|
COURT OF APPEALS DECISION DATED AND RELEASED May 15, 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, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-1561
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
DAVID KADLAC, d/b/a
DAVE'S MOBILE
GAS STATION and ROBIN
BARONSKY,
Plaintiffs-Respondents,
v.
THERON A. NAIR, AUBREY
M. NAIR
and RAHNOD C. WEAVER,
Defendants-Respondents,
GENERAL CASUALTY
COMPANY OF WISCONSIN,
Defendant,
STATE FARM MUTUAL
AUTOMOBILE
INSURANCE COMPANY,
Intervening Defendant-Appellant.
-----------------------------------------------------------------------------------------
ADALBERT MENZER
and HANNAH MENZER,
Plaintiffs-Respondents,
v.
THERON A. NAIR, AUBREY
M. NAIR
and RAHNOD C. WEAVER,
Defendants-Respondents,
DAVE'S INTERSTATE
TOWING, INC.,
GENERAL CASUALTY
COMPANY OF WISCONSIN
and STATE OF WISCONSIN
DEPARTMENT OF JUSTICE,
Defendants,
STATE FARM MUTUAL
AUTOMOBILE
INSURANCE COMPANY,
Intervening Defendant-Appellant.
APPEAL from an order of
the circuit court for Kenosha County:
MICHAEL FISHER, Judge. Reversed
and cause remanded.
Before Anderson, P.J.,
Nettesheim and Snyder, JJ.
PER CURIAM. We granted State Farm
Mutual Automobile Insurance Company leave to appeal from a circuit court order
which denied its motion for summary judgment and required it to provide
liability coverage for the perpetrators of a drive-by shooting. We reverse the circuit court on the grounds
that under a conflict of laws analysis, Michigan law governs interpretation of
the insurance contract and the coverage question in this case. Applying Michigan law, we conclude that
State Farm does not owe coverage to the perpetrators of the drive-by shooting.
The following facts are
not disputed by the parties. On July
16, 1993, Theron A. Nair, his brother, Aubrey, and Rahnod C. Weaver stopped for
food at Dave's Mobile Station in Kenosha, Wisconsin, on their way to Chicago by
car from Michigan. The parties were
traveling in Weaver's vehicle. The
vehicle was insured by State Farm under a policy issued to Weaver, who was a
resident of the K.I. Sawyer Air Force Base in Michigan. The State Farm policy was in effect on the
date of the shooting. Weaver's vehicle
was garaged in Michigan, the lien holder was a Michigan bank and the State Farm
policy was applied for, issued and delivered in Michigan by a Michigan
agent. Apparently, the parties do not
dispute that Weaver held a valid Wisconsin driver's license.[1]
For reasons not relevant
to this appeal, either Theron or Aubrey fired a weapon numerous times from
Weaver's vehicle as it drove through the gas station parking lot,[2]
injuring bystanders Adalbert Menzer and Robin Baronsky. Menzer and Baronsky (among others) sued the
perpetrators and others. State Farm
intervened as Weaver's insurer and sought a ruling that it did not provide
liability coverage for the injury and property damage claims. The circuit court declined to grant summary
judgment to State Farm.[3] We granted State Farm leave to appeal the
trial court's refusal to grant summary judgment.
Summary judgment is
appropriate when there is no genuine issue as to any material fact and the
moving party is entitled to judgment as a matter of law. Belland v. Allstate Ins. Co.,
140 Wis.2d 391, 395, 410 N.W.2d 611, 612 (Ct. App. 1987). We will reverse a trial court's refusal to
grant summary judgment if it has incorrectly decided a legal issue. Id. at 395, 410 N.W.2d at 613.
Interpretation of State
Farm's insurance contract depends on whether Wisconsin or Michigan law
applies. The contract provides:
We
will pay damages which an insured becomes legally liable to pay because
of:
1.bodily
injury to others, and
2.damage to or destruction of property
including loss of its use, caused by accident resulting from the ownership,
maintenance or use of your car.
In deciding which
state's law governs interpretation of this provision, we apply the analysis
used in Belland.
Contract
rights are to be determined by the local law of the state with which the
contract has its most significant relationship. The factors measuring this relationship are: (1) place of contracting; (2) place of
performance; (3) place of the subject matter of the contract; (4) domicile,
nationality, place of incorporation and place of business of the parties; (5)
law under which the contract will be most effective; and (6) other contracts
presented in the given case. A mere
counting of the contacts is not determinative of the law to be applied. Rather, a qualitative analysis of the
contacts should be made in light of the policies of the competing
jurisdictions.
Id. at
397-98, 410 N.W.2d at 613-14 (citations omitted).
Here, assessing the
contacts qualitatively, we conclude that they favor the application of Michigan
law. It is undisputed that the policy
was applied for, issued and delivered in Michigan by a Michigan agent to a
Michigan resident on a vehicle garaged in Michigan (the factors relating to the
contract itself). In contrast, the
contacts with Wisconsin are minimal and, in some respects, fortuitous: Weaver's vehicle was passing through
Wisconsin on its way to Chicago when the shooting occurred, Weaver held a
Wisconsin driver's license and Baronsky is domiciled in Wisconsin.
Although the incident
occurred in Wisconsin and the owner of the vehicle was a licensed Wisconsin
driver, these factors do not control the conflicts question presented. See id. at 398, 410
N.W.2d at 614. The Wisconsin contacts
are neither sufficient in quantity nor quality to override the quality and
quantity of contacts with Michigan. We
conclude that Michigan law governs whether State Farm owes coverage for the
drive-by shooting.
Applying Michigan law,
we conclude that the holding in Auto Owners Ins. Co. v. Rucker,
469 N.W.2d 1 (Mich. Ct. App. 1991), disposes of the coverage question in this
case. Under its policy, State Farm
agreed to pay damages for which an insured is legally liable because of bodily
injury or property damage "caused by accident resulting from the
ownership, maintenance or use of your car." In Rucker, the policy also
provided coverage for damage incurred by the insured "arising out of the
use of an automobile." The issue
before the Rucker court was whether the death of a bystander in a
drive-by shooting arose out of use of the motor vehicle. The Rucker court held that
"[f]or that clause to apply, a causal connection between the use of the
vehicle and the injury must be shown.
The connection must be more than incidental or fortuitous." Id. at 1. The court stated that "[t]he injury
must be foreseeably identifiable with the normal use of the vehicle." Id. at 2.
The Rucker
court held that the death arose from the firing of a shotgun and while use of
the vehicle made it easier for the perpetrators to approach the scene and
escape, use of the vehicle "was nonetheless incidental to the
injury." Id. The court stated that drive-by shootings
"are not identified with the normal use of a motor vehicle." Id. Therefore, the death did not arise out of use of an automobile as
contemplated by the insurance policy and there was no coverage for the claim.
In light of the holding
in Rucker, which we are bound to apply to State Farm's insurance
contract in this case, we conclude that State Farm did not owe coverage for the
drive-by shooting. The circuit court
erred in denying summary judgment to State Farm on this issue. Accordingly, we reverse and remand for the
entry of a judgment dismissing State Farm from the action.
By the Court.—Order
reversed and cause remanded.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[1] The record is not entirely clear on this point, however. The driver's license number provided by Weaver in the application for the State Farm policy matches the license number appearing on the Michigan registration for his vehicle. However, a driving record abstract provided by the State of Wisconsin Department of Transportation for an individual named "Rahnod Weaver" contains a different license number. Notwithstanding this conflict in the record, we will accept the parties' apparent agreement that Weaver held a Wisconsin driver's license. We note that the record does not explain why Weaver held a Wisconsin license.