Brian Casey v. Ronald Smith

2014 WI 20SUPREME COURT OF WISCONSIN
CASE NO.: 2012AP667
COMPLETE TITLE: Brian Casey,
Plaintiff,
v.
Ronald Smith, John Zeverino, Taylor Truck Line,
Inc.,
Allstate Property and Casualty Insurance
Company, Austin
Mutual Insurance Company and Health Partners,
Defendants,
Acceptance Casualty Insurance Company,
Defendant-Appellant-Petitioner,
Great West Casualty Company,
Defendant-Respondent.
REVIEW OF A DECISION OF THE COURT OF APPEALS
346 Wis. 2d 111, 827 N.W.2d 917(Ct. App. – Published)
PDC No: 2013 WI App 24OPINION FILED: April 18, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: January 14, 2014
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Dunn
JUDGE: Rod W. Smeltzer
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
For the defendant-appellant-petitioner, there were briefs
by Charles J. Noel and Charles J. Noel & Associates, P.A.,
Minneapolis, and oral argument by Charles J. Noel.
For the defendant-respondent, the cause was argued by
Tamara L. Novotny with whom on the brief was Michael W. McNee,
and Cousineau McGuire Chartered, Minneapolis.
2014 WI 20NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2012AP667
(L.C. No. 2010CF295)
STATE OF WISCONSIN : IN SUPREME COURT
Brian Casey,
Plaintiff,
v.
Ronald Smith, John Zeverino, Taylor Truck Line,
Inc., Allstate Property and Casualty Insurance
Company, Austin Mutual Insurance Company and
Health Partners,
FILED
Defendants, APR 18, 2014
Acceptance Casualty Insurance Company, Diane M. Fremgen
Clerk of Supreme Court
Defendant-Appellant-Petitioner,
Great West Casualty Company,
Defendant-Respondent.
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 ANN WALSH BRADLEY, J. Defendant Acceptance Casualty
Insurance Company (Acceptance) seeks review of a published
decision of the court of appeals affirming the circuit court's
grant of summary judgment in favor of Great West Casualty
No. 2012AP667
Company (Great West).1 Both Acceptance and Great West issued
liability insurance policies for a semi-tractor that was owned
by John Zeverino and leased to Taylor Truck Line. Acceptance
provided a non-trucking use policy and Great West provided a
commercial truckers' policy.
¶2 Both parties agree that the accident is covered by
insurance, but disagree as to which of the two policies provides
the coverage. Each insurer filed a summary judgment motion
asserting the other was responsible for coverage. Both the
circuit court and the court of appeals concluded that of the two
policies, the Acceptance policy provided coverage for the multi-
vehicle accident.
¶3 Acceptance asserts that its policy provides no
coverage because it contains two exclusions which preclude
coverage. It primarily focuses on 14(b) that excludes coverage
when a semi-tractor is being used "in the business of" a lessee.
Acceptance contends that because the accident occurred while the
semi-tractor's driver, John Zeverino, was on his way to a
maintenance facility for repairs to the grille and oil filler
tube, the semi-tractor was being used in the business of Taylor
Truck Line at the time of the accident.
¶4 Alternatively, it advances that 14(a) excludes
coverage when a semi-tractor is "en route to" a "business
purpose" and that obtaining maintenance is a business purpose.
1
Casey v. Smith, 2013 WI App 24, 346 Wis. 2d 111, 827
N.W.2d 917 (affirming judgment of the circuit court for Dunn
County, Rod W. Smeltzer, Judge).
2
No. 2012AP667
Acceptance argues that because obtaining repairs constitutes a
business purpose, there is no coverage under its non-trucking
use policy.
¶5 We determine that neither of the exclusions in
Acceptance's policy precludes coverage. The facts of record do
not support the application of exclusion 14(b). Zeverino was
not using the semi-tractor "in the business of" Taylor Truck
Line because the repairs here did not further Taylor's
commercial interests. There is nothing in the record that shows
the repairs were required by the lease. Additionally, the
repairs were not done pursuant to orders from Taylor Truck Line,
and they were not necessary for the semi-tractor to continue its
service.
¶6 Further, Acceptance's argument that coverage is
excluded because Zeverino was en route to the business purpose
of obtaining maintenance reflects an overly expansive
interpretation of the text of exclusion 14(a). Like the court
of appeals, we are concerned that its interpretation may render
coverage illusory. Instead, in examining the text of exclusion
14(a) we determine that it refers to maintenance necessary to
allow the semi-tractor to carry property. It is undisputed that
the semi-tractor could and did carry loads without the repairs
to the grille and oil filler tube.
¶7 Because the exclusions in Acceptance's policy do not
apply, we conclude that its non-trucking use policy provides
coverage for the accident. Accordingly, we affirm the court of
appeals.
3
No. 2012AP667
I.
¶8 The parties repeatedly asserted that the facts in this
case are not in dispute. Zeverino owned a 2003 Freightliner
semi-tractor which he leased to Taylor Truck Line, Inc. Under
the terms of the lease Zeverino agreed to provide a driver and
use his semi-tractor exclusively for Taylor Truck Line. The
lease also provided that Zeverino would "bear all expenses to
the operation to the equipment, including . . . [r]epairs and
maintenance" and "[m]aintain[] the equipment in a state of
repair required by all applicable regulations."2 The lease
further required Taylor Truck Line to obtain insurance as
required by federal law3 and Zeverino to obtain "bobtail
2
Section 23 of the lease states:
The contractor shall have the responsibility to
carrier of satisfying various regulatory requirements,
and safety requirements of carrier and/or insurance
company, by:
A) Maintaining the equipment in the state of repair
required by all applicable regulations.
B)
3
Section 17(A) of the lease provides:
LIABILITY-PROPERTY DAMAGE INSURANCE. During the
existence of this agreement, carrier will provide and
maintain insurance coverage for the protection of the
public from damage to persons and property, pursuant to
its statutory obligations under 49 U.S.C. 10927.
4
No. 2012AP667
liability insurance"4 to cover the semi-tractor "when not used in
performance under this agreement."
¶9 Pursuant to the lease, Zeverino obtained an insurance
policy for non-trucking use coverage from Acceptance. An
exclusion in section 14(a) of the policy states that it does not
cover the semi-tractor "[w]hile being operated, maintained or
used to carry property in any business or en route to or from
such business purpose." Section 14(b) of the policy sets forth
another exclusion that states that it does not cover the semi-
tractor "[w]hile used in the business of anyone to whom the
'auto' is rented."
¶10 Taylor Truck Line obtained a commercial truckers'
insurance policy from Great West. The policy provides coverage
for:
[t]he owner or anyone else from whom you lease, for
more than 30 consecutive days, a covered "auto" with a
driver that is not a "trailer" while the covered
"auto":
(1) Is being used exclusively in your business as a
"trucker."
The policy defines a "trucker" as "any person or organization
engaged in the business of transporting property by 'auto' for
hire."
4
"A bobtail is the popular term for a tractor (cab) without
an attached trailer. Since a trucker who is 'bobtailing' is
generally not using the vehicle for trucking purposes, non-
trucking-use insurance is often called bobtail insurance."
Royal Indem. Co. v. Providence Wash. Ins. Co., 707 N.E.2d 425,
426 n.1 (N.Y. 1998).
5
No. 2012AP667
¶11 In January 2009, Zeverino took the semi-tractor to
FABCO, a truck maintenance facility in Eau Claire, to have its
engine control module recalibrated. While the semi-tractor was
there, FABCO inadvertently damaged its grille. FABCO ordered a
new one and called Zeverino when it arrived. Instead of making
an appointment to replace the grille, Zeverino was to return to
FABCO to have the grille replaced whenever it was convenient for
him. In addition, Zeverino had previously ordered a new oil
filler tube which he had intended to install himself. FABCO
offered to install the new tube at the same time it replaced the
grille.
¶12 The damaged grille did not put the truck out of
service or prevent Zeverino from completing or accepting new
loads to haul. Zeverino indicated that he was on duty several
hours from February 20 through February 25, 2009. He testified
that having the grille replaced "was not a routine maintenance,
but it was a repair that they had broken, they had to replace."
He agreed that he needed to have the repair work done "to have
[the] tractor the way [he] needed it to . . . operate as an
owner, operator for Taylor Truck Line."
¶13 On February 27, 2009, approximately a month after the
grille was broken, Zeverino left his home in Prescott and headed
to Eau Claire to have the grille replaced. Zeverino was off-
duty at the time. Taylor Truck Line did not know he was going
to Eau Claire that day and he was not under any order or
instruction from Taylor Truck Line to do so. Zeverino stated in
his deposition that he did not consider himself to be "in the
6
No. 2012AP667
business of Taylor Truck Line at the time." Although he
indicated that the grille was "starting to fall apart and fall
off on the highway," Zeverino also testified that he could have
taken a load that day without service to his grille or oil
filler tube.
¶14 While en route to Eau Claire, Zeverino's tractor was
involved in a multi-vehicle accident that included vehicles
driven by Ronald Smith and Brian Casey. Zeverino wrote in his
Driver's Daily Log that he was "driving" at the time of the
accident and "on duty" while at the scene of the accident.
While there, Zeverino filled out an accident report which
indicated that there was nothing wrong with the semi-tractor
prior to the accident. A Wisconsin state trooper who arrived at
the scene conducted a Level 1 DOT inspection of Zeverino's semi-
tractor, apparently the most comprehensive type of post-accident
inspection. The trooper also completed a "Driver/Vehicle
Examination Report" and noted that no violations were discovered
during the inspection. Thereafter, the trooper permitted
Zeverino to continue on to Eau Claire, where FABCO replaced the
grille and oil filler tube. Together the repairs took
approximately an hour.
¶15 Casey filed a complaint on June 29, 2010, seeking
recovery for injuries he sustained in the accident. He included
Zeverino, Taylor Truck Line, Acceptance, and Great West as named
defendants.
¶16 Both insurance companies filed cross motions for
summary judgment on April 6, 2011. Acceptance pointed to two
7
No. 2012AP667
relevant exclusions in its non-trucking policy, section 14(a)
and section 14(b). It asserted that at the time of the accident
the semi-tractor was being used "in the business of" Taylor
Truck Line. Additionally, it argued that because the accident
occurred while Zeverino was "en route" to have maintenance done
on the semi-tractor, it was being used for a "business purpose"
of the lessee. Acceptance contended that the exclusions
precluded coverage.
¶17 Great West asserted that Zeverino was not using the
semi-tractor in the business of the lessee because the repairs
were not needed to make the semi-tractor safe or available for
Taylor Truck Line's use, and Taylor Truck Line had not directed
Zeverino to have the repairs done. Great West argued that it
was not responsible for providing coverage for the accident
because its policy afforded coverage only while the semi-tractor
was "being used exclusively in [Taylor's] business."
¶18 The circuit court issued an order denying both
motions. It determined that there was a triable issue of fact
as to whether Zeverino was performing in furtherance of the
business or commercial interests of Taylor Truck Line.
¶19 Upon a motion for reconsideration, together with
supplemental memoranda of law and supplemental affidavits, the
circuit court granted summary judgment in favor of Great West.
It found that Zeverino was having non-essential repairs done on
his own time. Accordingly, the circuit court determined that
Zeverino was not involved in furthering the business of Taylor
Truck Line at the time of the accident.
8
No. 2012AP667
¶20 The court of appeals affirmed. Casey v. Smith, 2013
WI App 24, 346 Wis. 2d 111, 827 N.W.2d 917. It noted the
parties' agreement that one of their policies afforded coverage
for the accident and that resolution of which policy applied
depended on whether Zeverino was operating the semi-tractor "in
the business of" Taylor Truck Line. Id., ¶10.
¶21 The court considered first the exclusion set forth in
section 14(b) of Acceptance's policy. Quoting the Seventh
Circuit Court of Appeals, the court stated that a tractor is
being operated "in the business of" the lessee when "the truck
is being used to further the commercial interests of the
lessee." Id., ¶17 (quoting Hartford Ins. Co. v. Occidental Fire
& Cas. Co., 908 F.2d 235, 237 n.5, 239 (7th Cir. 1990)). The
court noted Zeverino's testimony that the defects did not
prevent him from hauling loads and his concession that the semi-
tractor was never taken out of service. Id., ¶23.
Consequently, the court determined that the repairs to the semi-
tractor's grille and oil filler tube were not necessary for
Zeverino to continue operating in Taylor Truck Line's business.
Id. Therefore, it concluded that "the repairs did not further
Taylor's commercial interests and Zeverino was not acting 'in
the business of' Taylor at the time of the accident." Id.
¶22 Next, the court considered the exclusion set forth in
section 14(a) of Acceptance's policy. It recounted Acceptance's
contention that the exception lists three activities that
qualify as "business purposes:" (1) operation, (2) maintenance,
and (3) being used to carry property in any business. Id., ¶31.
9
No. 2012AP667
The court determined that such an interpretation "produces
absurd results" as it would mean "the mere operation of the
tractor, for any reason, would be a business purpose." Id.,
¶32. Accordingly, the court rejected Acceptance's
interpretation of section 14(a). It concluded that the business
purposes referred to in section 14(a) were: (1) operation to
carry property in any business, (2) maintenance to carry
property in any business, and (3) use to carry property in any
business. Id., ¶33.
II.
¶23 In this case, we are called upon to review the circuit
court's grant of summary judgment to Great West. We review
grants of summary judgment independently of the determinations
rendered by the circuit court and the court of appeals, but we
apply the same methodology as the circuit court. Park Bank v.
Westburg, 2013 WI 57, ¶36, 348 Wis. 2d 409, 832 N.W.2d 539.
Summary judgment is appropriate where "there is no genuine issue
as to any material fact and [] the moving party is entitled to a
judgment as a matter of law." Wis. Stat. § 802.08(2).
¶24 Here, the parties agree that there are no material
facts in dispute. At issue is the interpretation of
Acceptance's and Great West's policies. The interpretation of
an insurance policy is a question of law that we review
independently of the decisions rendered by the circuit court and
the court of appeals. Schinner v. Gundrum, 2013 WI 71, ¶35, 349
Wis. 2d 529, 833 N.W.2d 685.
10
No. 2012AP667
¶25 This court has a well-established methodology for
determining insurance coverage. First, we look to a policy's
initial grant of coverage. Wadzinski v. Auto-Owners Ins. Co.,
2012 WI 75, ¶14, 342 Wis. 2d 311, 818 N.W.2d 819. Second, if
there is an initial grant of coverage, the court will examine
whether any exclusions withdraw coverage from a claim. Id.Third, if an exclusion applies, the court will then consider
whether there are any exceptions to the exclusion that reinstate
coverage. Id.¶26 Our inquiry is also guided by the canons of
construction applicable to insurance policies. "[W]e interpret
policy language according to its plain and ordinary meaning as
understood by a reasonable person in the position of the
insured." Hirschhorn v. Auto-Owners Ins. Co., 2012 WI 20, ¶22,
338 Wis. 2d 761, 809 N.W.2d 529. Ambiguities in the policy
language are construed against the insurer. Marlowe v. IDS
Prop. Cas. Ins. Co., 2013 WI 29, ¶48, 346 Wis. 2d 450, 828
N.W.2d 812. Further, polices should be construed to avoid
absurd or unreasonable results. McPhee v. American Motorists
Ins. Co., 57 Wis. 2d 669, 679, 205 N.W.2d 152 (1973).
III.
¶27 We turn first to Acceptance's policy. It is
undisputed that Acceptance's non-trucking use policy makes an
initial grant of coverage for the accident. Accordingly, we
look to the policy exclusions to determine if any remove the
accident from coverage.
11
No. 2012AP667
¶28 Central to this inquiry is exclusion 14(b) of
Acceptance's policy, which provides: "[t]his insurance does not
apply to any of the following: . . . [a] covered 'auto'
. . . [w]hile used in the business of anyone to whom the 'auto'
is rented." The parties disagree about whether Zeverino was
using the semi-tractor "in the business of" Taylor Truck Line at
the time of the accident.
¶29 The Seventh Circuit has articulated how the phrase "in
the business of" is to be interpreted in the context of a non-
trucking use insurance policy. Hartford Ins. Co. v. Occidental
Fire & Casualty Co., 908 F.2d 235 (7th Cir. 1990). In Hartford
a tractor owner leased its truck and a driver to an interstate
carrier. Id. at 236. The carrier dispatched the driver from
Florida to Indiana to deliver frozen orange juice. Id. Before
the driver left Florida, the owner instructed him to have a
faulty Freon valve repaired after he delivered his load in
Indiana. Id. The trailer leaked Freon throughout the trip and
the buyer refused to accept the orange juice because it was too
warm. Id.¶30 After the driver informed the carrier of the refusal,
it instructed him to take the juice to a cold-storage facility.
Id. Complying with those instructions, the driver placed the
juice in storage. Then, the driver took the trailer to have the
Freon valve repaired. Id. The next day the driver got into an
accident while on his way to pick up the trailer. Id.Thereafter, pursuant to the carrier's instructions, the driver
12
No. 2012AP667
made another attempt to deliver the orange juice and returned to
Florida with it after the juice was refused. Id. at 236-37.
¶31 At issue in Hartford was whether the truck's non-
trucking insurer was required to indemnify the other insurer.
The non-trucking insurance policy contained a clause excluding
coverage when the truck was "being used in the business of any
person or organization to whom the automobile is rented." Id.
at 237. Applying Wisconsin law, the court determined that this
language was unambiguous. Id. at 238.
¶32 The Hartford court explained that "'in the business of
an . . . organization to whom an automobile is rented' clearly
refers to occasions when the truck is being used to further the
commercial interests of the lessee." Id. at 239. Because the
truck driver had not completed his delivery for the carrier and
was on his way to pick up his trailer for delivery, the court
concluded that the truck was being used to further the business
interest of the carrier and thus the exclusion in the non-
trucking policy applied. Id.¶33 The Wisconsin Court of Appeals applied the Hartford
test in Martinez v. Jefferson Ins., 225 Wis. 2d 544, 550, 593
N.W.2d 475 (Ct. App. 1999). It determined that a driver was
acting in furtherance of a lessee when he was on his way to
return a billing ticket to the office as required by the lessee.
Id. at 549-50. Accordingly, the driver was acting in the
business of the lessee for purposes of insurance coverage. Id.
¶34 A number of other jurisdictions also follow the rule
espoused by Hartford. See, e.g., Empire Fire & Marine Ins. Co.
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No. 2012AP667
v. Brantley Trucking, Inc., 220 F.3d 679, 682 (5th Cir. 2000);
National Continental Ins. Co. v. Empire Fire & Marine Ins. Co.,
157 F.3d 610, 612 (8th Cir. 1998); Planet Ins. Co. v. Anglo
American Ins. Co., Ltd., 711 A.2d 899, 902 (N.J. App. Div.
1998); Empire Fire & Marine Ins. Co. v. Liberty Mut. Ins. Co.,
699 A.2d 482, 495 (Md. Ct. Spec. App. 1997); Lime City Mut. Ins.
Ass'n v. Mullins, 615 N.E.2d 305, 308 (Ohio Ct. App. 1992).
Likewise, we adopt Hartford's interpretation of the phrase "in
the business of" as it presents a clear rule that is consistent
with the plain language of the exclusion.
¶35 Not all repairs and maintenance to a leased semi-
tractor further the commercial interest of the lessee. Hartford
demonstrates that repairs are in furtherance of a lessee's
commercial interests when they are necessary to allow the semi-
tractor to continue to accept and complete hauls for the lessee.
In Hartford, the broken Freon valve hampered the trucker's
ability to deliver the orange juice, causing the buyer to reject
the orange juice because it was too warm. Hartford, 908 F.2d at
240. Accordingly, the court rejected the argument that the
repair was not necessary for the lessee's business. Id.¶36 The principle that obtaining necessary repairs is in
furtherance of a lessee's business is also illustrated in Ehlers
v. Automobile Liability Co., 169 Wis. 494, 173 N.W. 325 (1919).
In that case, the driver was not on his route, had quit for the
day and was driving to a repair shop when he was involved in an
accident. Id. at 498. The vehicle was covered by an indemnity
bond, which provided coverage "while said motor vehicle is being
14
No. 2012AP667
operated in the service of a common carrier." Id. at 495. The
court determined that the coverage applied because the vehicle
was "running to a repair shop to receive the repairs necessary
to enable it to continue its service as a common carrier." Id.
at 498.
¶37 Repairs may also be in furtherance of a lessee's
commercial interest when they are being done to comply with the
lessee's orders or the lessor's contractual duties.5 See Freed
v. Travelers, 300 F.2d 395 (7th Cir. 1962) (driver's trip to a
repair shop was part of the lessee's business when the lease
required the driver to keep the tractor ready at all times for
the use of the lessee); National Continental Ins. Co., 157 F.3d
at 612 ("To the extent that [lessor] was executing his
contractual duties, he was clearly acting 'in the business of'
5
We acknowledge that not all jurisdictions agree that a
lessor is acting in the interests of the lessee when it is
fulfilling its contractual duties. For example, in Neal v. St.
Paul Fire & Marine Ins. Co., 250 N.W.2d 648 (Neb. 1977), the
Nebraska Supreme Court determined that bobtail coverage did not
apply when the owner was getting maintenance work done on the
truck pursuant to its contractual duties. It explained:
While the carrier derived some benefit from the fact
that the plaintiff attended to the maintenance of the
tractor between trips, since that was essential to the
continued use of the tractor in hauling commodities,
the servicing and maintenance of the tractor was the
responsibility of the plaintiff. The maintenance of
the tractor was the "business" of the plaintiff, not
that of the carrier.
Id. at 650. We find this reasoning unpersuasive as it is based
on a narrower construction of the term "in the business of" than
the one we adopt from Hartford.
15
No. 2012AP667
[the lessee] and thus outside the scope of [non-trucking
insurance] coverage."); Carriers Ins. Co. v. Griffie, 357 F.
Supp. 441, 442 (W.D. Pa. 1973) (truck was being "used in the
business" of lessee when the lessee requested that lessor get
equipment inspected at a certain inspection station selected by
the lessee and an accident occurred while at that station);
Planet Ins. Co., 711 A.2d at 903 (tractor was being used in
furtherance of lessee when it was on its way home after
obtaining "repair[s] pursuant to the terms of the lease so that
it could be used in [lessee's] business").
¶38 In essence, both parties agree that the Hartford test
applies. They disagree about how the facts here apply to that
standard. As illustrated by the cases discussed above, whether
a repair is in furtherance of a carrier's commercial interest
depends on the totality of the circumstances. It is a fact-
intensive inquiry that will not always be amenable to summary
judgment. See, e.g., Martinez, 225 Wis. 2d at 548 (noting that
the issue of whether the truck was being operated for the
lessee's business at the time of the accident required a factual
conclusion). Relevant considerations include the terms of the
lease agreement, any instructions from the lessee, and the
nature and extent of the repairs.
¶39 Here, the lease required that the lessor "[m]aintain[]
the equipment in the state of repair required by all applicable
regulations." Acceptance asserts that the repairs were
necessary to comply with 49 C.F.R. § 396.3(a), which requires
all parts and accessories to be in a safe and proper operating
16
No. 2012AP667
condition, and 49 C.F.R. § 396.7(a), which prohibits commercial
motor vehicles from being operated in a condition likely to
cause an accident or breakdown.
¶40 Contrary to Acceptance's assertions, the undisputed
facts in the record establish that the repairs to the grille and
oil filler tube were not required to comply with the federal
regulations. The record contains the report of the state
trooper who inspected the semi-tractor after the accident.
Federal regulations require the trooper to mark the semi-tractor
out-of-service if the condition of the vehicle or equipment
would likely cause an accident or a breakdown. 49 C.F.R.
§ 396.9(c). Rather than marking the semi-tractor out-of-
service, the trooper indicated in his inspection report that
there were no violations and permitted Zeverino to continue on
to Eau Claire. Because there is no evidence in the record which
indicates that the repairs were necessary to comply with federal
regulations, there is no support for the argument that the
repairs were necessary to fulfill Zeverino's contractual duties.
¶41 Acceptance further contends that because the lease
gave exclusive possession, control, and use of the semi-tractor
to Taylor Truck Line, that Zeverino's actions were necessarily
in the business of Taylor Truck Line. Again, we disagree.
¶42 That language in the lease is required by federal
regulations governing motor carriers. 49 C.F.R. § 376.12(c)
(formerly 49 C.F.R. § 1057.12) (requiring the lease to provide
that "the authorized carrier lessee shall have exclusive
possession, control, and use of the equipment for the duration
17
No. 2012AP667
of the lease."). As the Seventh Circuit explained in Hartford,
the requirement was intended "to safeguard the public by
preventing authorized carriers from circumventing applicable
regulations by leasing the equipment and services of independent
contractors exempt from federal regulation." 908 F.2d at 238.
However, it does not prevent indemnification of the lessee by
the lessor. Id. (citing Transamerican Freight Lines, Inc. v.
Brada Miller Freight Systems, Inc., 423 U.S. 28, 40 (1975)).
¶43 When a lease includes a clause requiring the lessor to
obtain bobtail coverage, it clearly contemplated a situation
where the vehicle, "though rented, would not be engaged 'in the
business' of another." Hartford, 908 F.2d at 231. Accordingly,
the fact that the lease gave Taylor Truck Line exclusive
possession, control, and use of the semi-tractor is not
dispositive of whether the semi-tractor was operating in Taylor
Truck Line’s business at the time of the accident.6
¶44 The facts also demonstrate that Zeverino was not acting
pursuant to orders from Taylor Truck Line at the time of the
accident. Zeverino testified that he was not on duty on the day
of the accident. It is undisputed that Taylor Truck Line had
not ordered him to have the repairs done and that Taylor Truck
Line was unaware that he was doing so.
6
Acceptance also advances the argument that the differing
amounts which the two insurance companies charged for their
premiums demonstrate that its policy was intended to have very
limited coverage. We decline to consider this argument as the
record is silent on the methods and considerations employed in
setting the premiums.
18
No. 2012AP667
¶45 Acceptance references the fact that Zeverino had
indicated in his Daily Trip Log that he was "driving" prior to
the accident and "on duty" at the scene of the accident, to
suggest that Zeverino was working on behalf of Taylor Truck Line
while he was on his way to obtain the repairs. These references
are not persuasive. Federal regulations require drivers to keep
daily logs of their driving status. 49 C.F.R. § 395.8. Under
the regulations, "driving" means "all time spent at the driving
controls of a commercial motor vehicle in operation." 49 C.F.R.
§ 395.2. It does not indicate whether the driving is being done
for personal or business reasons.
¶46 Likewise, under the federal regulations the notation
of "on duty" in a log book is appropriate for "[a]ll time
inspecting, servicing, or conditioning any commercial motor
vehicle at any time" and "[a]ll time repairing, obtaining
assistance, or remaining in attendance upon a disabled
commercial motor vehicle." 49 C.F.R. § 395.2. It does not
indicate whether those functions are necessary or being done on
behalf of a business. Accordingly, we reject Acceptance's
argument that the log book indicates that Zeverino was acting in
the business of Taylor Truck Line at the time of the accident.
¶47 Finally, we are not persuaded that the repairs were
necessary to enable the semi-tractor to continue service for
Taylor Truck Line. The parts being repaired on the semi-tractor
were its grille and an oil filler tube. Both repairs were
completed in approximately an hour.
19
No. 2012AP667
¶48 The damaged grille did not put the semi-tractor out of
service or prevent Zeverino from accepting or completing hauls
for Taylor Truck Line. The record reflects that Zeverino had
been doing so for over a month during the time between the
damage to the grille and its repair. Acceptance asserts that
Zeverino's testimony that the grille was starting to fall apart
indicates that it would need to be repaired at some point.
However, Zeverino's testimony on this point was vague and he did
not provide further details. The inspection of the semi-tractor
after the accident revealed no violations and placed no
limitations on the continued operation of the vehicle.
¶49 In sum, because the repairs were not required by the
lease agreement, were not done pursuant to orders by Taylor
Truck Line, and were not necessary for the semi-tractor to
continue its service, we conclude that Zeverino was not acting
in furtherance of Taylor Truck Line's commercial interest at the
time of the accident. Accordingly, the accident does not fall
within the exclusion in section 14(b) of Acceptance's policy.
IV.
¶50 Acceptance also points to section 14(a) of its policy
as a clause excluding coverage. That exclusion provides that
the policy does not cover the semi-tractor "[w]hile being
operated, maintained or used to carry property in any business
or en route to or from such business purpose."
¶51 Acceptance reads section 14(a) as excluding the semi-
tractor from coverage when it is being "operated, maintained, or
used . . . or en route to or from such business purpose.
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No. 2012AP667
Acceptance contends that the phrase "such business purpose"
refers back to maintenance, indicating that maintenance is a
business purpose.
¶52 However, under Acceptance's interpretation of section
14(a), operation and use would also constitute business
purposes. As recognized by the court of appeals, if that were
the case, Acceptance's policy would not cover any situations in
which the semi-tractor was being driven. Casey, 346 Wis. 2d
111, ¶32. Indeed, it is unclear that Acceptance's policy would
ever apply if we were to adopt the interpretation it suggests.
Wisconsin has a strong public policy against illusory coverage.
Meyer v. Classified Ins. Co., 192 Wis. 2d 463, 468-69, 531
N.W.2d 416 (Ct. App. 1995).
¶53 In contrast, Great West asserts that section 14(a)
should be read to exclude the semi-tractor from coverage when it
is being operated to carry property, maintained to carry
property, or used to carry property, or when it is en route to
or from those activities. In other words, 14(a) would exclude
the semi-tractor from coverage when it is en route to obtain
maintenance if that maintenance is necessary to allow the semi-
tractor to carry property.
¶54 We agree with Great West's interpretation of section
14(a). It comports with the plain language of the policy and
affords the insured some coverage. To the extent that section
14(a) is ambiguous, we construe ambiguity against the insurer,
Acceptance. Marlowe, 346 Wis. 2d 450, ¶48.
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No. 2012AP667
¶55 Applying section 14(a) to the facts of this case, we
conclude that it does not exclude coverage. Here, Zeverino was
on his way to have the grille and oil filler tube on the semi-
tractor replaced when the accident occurred. It is undisputed
that the semi-tractor could still carry loads without the
repairs. Thus, the repairs were not necessary to allow the
semi-tractor to carry property and the exclusion in section
14(a) of Acceptance's policy does not apply.
¶56 Acceptance has identified no other possible exclusions
that would apply to preclude coverage. As it has conceded that
there was an initial grant of coverage, we conclude that
Acceptance is responsible for providing coverage for the claims
resulting from the accident.
¶57 Finally, we turn to address Great West's insurance
policy. The parties agree that the Great West policy provides
coverage for the accident only if Zeverino was acting in the
business of Taylor Truck Line at the time that the accident
occurred. As discussed above, we have determined that he was
not. Therefore, we conclude that the Great West policy provides
no coverage for the claims resulting from the accident.
V.
¶58 We determine that neither of the exclusions in
Acceptance's policy precludes coverage. The facts of record do
not support the application of exclusion 14(b). Zeverino was
not using the semi-tractor "in the business of" Taylor Truck
Line because the repairs here did not further Taylor's
commercial interests. There is nothing in the record that shows
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No. 2012AP667
the repairs were required by the lease. Additionally, the
repairs were not done pursuant to orders from Taylor Truck Line,
and they were not necessary for the semi-tractor to continue its
service.
¶59 Further, Acceptance's argument that coverage is
excluded because Zeverino was en route to the business purpose
of obtaining maintenance reflects an overly expansive
interpretation of the text of exclusion 14(a). Like the court
of appeals, we are concerned that its interpretation may render
coverage illusory. Instead, in examining the text of exclusion
14(a) we determine that it refers to maintenance necessary to
allow the semi-tractor to carry property. It is undisputed that
the semi-tractor could and did carry loads without the repairs
to the grille and oil filler tube.
¶60 Because the exclusions in Acceptance's policy do not
apply, we conclude that its non-trucking use policy provides
coverage for the accident. Accordingly, we affirm the court of
appeals.
By the Court.—The decision of the court of appeals is
affirmed.
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No. 2012AP667
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