Gulmire v. St. Paul Fire and Marine Insurance Co.12/23/2003
ee and the employer's liability exclusions did not apply because Klister did not employ Gulmire. Alternatively, Gulmire maintained that if the exclusions nevertheless barred coverage, the omnibus statute was violated.
. The trial court concluded the fellow employee exclusion barred coverage. It acknowledged the separation of protected persons provision required Klister to be treated as if he was the only named insured. However, it concluded the fellow employee exclusion nevertheless applied and that this was lawful. Gulmire appeals.
Discussion
. When reviewing a summary judgment, we perform the same function as the trial court, making our review de novo. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816 (1987). Summary judgment must be entered "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Wis. Stat. § 802.08(2). The summary judgment requires an interpretation of the omnibus statute and State Farm's insurance policies. These present questions of law we also review de novo. See Hull v. State Farm Mut. Auto. Ins. Co., 222 Wis. 2d 627, 636, 586 N.W.2d 863 (1998).
. Finally, the grant or denial of a declaratory judgment is addressed to the trial court's discretion. Jones v. Secura Ins. Co., 2002 WI 11, , 249 Wis. 2d 623, 638 N.W.2d 575. However, when the exercise of such discretion turns upon a question of law, we review the question de novo, benefiting from the trial court's analysis. Id. Here, the issue turns upon the construction of St. Paul's insurance contract, an exercise that presents a question of law we independently review. See Folkman v. Quamme, 2003 WI 116, , 264 Wis. 2d 617, 665 N.W.2d 857.
I. State Farm Automobile Liability Insurance Policy
. Klister's State Farm automobile liability insurance policy contains a "non-owned vehicle" exclusion. It states, " here is no coverage for non-owned cars ... while ... being ... used by any person while that person is working in any car business." Gulmire has not raised any issue regarding the applicability of the exclusion by its plain terms. Instead, she narrowly argues the exclusion contravenes the omnibus statute, Wis. Stat. § 632.32(6)(b)2.a.
. Generally speaking, the omnibus statute is remedial in nature and is to be construed broadly. Home Ins. Co. v. Phillips, 175 Wis. 2d 104, 111, 499 N.W.2d 193 (Ct. App. 1993). Its purpose is to afford compensation to victims of automobile accidents. Id. However, the omnibus statute specifically authorizes insurers to incorporate exclusions that limit coverage connected with automobile accidents. See Wis. Stat. § 632.32(5)(e). To determine if an exclusion violates the omnibus statute, we apply a two-part test. Mau v. North Dakota Ins. Reserve Fund, 2001 WI 134, , 248 Wis. 2d 1031, 637 N.W.2d 45. First, we look to § 632.32(6) to decide whether the exclusion falls within one of the enumerated prohibitions. Id. If it does, the matter is resolved. Id. If not, we then consider whether any other applicable law proscribes the exclusion. Id.
. Turning to the first part of the test, Gulmire argues the exclusion is prohibited by Wis. Stat. § 632.32(6)(b)2.a. That section states: "No policy may exclude from the coverage afforded or benefits provided: ... Any person who is a named insured or passenger in or on the insured vehicle, with respect to bodily injury, sickness or disease, including death resulting therefrom, to that person." The plain language of this prohibition reveals that it invalidates an
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