COURT OF APPEALS DECISION DATED AND FILED July 29, 2008 David R. Schanker Clerk of Court of Appeals |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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APPEAL
from an order of the circuit court for
Before Curley, P.J., Wedemeyer[1] and Fine, JJ.
¶1 WEDEMEYER, J. Ryan M. Lampe, Scott
Campbell, and Allstate Insurance Co. (hereinafter “Allstate” when referring to
all three appellants) appeal from an order granting Wausau Underwriters
Insurance Co. and Employers Insurance Co. of Wausau’s motion for summary
judgment. The trial court ruled that the
BACKGROUND
¶2 On January 4, 2005, Lampe, a member of the
¶3 As a result of those injuries, Lampe sued Campbell and his
insurance company, Allstate; as well as the two insurers who carried insurance
coverage for the
¶4 Lampe, Campbell, and Allstate appeal from the trial court’s
order granting summary judgment to
DISCUSSION
A. Standard of
Review.
¶5 The issue in this case is whether the trial court erred in
granting summary judgment. Our review in
cases on appeal from summary judgment is well-known. We review orders for summary
judgment independently, employing the same methodology as the trial court. Green Spring Farms v. Kersten, 136
¶6 Summary
judgment is appropriate when “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.”
¶7 First,
it must be determined that the pleadings set forth a claim for relief as well as
a material issue of fact.
¶8 The
party moving for summary judgment must explain the basis for its motion and
identify those submissions and pleadings demonstrating the absence of a genuine
issue of material fact. Transportation
Ins. Co. v. Hunzinger Constr. Co., 179
¶9 A
motion for summary judgment may be used to address issues of insurance policy
coverage. Calbow v. Midwest Sec. Ins. Co.,
217
B. Pertinent Policy Language.
¶10 There are two insurance policies at issue in this appeal:
¶11 The insuring agreement of the CGL policy states: “We will pay those sums that the insured becomes legally obligated to pay as damages because of ‘bodily injury’ or ‘property damage’ to which this insurance applies.” The insuring agreement of the umbrella policy has a similar provision, which states: “We will pay on behalf of the insured the ‘ultimate net loss’ in excess of the ‘retained limit’ because of ‘bodily injury’ or ‘property damage’ to which this insurance applies.”
¶12 Both policies define who is an insured to include: “Your ‘volunteer workers’ only while performing duties related to the conduct of your business,” and both policies define “volunteer worker” as:
a person who is not your ‘employee’, and who donates his or her work and acts at the direction of and within the scope of duties determined by you, and is not paid a fee, salary or other compensation by you or anyone else for their work performed for you.
“Your” refers to the
C. Analysis.
¶13 In reviewing the record, we conclude that the facts in this case are not in
dispute. What is disputed is what inferences can and should be drawn from the
facts. Accordingly, summary judgment
should not have been granted because the competing inferences create a factual
issue for the jury to resolve. See Reserve Life Ins. Co. v. La Follette, 108
¶14 The undisputed facts demonstrate that the interscholastic athletics program, including the high school wrestling team, is part of the business of the District. The high school principal at the time of the accident, Kay Marks, testified to this fact. She also testified that the two components of the athletics program include competition and practice. It was not disputed by any testimony that volunteer coaches in the athletics program are a vital part of the program, and thus, a part of the business of the District because they provide assistance to the paid coaches, and bring additional knowledge, skills and experience to the program.
¶15 It is also not disputed that
¶16 It is also not disputed that Lampe’s injury did not occur
during a regular
¶17 The record also clearly demonstrates that the practice occurred
directly after the regular Cudahy wrestling team practice, which Campbell had
attended and assisted at, and that the Oak Creek’s wrestlers were entering the
school and/or wrestling room as Elliott and the Cudahy team were leaving the
regular practice. It is also undisputed
that at this particular extended practice, only Lisowksi was going to be
staying and working out with the Oak Creek wrestlers, that Elliott did not
announce this extra practice to the other members of the Cudahy team or suggest
that any other Cudahy wrestlers stay. It
is also clear from the record that Campbell was the only Cudahy “coach” at the
extended practice and that what to do at the extra practice was determined
entirely by Campbell, without specific direction from Elliott. Further, whether and when to conduct the
extra practice was left up to
¶18 Based on all of these undisputed facts, the trial court concluded:
The critical facts are
not in dispute. Mr. Lampe was injured
during a practice session directed by Mr. Campbell that took place at
He set the time. He invited the participants. He was not assigned or instructed by the District or any of its employees to hold the session or how to run the session or what to do at the session.
No district employees attended. The District was aware that the session was taking place and Mr. Campbell had the District’s permission to hold the session. It might even be inferred from the circumstances that wrestlers were encouraged by the District to attend such sessions, although there was no evidence that wrestlers were encouraged to attend the particular session at which Mr. Lampe was injured.
The issue before me is whether the District’s insurance policies covered the actions of Mr. Campbell and the decisive questions is whether he was a volunteer worker who could be considered an insured under those policies.
….
The policies define a volunteer worker as “a person who is not your ‘employee,’ and who donates his or her work and acts at the direction of and within the scope of duties determined by you, and is not paid a fee, salary, or other compensation by you or anyone else for their work performed for you.”
If coverage turns only on the words of this provision, making the call in this case would be relatively easy. While there is no dispute that Mr. Campbell fit this definition in most respects, his conduct does not fit the definition in one key respect.
At the time of Mr.
Lampe’s injury, Mr. Campbell was not “acting at the direction of” the
District. The term “direction” is not
defined in the policy nor was I able to uncover an authoritative, applicable
definition of the term in any
In the absence of a controlling definition, courts are required to give words in insurance policies their common and ordinary meaning, that is, the meaning a reasonable person in the position of the insured would have understood the words to mean.
….
It cannot be said in this case that at the time Mr. Lampe was injured, Mr. Campbell’s conduct was being directed by the District. There is no evidence that Mr. Campbell’s conduct during the extra practice session was managed or regulated or controlled by the District or that the District took charge of the session or Mr. Campbell’s work during the session or gave Mr. Campbell authoritative instructions to conduct the practice session or about how to conduct the session or about what activities should or should not take place during the session.
¶19 The trial court then addressed how the definition of “volunteer worker” affected its decision in this case as the insuring clause refers to an insured as a volunteer worker who is “performing duties related to the conduct of your business.” The trial court then addressed the slight differences in the contract between the insuring clause language and the definition of volunteer worker language:
In other words, Mr. Campbell might be a volunteer worker generally, as determined by the definition of volunteer worker, because generally speaking he was someone who did stuff for the District but didn’t get paid, but he may be considered an insured under the who is an insured clause only in a situation in which his conduct meets the terms that are set forth in that clause.
Thus, Mr. Campbell might be considered a volunteer worker, because he generally worked at the direction of the District, but that would leave open the question of whether, on the date Ryan Lampe was injured, he was an insured, and that comes down to whether at that particular time he was performing duties related to the conduct of the District’s business to borrow the terminology--the operative terminology from the who is an insured clause.
Having said all that I’m not sure whether my attempt to reconcile these skewed provisions is sound. What remained, though, is that Mr. Campbell’s conduct is not covered unless the facts show that he was an insured under the terms of the who is an insured provision of each policy.
To determine if Mr. Campbell was an insured under the terms of who is an insured policy--I should say provision, I must consider whether at the time Mr. Lampe was injured, Mr. Campbell was performing duties related to the conduct of the District’s business.
The trial court proceeded to
address whether
¶20 We agree with the trial court that under the facts and
circumstances, one reasonable inference to reach was the one the trial court
reached here. A reasonable insured might
conclude that because the injury occurred at the extra practice, which was not
specifically required by Elliott and that Elliott did not specifically instruct
¶21 However, we hold that another, equally reasonable inference,
also arises from the facts. That is, a
reasonable jury could infer from the facts that
¶22
¶23 Because the facts of this case create two equally reasonable and competing inferences as to whether Campbell was indeed a “volunteer worker” as that term is used in the language of the Wausau and Employers insurance policies, the trial court erred in granting summary judgment. We reverse the order and remand for further proceedings consistent with this opinion.
By the Court.—Order reversed and cause remanded for further proceedings.
Not recommended for publication in the official reports.