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Gulmire v. St. Paul Fire and Marine Insurance Co.12/23/2003
. Mary Gulmire appeals a summary judgment granted in favor of State Farm Fire and Marine Insurance Company and State Farm Fire and Casualty Company (collectively "State Farm"), and a declaratory judgment granted to St. Paul Fire and Marine Insurance Company. Gulmire claims that various exclusions in State Farm's personal automobile insurance policy and in St. Paul's commercial automobile insurance policy either do not apply or, alternatively, if they do apply there is a violation of the omnibus statute, Wis. Stat. § 632.32.
. As to State Farm, we hold that the "non-owned vehicle" exclusion is not prohibited by the omnibus statute and precludes coverage. As to St. Paul, we do not address the issue of whether the exclusions conflict with the omnibus statute because we hold that none of them bars coverage due to the "separation of protected persons" provision. Accordingly, we affirm the summary judgment and reverse the declaratory judgment.
Background
. On August 16, 1999, Gulmire was injured when she was hit by a vehicle operated by Floyd Klister on the premises of their employer, Fox Valley Auto Auction. At the time of the incident, both Gulmire and Klister were acting in the course of their employment. The vehicle Klister operated was a Dodge Colt titled in the name of Fox Valley Wholesale Company. Pursuant to Wis. Stat. § 102.03(2), Gulmire commenced an action against Klister, State Farm (Klister's personal automobile insurer), and St. Paul (Fox Valley Auto Auction's commercial automobile liability insurer) for Klister's negligent operation of a motor vehicle.
. State Farm moved for summary judgment. Its automobile policy provided coverage for damages Klister was legally obligated to pay because of bodily injury to others caused by accident and resulting from the ownership, maintenance or use of Klister's personal automobile, a 1996 Oldsmobile Cutlass. However, State Farm claimed a "non-owned vehicle" exclusion barred coverage. The exclusion stated, " here is no coverage for non-owned cars ... while ... being ... used by any person while that person is working in any car business." Gulmire argued the exclusion violated the omnibus statute, specifically Wis. Stat. § 632.32(6)(b)2.a.
. The trial court determined the exclusion barred coverage and concluded this did not violate the omnibus statute. Because the automobile insurance did not afford coverage, the court also concluded State Farm's umbrella policy was inapplicable.
. St. Paul asked for a declaratory judgment that it was not obligated to defend or indemnify Klister for the accident. St. Paul's commercial automobile liability policy provided coverage to "protected persons" for damages they are legally obligated to pay for bodily injury that results from the use of a covered automobile. It is undisputed that Klister was a protected person and that the vehicle involved in the accident, the Dodge Colt, was a covered automobile. However, St. Paul raised three exclusions: the "fellow employee" exclusion, the "employer's liability" exclusion, and the "worker's compensation" exclusion.
. Gulmire claimed that the exclusions did not apply. She contended the worker's compensation exclusion was inapplicable because she was not seeking to recoup worker's compensation costs, but rather was suing Klister for the negligent operation of a motor vehicle. She argued the fellow employee and the employer's liability exclusions should not apply because of the "separation of protected persons" provision. Gulmire claimed the provision functioned to separate Klister from the other insureds and to treat him as if he was the only named insured. Therefore, she concluded the fellow employ
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