Opinion
No. 339.
Argued June 6, 1968. —
Decided June 28, 1968.
APPEAL from two judgments of the county court of Racine county: JOHN C. AHLGRIMM, Judge. Affirmed.
For the appellants there were briefs by La France, Thompson, Greenquist, Evans Dye and Alfred E. La France and Adrian P. Schoone, all of Racine, and oral argument by Alfred E. La France.
For the respondent there was a brief by Kivett Kasdorf, attorneys, and Nonald J. Lewis and Kenton E. Kilmer of counsel, all of Milwaukee, and oral argument by Mr. Lewis.
This cause of action arises from a two car collision. The plaintiff is not a party to the appeal.
The case was submitted to the trial court on agreed facts pursuant to sec. 269.01, Stats., and there is no factual dispute at issue on this appeal.
The plaintiff and his insurer brought an action against defendant Strolle for damages allegedly resulting from the collision, at which time Strolle was driving a car owned by Hulbert-Stauffacher Ford, Inc. The automobile dealer had in effect a policy of liability insurance purchased from Liberty Mutual Insurance Company. Strolle's automobile liability insurance policy, which was also in effect at the time of the collision, was issued by State Farm Mutual Automobile Insurance Company.
Strolle impleaded Liberty Mutual alleging that it had a duty to defend him. Liberty Mutual then impleaded State Farm, thereby raising the issue as to insurance coverage now before this court.
The trial court determined that Strolle was insured under the provisions of the State Farm policy issued to him, but was not insured under the provisions of the Liberty Mutual policy issued to the automobile dealer. We set forth below the applicable provisions of the respective insurance contracts.
(A) Liberty Mutual Insurance Company.
"In consideration of the reduced rate of premium made applicable to the insurance under Part 1, it is agreed that the policy is amended as follows:
"`(3) With respect to the ownership, maintenance or use, for the purpose of garage operations (including the loaning of automobiles to customers of the garage or to a prospective purchaser), of any automobile to which the insurance applies under paragraph 1 (a) of the Automobile Hazards, any of the following persons while using such automobile with the permission of the named insured, provided such person's actual operation or (if he is not operating) his other actual use thereof is within the scope of such permission:
". . .
"`(b) any other person, but only if no other valid and collectible automobile liability insurance, either primary or excess, with limits of liability at least equal to the minimum limits specified by the financial responsibility law of the state in which the automobile is principally garaged, is available to such person; provided that with respect to Coverage C, such person shall be deemed to be a person for whom insurance is afforded, whether or not there is any other valid and collectible automobile liability insurance.'" (Emphasis added.)
(B) State Farm Mutual Automobile Insurance Company.
"All of the foregoing provisions and all coverages are subject to the following:
". . .
"(b) The insurance with respect to a temporary substitute automobile, a trailer and a non-owned automobile shall be excess over other collectible insurance." (Emphasis added.)
The trial court thereupon entered judgments dismissing Strolle's third party complaint against Liberty Mutual and Liberty Mutual's third party complaint against State Farm.
It is from these judgments that appellants, David Strolle and State Farm appeal.
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 Faltersack decision and further recognizes that the holding therein would dictate a result adverse to the appellants 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.