Deborah Rogers v. Great West Casualty Company ( 2020 )

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
December 10, 2020
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.
Appeal No. 2019AP672 Cir. Ct. No. 2017CV34
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV
DEBORAH ROGERS,
PLAINTIFF-APPELLANT,
V.
GREAT WEST CASUALTY COMPANY,
DEFENDANT-RESPONDENT.
APPEAL from an order of the circuit court for Adams County:
W. ANDREW VOIGT, Judge. Affirmed in part; reversed in part and cause
remanded for further proceedings.
Before Blanchard, Kloppenburg, and Nashold, JJ.
Per curiam opinions may not be cited in any court of this state as precedent
or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2019AP672
¶1 PER CURIAM. Deborah Rogers appeals a circuit court order
dismissing her operative complaint against Great West Casualty Company (“Great
West”). For the reasons set forth below, we affirm in part, reverse in part, and
remand for further proceedings consistent with this opinion. We conclude that
two of Rogers’ claims—based on respondeat superior liability and vicarious
liability under federal motor carrier law—should not have been dismissed.
BACKGROUND
¶2 The following facts are not disputed for purposes of this appeal. On
September 9, 2016, Rogers suffered catastrophic personal injury when her vehicle
collided with a semi-tractor-trailer truck driven by James Kearns. Kearns, who
had a blood alcohol concentration greater than .04 at the time of the accident,
failed to come to a stop at a stop sign and then drove directly into Rogers’ path.
Rogers’ vehicle struck the tractor-trailer’s fuel tanks, causing both vehicles to
burst into flames.
¶3 At the time of the accident, Kearns was operating the tractor-trailer
for Ranken Trucking, Inc. (“Ranken”), which owned the semi-tractor. The trailer
Kearns was hauling was owned by Polyock All Star Commodities, LLC (“All
Star”), which provided it to Polyock Transport (“Transport”) under a “Rental
Equipment Agreement.” The load being hauled during the accident was being
shipped pursuant to a “Raw Product Hauling Agreement” between Seneca Foods
Corporation (“Seneca”) and Transport, under which Transport agreed to haul
vegetables for Seneca. Transport contracted with semi-tractor owner Ranken
under a “Trailer Interchange Agreement” for Ranken to take responsibility for
hauling the trailer and its contents. Thus, Kearns worked for Ranken, drove a
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Ranken semi-tractor, and hauled Seneca’s vegetables in an All Star trailer pursuant
to Transport’s contract with Seneca and Ranken’s contract with Transport.
¶4 At the time of the accident, Ranken was covered by an insurance
policy issued by Northland Insurance Company (“Northland”). Rogers filed a
bodily injury claim with Northland under Ranken’s policy, and Northland paid
Rogers the policy’s $1,000,000 liability limit in exchange for Rogers releasing
Northland, Ranken, Kearns, Transport, and All Star for all claims up to the
liability limit. As part of the agreement, Rogers reserved her claims against other
insurance companies that may provide coverage for the accident.
¶5 After collecting from Northland, Rogers filed this action against All
Star and its insurer, Great West.
¶6 Rogers’ operative complaint alleged that Great West had a policy in
effect under which Great West insured not only All Star, but also Transport,
Ranken, and Kearns. The complaint alleged that, due to these contractual
obligations, Great West was liable to Rogers on five claims: (1) Ranken’s and
Kearns’ negligence; (2) Transport’s liability under the doctrine of respondeat
superior for Ranken’s and Kearns’ negligence; (3) Transport’s vicarious liability
for Ranken’s and Kearns’ negligence pursuant to federal law under which
Transport was a “motor carrier” and therefore a “statutory employer” of Ranken
and Kearns; (4) Transport’s negligent hiring, training, retention, and supervision
of Ranken and Kearns; and (5) “concerted action/joint enterprise,” which
generally alleged that Transport and All Star worked in concert to transport
vegetables for Seneca.
¶7 Great West filed several answers and also filed a motion for
judgment on the pleadings, based on theories addressed in the Discussion section
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below. Following briefing from the parties and a hearing, the circuit court granted
Great West’s motion and dismissed the operative complaint in its entirety. Rogers
appeals.
DISCUSSION
¶8 Rogers presents the following five issues for our review. First,
Rogers argues that the circuit court erroneously dismissed her claim alleging
Ranken’s and Kearns’ negligence because Ranken and Kearns were “insureds”
within the meaning of All Star’s policy with Great West, or, alternatively, that a
material factual dispute exists as to this issue. Second, Rogers contends that, if the
exclusionary provision on which the circuit court relied in dismissing her
negligence claim is construed to exclude Ranken and Kearns as “insureds,” then
the provision runs afoul of Wisconsin’s omnibus coverage statute, WIS. STAT.
§ 632.32.1 Third, Rogers argues that the court erroneously dismissed her claim
alleging vicarious liability because material issues of fact exist as to whether
Transport was vicariously liable as a “motor carrier” within the meaning of federal
law and therefore assumed nondelegable duties with respect to the events that led
to this action. Fourth, Rogers argues that All Star and Transport had respondeat
superior liability for Ranken’s and Kearns’ negligence, making dismissal of her
respondeat superior liability claim improper, and that Transport was also liable
due to its alleged negligent hiring, training, retention, and supervision of Ranken
and Kearns, which made dismissal of her claim alleging that form of alleged
negligence also improper. Finally, Rogers contends that the court erred in
1
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.
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No. 2019AP672
dismissing her claim alleging “concerted action/joint enterprise” because a
disputed fact exists regarding “whether [] All Star is liable as part of a concerted
action or joint enterprise with [] Transport” with respect to the arrangements to
haul the Seneca vegetables at the time of the accident. After discussing the
standard of review, we address each of Rogers’ arguments in turn, setting forth
additional background facts as necessary.
I. Standard of Review and Insurance Policy Provisions at Issue
¶9 Whether judgment on the pleadings under WIS. STAT. § 802.06 is
appropriate is a question of law that we review de novo. Helnore v. DNR, 2005
WI App 46, ¶2, 280 Wis. 2d 211, 694 N.W.2d 730. A judgment on the pleadings
“is essentially a summary judgment minus affidavits and other supporting
documents.”2 New Richmond News v. City of New Richmond, 2016 WI App 43,
¶28, 370 Wis. 2d 75, 881 N.W.2d 339 (quoting Freedom from Religion Found.,
Inc. v. Thompson, 164 Wis. 2d 736, 741, 476 N.W.2d 318 (Ct. App. 1991)
(internal quotation marks omitted)). Accordingly, we “apply the first two steps of
summary judgment methodology to determine whether judgment on the pleadings
is appropriate.” Id. Under the first step, we “determine whether [the complaint]
states a claim on which relief can be granted.” Id. If it does, we then “determine
whether the answer shows the existence of a material factual dispute.” Id. Under
2
The parties attached documents to their pleadings that the circuit court considered in
reaching its determinations. Wisconsin has adopted the federal incorporation-by-reference
doctrine. Soderlund v. Zibolski, 2016 WI App 6, ¶37, 366 Wis. 2d 579, 874 N.W.2d 561 (2015).
Under the doctrine, we “may consider a document attached to a motion to dismiss or for
judgment on the pleadings without converting the motion into one for summary judgment, if the
document was referred to in the plaintiff’s complaint, is central to his or her claim, and its
authenticity has not been disputed.” Id. We follow the assumption of the circuit court and the
parties that the doctrine applies here to allow consideration of the documents attached to the
pleadings.
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this two-step analysis, judgment on the pleadings is appropriate only if the
complaint states a claim on which relief can be granted and the answer raises no
issues of material fact. See id.¶10 This case requires us to interpret the terms of an insurance policy.
As with the interpretation of other contracts, insurance policy interpretation is a
question of law that we review de novo. Jackelen v. Russell, 2015 WI App 93,
¶11, 366 Wis. 2d 255, 873 N.W.2d 265. In construing insurance policy language,
we apply the same rules of construction that govern other contracts. Id.Accordingly, “[w]e construe insurance policies ‘to give effect to the intent of the
parties as expressed in the language of the policy.’” Id. (quoting Folkman v.
Quamme, 2003 WI 116, ¶12, 264 Wis. 2d 617, 665 N.W.2d 857). “We do this by
giving the words in an insurance policy ‘their common and ordinary meaning, that
is, the meaning a reasonable person in the position of the insured would have
understood the words to mean.’” Id. (quoting State Farm Mut. Auto Ins. Co. v.
Langridge, 2004 WI 113, ¶14, 275 Wis. 2d 35, 683 N.W.2d 75).
¶11 When interpreting an insurance policy, we follow a three-step
procedure to determine whether it provides coverage to a particular insured. See
American Fam. Mut. Ins. Co. v. American Girl, Inc., 2004 WI 2, ¶24, 268 Wis.
2d 16, 673 N.W.2d 65. First, we examine the allegations of fact in the insured’s
claim to determine whether the policy provides for an initial grant of coverage. Id.If there is an initial grant of coverage, we then look to see whether any exclusions
apply that would deny coverage. Id. And finally, if an exclusion applies, we
determine whether there are any applicable exceptions that reinstate the coverage.
Id. Requirements that are contained within the definition of an “insured” may also
be treated as exclusions. See Mau v. North Dakota Ins. Rsrv. Fund, 2001 WI
134, ¶33, 248 Wis. 2d 1031, 637 N.W.2d 45 (“‘To treat the definition differently
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No. 2019AP672
from the exclusion merely because it is couched in the definition section of the
policy would be to exalt form over substance ....’” (quoted source omitted)).
¶12 The All Star-Great West policy provides that Great West “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’.” The policy
also defines who is an “insured” for purposes of personal injury actions:
1. WHO IS AN INSURED
The following are “insureds”:
a. You for any covered “auto”.
b. Anyone else while using with your or any adult
family member’s permission a covered “auto”
you own, hire, or borrow except:
....
(5) Anyone who has hired or borrowed an
“auto” from you that is used in a business
other than yours unless under a written
agreement you are required to hold them
harmless.
(6) Anyone that is using an “auto” of yours
under a written Trailer Interchange
Agreement unless under a written agreement
you are required to hold them harmless.
¶13 The policy specifies that “you” and “your” refer to the named
insured, which is All Star. The All Star-owned “Covered ‘Autos’” are listed in the
“Schedule of Autos,” which includes the trailer involved in the accident.3 One of
3
Rogers agrees that “you” is defined in the policy as the named insured and that the
named insured is All Star.
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No. 2019AP672
the policy endorsements names Transport as an “Additional Insured (Lessor)”
under the policy. Great West does not dispute that Transport is an additional
insured under this endorsement.
II. Rogers’ First Claim: Ranken’s and Kearns’ Negligence
¶14 In granting judgment on the pleadings to Great West on Rogers’ first
claim, Ranken’s and Kearns’ negligence, the circuit court concluded that, pursuant
to the exclusion in clause (6) of the policy, Ranken and Kearns were not
“insureds” and were therefore not covered by the policy. As quoted above, Clause
(6) excludes from coverage “[a]nyone that is using an ‘auto’ of yours [All-Star’s]
under a written Trailer Interchange Agreement unless under a written agreement
you are required to hold them harmless.” As previously noted, Transport
contracted with Ranken under a “Trailer Interchange Agreement” pursuant to
which Ranken would haul the trailer and its contents. Rogers has not alleged that
there was a written agreement under which either All Star or Transport would hold
Ranken harmless. In fact, as Great West notes, under the Trailer Interchange
Agreement, Ranken was required to indemnify and hold Transport harmless with
respect to use of the trailer.
¶15 Rogers offers two theories for the argument that the exclusion in
clause (6) does not apply to exclude Ranken and Kearns from coverage. Her first
theory is that the clause does not apply under its plain language. Her second
theory is that the endorsement in the policy adding Transport as an “Additional
Insured (Lessor)” implies that All Star had rented its trailer to Transport, and
Transport then leased back All Star’s trailer to All Star, and All Star then provided
the trailer for use by Ranken. Relying on this understanding of the meaning of the
endorsement, Rogers argues that a material dispute of fact exists with respect to
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No. 2019AP672
whether Ranken and Kearns obtained the trailer for use from Transport pursuant to
the Trailer Interchange Agreement or instead from All Star, without reference to
that agreement, and that the circuit court therefore erred in concluding that clause
(6) excluded coverage. We address these two theories in turn.
A. Plain-language theory
¶16 Rogers’ plain-language argument is premised on the proposition that
the exclusion in clause (6) applies to exclude Ranken and Kearns from coverage
only if the Trailer Interchange Agreement was entered into between All Star, the
named insured, and Ranken. Thus, Rogers contends that clause (6) is inapplicable
because the Trailer Interchange Agreement was executed with Transport. Relying
in part on the rule that we are to construe exclusions of coverage in insurance
policies narrowly, Rogers asks us to adopt her interpretation. See Cardinal v.
Leader Nat’l Ins. Co., 166 Wis. 2d 375, 382, 480 N.W.2d 1 (1992). Great West
counters that nothing in the policy language requires that the trailer interchange
agreement referred to in clause (6) has to be executed between the named insured
and the operator of the covered auto.
¶17 We agree with Great West. The clause (6) exclusion unambiguously
applies if the covered auto is being used “under a written Trailer Interchange
Agreement.” Nothing in the policy’s language states or implies that the exclusion
applies to trailer interchange agreements only when they were executed by the
named insured and the operator of the applicable auto. “[W]hen an insurance
policy’s terms are plain on their face, the policy must not be rewritten by
construction.” Meyer v. City of Amery, 185 Wis. 2d 537, 543, 518 N.W.2d 296(Ct. App. 1994). “Courts cannot insert what has been omitted or rewrite a contract
in the guise of construing contracts.” Id. at 543-44. The rule of narrow
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No. 2019AP672
construction that Rogers cites applies only when there is ambiguity in the policy’s
language. See Stuart v. Weisflog’s Showroom Gallery, Inc., 2008 WI 86, ¶¶19-
20, 311 Wis. 2d 492, 753 N.W.2d 448; see also Frost v. Whitbeck, 2002 WI 129,
¶¶16-20, 257 Wis. 2d 80, 654 N.W.2d 225. Here, there is no ambiguity, and,
correspondingly, Rogers’ argument fails. Applying a plain-language interpretation
to the policy, we agree with Great West that clause (6) excludes Ranken and
Kearns from coverage and we affirm the circuit court in that respect. This results
in dismissal of Rogers’ first claim, alleging negligence on the part of Ranken and
Kearns.
B. Endorsement-based theory
¶18 Under Rogers’ second theory that coverage extends to Ranken and
Kearns, Rogers argues that, even if we decline to interpret clause (6) in such a way
that would restrict its application to only those situations in which a trailer
interchange agreement was executed between Ranken and All Star, the circuit
court erred in granting judgment on the pleadings because there remains a question
of fact regarding whether Transport leased the trailer back from All Star prior to
Ranken taking possession for Kearns to haul it. Rogers contends that this fact
matters because the clause (6) exclusion would not apply in the circumstances as
she posits them: Ranken and Kearns were not using the trailer under the Trailer
Interchange Agreement with Transport but instead were granted use of the trailer
by its owner, All Star, without reference to that agreement.
¶19 Rogers’ argument is not persuasive for at least the following reasons.
First, it is premised solely on an endorsement in the policy that lists Transport as
an “Additional Insured (Lessor).” Rogers points to nothing else in the record to
support her premise that All Star, after renting its trailer to Transport, leased back
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No. 2019AP672
its own trailer from Transport and then made it available for use by Ranken
without reference to the Trailer Interchange Agreement with Transport. Even at
the judgment on the pleadings stage, the information upon which Rogers relies is
insufficient to support the suggestion that this hypothetical scenario may have
occurred. Simply because Transport was named as an additional insured, in a
“lessor” role, does not mean, or even suggest, that Transport leased back the
rented trailer to its owner All Star. Indeed, the additional information the circuit
court had before it when granting judgment on the pleadings suggests otherwise.
This information includes the Rental Equipment Agreement showing that All Star
rented the trailer to Transport; the Trailer Interchange Agreement between
Transport and Ranken showing that Transport (not All Star) loaned the trailer to
Ranken; and the Raw Product Hauling Agreement between Seneca and Transport
showing that Transport agreed to haul vegetables for Seneca.
¶20 Significantly, the circuit court also had before it allegations
contained in Rogers’ own complaint, which we accept as true for the purpose of
judgment on the pleadings. See Schuster v. Altenberg, 144 Wis. 2d 223, 228,
424 N.W.2d 159 (1988) (for the purpose of conducting judgment on the pleadings
analysis, “‘the facts pleaded by the plaintiff, and all reasonable inferences
therefrom, are accepted as true’” (quoting Prah v. Maretti, 108 Wis. 2d 223, 229,
321 N.W.2d 182 (1982))). In fact, all three versions of Rogers’ complaint—her
original complaint, amended complaint, and second amended complaint—allege
the opposite of her speculative theory that Transport had leased the trailer back to
All Star by the time of the accident. Specifically, the operative complaint alleges
that “[Transport] loaned [the trailer at issue] to [Ranken], pursuant to a Trailer
Interchange Agreement dated June 15, 2016,” and that “Transport hired [Ranken]
to haul loads of vegetable products using the trailers [that] [Transport] rented from
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No. 2019AP672
[All Star] pursuant to a Raw Product Hauling Agreement for Seneca Foods.” Her
original complaint and amended complaint, which her second amended complaint
purports to reallege and incorporate, allege that “[o]n September 9, 2016, [Kearns]
was granted express or otherwise implied permission by [Transport] through a
Trailer interchange agreement to operate [the trailer at issue], owned by [All
Star].” Thus, the factual premise of this argument, that All Star leased the trailer
back from Transport, is not only absent from, but also contradicted by, the
allegations in her complaint. And the fact that Transport was an additional
insured, in a role of “lessor,” does not create a material factual dispute on this
issue that renders judgment on the pleadings inappropriate. Accordingly, we
affirm the circuit court’s determination that Ranken and Kearns are excluded from
coverage by clause (6), resulting in dismissal of Rogers’ first claim alleging their
negligence.4
III. Omnibus Coverage Statute
¶21 Rogers argues that, if the policy’s clause (6) exclusion is construed
to preclude coverage, then the exclusion is void because it contravenes
4
We also summarize an argument by Great West that we need not address. The
argument is that, even if Rogers had identified a factual issue about whether All Star leased the
trailer back from Transport, then clause (5) would apply to exclude Ranken and Kearns from
coverage. As quoted above, clause (5) excludes from coverage “[a]nyone who has hired or
borrowed an ‘auto’ from [All Star] that is used in a business other than [All Star’s] unless under a
written agreement [All Star is] required to hold them harmless.” Rogers responds that clause (5)
would not apply because, if Ranken and Kearns were using the trailer after it had been leased
back from Transport to All Star, then the trailer would not have been, in the language of clause
(5), “used in a business other than” All Star’s. We note that the circuit court declined to grant
Great West’s motion for judgment on the pleadings on the basis of clause (5), concluding that the
court could not determine as a matter of law that Great West was entitled to judgment under that
clause. Because we conclude that coverage is excluded under clause (6), we need not consider
whether clause (5) also excludes coverage. See Barrows v. American Fam. Ins. Co., 2014 WI
App 11, ¶9, 352 Wis. 2d 436, 842 N.W.2d 508 (2013) (“An appellate court need not address
every issue raised by the parties when one issue is dispositive.”).
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No. 2019AP672
Wisconsin’s omnibus coverage statute (“the omnibus statute”), WIS. STAT.
§ 632.32. Great West contends, and the circuit court agreed, that the exclusion
was not prohibited by the omnibus statute.5 See § 632.32(5)(e). We affirm the
circuit court’s determination on this issue for multiple reasons, including a lack of
development in Rogers’ arguments on appeal.
¶22 The omnibus statute applies to every automobile insurance policy
issued or delivered in Wisconsin, unless the statute specifically provides
otherwise. See Clark v. American Fam. Mut. Ins. Co., 218 Wis. 2d 169, 173-74,
577 N.W.2d 790 (1998); WIS. STAT. § 632.32(1). Rogers relies on § 632.32(3),
which provides:
(3) REQUIRED PROVISIONS. Except as provided in
sub. (5), every policy subject to this section issued to an
owner shall provide that:
(a) Coverage provided to the named insured applies
in the same manner and under the same provisions to any
person using any motor vehicle described in the policy
when the use is for purposes and in the manner described in
the policy.
(b) Coverage extends to any person legally
responsible for the use of the motor vehicle.
5
In its briefing on this issue, Great West purports to incorporate by reference arguments
from its circuit court reply brief. We have accounted for the substance of the intended argument
but we remind counsel that this type of incorporation by reference is not an appropriate form of
appellate advocacy because “at a minimum, it creates the potential for exceeding the allowable
length of briefs and violates the rule addressing the required form of appellate arguments.” Bank
of America NA v. Neis, 2013 WI App 89, ¶11 n.8, 349 Wis. 2d 461, 835 N.W.2d 527; see also
WIS. STAT. RULE 809.19(1)(e) and (8)(c). In addition, it is not effective as advocacy. Separately,
at another point in its brief, Great West improperly cites an unpublished opinion, Powell v. State,
188 Wis. 2d 605, 526 N.W.2d 280 (Ct. App. 1994) (unpublished slip op.), in violation of WIS.
STAT. RULE 809.23(3) and without noting that the opinion is unpublished.
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No. 2019AP672
This court has explained that these provisions “effectively impose[] a permissive
user requirement” on automobile insurance policies, “requir[ing] that automobile
policies provide coverage to any person ‘using’ the vehicle with permission of the
named insured, ‘in the same manner’ as the policy would if the liable party was
the named insured.” Blasing v. Zurich Am. Ins. Co., 2013 WI App 27, ¶¶16-17,
346 Wis. 2d 30, 827 N.W.2d 909 (italics omitted).
¶23 However, subsec. (5) of the omnibus statute, titled “permissible
provisions” and referred to in subsec. (3), further provides in pertinent part that
“[a] policy may provide for exclusions not prohibited by sub. (6) or other
applicable law.” WIS. STAT. § 632.32(5)(e); see also Clark, 218 Wis. 2d at 174.
Subsection (6) of the omnibus statute (not to be confused with clause (6) of the
policy) expressly prohibits certain types of exclusions, none of which Rogers
argues apply here. Our supreme court has interpreted the statutory language in
subsec. (5)(e) as establishing a two-part test to determine whether a policy
exclusion is permissible: (1) whether the exclusion is prohibited by § 632.32(6),
and if not, then (2) whether the exclusion is prohibited by “any other applicable
law.” Belding v. Demoulin, 2014 WI 8, ¶29, 352 Wis. 2d 359, 843 N.W.2d 373;
see also Mau, 248 Wis. 2d 1031, ¶¶31-32.
¶24 Rogers argues that the policy’s clause (6) exclusion violates the
omnibus statute insofar as it excludes permissive users of the trailer under a
written trailer interchange agreement from coverage while at the same time
covering All Star, as the named insured, under identical circumstances. In support
of this argument, Rogers relies solely on a hypothetical scenario, which again
involves All Star leasing back its own trailer from Transport, only this time
pursuant to a trailer interchange agreement. Rogers posits that, in such a scenario,
All Star would qualify for coverage due to its being the named insured under the
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No. 2019AP672
policy, even though it would be using its own trailer pursuant to a trailer
interchange agreement, whereas clause (6) would exclude other permissive users
from coverage if they used the trailer under a trailer interchange agreement (in the
absence of a hold-harmless agreement). Rogers contends that this hypothetical
scenario illustrates that the clause (6) exclusion contravenes the omnibus statute’s
requirement that permissive users be covered to the same extent and in the same
manner as the named insured.
¶25 Great West responds that the factual scenario Rogers portrays is
“unproven speculation” that relies on the “faulty logic” that All Star would need a
trailer interchange agreement to use its own trailer.6 Great West also argues that
the exclusion is not prohibited by WIS. STAT. § 632.32(6) and therefore passes
muster under § 632.32(5)(e), which allows for exclusions “not prohibited by sub.
(6) or other applicable law.”
¶26 In her reply brief, Rogers does not dispute that the policy’s clause
(6) trailer-interchange-agreement exclusion is not prohibited by WIS. STAT.
§ 632.32(6), nor does she identify any “other applicable law” under § 632.32(5)(e)
that prohibits this exclusion, beyond the permissible user requirements set forth in
subsec. (3) of the statute. This omission is significant, given precedent suggesting
6
In response to Great West’s contention that Rogers’ argument is based on “unproven
speculation,” Rogers asserts: “Whether this factual scenario happened in the instant matter or not
is irrelevant (though an endorsement in the policy suggests it did happen). The fact that it can
happen is what makes the attempted exclusion in the Great West policy void as a matter of law.”
She also contends that, because this matter was before the circuit court on judgment on the
pleadings, she was not “afford[ed ...] the opportunity to conduct discovery to develop proof of the
disputed facts.” However, for the reasons stated in the text of this opinion, we conclude that
Rogers’ argument related to the omnibus statute is undeveloped and that she has conceded that
exclusions not prohibited by subsec. (5)(e) of the omnibus statute are not prohibited by the
statute.
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No. 2019AP672
that exclusions that are not specifically barred by § 632.32(6) or other applicable
law are not prohibited under the omnibus statute. See, e.g., Clark, 218 Wis. 2d at
173-76 (noting that § 632.32(5)(e) allows insurance companies to “provide for
exclusions not prohibited by sub. (6) or other applicable law,” and determining
that a territorial exclusion was not prohibited by § 632.32(6) and was therefore
permissible, even though the exclusion denied uninsured motorist coverage that is
generally required by § 632.32(4)); Brown v. Tokio Marine & Nichido Fire Ins.
Co., 2012 WI App 45, ¶16, 340 Wis. 2d 707, 811 N.W.2d 872 (policy provision
excluding lessees of the named insured’s automobiles from coverage was
permitted by § 632.32(5)(e) and therefore did not violate the omnibus statute); but
cf. Progressive N. Ins. Co. v. Hall, 2005 WI App 17, ¶¶17-18, 278 Wis. 2d 499,
692 N.W.2d 355 (policy exclusion that violated § 632.32(3)(a) was not
permissible under § 632.32(5)(e)).
¶27 We take as a concession Rogers’ failure to reply to Great West’s
argument that the clause (6) exclusion is permissible because it is not prohibited
under subsec. (5)(e) of the omnibus statute. See United Coop. v. Frontier FS
Coop., 2007 WI App 197, ¶39, 304 Wis. 2d 750, 738 N.W.2d 578 (lack of reply
may be taken as a concession).
¶28 Further, and more fundamentally, we conclude that Rogers’
argument that the policy violates the omnibus statute is undeveloped. Rogers
relies entirely on her hypothetical scenario involving All Star leasing back the
trailer it owns from Transport and then providing it to Ranken. Despite the
abundance of case law discussing the omnibus statute, Rogers does not discuss or
even cite any cases, with the exception of the language from Blasing quoted above
regarding the omnibus statute’s general imposition of a permissive user
requirement. She likewise does not attempt to reconcile subsec. (3)’s “[e]xcept as
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No. 2019AP672
provided in sub. (5)” language with subsec. (5)(e)’s language generally allowing
exclusions not otherwise prohibited. An analysis of the statute and case law is
required to resolve this issue, and that analysis is lacking here. Because Rogers
has not adequately developed her argument that the clause (6) trailer interchange
agreement exclusion violates the omnibus statute, we do not consider this
argument further, and we affirm the circuit court’s ruling with respect to this issue.
See State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992) (we
need not address undeveloped arguments).
¶29 In sum, we affirm the circuit court’s order granting judgment on the
pleadings with respect to Rogers’ first claim alleging negligence by Ranken and
Kearns.7
IV. Rogers’ Second and Third Claims: Respondeat
Superior and Statutory Vicarious Liability
Pursuant to Federal Motor Carrier Law
¶30 The circuit court addressed Rogers’ second and third claims—based
respectively on respondeat superior liability and vicarious liability under federal
motor carrier law—in tandem, stating that the claims “rise and fall together,” and
dismissing both claims. For the reasons discussed below, we conclude that the
court erred in granting judgment on the pleadings with respect to these claims.
7
The circuit court appears to have rejected Rogers’ omnibus statute argument on the
ground that, under Rogers’ hypothetical scenario, All Star (like all permissive users) would also
have been excluded from coverage under clause (6) if All Star had a trailer interchange agreement
with Transport. However, we question whether this is correct. It appears that All Star would in
fact be granted coverage under the policy if All Star were using one of its own trailers under a
trailer interchange agreement because All Star is the named insured and is explicitly provided
coverage by subparagraph (II)(A)(1)(a) of the policy. The policy’s exclusions, listed in
subparagraph (II)(A)(1)(b), apply only to “anyone else,” not to “you,” which is defined as the
named insured, All Star. However, because we affirm the circuit court’s conclusion regarding the
omnibus statute on other grounds, we need not decide this issue.
17
No. 2019AP672
We first examine the court’s rationale in dismissing these claims and explain why
we conclude that dismissal was in error. We then address Great West’s argument
that federal motor carrier law does not apply because the shipment at issue here
did not involve interstate commerce, and conclude that there remain material
factual disputes on that issue.
A. The circuit court’s dismissal of Rogers’ second and third claims
¶31 It is unclear why the court reached the conclusion that the second
and third claims “rise and fall together.” The operative complaint and its
attachments do not indicate that Rogers’ respondeat superior liability involves
federal motor carrier law, which is the basis for Rogers’ third claim. Instead, the
second claim appears to be a stand-alone argument based on Wisconsin law.8 That
said, as shown in our discussion of federal motor carrier law below, some of the
pertinent evidence may overlap in determining whether an entity is a “motor
carrier” or a “broker” under federal law and whether an entity may be vicariously
liable under a theory of respondeat superior.9 Thus, we note for purposes of
remand that, to the extent the circuit court meant to suggest that claims two and
three rise and fall together because they depend on some of the same evidence,
that analysis may be appropriate.
8
We note that in discussing dismissal of her respondeat superior claim on appeal Rogers
cites only Wisconsin law.
9
Regarding allegations of fact in support of Rogers’ claim based on respondeat superior
we note that the operative complaint alleges, among other things, that Ranken and Kearns were
“operating the tractor-trailer unit in the course and scope of their employment with [Transport].”
In addition, her original complaint, which the operative complaint purports to reallege and
incorporate, alleges that Kearns was operating under the dispatch, direction, and control of All
Star; that All Star gave Ranken and Kearns specific load information, directions, and time
limitations; and that All Star had direct control of Kearns’ physical conduct.
18
No. 2019AP672
¶32 Regardless of the circuit court’s rationale, and given our de novo
standard of review, we conclude that, for the reasons we explain below, judgment
on the pleadings was improper with respect to Rogers’ claim based on federal
motor carrier law. And because the court’s ruling on that claim was tied to its
ruling on the second claim, and the evidence bearing on these issues may be
similar, we reverse the court’s judgment on the pleadings with respect to both
claims and remand for further proceedings consistent with this opinion.
B. Whether Transport is vicariously liable as a statutory employer under
federal motor carrier law
¶33 Rogers argues that the circuit court erred in granting judgment on the
pleadings with respect to her vicarious liability claim because there exists a
material dispute of fact as to whether Transport10 was a “motor carrier” within the
meaning of that phrase as used in 49 C.F.R. § 371.2. According to Rogers, if
Transport was a motor carrier under federal law, then Transport is vicariously
liable for Ranken’s and Kearns’ negligence as its “statutory employer.” See
Schramm v. Foster, 341 F. Supp. 2d 536, 540-41, 547-51 (D. Md. 2004); Harris
v. FedEx Nat’l LTL, Inc., 760 F.3d 780, 782-83 (8th Cir. 2014).11
10
Although Rogers’ argument focuses almost exclusively on Transport’s status as a
motor carrier, Rogers also asserts at various points that All Star was likewise a motor carrier with
respect to the Seneca transaction. We agree with Great West that, to the extent Rogers argues
that All Star was a motor carrier with respect to the transaction, that argument is undeveloped and
we therefore do not consider it. See State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633(Ct. App. 1992).
11
With the exception of United States Supreme Court decisions on federal law, we are
not bound by federal court decisions. See City of Weyauwega v. Wisconsin Cent. Ltd., 2018 WI
App 65, ¶12 n.4, 384 Wis. 2d 382, 919 N.W.2d 609. However, on issues of federal law, we may
generally follow federal circuit and district court decisions that we consider to be persuasive. See
id.19
No. 2019AP672
¶34 Federal regulations create a “statutory employee relationship”
between authorized motor carriers and those whose services or equipment motor
carriers hire or lease to deliver cargo. See Crocker v. Morales-Santana, 854
N.W.2d 663, 669 (N.D. 2014) (citing 1 DAVID N. NISSENBERG, THE LAW OF
COMMERCIAL TRUCKING: DAMAGES TO PERSONS AND PROPERTY, at § 7.16 (3d
ed. 2003)). These regulations place responsibility for the control of vehicles and
equipment on the motor carrier, an obligation that “‘may not be contracted away
or delegated to another party.’” Id. at 670 (quoting NISSENBERG, § 7.16). This
results in the driver and the driver’s employees being deemed statutory employees
of the motor carrier, and the carrier “becom[ing] vicariously liable as a matter of
law for the actions of the statutory employees in the operation of the truck.” Id.
(quoting NISSENBERG, § 7.16). The statutory employee doctrine “is intended to
prevent a ‘motor carrier’ from using the independent contractor defense in lease
situations to avoid vicarious liability for a claimed independent contractor’s
negligence.” Id. at 672.
¶35 Rogers contends that the applicable federal statute and regulation,
49 U.S.C. § 14102(a)12 and 49 C.F.R. § 390.11, impose on “motor carriers” certain
nondelegable duties that create vicarious liability even when such liability would
not exist under traditional principles of employment and agency law involving
independent contractors. She argues that, by accepting the duty to haul vegetables
under the Raw Product Hauling Agreement with Seneca, Transport was acting as a
“motor carrier,” such that the statutory-employee doctrine applies.
12
Rogers does not actually cite this provision. Instead, she cites 49 U.S.C. § 304(e)(2),
which our research indicates no longer exists but instead is codified at 49 U.S.C. § 14102. See,
e.g., Amerigas Propane, LP v. Landstar Ranger, Inc., 184 Cal. App. 4th 981, 998, 109 Cal.
Rptr. 3d 686, 699 (2010); Saullo v. Douglas, 957 So. 2d 80, 83 n.1 (Fla. Dist. Ct. App. 2007).
20
No. 2019AP672
¶36 It is not clear from Rogers’ operative complaint or her briefing on
appeal whether her vicarious liability claim is based solely on federal motor carrier
law or whether she intends to make a claim under Wisconsin tort law, relying on
nondelegable duties that may be imposed by federal motor carrier law. However,
we need not decide which of these two arguments she makes, because the parties
appear to agree for purposes of this appeal that a claim may be made based on
federal motor carrier law and that the central issue bearing on that claim is
whether, with respect to the transaction with Seneca, Transport acted as a “motor
carrier” under federal law as alleged by Rogers, or solely as a “broker” as argued
by Great West. Rogers does not dispute for purposes of appeal that, if Transport
acted solely as a broker in the Seneca transaction, then her vicarious liability claim
fails. Likewise, Great West does not dispute for purposes of appeal that, if
Transport acted as a motor carrier, then Rogers may have a viable vicarious
liability claim (putting aside for the moment Great West’s argument with respect
to interstate commerce, which is discussed below). For the reasons explained
below, we conclude that material factual disputes remain as to whether Transport
acted as a motor carrier with respect to the Seneca transaction. As a result, we
conclude that the circuit court erred in dismissing Rogers’ claim alleging vicarious
liability based on federal motor carrier law.
¶37 Federal law defines a “motor carrier” as “a person providing motor
vehicle transportation for compensation.” 49 U.S.C. § 13102(14). A “broker” is
defined as “a person, other than a motor carrier or an employee or agent of a motor
carrier, that as a principal or agent sells, offers for sale, negotiates for, or holds
itself out by solicitation, advertisement, or otherwise as selling, providing, or
arranging for, transportation by motor carrier for compensation.” 49 U.S.C.
§ 13102(2). The distinction between a motor carrier and broker is elaborated upon
21
No. 2019AP672
in federal regulations: “Motor carriers ... are not brokers within the meaning of
this section when they arrange or offer to arrange the transportation of shipments
which they are authorized to transport and which they have accepted and legally
bound themselves to transport.” 49 C.F.R. § 371.2(a); see also Richwell Grp.,
Inc. v. Seneca Logistics Grp., LLC, 425 F. Supp. 3d 57, 61 (D. Mass. 2019) (“[A]
party is a carrier in a ‘specific transaction’ if it takes responsibility for a shipment,
whether or not it performed the actual transportation or labels itself as a broker.”),
appeal docketed, No. 20-1015 (1st Cir. Jan. 9, 2020).
¶38 Federal courts interpreting these provisions have held that whether
an entity is a carrier or a broker depends on the details of the “specific transaction”
at issue. See, e.g., Richwell Grp., 425 F. Supp. 3d at 61; Schramm, 341 F. Supp.
2d at 549-51; Harris v. Velichkov, 860 F. Supp. 2d 970, 979 (D. Neb. 2012);
ASARCO LLC v. England Logistics, Inc., 71 F. Supp. 3d 990, 995-1000 (D. Ariz.
2014). In considering the specific transaction, “[w]hether a company is a broker
or a carrier is not determined by what the company labels itself, but by how it
represents itself to the world and its relationship to the shipper.” ASARCO, 71 F.
Supp. 3d at 995 (quoting Hewlett-Packard Co. v. Brother’s Trucking Enters.,
Inc., 373 F. Supp. 2d 1349, 1352 (S.D. Fla. 2005) (internal quotation marks
omitted)).
¶39 We note that, according to Rogers’ operative complaint, at the time
of the Seneca transaction, Transport was registered with the United States
Department of Transportation as a broker, not as a motor carrier. However,
according to Rogers, the fact that an entity is a licensed broker rather than a
licensed motor carrier is not dispositive of the issue of whether an ostensible
broker is deemed the carrier. Instead, whether an entity is a broker or a carrier
depends on what the entity holds itself out to be and whether it has legally bound
22
No. 2019AP672
itself to transport the goods in connection with the transaction at issue. See Ensco,
Inc. v. Weicker Transfer and Storage Co., 689 F.2d 921, 925 (10th Cir. 1982)
(“A carrier’s status as a common carrier is determined not by reference to its
authority but rather by reference to what it holds itself out to be.”). Rogers argues
that Transport was acting as a motor carrier because Transport assumed the
obligation to haul vegetables for Seneca and it held itself out as a motor carrier
under the Raw Product Hauling Agreement.
¶40 The Raw Product Hauling Agreement, attached to Rogers’ operative
complaint, contains terms that support Rogers’ argument that Transport acted as
the carrier for this specific transaction. In section I-1., Transport “agree[d] to haul
green peas, sweet corn, and lima beans from fields of harvest designated by
[Seneca] to factories designated by [Seneca] at times directed by [Seneca].” In
sections I-2. and I-3., Transport agreed that each truck would meet certain
specifications. Section I-6. further provides:
[Transport] represents and warrants that [Transport] is a
professional motor contract carrier possessing all licenses
and permits that are required for hauling raw vegetable
products within the State of Wisconsin and is aware of the
rules, regulations and laws which govern equipment and
drivers engaged in hauling raw vegetable crops.
[Transport] further warrants and represents that [Transport]
will comply with all such federal, state and local laws,
regulations and rules that govern equipment and drivers
engaged in hauling raw vegetable crops.
Section III-2. provides that neither Seneca nor Transport “shall sell, convey, assign
or transfer, dispose or encumber any of its rights, interests or benefits under this
agreement without first obtaining the prior written consent of the other party,
which consent shall not be unreasonably withheld.” This language tends to show
that Transport was not agreeing to act as a broker. By agreeing not to sell, convey,
assign, or transfer its rights under the Raw Product Hauling Agreement without
23
No. 2019AP672
prior approval from Seneca, Transport assured Seneca that Transport was the
entity that would perform the hauling under the contract. Had Transport
unconditionally reserved the right to sell, convey, assign, or transfer its rights
under the Raw Product Hauling Agreement, then Seneca would have been on
notice that Transport might get another party (such as Ranken) to perform under
the contract in its stead. Transport’s reservation of these rights would have
supported the view that Transport was acting as a broker and would undermine the
view that Transport was agreeing to be the carrier.
¶41 Great West argues that we cannot consider the Raw Product Hauling
Agreement in isolation. Specifically, Great West relies heavily on the Trailer
Interchange Agreement between Ranken and Transport. Great West notes that
under the Trailer Interchange Agreement: (1) Ranken agreed to indemnify
Transport; (2) Ranken had ultimate responsibility for hiring and overseeing
drivers; and (3) Ranken agreed to act as the motor carrier. Although these factors
may be relevant to the issue of whether Transport was a motor carrier or a broker
with respect to the transaction at issue here, we conclude that they are insufficient
to support judgment on the pleadings with respect to this issue.
¶42 Decisions by federal courts that address whether an entity is a motor
carrier or a broker support our conclusion that there is a dispute over material facts
in this case. As previously stated, the important factor is “whether the entity holds
itself out to the public generally as the actual transporter of the goods.” Tokio
Marine and Fire Ins. Co. v. Amato Motors, Inc., 770 F. Supp. 426, 428 (N.D. Ill.
1991), rev’d on other grounds, 996 F.2d 874 (7th Cir. 1993); see also Ensco, 689
F.2d at 925 (same). Courts also consider whether the entity at issue legally bound
itself to transport the load at issue. For example, in Schramm, the court rejected
the plaintiffs’ argument that a company was a carrier within the meaning of
24
No. 2019AP672
applicable federal law because, among other factors, there was “no evidence” that
the company bound itself to haul the shipment or conveyed to the shipper that it
would haul the shipment. Schramm, 341 F. Supp. 2d at 550.
¶43 In contrast, Rogers alleges that “Transport entered into [a] Raw
Product [Hauling] Agreement with Seneca Foods to haul loads of vegetable
products dated March 28, 2013,” and she contends that Transport became
“contractually obligated to haul the load as a motor carrier,” thereby “meet[ing]
the statutory definition of a motor carrier.” Supporting this argument, the Raw
Product Hauling Agreement suggests that Transport bound itself to haul for
Seneca.
¶44 Rogers’ pleadings and the Raw Product Hauling Agreement suffice
to create a dispute of material facts regarding whether Transport was a motor
carrier within the meaning of federal law. See Richwell Grp., 425 F. Supp. 3d at
61 (collecting cases in which parties were found to be carriers after “tak[ing]
responsibility for a shipment, whether or not it performed the actual transportation
or labels itself as a broker”). Thus, the circuit court erred in granting judgment on
the pleadings and dismissing Rogers’ claim.13
13
For purposes of remand, we note that, in dismissing Rogers’ respondeat superior claim
and her claim based on federal motor carrier law, the circuit court appears to have relied, in part,
on a three-part test set forth in Schramm v. Foster, 341 F. Supp. 2d 536 (D. Md. 2004).
However, Schramm’s three-part test was applicable only to the plaintiffs’ respondeat superior
claim under Maryland law, and not to the plaintiffs’ claims under federal motor carrier law. See
id. at 547-51. The Schramm court separately addressed the plaintiffs’ federal motor carrier
claim, relying not on the three part-test under Maryland law but on federal law that, as discussed
above, is pertinent to this case. See id. at 543-46. Thus, we conclude that, to the extent the circuit
court here relied on Schramm’s three-part test and consequently on Maryland law in addressing
Rogers’ second and third claims, such reliance would have been in error.
25
No. 2019AP672
C. Interstate v. Intrastate Commerce
¶45 Finally, we address Great West’s argument that the circuit court
properly dismissed Rogers’ vicarious liability claim under federal motor carrier
law because the transaction at issue involved only intrastate rather than interstate
commerce. Great West relies primarily on Gonzalez v. Ramirez, 463 S.W.3d 499,
502 (Tex. 2015), in which the supreme court of Texas concluded that federal
motor carrier law applies “only to transportation in interstate commerce.” The
Gonzalez court noted that the driver in that case had not been hired to “transport
property across state lines at any point,” and therefore concluded that federal
motor carrier law did not apply because the transaction did not implicate interstate
commerce. See id.; see also 49 C.F.R. § 390.5 (defining “interstate commerce”
for purposes of Federal Motor Carrier Safety Regulations). The court then
proceeded to analyze whether the harvesting and hauling company in that case,
which had hired the subcontractor that employed the driver whose truck caused the
accident, was a carrier under Texas regulations. Gonzalez, 463 S.W.3d at 503-04.
¶46 Based on the record in this case, we cannot conclude as a matter of
law that the shipment at issue here involved only intrastate rather than interstate
commerce. Great West relies on the Raw Product Hauling Agreement between
Seneca and Transport, which states that “[Seneca] requires hauling services to
transport green peas, sweet corn and lima beans from the fields where they are
grown to [Seneca’s] plants throughout the State of Wisconsin.” However, as
Rogers points out, this language does not indicate where the fields are and is
therefore not dispositive of the interstate commerce issue. Rogers also notes that
the address Ranken listed for itself on the Trailer Interchange Agreement was in
Rochelle, Illinois, which she states raises the inference that the contract implicated
interstate commerce. Additionally, Rogers points to her allegation in the operative
26
No. 2019AP672
complaint that All Star was a motor carrier engaged in interstate commerce.
Finally, citing federal authority, Rogers argues that the question of whether a
transaction is in interstate commerce may not be as straightforward as it seems,
and may depend on the “essential character” of the shipment and the intent of the
parties. See Roberts v. Levine, 921 F.2d 804, 810-12 (8th Cir. 1990); Century
Indem. Co. v. Carlson, 133 F.3d 591, 595-99 (8th Cir. 1998).
¶47 We conclude that Great West has not shown that there remain no
issues of material fact with respect to whether the Seneca transaction involved
interstate commerce so as to entitle Great West to judgment on the pleadings. We
also note that Great West did not raise this issue before the circuit court, which
deprived both the circuit court and Rogers of the ability to address it. And
although Rogers argues that Great West’s interstate commerce argument is
therefore forfeited, we decline to apply the forfeiture rule under the circumstances
here. Rather, because we are reversing the court’s determination with respect to
Rogers’ claim involving federal motor carrier law and remanding for further
proceedings, we allow the parties to argue this issue on remand and the circuit
court to decide it in the course of its further proceedings. Accordingly, the parties
remain free to argue this aspect and all other aspects of the vicarious liability claim
going forward.
V. Rogers’ Fourth and Fifth Claims: Transport’s Negligent
Hiring, Training, Retention, and Supervision, and
All Star’s and Transport’s Concerted Action
¶48 Rogers’ final argument is that the circuit court erred in granting
judgment on the pleadings with respect to claims four and five because material
factual disputes remain regarding whether Transport is liable for the negligent
hiring, training, retention, and supervision of Ranken and Kearns (claim 4,
27
No. 2019AP672
“negligent entrustment claim”)14 and whether All Star and Transport engaged in a
“concerted action” to haul vegetables for Seneca (claim 5). The court determined
that, upon dismissal of Rogers’ first claim, the fourth (negligent entrustment) and
fifth (“concerted action/joint enterprise”)15 claims must be dismissed under Siebert
v. Wisconsin American Mutual Insurance Co., 2011 WI 35, 333 Wis. 2d 546,
797 N.W.2d 484. Although the court did not name the rule, we understand the
court to have reasoned that the independent concurrent cause rule did not apply to
extend coverage to Transport’s or All Star’s actions. The Siebert court explained
the independent concurrent cause rule as follows:
The independent concurrent cause rule provides that
“[w]here a policy expressly insures against loss caused by
one risk but excludes loss caused by another risk, coverage
is extended to a loss caused by the insured risk even though
the excluded risk is a contributory cause.” However, in
order to trigger coverage, “[t]he ‘independent concurrent
cause must provide the basis for a cause of action in and of
itself and must not require the occurrence of the excluded
risk to make it actionable.’” Stated conversely, if the
covered risk is not actionable without the occurrence of an
excluded risk, then the covered risk is not sufficiently
independent to trigger coverage under the policy.
Id., ¶40 (citations omitted). We affirm the circuit court based on a lack of
development in Rogers’ arguments on appeal.
14
Although Rogers does not use the phrase “negligent entrustment” to refer to her claim
based on negligent hiring, training, retention, and supervision, she does not dispute the circuit
court’s or Great West’s characterizing her claim as being one of negligent entrustment, and we
consider this characterization to be appropriate.
15
Rogers does not provide any explanation or citation to any authority with respect to
her claim for “concerted action/joint enterprise.” It is not clear to us if she means to assert this
theory as a separate and stand-alone ground for liability or whether she intends to suggest that
concerted action between Transport and All Star bears on one of the other four claims alleged in
her complaint. We assume without deciding that Rogers means to allege a stand-alone claim,
whatever its elements might be, and proceed to affirm the circuit court’s dismissal of the claim
for the reasons stated in the text.
28
No. 2019AP672
¶49 In Siebert, the policyholder’s daughter, who was an insured under
the policy, gave permission to her boyfriend to drive the policyholder’s car to a
food pantry and then return. Id., ¶7. The boyfriend exceeded the scope of his
permission, picking up additional passengers and heading to a party. Id., ¶¶7-8.
On the way to the party, he lost control of the car and was killed along with
another passenger, and the remaining passengers were injured. Id., ¶¶9-10.
Because the policy did not cover the driver’s alleged negligent operation of the
vehicle, one of the injured passengers, Siebert, sued the policyholder’s insurer,
alleging that the daughter’s entrustment of the vehicle to her boyfriend was
negligent because she knew that he lacked a valid driver’s license. Id., ¶¶1, 12,
18-19. The complaint further alleged that the daughter’s negligent entrustment
was “‘a separate and distinct act of negligence from [the boyfriend’s] negligent
operation of the vehicle.’” Id., ¶19.
¶50 Our supreme court determined that there was no coverage under the
policy for the daughter’s alleged negligent entrustment of the vehicle to her
boyfriend “because that act [was] not an independent concurrent cause of []
Siebert’s injuries.” Id., ¶55. The Siebert court stated: “Specifically, the alleged
negligent entrustment of the vehicle is not actionable without the occurrence of an
excluded risk—the alleged negligent operation of the vehicle. Therefore, there is
no coverage for Siebert’s negligent entrustment claim, and [the insurer] is entitled
to summary judgment.” Id., ¶56.
¶51 In dismissing Rogers’ fourth and fifth claims based on Siebert, the
circuit court stated:
This Court essentially reads Siebert to require some
independent process or step or incident, accident,
occurrence, whatever magic word you want to use, that
29
No. 2019AP672
might have caused damage to [Rogers] in order to sustain
that.
There is no circumstance that this Court could find
pointed to in any way, shape, or form but for the negligence
of Kearns and theoretically and/or Ranken I suppose, that
[Rogers] suffered damage.
Without that underlying negligent act, there is no
damage to [Rogers], and as a result, I think I’m effectively
required to dismiss both [the] fourth and fifth claims as
well.
¶52 Despite the circuit court’s exclusive reliance on the reasoning in
Siebert to dismiss these claims, Rogers fails to discuss Siebert in her brief-in-
chief. In fact, Rogers provides no legal authority for her argument that the court’s
dismissal of her negligent entrustment and “concerted action/joint enterprise”
claims was error. In her reply brief, when addressing Great West’s point in its
respondent’s brief that Rogers fails to discuss Siebert or other authority on these
two claims, Rogers simply notes that Siebert was decided on summary judgment
rather than on judgment on the pleadings. Rogers further states that she alleged
negligence on the part of All Star and/or Transport in her complaints, and that this
allegation should suffice to withstand judgment on the pleadings. Even if we were
to consider arguments raised for the first time in her reply brief, which we
typically do not do, Rogers’ response would be insufficiently developed.
¶53 Because Rogers does not provide any relevant legal authority or
developed arguments with respect to the circuit court’s dismissal of her negligent
entrustment and concerted action claims, we do not consider them further. See
Pettit, 171 Wis. 2d at 646-47; Industrial Risk Insurers v. American Engineering
Testing, Inc., 2009 WI App 62, ¶25, 318 Wis. 2d 148, 769 N.W.2d 82 (arguments
unsupported by legal authority will not be considered, and we will not abandon
our neutrality to develop arguments). Accordingly, we affirm the circuit court’s
30
No. 2019AP672
order granting judgment on the pleadings dismissing Rogers’ claims of negligent
entrustment and concerted action.16
CONCLUSION
¶54 For the reasons stated above, we uphold the circuit court’s
determination that Ranken and Kearns were subject to the clause (6) exclusionary
provision in All Star’s policy with Great West. We also conclude that Rogers has
failed to develop an argument that the omnibus statute prohibits the application of
this clause. Thus, we affirm the circuit court’s dismissal of Rogers’ first claim
alleging negligence by Ranken and Kearns.
¶55 We further conclude that disputes of material fact remain regarding
Transport’s status as either a broker or carrier for purposes of Rogers’ third claim
alleging liability under federal motor carrier law. We therefore reverse the circuit
court’s dismissal of that claim and, for the reasons stated above, also reverse the
court’s dismissal of Rogers’ second claim alleging liability under respondeat
superior. With respect to both of these claims, we also remand for further
proceedings consistent with this opinion.
¶56 Lastly, we affirm the circuit court’s dismissal of Rogers’ fourth
claim alleging negligent entrustment and fifth claim alleging “concerted
action/joint enterprise” because Rogers’ arguments with respect to these claims are
inadequately developed.
16
We also observe that, in addressing Rogers’ negligent entrustment claim, the circuit
court’s reliance on Siebert v. Wisconsin American Mutual Insurance Co., 2011 WI 35, 333 Wis.
2d 546, 797 N.W.2d 484, appears to be appropriate. We need not address the court’s dismissal of
the “concerted action/joint enterprise” claim given Rogers’ undeveloped argument with respect to
this claim.
31
No. 2019AP672
By the Court.—Order affirmed in part; reversed in part and cause
remanded for further proceedings.
This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5.
32