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

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“The Agnew [v. American Fam. Mut. Ins. Co., 150 Wis2d 341 (1989)] decision makes it clear, contrary to the Martins’ argument, that in determining whether the multiple policies promise to indemnify an insured against the same loss, a court must examine the policy’s coverage, the exclusions, and the purpose of the applicable exclusion. The purpose of the ‘drive other car provision’ in each of the policies in Agnew was to enable the insurance company to insure the policyholder against liability incurred by the occasional or incidental use of a vehicle not specified in the policy and to exclude liability incurred by reason of the potential or actual habitual use of other vehicles owned by the policyholder. The use of these other owned vehicles by the policyholder would increase the insurance company’s risk without a corresponding increase in the premium. …

“Applying our reasoning in Agnew to the present case leads to the conclusion that Eric Johnsen’s American Family policy does not promise to indemnify him for bodily injuries arising out of driving the father’s pickup truck, which was available for his regular use. Only the father’s policy covers the loss incurred by Eric Johnsen by reason of his permitted use of the father’s pickup truck. Because we conclude that only one policy promised to indemnify Eric Johnsen against the loss incurred while driving his father’s pickup truck, we further conclude that Wis. Stat. sec. 631.43(1) is not applicable to the present case.

We therefore affirm the decision of the court of appeals.”

Attorneys:

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

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