00-2344 Martin v. American Family Mutual Insurance Co.

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Although plaintiffs contend that the exclusion is prohibited by Wis. Stat. sec. 631.43(1) because both Eric’s van policy and his father’s truck policy improperly agreed to indemnify Eric against the same loss, we reject that contention.

“It is true that Eric Johnsen is covered under Henry Johnsen’s pickup-truck policy as a permissive user. It is also true that Eric Johnsen’s 1983-van policy gives him liability coverage for damages he ‘is legally liable for because of bodily injury and property damage due to the use of a car or utility trailer.’ But this does not mean, as the Martins argue, that Eric Johnsen’s 1983-van policy promises to insure against the ‘same loss’ as his father’s policy on the pickup truck. Eric Johnsen’s policy does not promise to insure him against a loss caused by his use of the pickup truck because it is a non-owned vehicle that was made available for his regular use. On the other hand, his father’s policy promises to insure Eric Johnsen for losses caused by his driving of his father’s pickup truck because he was an authorized user of the truck. Thus, Wis. Stat. § 631.43(1) does not apply. …

“The purpose of the drive-other-car provision is to enable the insurer to insure the policyholder (and the relative residing in his or her household) against liability incurred by the occasional or incidental use of cars not specified in the policy and to exclude liability by reason of the potential or actual habitual use of other vehicles owned by the policyholder, which would increase the risk of the insurer without a corresponding increase in the premium. This court has previously recognized that the purpose of the drive-other-car provision is to prevent a policyholder from insuring all the cars in one household by taking out just one policy and paying only one premium. …

“Here, the Martins seek advantage of insurance coverage for which neither Eric Johnsen nor his father paid. The trial court correctly rejected their arguments.”

Order affirmed.

Recommended for publication in the official reports.

Dist I, Milwaukee County, Manian, J., Fine, J.

Attorneys:

For Appellant: William M. Cannon, Brookfield; Edward E. Robinson, Brookfield

For Respondent: Timothy J. Pike, Milwaukee; Michael J. Wirth, Milwaukee