COURT OF APPEALS DECISION DATED AND FILED March 17, 2009 David
R. Schanker Clerk of Court of Appeals |
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NOTICE |
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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 a judgment of the circuit court for
Before
¶1 PER CURIAM. Jarmila Ehnle, her children
Kelsey and Taylor, Nicholas Herting and Nationwide Insurance Company of
BACKGROUND
¶2 Douglas Ehnle died in an accident on Little St. Germain Lake, a site well known for snowmobile drag racing. Races took place day and night and Ehnle, Westart and Herting had participated in races on prior occasions. The races were not sanctioned or sponsored. Snowmobilers would gather at Elbert’s, a bar approximately two hundred feet from the lake. Racers would organize themselves at a starting line by lining up the fronts of their skis. A starter would signal the start of the race. In some races, lights from snowmobiles marked a finish line. In other races, the race ended when one of the snowmobiles took a clear lead.
¶3 On the night of the accident, Ehnle, Westart and Herting were
in Elbert’s talking about their snowmobiles and modifications they had made to
enhance speed. Westart had installed
special pipes and a clutch for racing. The
snowmobiles reached speeds of 100 miles per hour. At least two races had occurred before the
race that resulted in Ehnle’s death. When
a call went out for a race, there was a “mass exodus” from the bar to the
lake. Initially, Tony Ehnle,
¶4 Westart’s liability policy with Countrywide Mutual contains the following exclusion:
A. Motor Vehicle Liability
1. Liability, Coverage A and Medical Payments, Coverage B do not apply to any “motor vehicle liability” if, at the time and place of an “occurrence”, the involved “motor vehicle”
…
c. Is being:
(1) Operated in, or practicing for, any prearranged or organized race, speed contest or other competition;
….
His umbrella policy contains a similar exclusion. The trial court concluded the term “organized” was ambiguous, but “prearranged” was not ambiguous and defeated coverage on the undisputed facts of this case.
DISCUSSION
¶5 “Prearranged” is not ambiguous. A word is ambiguous if it is susceptible to
more than one reasonable construction. Laho
v. Century 21 Baltes – Selsberg, 204
¶6 We agree that a spontaneous race is not “prearranged,” but
the race in question was not spontaneous. The issue is not whether Westart’s decision to
race was impulsive, but whether the race came into existence on the spur of the
moment, with no opportunity for the participants to reflect on the decision to
race. No particular amount of time is
necessary to obtain the knowledge that a race will ensue and to form the intent
to join in the race. The participants in
this race had ample time to reflect on the decision to race. Several of the participants traveled from
By the Court.—Judgment affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5 (2007-08).