October 4, 2015

October 02, 2015

October 01, 2015

Wisconsin Court of Appeals Holds the Omnibus Statute, Wis. Stat. § 632.32, Requires an Auto Insurer to Provide Coverage to a Permissive User Tortfeasor in a Suit Filed by the Named Insured

In Blasing v. Zurich American Ins. Co., 2013 WL 28071 (Wis. Ct. App. Jan. 3, 2013), Vicki Blasing, who had auto coverage from American Family Insurance Company, was injured by a Menards employee while the employee was loading Blasing's truck with lumber. The general rule is that permissive vehicle users are additional insureds under auto policies and that such users are covered to the same extent as the policyholder. Accordingly, when Blasing sued Menards for negligence, Menards tendered the suit to American Family. Menards contended that, because its employee was loading Blasing's truck with her permission, and because loading constitutes "use" of the vehicle, the employee and Menards were additional insureds whom American Family was obligated to defend. Thus, the Wisconsin Court of Appeals addressed the issue of whether American Family was obligated to defend Menards and provide coverage if it was determined that Menards' employee negligently caused injury to Blasing.

The court of appeals held that the omnibus statute, Wis. Stat. § 632.32, required American Family to provide a defense to Menards. The court observed that the omnibus statute requires auto policies to provide coverage to any person "using" a vehicle with permission of the named insured "in the same manner" as the policy would if the liable party was the named insured. Blasing, 2013 WL 28071, ¶ 17. In addition, the omnibus statute defines "using" to include "driving, operating, manipulating, riding in and any other use." Id., ¶ 18 (emphasis in original). The parties in Blasing agreed that "use" generally includes loading and unloading. The court concluded that "because the policyholder, Blasing, would have been 'using' her truck if engaged in the loading activity at Menards, and because it was undisputed that the Menards employee was acting with Blasing's permission to load Blasing's truck," the omnibus statute required coverage for Menards under Blasing's American Family auto policy. Id., ¶ 19.

In so holding, the court rejected American Family's argument that construing the omnibus statute to require American Family to defend Menards would be an absurd result. The court observed that it is not unusual for a policyholder's insurance to ultimately insure a permissive tortfeasor; for instance, there generally is coverage when a permissive user tortfeasor injures a third party. Id., ¶ 21. While the court acknowledged that it may seem odd that an injured policyholder bringing suit against a tortfeasor would face an attorney retained by her own insurance company, the court concluded that such a scenario "does not rise to the level of being unreasonable or absurd." Id., ¶ 30. If the legislature believes otherwise, the court commented, the legislature may amend the omnibus statute to ensure that a tortfeasor in Menards' position could not receive coverage from the claimant's auto policy. Id.

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About this Author

Heidi L. Vogt, Litigation Attorney, Von Briesen Law Firm

Heidi Vogt is a Shareholder and Co-Chair of the Litigation and Risk Management Practice Group as well as the Chair of the Insurance Coverage and Risk Management Section. Her practice focuses on insurance coverage litigation, commercial disputes, constitutional law, and complex litigation. She has represented insurance companies in Wisconsin and across the country in both state and federal courts in complex insurance coverage matters for more than 20 years. She represents and counsels insurance clients on a wide variety of topics including general liability, environmental, asbestos, toxic...

Douglas Raines, Litigation Attorney, Von Briesen Law Firm

Doug Raines is a Shareholder in the firm’s Litigation and Risk Management Practice Group. His practice focuses primarily on commercial litigation, insurance defense, and appellate work.

In addition, Doug has helped clients achieve positive outcomes through settlement of numerous cases ranging from slip-and-fall, breach of contract, landlord-tenant, and insurance coverage issues.

Before joining von Briesen, Doug served as the law clerk to the Hon. Patience D. Roggensack of the Wisconsin Supreme Court (2007 – 2008 term).

Doug is the author or co-author of multiple law review articles. His work on affirmative action jurisprudence, New Federalism, and Wisconsin’s risk contribution doctrine has been published in the Marquette Law Review, Boston University Law Review (co-author with Scott A. Moss), and Pace Environmental Law Review (co-author with Peter G. Earle and Fidelma Fitzpatrick), respectively.

During law school, Doug served as a senior editor of the Marquette Law Review. He also completed internships with the Hon. John L. Coffey of the Seventh Circuit Court of Appeals, the Hon. Charles N. Clevert of the Eastern District of Wisconsin, and the United States Attorney’s Office for the Eastern District of Wisconsin.