Sundby and Vergeront, JJ.
Concurred:
Dissented:
Appellants
ATTORNEYSFor the defendants-appellants-cross respondents the cause was
submitted on the briefs of Michael J. Hicks and John D. Surma of Hills
& Hicks, S.C. of Brookfield.
Respondents
ATTORNEYSFor the defendant-respondent-cross appellant the cause was
submitted on the briefs of Virginia L. Newcomb of Borgelt, Powell,
Peterson & Frauen, S.C. of Madison.
|
COURT OF APPEALS DECISION DATED AND RELEASED August 31, 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.
94-2326
STATE
OF WISCONSIN IN COURT OF
APPEALS
THOMAS DERSE,
LINDA DERSE,
JENNIFER L. DERSE,
LISA MARIE DERSE, BY THEIR GUARDIAN
AD LITEM, DOUGLAS W. KAMMER,
Plaintiffs-Co-Appellants-Cross
Respondents,
THE STATE OF WISCONSIN,
Plaintiff,
v.
LEONARD HODERA
AND SUE A. HODERA,
Defendants-Appellants-Cross
Respondents,
ALLSTATE PROPERTY & CASUALTY
INSURANCE COMPANY,
Defendant-Respondent-Cross
Appellant,
ALLSTATE INSURANCE COMPANY,
Defendant.
APPEAL and CROSS-APPEAL
from orders of the circuit court for Columbia County: DANIEL GEORGE, Judge. Reversed.
Before Gartzke, P.J.,
Sundby and Vergeront, JJ.
VERGERONT, J. The issue in this case is whether Leonard
and Sue Hodera's homeowner's policy excludes from coverage liability for
injuries allegedly sustained by Thomas Derse, a state trooper, when he
attempted to remove Sue from her vehicle after she drove it off the
highway. The trial court determined
that there were disputed issues of fact and denied the summary judgment motions
of the Hoderas, the Derses,[1]
and Allstate Property and Casualty Insurance Company (Allstate). We conclude that there are no material
issues of fact and that Allstate is entitled to summary judgment because its
homeowner's policy excludes from coverage liability for the injuries.[2] We therefore reverse the orders of the trial
court.
All parties agree that
the pertinent facts are not disputed.
Sue Hodera drove her vehicle off the highway and into a gully near
Montello, Wisconsin. Bystanders
summoned police and several officers arrived, including Derse. When the officers asked Hodera to leave her
vehicle, she refused. Derse told Hodera
she was under arrest and ordered her to get out of the car. Hodera stated she was not getting out of the
car and grabbed the steering wheel with both hands. Derse attempted to physically remove Hodera from the vehicle and,
according to his testimony when deposed, he injured his back in the process.
The Hoderas were the
insureds under two policies issued by Allstate--an automobile liability policy
with limits of $250,000, and a homeowner's liability policy with limits of
$100,000. The automobile policy
provides coverage for liability for bodily injury "arising out of the
ownership, maintenance or use, loading or unloading of the auto we
insure." The homeowner's policy
covers "all sums arising from an accidental loss which an insured person
becomes legally obligated to pay as damages because of bodily injury or
property damage covered by this part of the policy." The homeowner's policy excludes from
coverage liability for: "bodily
injury or property damage arising out of the ownership, maintenance, use,
occupancy, renting, loaning, entrusting, loading or unloading of any motorized
land vehicle."
The Derses moved for
summary judgment that both policies provide coverage for Hodera's liability to
the Derses such that the total coverage was $350,000. The Hoderas moved for summary judgment that the homeowner's
policy provides coverage. The trial
court denied both motions on the ground that there were disputed issues of
material fact. Allstate filed a
cross-motion for summary judgment. It
argued that the automobile policy provides coverage but the homeowner's policy
does not. The trial court denied
Allstate's motion, at the same time denying the Hoderas' motion for
reconsideration of the denial of their summary judgment motion.
Summary judgment must be
granted to a party if there are no genuine issues as to any material fact and
the party is entitled to judgment as a matter of law. Section 802.08(2), Stats. We review a grant of summary judgment de
novo by applying the same standards employed by the trial court. Brownelli v. McCaughtry, 182
Wis.2d 367, 372, 514 N.W.2d 48, 49 (Ct. App. 1994). We agree with the parties that the trial court erred in deciding
that there were disputed issues of material fact. We therefore proceed to determine which party is entitled to
judgment as a matter of law. This determination
involves an interpretation of an insurance contract, a question of law that we
decide de novo. Katze v. Randolph
& Scott Mut. Fire Ins. Co., 116 Wis.2d 206, 212, 341 N.W.2d 689,
691 (1984).
The Hoderas[3]
argue that there are two concurrent causes to Derse's alleged injuries--Sue
Hodera's driving the vehicle off the road, which arises from the use of her
automobile, and her resistance to being removed from the car, which does not
arise from her use of the automobile.
According to the Hoderas, when there are two concurrent causes, one
auto-related and one non-auto-related, coverage exists under both the
automobile policy and the homeowner's policy, and coverage is not excluded
under the homeowner's policy simply because one concurrent cause is
auto-related. Allstate responds that
Hodera's resistance to being removed from her automobile and her hanging onto
the steering wheel to prevent removal involves both the use and the unloading
of her automobile, thereby precluding coverage under the homeowner's policy.
Under the concurrent
proximate cause doctrine, if an injury is caused both by an act of negligence
that is excluded under a policy and by an act of negligence that is covered
under a policy, the insurer is not excused from its obligation. Kraemer Bros., Inc. v. United States
Fire Ins. Co., 89 Wis.2d 555, 570, 278 N.W.2d 857, 863-64 (1979); Lawver
v. Boling, 71 Wis.2d 408, 422, 238 N.W.2d 514, 522 (1976). In Lawver, there was a
question of fact as to whether the injuries were caused by negligence in the
operation of the truck or negligence in the choice of materials and
construction of the rigging pulled by the truck, or both. Lawver, 71 Wis.2d at 422, 238
N.W.2d at 521-22. The court concluded
that the former risk was excluded under the farmowner's policy while the latter
risk was covered. Id. The court reversed the trial court's grant
of summary judgment because, even if the injuries were caused in part by the
excluded risk, there would be coverage under the farmowner's policy unless the
injuries were caused in no part by the covered risk. Id. The
purpose of this doctrine is to prevent an insurer from being excused from a
risk for which it provided coverage and collected a premium. Id.
We agree with Allstate
that the concurrent proximate cause doctrine does not aid the resolution of
this appeal. Even if driving the
vehicle into the gully can be considered one of two causes of Derse's injuries,
the question remains whether the other cause--Sue Hodera's refusal to leave the
vehicle when ordered and holding onto the steering wheel to resist
removal--relates to use or unloading of the vehicle. If it does, the injuries were not caused even in part by a risk
covered under the homeowner's policy.
We conclude that when
Hodera refused to get out of her car and held onto the steering wheel to resist
removal by Derse, she was using her automobile within the meaning of the homeowner's
exclusion. We do not agree with the
Hoderas that her act of resisting arrest was independent of the vehicle. After the vehicle which she had been driving
came to a stop, she remained sitting in the vehicle. She refused to leave when ordered, thus causing Derse to attempt
to remove her physically. In order to
resist removal, she held onto the steering wheel.
It is true, as the
Hoderas claim, that had Sue not been in the vehicle, she could have resisted
arrest in other ways that did not involve use of the vehicle. But the point is that she was in the vehicle
and the particular manner in which she resisted arrest was to refuse to leave
the vehicle and to hang onto the steering wheel. These acts were not independent of the vehicle, as were the acts
in the cases on which the Hoderas rely.
In Snouffer v. Williams, 106 Wis.2d 225, 316 N.W.2d 141
(Ct. App. 1982), the act of vandalism that caused a property owner to shoot a
passenger was performed by other occupants of the vehicle after they left the
vehicle. Id. at 226-27,
316 N.W.2d at 142. In Tomlin v.
State Farm Mut. Auto. Liab. Ins. Co., 95 Wis.2d 215, 290 N.W.2d 285
(1980), the act causing injury was the stabbing of a state trooper by the
occupant of a vehicle. Id.
at 217, 290 N.W.2d at 287. The manner
in which Hodera resisted arrest cannot be separated from the vehicle in the way
that the injurious acts in these cases can be.
We recognize that under Lawver,
there may be coverage under both an automobile policy and a homeowner's policy
because we give a broader construction to provisions of coverage than
provisions of exclusion. Lawver,
71 Wis.2d at 423, 238 N.W.2d at 522.
However, we are satisfied that under the appropriately narrow
construction of "use of an automobile" in the context of the Allstate
homeowner's policy exclusion, Hodera's acts in refusing to leave her vehicle
and in grabbing onto the steering wheel to prevent removal constitute use of
her vehicle.[4] The Hoderas' homeowner's policy therefore
does not provide coverage for any liability they may have for injuries to Derse
or his family.
By the Court.—Orders
reversed.
[2] We granted the Hoderas leave to appeal the trial court's nonfinal order denying their motion for summary judgment. Allstate had no objection to the Hoderas' petition for leave to appeal. Allstate filed a cross-appeal. We granted the Derses' request to be named as appellants in the appeal and as cross-respondents in Allstate's cross-appeal.