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Jackelen v. Russell

Court of Appeals of Wisconsin

November 24, 2015

KELLEY A. JACKELEN AND PETER JACKELEN, PLAINTIFFS, PROGRESSIVE CASUALTY INSURANCE COMPANY, INVOLUNTARY PLAINTIFF,
v.
HOPE L. RUSSELL, DEFENDANT-CO-APPELLANT, THE HERTZ CORPORATION, DEFENDANT-APPELLANT, ALLSTATE INSURANCE COMPANY, DEFENDANT-RESPONDENT, ARTISAN AND TRUCKERS CASUALTY COMPANY, DEFENDANT. KELLEY A. JACKELEN AND PETER JACKELEN, PLAINTIFFS, PROGRESSIVE CASUALTY INSURANCE COMPANY, INVOLUNTARY PLAINTIFF,
v.
HOPE L. RUSSELL AND THE HERTZ CORPORATION, DEFENDANTS, ALLSTATE INSURANCE COMPANY, DEFENDANT-RESPONDENT, ARTISAN AND TRUCKERS CASUALTY COMPANY, DEFENDANT-APPELLANT

Submitted on Briefs August 3, 2015.

Page 266

Editorial Note:

This opinion is subject to further editing and modification. The final version will be published in bound volume of the official reports.

APPEALS from a judgment of the circuit court for Milwaukee County: MARY M. KUHNMUENCH, Judge. Cir. Ct. No. 2012CV10389.

On behalf of the defendant-appellant, The Hertz Corporation, the cause was submitted on the briefs of Michael J. Cieslewicz and Casey M. Kaiser of Kasdorf, Lewis & Swietlik, S.C., Milwaukee.

On behalf of the defendant-co-appellant, Hope L. Russell, the cause was submitted on the briefs of Eric S. Darling and Benjamin E. Reyes of Schmidt, Darling & Erwin, Milwaukee.

On behalf of the defendant-appellant, Artisan and Truckers Casualty Company, the cause was submitted on the briefs of Ward I. Richter, Sheila M. Sullivan, and David G. Ress of Bell, Moore & Richter, S.C., Madison.

On behalf of the defendant-respondent, Allstate Insurance Company, the cause was submitted on the briefs of Michael R. Vescio, Milwaukee.

Before Curley, P.J., Brennan, J., and Daniel L. LaRocque, Reserve Judge.

OPINION

Page 267

CURLEY, P.J.

[¶1] The Hertz Corporation (Hertz), Hope L. Russell, and Artisan and Truckers Casualty Company (Artisan) (collectively, " the appealing parties" ) appeal the trial court's ruling and entry of final judgment in favor of Allstate Insurance Company (Allstate) on Allstate's motion for declaratory and summary judgment seeking a determination that there is no insurance coverage under its policy because the non-owned vehicle involved in the accident was regularly available for the Russells' use.[1] The appealing parties argue that: (1) the trial court incorrectly concluded that the non-owned vehicle was regularly available for Hope Russell's use, therefore precluding coverage under the Allstate policy; and (2) the Allstate " drive other car" exclusion is not a valid exclusion because it does not comply with Wis. Stat. § 632.32(5)(j) (2009-10).[2] We conclude that the exclusion does not preclude coverage, and we therefore reverse.

Background

[¶2] These appeals involve a dispute over insurance coverage related to an automobile accident involving vehicles driven by plaintiff Kelley A. Jackelen and defendant Hope Russell. Per the second amended complaint, on or about November 14, 2010, Russell and Jackelen were involved in a motor vehicle accident near 84th Street and Layton Avenue in Greenfield, Wisconsin.[3] Jackelen alleges that Russell was negligent in operating her vehicle and that as a result of Russell's negligence, Jackelen sustained significant damages and injuries.[4] The complaint additionally alleges that Allstate had issued a policy of liability insurance to Russell and her husband, Marion (Ryan) Russell, which was in full force and effect on November 14, 2010.[5]

[¶3] At the time of the accident, Russell was driving home to Madison from General

Page 268

Mitchell International Airport in Milwaukee after a weekend trip to visit family in Kansas City. The vehicle she was driving at the time of the accident, a Chevy Traverse, was owned by Hertz, Ryan Russell's employer. Hope Russell was not renting the Hertz-owned vehicle at the time of the accident; rather, she was driving it pursuant to Hertz's employee vehicle use privilege policy, which allowed certain Hertz employees, including Ryan Russell, to drive Hertz vehicles home in the evenings and on weekends. Pursuant to the Hertz policy, an employee's spouse was authorized to drive the Hertz-owned vehicle on the employee's days off or while on vacation or on holidays, but the spouse's use was limited during the work week.

[¶4] Russell testified at her deposition that she drove the Hertz vehicle to the airport so that she could park in the Hertz rental lot for free, so that she could save money on gas, and so that her husband would have use of the family's van for transporting their four children. Russell also testified that prior to the accident, the only other time she had actually driven the Chevy Traverse was on her way to the airport prior to her trip.

[¶5] It is undisputed that Allstate had issued an automobile insurance policy to the Russells, which included coverage for certain non-owned vehicles, that was in effect on the date of the alleged accident. It is also undisputed that Hope Russell was an authorized user at the time of the accident, as the accident occurred on a Sunday and the Hertz policy specifically stated that an employee's spouse was authorized to drive Hertz-owned vehicles on the weekend. However, Allstate argues that there is no coverage under its policy because vehicles in Hertz's fleet were regularly available for the Russells' use.

[¶6] The particular provision at issue identifies a non-owned auto that is insured under the Allstate policy as: " A non-owned auto used with the permission of the owner. This auto must not be available or furnished for the regular use of a person insured." The parties primarily dispute the meaning of the second sentence of that provision, particularly whether " [t]his auto" refers to the specific vehicle involved in the accident or rather to any non-owned vehicle, as well as whether " a person insured" refers to the insured person involved in the accident (Hope Russell) or to all persons insured under the policy (Hope and Ryan Russell).

[¶7] Based on this " drive other car" exclusion, see Westphal v. Farmers Ins. Exch., 2003 WI App 170, ¶ 11, 266 Wis.2d 569, 669 N.W.2d 166 (" the purpose of the drive other cars exclusion is to ... exclude coverage of a vehicle that the insured owns or frequently uses for which no premium has been paid" ), Allstate filed a motion for declaratory and summary judgment on January 14, 2014, seeking an order that no coverage exists for the motor vehicle accident involving the Chevy Traverse because the Russells' insurance policy excluded coverage for non-owned vehicles that were available for the Russells' regular use. Specifically, Allstate argued that no coverage exists ...


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