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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.

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About this Author

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

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...

Nick Castronovo, Von Briesen Roper Law Firm, Milwaukee, Corporate, Health and Litigation Law Attorney

Nick Castronovo is a member of the Litigation and Risk Management Practice Group. His practice focuses on commercial and business litigation including contract and lease disputes, construction and property damage claims, OSHA counseling and citation defense, and general civil litigation matters.

Nick helps clients understand the different strategies and potential outcomes available at the beginning of each dispute, appreciates and strongly advocates his clients’ interests at each stage of the litigation, and recognizes creative and positive resolutions to meet his clients’ goals. For example, Nick utilizes this approach when he assists with the handling of a national transportation company’s common carrier claims and accident investigation situations.

Prior to joining von Briesen, Nick worked in all three branches of government. He served as an intern for the Wisconsin Governor’s Office of Legal Counsel, for Justice David Prosser of the Wisconsin Supreme Court and for United States Congressman James Sensenbrenner. His experience relative to government affairs includes analyzing state constitutional law, evaluating disclosures pursuant to Wisconsin’s open records law, assessing compliance with Wisconsin’s open meeting law, assisting with the state administrative rulemaking process, and analyzing legislative history.

During law school, Nick interned at the Wisconsin Department of Justice and was an active member of both the UW Law School’s Moot Court Board and Mock Trial Team.