Hernandez v. Liberty Mutual Insurance

2014 WI App 36, 844 N.W.2d 657, 353 Wis. 2d 730, 2014 WL 292418, 2014 Wisc. App. LEXIS 63
CourtCourt of Appeals of Wisconsin
DecidedJanuary 28, 2014
DocketNo. 2013AP1286
StatusPublished

This text of 2014 WI App 36 (Hernandez v. Liberty Mutual Insurance) 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
Hernandez v. Liberty Mutual Insurance, 2014 WI App 36, 844 N.W.2d 657, 353 Wis. 2d 730, 2014 WL 292418, 2014 Wisc. App. LEXIS 63 (Wis. Ct. App. 2014).

Opinions

BRENNAN, J.

¶ 1. Liberty Mutual Insurance Company appeals from a final judgment, awarding Jesus M. Hernandez $50,000 under an excess liability insurance policy issued by Liberty. The $50,000 award came following the circuit court's decision to grant Hernandez's motion for declaratory judgment and the parties' subsequent stipulation to the $50,000 judgment. [733]*733Liberty asserts that the Other-Insurance Clause included in the Wisconsin Endorsement to the Excess Policy properly excludes certain permissive users from coverage for first utilizing the underlying Liability Policy on which coverage under the Excess Policy is contingent, thereby precluding coverage for Hernandez's injuries. We disagree and conclude that Liberty's reading of the Excess Policy and the policy's Wisconsin Endorsement renders the Wisconsin Endorsement illusory. As such, we affirm.

BACKGROUND

¶ 2. On October 7, 2011, Hernandez was seriously injured when the motorcycle he was driving was struck by a motor vehicle driven by Anna S. Diantoni. The vehicle Diantoni was driving at the time of the accident was owned by Zipcar.

¶ 3. Zipcar is a vehicle-sharing service that offers the general public the right to reserve and use its motor vehicles, billable by the hour or day, in exchange for annual membership dues. Diantoni was a Zipcar member at the time of the accident and was authorized by Zipcar to operate the vehicle involved in the accident.

¶ 4. Liberty issued a commercial insurance policy that provides liability coverage in the amount of $300,000 for Zipcar members while operating Zipcar vehicles ("the Liability Policy"), and thereby insured Diantoni at the time of the accident. Liberty has paid out the $300,000 limit set forth in the Liability Policy to Hernandez in exchange for a partial release of claims.

¶ 5. Liberty also issued an excess liability insurance policy to Zipcar ("the Excess Policy"). Liberty denied Diantoni coverage under the Excess Policy based on the Other-Insurance Clause contained in the policy's Wisconsin Endorsement. The Excess Policy and the [734]*734Wisconsin Endorsement form the basis for the underlying case and this appeal.

¶ 6. The declarations page of the Excess Policy specifically lists the Liability Policy as the sole underlying policy to which the Excess Policy applies. Endorsement 102 to the Excess Policy states:

It is a condition of this policy that, as respects all automobile renting activities, the insured will maintain the following minimum underlying insurance in force during the term of this policy.
[The Liability Policy Number]
The Policy will provide the following Limit:
Liability $300,000 for any one Accident or Loss[.]

¶ 7. The Excess Policy's insuring agreement provides:

I. COVERAGE
To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages and which would be payable by the company on behalf of the insured under the underlying policies, except for the provisions of the Limits of Liability conditions thereof.

In other words, the Excess Policy, by its plain language, is triggered only when the Liability Policy is applicable and has been exhausted.

¶ 8. The Excess Policy defines an "insured" as follows:

III. DEFINITION OF INSURED
The definition of insured in any and all underlying policies shall not apply to this policy and, for purposes of this policy, the unqualified word "insured" shall mean:
[735]*735(1) Zipcar, Inc.
(2) Zipcar on Campus

Endorsement 102 further clarifies that:

The words "insured" shall not include any person while using with your permission any vehicle for which insurance is provided to you under this policy, or any person or organization legally responsible for its use.

Therefore, unlike the Liability Policy, the Excess Policy was originally written to provide coverage only to Zipcar as a corporate entity.

¶ 9. Liberty then added the Wisconsin Endorsement to the Excess Policy, which appears at first to modify the Excess Policy's definition of an insured to include permissive users by appending Section (3) to the Excess Policy's "III. DEFINITION OF INSURED":

(3)Anyone else while using an auto covered by an underlying policy, provided such use is with the permission of
Zipcar, Inc. [or]
Zipcar on Campus[.]

¶ 10. However, the Other-Insurance Clause in the Wisconsin Endorsement then goes on to exclude "persons who qualify as Insureds under Section (3) of Definition of Insured" "when there is other valid and collectible insurance":

5. OTHER INSURANCE
The insurance provided to persons who qualify as Insureds under Section (3) of Definition of Insured [736]*736shall not apply when there is other valid and collectible insurance with at least the limits required by the Wisconsin Financial Responsibility Law, whether the other insurance is primary, excess or contingent.

Thus, the permissive users added to the Excess Policy by the Wisconsin Endorsement were then excluded by the Other-Insurance Clause.

¶ 11. Following the accident, Hernandez made a claim against Liberty under the Excess Policy for Diantoni's negligence as a permissive user of a Zipcar vehicle. Liberty denied the claim, citing the Other-Insurance Clause within the Wisconsin Endorsement. In doing so, Liberty asserted that the existence of the Liability Policy operated to exclude coverage under its Excess Policy for permissive users like Diantoni. Hernandez filed this lawsuit,1 and the parties filed cross-motions seeking a declaration as to the availability of coverage under the Excess Policy.

¶ 12. Before the circuit court, Hernandez argued that Liberty's position — that the Liability Policy could trigger the Excess Policy's Other-Insurance Clause— must be rejected because such a reading of the clause renders coverage under the Wisconsin Endorsement illusory. Instead, Hernandez asserted that a reasonable reading of the Other-Insurance Clause would apply the clause only to other concurrent liability insurance policies.

¶ 13. Liberty countered that the Other-Insurance Clause invoked Wisconsin's omnibus statute, which permitted Liberty to restrict coverage to permissive users other than Zipcar's officers, agents, or employees when there is other valid and collectible insurance with at least the limits required by the Wisconsin Financial Respon[737]*737sibility Act. See Wis. Stat. § 632.32(5)(c) (2011-12).2 Because the Liability Policy's $300,000 limit met the requirements for other valid and collectible insurance, Liberty argued that Diantoni was not covered under the Excess Policy.

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Cite This Page — Counsel Stack

Bluebook (online)
2014 WI App 36, 844 N.W.2d 657, 353 Wis. 2d 730, 2014 WL 292418, 2014 Wisc. App. LEXIS 63, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hernandez-v-liberty-mutual-insurance-wisctapp-2014.