It is contended by Universal Underwriters that the affidavits in support of the motion for summary judgment conclusively establish that the SR-21 was filed
Under the provisions of sec. 85.08 (7), Stats., Arden was restricted to driving only during daylight hours with but one other passenger in the car, such other passenger being a licensed driver seated beside him. Therefore, Arden was operating the Ringle car illegally at the time of the accident because it was at night and the car was occupied by more than one other passenger. Universal Underwriters maintains that the principle of Quin v. Hoffmann (1954), 265 Wis. 636, 62 N.W.2d 423, applies and voids any coverage under its policy. This is because the permission by Arden's father to driver was an illegal permission.
The briefs of counsel raise certain issues with respect to the application of Quin v. Hoffmann, supra. One of such issues is whether Quin v. Hoffmann should not be reconsidered and repudiated because of the amendment made to sec. 204.30 (3), Stats., by the 1955 legislature. A second is whether the instant case cannot be distinguished from Quin v. Hoffmann on the ground that here the minor driver actually possessed a license or permit to drive, while in the Quin Case he possessed neither. Because of the disposition that we make of the appeal we find it unnecessary to pass on such issues. We will assume for the purpose of deciding this case only that if Universal Underwriters had not filed the SR-21 it would have had a defense under the principle enunciated in Quin v. Hoffmann.
In Laughnan v. Griffiths (1955), 271 Wis. 247, 73 N.W.2d 587, we analyzed the Wisconsin Safety Responsibility Law (sec. 85.09 (5) to (16) (c), Stats.) to ascertain its underlying objective in order to determine the legal effect
"We confine our determination at this time to holding that an automobile liability insurance company can make itself liable on a policy issued by it where, after investigating the facts, it, acting through a duly authorized agent or employee, voluntarily files with the commissioner an SR-21 form admitting coverage as to the accident described in such SR-21 intending to be bound thereby, even though without the filing of the SR-21 there might not be liability."
By use of the words "intending to be bound thereby" we did not have reference to any undisclosed subjective intention of the company, but only that the company had filed the SR-21 for the purpose of complying with the Safety Responsibility Law.
We also held in the Laughnan Case that sec. 85.09 (11), Stats., clearly recognizes that the SR-21 may constitute an admission against interest as to the coverage of the policy on the part of the insurance company which has filed the same. However, we expressly left undecided the further issue of whether the filing of an SR-21 does not constitute more than an admission against interest. Our later decisions in Prisuda v. General Casualty Co. (1956), 272 Wis. 41, 74 N.W.2d 777, and Pulvermacher v. Sharp, ante, p. 371, 82 N.W.2d 163, while referring to a filed SR-21 as an admission against interest, are not to be interpreted as a holding that such an SR-21 might not have greater effect than a mere admission against interest.
Our analysis of the Safety Responsibility Law in the Laughnan Case clearly demonstrated that the objective of such act was to protect the persons damaged or injured through the negligence of an operator of a motor vehicle. This was accomplished by providing a penalty against such operator and, if he were not the owner of the vehicle driven
Keeping in mind the objective of the law, if a policy of existing automobile liability insurance is to be relied upon as the source of compensating the person who has sustained damage or injury, surely the legislature intended this to be as effective for such purpose as the alternative method of depositing security with the commissioner. However, as borne out by our decision in the Pulvermacher Case, the legislature, albeit possibly unintentionally, left one loophole in accomplishing such result. This came about by not providing that such existing policy of insurance meet any higher or more stringent requirements than specified by secs. 204.30 (3) and 204.34 (2), Stats. Under such statutes a policy may contain valid exclusion clauses which will prevent recovery on it. However, for reasons hereinafter pointed out, our decision in the Pulvermacher Case, that the filing of the SR-21 should not bar the insurance company from raising the defense of a policy exclusion clause, should be limited to exclusion clauses which prohibit recovery upon the policy by the named insured.
We deem it highly significant that the Safety Responsibility Law affords a sixty-day period following receipt by the motor vehicle department of the accident report before the driver's license and the vehicle's registration may be suspended because of failure to either file a proper SR-21, or to
In those situations where greater liability is imposed upon the insurance company, which has filed an SR-21, than it originally contracted for when it issued its policy, the same is one imposed by statute as a result of its voluntary act in filing the SR-21. We have an illustration of a similarly imposed statutory liability provided in another phase of the instant appeal. Under the provisions of sec. 85.08 (9) (c), Stats., a parent or guardian, who has signed an application for an instruction permit of a child under eighteen years of age, is made liable for the negligence or will full conduct of such minor in operating a motor vehicle upon the highways.
To permit Universal Underwriters to introduce evidence at the trial of the within action, that Arden Leffel had no legal permission from either his father or Ringle to operate the insured vehicle, would be to repudiate the certification contained in its SR-21. This it cannot do.
However, in the Pulvermacher Case the injured person, who is the third-party beneficiary that the Safety Responsibility Law was designed to protect, was the named insured under the policy. The Safety Responsibility Law should not be so construed that the filing of an SR-21 would give such named insured the right to recover upon his own policy of insurance when he had already expressly contracted in such policy that there would be no coverage as to his own damages. This is because the SR-21 is filed to protect such named insured, as owner of the insured vehicle, against having his vehicle registration suspended. In this respect it is a filing for and in behalf of the insured and he should not be permitted to use it as a weapon against the Insurance Company.
Universal Underwriters contends that in the instant case it does have a valid defense based upon an exclusion clause in the policy. Such clause provided that the policy does not apply "to liability assumed by the insured under any contract
It would seem that such liability of Henry Leffel for the acts of operation of his son, Arden, is one imposed by statute
However, even if there had been a violation of this particular exclusion clause by reason of Henry Leffel signing Arden's application for an instruction permit, this was a fact which Universal Underwriters should have discovered by the exercise of due diligence prior to the filing of the SR-21. This precludes it from raising such issue now.
By the Court.—That part of the order denying summary judgment as to the appellant Universal Underwriters is affirmed; and that part of the order denying summary judgment as to the appellant Ringle is reversed, and cause remanded with directions to enter judgment dismissing the complaint as to him. The respondents shall be entitled to tax costs.
FAIRCHILD, J. (concurring).
Quin v. Hoffmann (1954), 265 Wis. 636, 62 N.W.2d 423, held that permission given to an unlicensed driver is not "permission" as used in the statutory omnibus coverage clause. In my opinion that decision should be overruled. It was apparently considered that sec. 204.30 (3), Stats., was not enacted for the protection of persons injured but only for the benefit of the additional assured. That was too narrow a view. Ch. 349, Laws of 1955, effective July 8, 1955, changed the rule of Quin v. Hoffmann but the instant case arose before
Because the foregoing is a sufficient basis for the result, I express no opinion as to the theory upon which the majority opinion is based. With reference, however, to the discussion of Pulvermacher v. Sharp, ante, p. 371, 82 N.W.2d 163, set forth in the majority opinion, the following observation is pertinent. Counsel in the Pulvermacher Case did not attack the validity of the policy provision excluding from coverage afforded to an additional assured his liability to a named assured. Such validity was evidently considered established in Frye v. Theige (1948), 253 Wis. 596, 34 N.W.2d 793. Although the opinion in the Frye Case sought to distinguish Schenke v. State Farm Mut. Automobile Ins. Co. (1944), 246 Wis. 301, 16 N.W.2d 817, the principle of the Schenke Case was in my opinion correct and controlling. The court ought to return to it. The exclusion of liability to a named assured causes an additional assured to enjoy less protection than the policy gives the named assured and violates sec. 204.30 (3), Stats.