Cook v. Strolle

Wisconsin Supreme Court

Cook v. Strolle

159 N.W.2d 686, 39 Wis. 2d 715, 1968 Wisc. LEXIS 1031

CourtWisconsin Supreme Court

DecidedJune 28, 1968

Docket339

StatusPublished

Cited by4 cases

This text of 159 N.W.2d 686 (Cook v. Strolle) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Cook v. Strolle, 159 N.W.2d 686, 39 Wis. 2d 715, 1968 Wisc. LEXIS 1031 (Wis. 1968).

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Opinion

Connor T. Hansen, J.

This appeal was taken prior to the decision of this court in Faltersack v. Vanden Boogaard, ante, p. 64, 158 N. W. 2d 322. Also the principal briefs were filed prior to the Faltersack decision. The reply brief of the appellants acknowledges the Falter-sack decision and further recognizes that the holding therein would dictate a result adverse to the appellants *718 on this appeal. We are further respectfully urged to reconsider the decision of this court in Faltersack and we have done so.

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

By the Court. — Judgments affirmed.

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Connor T. Hansen, J.

This appeal was taken prior to the decision of this court in Faltersack v. Vanden Boogaard, ante, p. 64, 158 N. W. 2d 322. Also the principal briefs were filed prior to the Faltersack decision. The reply brief of the appellants acknowledges the Falter-sack decision and further recognizes that the holding therein would dictate a result adverse to the appellants *718 on this appeal. We are further respectfully urged to reconsider the decision of this court in Faltersack and we have done so.

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

By the Court. — Judgments affirmed.

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Bluebook (online)

159 N.W.2d 686, 39 Wis. 2d 715, 1968 Wisc. LEXIS 1031, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cook-v-strolle-wis-1968.

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