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Gulmire v. St. Paul Fire and Marine Insurance Co.12/23/2003
exclusion only when all of the following circumstances are present: (1) the person excluded must be a named insured or a passenger; (2) the named insured or passenger must have been in or on the insured vehicle; and (3) "that person," either the named insured or passenger, must have sustained injuries while being in or on the insured vehicle. See id.
. The non-owned vehicle exclusion is not prohibited by Wis. Stat. § 632.32(6)(b)2.a. Again, the exclusion states, " here is no coverage for non-owned cars ... while ... being ... used by any person while that person is working in any car business." It is evident that the exclusion only seeks to bar coverage for non-owned vehicles under given circumstances. However, § 632.32(6)(b)2.a only prohibits excluding coverage for certain individuals relating to the insured vehicle. Thus, considering that the exclusion bars coverage for a non-owned vehicle, it is not prohibited by § 632.32(6)(b)2.a.
. Gulmire argues Wis. Stat. § 632.32(6)(b)2.a does more. She argues the phrase "coverage afforded" implies a general right of the named insured to indemnity. In support of her position, she cites Davison v. Wilson, 71 Wis. 2d 630, 641, 239 N.W.2d 38 (1976). We are not persuaded. Davison held that "coverage afforded" did not imply a right to indemnity because interpreting the statute in that manner would lead to an absurd result. Id. The supreme court recognized that "under such interpretation, there could be no exclusion, for whatever reason, of the coverage afforded to a named insured." Id. Thus, § 632.32(6)(b)2.a does not imply a right of the named insured to indemnity for anything other than bodily injuries the insured or passenger sustained in the insured vehicle.
. We now turn to the second part of the test to determine if other applicable law renders the non-owned vehicle exclusion unlawful. An exclusion is valid " hen a named insured and all additional insureds are excluded in reference to some risk of coverage not required by public policy or statute." Bertler v. Employers Ins., 86 Wis. 2d 13, 25, 271 N.W.2d 603 (1978). Gulmire points to no statute that requires insurance companies to insure all non-owned vehicles. Thus, this part of the test centers on public policy considerations.
. Gulmire argues that the public policy grounding tort law and the purpose of the omnibus statute, when considered together, require invalidating the exclusion. She notes that Wis. Stat. § 102.03(2) gives an injured employee the right to bring an action against a co-employee for negligent operation of a motor vehicle. However, she claims that application of the non-owned vehicle exclusion results in an uninsurable risk for Klister and, somehow, a windfall to State Farm. Because it is the policy of tort law to provide compensation for persons injured by negligent conduct, Heath v. Zellmer, 35 Wis. 2d 578, 600, 151 N.W.2d 664 (1967), and because it is the duty of the courts to further the public policy behind the law, id., she argues the exclusion should be struck. We are not swayed.
. Just because it is the general public policy of tort law and the omnibus statute to provide compensation to victims of the negligent operation of automobiles, we cannot rewrite the plain language of a policy to create coverage for a risk that was never contemplated by the parties. See Maas v. Ziegler, 172 Wis. 2d 70, 79, 492 N.W.2d 621 (1992). This maxim is grounded in an alternative, and in this case competing, public policy favoring freedom of contract. See Bertler, 86 Wis. 2d at 25-26. This freedom will be preserved unless we are presented with overriding reasons for depriving the parties of that freedom. Id. at 25-26.
. With these publi
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