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03/29/83 VERN R. LEMON v. FEDERAL INSURANCE COMPANY

March 29, 1983

VERN R. LEMON, PLAINTIFF-APPELLANT, KAREN LEMON, HIS WIFE, PLAINTIFF,
v.
FEDERAL INSURANCE COMPANY, DANE COUNTY, AND RONALD L. ZURBUCHEN, DEFENDANTS-RESPONDENTS-PETITIONERS, AETNA CASUALTY & SURETY COMPANY, DEFENDANT-RESPONDENT



Review of a decision of the Court of Appeals. Affirming Steinmetz, J.

The opinion of the court was delivered by: Steinmetz

The issue in this case is whether a tractor that was repairing a roadside culvert and subsequently involved in a traffic accident is a "motor vehicle" within the meaning of sec. 345.05(2) (a), Stats. 1975. *fn1 Sec. 345.05 governs actions against a municipality arising from the negligent operation of a "motor vehicle." No limitation on the amount of damages which may be recovered against the municipality is imposed by that statute. Sec. 895.43, Stats. 1975, *fn2 governs all other tort actions against municipalities. It limits the recovery of damages to $25,000. Thus, if the tractor involved in this accident is determined to be a "motor vehicle," the defendant county's liability exposure is unlimited.

This case is an action for personal injuries arising out of a collision which occurred on Highway 73 in Dane county on May 14, 1975, between an automobile owned and operated by the plaintiff, Vern R. Lemon, and a John Deere JD500-C tractor owned by the defendant Dane county and operated by one of its employees, Ronald Zurbuchen. Defendant Federal Insurance Company is Dane county's liability insurer. Plaintiffs' amended complaint alleges that the cause of the collision was the negligence of Zurbuchen.

The vehicle operated by Zurbuchen at the time of the accident is a John Deere tractor with a backhoe on one end and a loader at the other end. It has four wheels, the rear wheels being oversized. The tractor is rated at 80 horsepower, has eight forward and four reverse gears, and has a top forward speed of 18 miles per hour. The tractor has an enclosed cab, a revolving light on top, headlights and flashing lights on all four corners.

On the day of the accident, Zurbuchen drove the tractor to the scene of the accident from another job site. Normally the practice was to transport the tractor to a work site by trailer when one was available to haul it. The tractor was at the site repairing a roadside culvert.

At the time of the accident, the bucket of the tractor was located approximately at or over the center line of the highway. Just prior to the accident, the tractor had been moved, and it may still have been moving at the time of impact, in order to gain position to change buckets.

The Dane county circuit court, the Honorable William F. Eich, granted a motion for summary judgment finding the tractor was not a motor vehicle within the meaning of sec. 345.05(2) (a), Stats. 1975. The trial Judge rested his determination on the fact that the tractor "was not travelling on the roadway in any fashion but rather was in a working position."

The plaintiffs appealed to the court of appeals which reversed the trial court. Lemon v. Federal Ins. Co., 107 Wis. 2d 351, 320 N.W.2d 33 (Ct. App 1982). The court of appeals held the tractor was a "motor vehicle" within the meaning of sec. 345.05(2) (a), Stats. 1975, and that defendants' liability was not governed by sec. 895.43, Stats. 1975. We agree with this holding.

Sec. 345.05(2) (a), Stats. 1975, provided that any person may file a claim for damages against the state or a municipality if that person has suffered any damage proximately resulting from the negligent operation of a motor vehicle owned and operated by the state or municipality, which damage was occasioned by the operation of such motor vehicle in the course of its business. The statutory criteria for making a claim against the state or a municipality are that the damage must result from:

(1) negligent operation of a motor vehicle owned and operated by the state or municipality;

(2) an operation of the motor vehicle in the course of the state's or municipality's business.

Thus, we must determine whether the tractor involved is a motor vehicle and whether the motor vehicle was being operated in the course of the county's business.

Sec. 345.01, Stats., states that the definitions found in sec. 340.01 are applicable to ch. 345 "unless a different definition is specifically provided." Ch. 345 does not contain a specific definition of "motor vehicle." Thus, the definition in sec. 340.01 applies to the term "motor vehicle" found in sec. 345.05(2) (a), Stats. 1975. Sec. 340.01 contains the following definition of "motor vehicle:"

"(35) 'Motor vehicle' means a vehicle which is self-propelled, including a trackless trolley bus, except that a snowmobile shall only be considered a motor vehicle for ...


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