Wisconsin Court of Appeals
Insurance — duty to defend
An insurer has a duty to defend its insured even when it also represents the plaintiff.
“Menards argues that its employee is covered as a permissive vehicle user under Blasing’s American Family automobile policy. The general rule is that permissive vehicle users are additional insureds under automobile policies and that they are covered to the same extent as a policyholder. According to Menards, because its employee was loading Blasing’s truck with her permission, and because it is undisputed that loading a vehicle is “use” of the vehicle, it follows that the employee and, therefore, Menards is an additional insured and American Family must defend and possibly indemnify Menards for any liability Menards has with respect to the injured party, Blasing. American Family responds that, because Blasing is the premium-paying policyholder and the injured plaintiff in this case, it would be absurd to require her insurance company to defend and indemnify Menards.”
“The circuit court, we think understandably, found it troubling that an automobile policy, purchased by a customer who was injured by a Menards employee, could be used by Menards to obtain a defense and, possibly, indemnification. However, for the reasons explained below, we conclude that permissive user coverage is required in this case by the omnibus statute, WIS. STAT. § 632.32. If this is a result the legislature does not desire, it should amend the omnibus statute to prevent such results in the future. For now, we are bound by the statute. Accordingly, we reverse the circuit court.”
Reversed and Remanded.
Recommended for publication in the official reports.
Dist. IV, Jefferson County, Hue, J., Lundsten, J.
Attorneys: For Appellant: Fertl, Jeffrey S., Milwaukee; For Respondent: Pliner, David J., Madison