Brantner v. ABC Manufacturing Co.

579 N.W.2d 742, 217 Wis. 2d 143, 1998 Wisc. App. LEXIS 203
CourtCourt of Appeals of Wisconsin
DecidedFebruary 24, 1998
DocketNo. 97-1523
StatusPublished
Cited by1 cases

This text of 579 N.W.2d 742 (Brantner v. ABC Manufacturing Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brantner v. ABC Manufacturing Co., 579 N.W.2d 742, 217 Wis. 2d 143, 1998 Wisc. App. LEXIS 203 (Wis. Ct. App. 1998).

Opinion

CANE, P. J.

Nancy Brantner severely injured her hand at work when she became entangled in a packaging machine. At the time of her injury, she was employed at Hunt-Wesson, Inc. Initially, she filed an action against the manufacturer of the packaging machine. After learning that some co-employees had disengaged or removed guarding on the machinery, she sought leave to amend the complaint to add tort claims against Hunt-Wesson and the co-employees. She also sought to include Hunt-Wesson's commercial general liability insurance carrier, Reliance National Indemnity Company, as a defendant.

In response to Brantner's motion to amend the complaint, the parties agreed to have the trial court treat this as a motion for summary judgment and rule on the merits of whether Hunt-Wesson had, through its [146]*146liability insurance policy with Reliance, waived the exclusivity provisions of the worker's compensation law. If not waived, Brantner concedes that the tort claims against her employer and co-employees must be addressed exclusively through the worker's compensation program. The facts being undisputed, the trial court interpreted the insurance policy and concluded that its terms did not waive the exclusivity provisions of the worker's compensation law. It therefore entered a summary judgment dismissing the tort claims against Hunt-Wesson, the co-employees and Reliance.

The sole issue on appeal is whether Reliance's insurance policy issued to Hunt-Wesson waives the exclusivity provisions of the worker's compensation law. We agree wdth the trial court that it did not.

The resolution of this issue involves an interpretation of the insurance policy that is a question of law. Maas v. Ziegler, 172 Wis. 2d 70, 79, 492 N.W.2d 621, 624 (1992). This court decides questions of law de novo. Tahtinen v. MSI Ins. Co., 122 Wis. 2d 158, 166, 361 N.W.2d 673, 677 (1985). In construing an insurance contract, a construction that gives reasonable meaning to every provision is preferable to one leaving part of the language useless or meaningless. Stanhope v. Brown County, 90 Wis. 2d 823, 848-49, 280 N.W.2d 711, 722 (1979). Finally, we need not repeat the often cited procedure for reviewing summary judgment determinations. Suffice it to say that motions for summary judgment can be used to address issues of insurance policy coverage. Germanotta v. National Indent. Co., 119 Wis. 2d 293, 296, 349 N.W.2d 733, 735 (Ct. App. 1984).

[147]*147In Wisconsin, worker's compensation is generally the exclusive remedy injured employees have against their employer or co-employees. Section 102.03(2), Stats. However, an insurer can waive statutory immunity through the terms of an acquired insurance policy where there is express policy language indicating that the waiver was intended. Maas, 172 Wis. 2d at 82, 492 N.W.2d at 625.

Reliance's policy provides:

SECTION I — COVERAGES
COVERAGE A. BODILY INJURY AND PROPERTY DAMAGE LIABILITY.
2. Exclusions.
This insurance does not apply to:
d. Workers' Compensation and Similar Laws
Any obligation of the insured under a workers'
compensation, disability benefits or unemployment compensation law or any similar law.
e. Employer's Liability
"Bodily Injury" to:
(1) An "employee" of the insured arising out of and in the course of:
(a) Employment by the insured; or
(b) Performing duties related to the conduct of the insured's business ....
This exclusion applies:
(1) Whether the insured may be liable as an employer or in any other capacity; and
[148]*148(2) To any obligation to share damages with or repay someone else who must pay damages because of the injury.

Section I, Coverage C, also specifically excludes coverage for employee claims, stating:

COVERAGE C. MEDICAL PAYMENTS
2. Exclusions.
We will not pay expenses for "bodily injury":
a. To any insured.
b. To a person hired to do work for or on behalf of any insured or a tenant of any insured.
d. To a person, whether or not an "employee" of any insured, if benefits for the "bodily injury" are payable or must be provided under a workers' compensation or disability benefits law or a similar law.
g. Excluded under Coverage A.

These exclusions provide that claims for employee injuries are not covered by the insurance policy. Brantner concedes that, on their face, the exclusions bar her action outside the worker's compensation law. However, she relies on the rationale used in Maas to support her position of a waiver. In Maas, the supreme [149]*149court held that by deleting an exclusion for co-employee coverage in the policy, the employer expressly waived its right to rely on worker's compensation as the sole remedy.

The policy in Maas contained a fellow employee exclusion that read as follows:

C. WE WILL NOT COVER — EXCLUSIONS: This insurance does not apply to:
4. Bodily injury to any fellow employee of the insured arising out of and in the course of his or her employment.

Id. at 77, 492 N.W.2d at 623. However, it also included an endorsement entitled "CHANGES IN POLICY — WISCONSIN" which stated:

A. CHANGES IN LIABILITY INSURANCE
2. The exclusion relating to bodily injury to fellow employees does not apply if the bodily injury results from the use of a covered auto you own.

Id. at 77, 492 N.W.2d at 623-24.

The supreme court considered whether the insurer waived the exclusive remedy provision of the worker's compensation law by the endorsement that removed the fellow employees exclusion from its policy. It concluded that the endorsement, which specifically and explicitly removed the policy exclusion, was a waiver of the exclusivity of worker's compensation. Similarly, in United States Fid. & Guar. Co. v. PBC Prods., 153 Wis. 2d 638, 643, 451 N.W.2d 778, 780 (Ct. App. 1989), and Backhaus v. Krueger, 126 Wis. 2d 178, 182, 376 N.W.2d [150]*150377, 379 (Ct. App. 1985), the court concluded that endorsements specifically removing clauses in the policy which excluded coverage for injuries to co-employees constituted an express waiver of the immunity under the worker's compensation law.

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579 N.W.2d 742, 217 Wis. 2d 143, 1998 Wisc. App. LEXIS 203, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brantner-v-abc-manufacturing-co-wisctapp-1998.