Cook v. Strolle , 39 Wis. 2d 715 ( 1968 )

39 Wis. 2d 715 (1968) 159 N.W.2d 686

COOK and another, Plaintiffs,
v.
STROLLE and another, Appellants:
LIBERTY MUTUAL INSURANCE COMPANY, Respondent.

No. 339.

Supreme Court of Wisconsin.

Argued June 6, 1968. Decided June 28, 1968

For the appellants there were briefs by La France, Thompson, Greenguist, Evans & Dye and Alfred E. La France and Adrian P. Schoone, all of Racine, and oral argument by Alfred E. La France.

For the respondent there was a brief by Kivett & Kasdorf, attorneys, and Nonald J. Lewis and Kenton E. Kilmer of counsel, all of Milwaukee, and oral argument by Mr. Lewis.

CONNOR T. HANSEN, J.

This appeal was taken prior to the decision of this court in Faltersack v. Vanden Boogaard, ante, p. 64, 158 N.W.2d 322. Also the principal briefs were filed prior to the Faltersack decision. The reply brief of the appellants acknowledges the Faltersack decision and further recognizes that the holding therein would dictate a result adverse to the appellants on this appeal. We are further respectfully urged to reconsider the decision of this court in Faltersack and we have done so.

The facts and policy provisions in this case are not distinguishable from those in the Faltersack Case and are ruled by that decision. The significance of the clause, such as contained in the Liberty Mutual policy, is that it is not a standard escape clause since it expressly denies liability if other insurance, either primary or excess, is available to the driver. By inserting such a clause, the garage owner's insurer anticipated the possibility of the existence of an "excess" insurance clause in the driver's insurance policy and expressly contracted against liability in such situations. The policy reflects that in consideration thereof a reduced premium rate was established.

By the Court.—Judgments affirmed.