August 8, 2022

Volume XII, Number 220

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August 08, 2022

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The Wisconsin Court Of Appeals Holds That An Insurance Policy's "Employee" Exclusion Applies To A Seasonal/Short-Term Worker Who Was Not "Furnished" To The Employer

In Borntreger v. Smith, et. al., 2012 WL 569367 (Wis. Ct. App. Feb. 23, 2012), the Wisconsin Court of Appeals held that the "employee" exclusion in the insurer's commercial general liability insurance policy applied to an injury that arose on the insured's farm because the injured worker was an "employee" and not a "furnished" "temporary worker." The insurance company had issued a policy which provided commercial general liability coverage for a farm owned by the Smiths. A worker on the Smiths' farm, Borntreger, was injured on the farm and subsequently sued the Smiths and their insurance company.

The insurance company moved for summary judgment arguing it should not have to offer coverage to the Smiths because the policy's "employee" exclusion applied. The policy's "employee" exclusion applied to liabilities arising from bodily injury to an "employee" of the Smiths. The policy stated that a "temporary worker" is not an "employee." Thus, the parties agreed that if Borntreger was a "temporary worker," there would be coverage, whereas if Borntreger was an "employee," there would be no coverage. The policy further defined "temporary worker" as "a person who is furnished to you to substitute for a permanent 'employee' on leave or to meet seasonal or short-term workload conditions." Under this definition, it was undisputed that Borntreger fit into the seasonal/ short-term worker category. However, one issue before the court was whether Borntreger also had to be "furnished to" the Smiths if he was only a seasonal/short-term worker and not a substitute worker. In other words, did the "furnished to you" language apply only to the substitute worker clause or also to the seasonal/short-term worker clause?

The court concluded that the "furnished to you" language introduced two parallel clauses separated by "or" and that the "furnished to you" language unambiguously applied to the seasonal/short-term worker category. This meant that regardless of whether Borntreger was a substitute worker or a seasonal/short-term worker, he would only be considered a "temporary worker" if he was furnished by a third party to the Smiths. The court next reviewed the record and determined there was no preserved, valid argument that Borntreger was "furnished" to the Smiths by any third party. Therefore, the court held Borntreger was not a "temporary worker" and the "employee" exclusion applied.

©2022 von Briesen & Roper, s.cNational Law Review, Volume II, Number 66
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About this Author

Heidi Vogt, von Briesen Roper Law Firm, Milwaukee, Insurance and Litigation Law Attorney
Attorney

Heidi Vogt is a Shareholder and Chair of the Litigation and Risk Management Practice Group. She has substantial and broad experience in litigation matters with a particular focus on insurance coverage disputes, commercial disputes and complex litigation.  

Heidi serves as the Chair of the Insurance Coverage and Risk Management Section. 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 30 years. She represents and counsels insurance...

414-287-1258
Nick Castronovo, Von Briesen Roper Law Firm, Milwaukee, Corporate, Health and Litigation Law Attorney
Attorney

Nick Castronovo is a Shareholder in the Litigation and Risk Management Practice Group. His practice focuses on commercial and business litigation including breach of contract disputes, shareholder disputes, business torts including breach of fiduciary duty and misrepresentation claims, class actions, construction defect claims, premises liability claims, manufacturers’ representatives matters including commission disputes, trust litigation, OSHA citation defense, and general risk management counseling. 

Nick helps clients understand the...

414-287-1565
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