COURT OF APPEALS DECISION DATED AND RELEASED July 18, 1995 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 94-3000
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
LAVERN LARRY and
GERALDINE LARRY,
Plaintiffs-Appellants,
v.
JEFFREY LARRY,
DAWES TRANSPORT, INC.,
and
VANLINER INSURANCE
COMPANY,
Defendants-Respondents,
MILWAUKEE COUNTY
DEPARTMENT
OF HUMAN SERVICES,
Defendant.
APPEAL from a judgment
of the circuit court for Milwaukee County:
MICHAEL D. GUOLEE, Judge. Affirmed.
Before Wedemeyer, P.J.,
Sullivan and Fine, JJ.
PER
CURIAM. Lavern and Geraldine Larry appeal from the trial
court's grant of summary judgment to Jeffrey Larry, Dawes Transport, Inc., and
Vanliner Insurance Company. They argue
that the trial court erred in ruling that worker's compensation is Lavern
Larry's exclusive remedy for his injuries sustained in an accident. We affirm.
On May 31, 1992, Lavern
Larry was injured as a passenger when the semi-tractor driven by his son,
Jeffrey Larry, was involved in an accident.
The Larrys were employees of Backhaulers, Inc., and the semi-tractor in
which they were riding was contracted to Dawes Transport, Inc., by Backhaulers,
its owner. Backhaulers, Inc., did not
have worker's compensation insurance.
Therefore, after the accident Lavern Larry made a claim under his own
worker's compensation policy. The application was dismissed for lack of
coverage.
Lavern and Geraldine
Larry sued Jeffrey Larry, Dawes Transport, and Vanliner Insurance (Dawes
Transport's insurer), alleging that Jeffrey Larry was negligent in the truck's
operation and that Dawes Transport was negligent in providing consent to
Jeffrey Larry to operate the truck. The
trial court granted summary judgment to the defendants, noting that “plaintiff
Lavern Larry's exclusive remedy is under the Worker's Compensation Act.” Lavern and Geraldine Larry appeal. The only issue is whether there is coverage
under the Vanliner policy.
Summary judgment is used
to determine whether there are any disputed issues for trial. U.S. Oil Co., Inc. v. Midwest Auto
Care Servs., Inc., 150 Wis.2d 80, 86, 440 N.W.2d 825, 827 (Ct. App.
1989). Appellate courts and trial
courts follow the same methodology. Green
Spring Farms v. Kersten, 136 Wis.2d 304, 315, 401 N.W.2d 816, 820
(1987). First, we examine the pleadings
to determine whether the complaint states a claim for relief. Id. If the complaint states a claim and the answer joins the issue,
the court then examines the pleadings, depositions, answers to interrogatories,
admissions on file, and affidavits, if any.
Id. If the summary
judgment materials do not indicate that there is a genuine issue of material
fact and if the moving party is entitled to judgment as a matter of law,
summary judgment must be entered, Rule
802.08(2), Stats.
Dawes Transport's policy
with Vanliner specifies that: “We will
pay all sums an `insured' legally must pay as damages because of `bodily
injury' or `property damage' to which this insurance applies, caused by an
`accident' and resulting from the ownership, maintenance or use of a covered
`auto.'” (Uppercasing omitted.) An “insured” is defined as “you for any
covered `auto'” or “anyone else while using with your permission a covered `auto'
you own, hire or borrow” with certain exceptions not relevant here. (Uppercasing omitted.) Excluded from coverage under the policy is
“`bodily injury' to any fellow employee of the `insured' arising out of and in
the course of the fellow employee's employment.” (Uppercasing omitted.) An
endorsement under “Wisconsin changes” notes that “the fellow employee exclusion
does not apply if the `bodily injury' results from the use of a covered `auto'
you own.” (Uppercasing omitted.) “You” is defined in the policy as “the named
insured shown in the declarations,” namely, Dawes Transport. (Uppercasing omitted.)
Section 102.03, Stats., provides in part:
(1) Liability
under this chapter [worker's compensation] shall exist against an employer only
where the following conditions concur:
(a) Where
the employe sustains an injury.
(b) Where,
at the time of the injury, both the employer and employe are subject to the
provisions of this chapter.
(c) 1.
Where, at the time of the injury, the employe is performing service growing out
of and incidental to his or her employment....
....
(2) Where such conditions
exist the right to the recovery of compensation under this chapter shall be the
exclusive remedy against the employer, any other employe of the same
employer and the worker's compensation carrier.
(Emphasis
added.)
Lavern and Geraldine
Larry argue that they are entitled to recover for Lavern Larry's injuries under
Dawes Transport's insurance policy from Vanliner. We disagree. In Maas
v. Ziegler, 172 Wis.2d 70, 492 N.W.2d 621 (1992), the supreme court
held that the insurer waived the exclusive remedy provisions of the Worker's
Compensation Act in § 102.03(2), Stats.,
by an endorsement that removed the fellow employee exclusion from the
policy. Id., 172 Wis.2d
at 82, 492 N.W.2d at 625–626; see also United States Fidelity
& Guar. Co. v. PBC Productions, Inc., 153 Wis.2d 638, 643, 451
N.W.2d 778, 780 (Ct. App. 1989). Maas
and PBC Productions apply only to policies where the employers
were the named insured. Here, both
Lavern Larry and Jeffrey Larry concede that the named insured on the policy,
Dawes Transport, was not their employer.
Thus, Maas and PBC Productions do not apply,
and there is no waiver. Further,
contrary to the Larrys' contention, there is no violation of § 632.32(6)(b)2.a,
Stats., because that provision
applies only to insurance policies.
Here, Jeffrey Larry's immunity from tort liability—and, therefore, the
inapplicability of the Vanliner policy—stems from § 102.03(2), not the
policy's co-employee exclusion.
The trial court correctly
held that worker's compensation is the exclusive remedy for Lavern Larry's
injuries, and that he may not sue Jeffrey Larry.[1] Thus, the Vanliner policy, which states that
it will “pay all sums an `insured' legally must pay,” does not provide
coverage. We affirm.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.