Siebert, et al. v. Wisconsin American Mutual Ins. Co., et al.
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The driver of a vehicle, owned by the driver's girlfriend's father, in which plaintiff was a passenger, lost control of the vehicle and drove into a ditch wherein the driver and one other passenger were killed and plaintiff sustained severe injuries. The vehicle was insured by Wisconsin American Mutual Insurance Company ("Wisconsin American") through an automobile insurance policy issued to the driver's girlfriend's father. The girlfriend permitted the driver to use the vehicle as long as he went to a local grocery store. The driver, instead, picked up passengers including plaintiff, and was driving to a party when the accident occurred. At issue was whether the alleged negligent entrustment of the vehicle constituted an independent concurrent cause of plaintiff's injuries sufficient to trigger coverage under Wisconsin American's insurance policy. The court held that the alleged negligent entrustment of the vehicle did not constitute an independent concurrent cause of plaintiff's injuries sufficient to trigger coverage when no coverage existed for the alleged negligent operation of the vehicle. Therefore, there was no coverage for plaintiff's negligent entrustment claim and Wisconsin American was entitled to summary judgment. The court also held that its holding was dispositive of the case and did not need to reach the issue of whether plaintiff's negligent entrustment claim was barred by claim or issue preclusion.
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2011 WI 35 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 2009AP1422 Jessica L. Siebert, by her Guardian ad Litem, D.J. Weis and Lynette A. Siebert, Plaintiffs-Appellants, Steve Albrecht, Jr., by his Guardian ad Litem, Thomas W. Kyle, Steven Albrecht, Sr., Kari Sosnowski, by her Guardian ad Litem, Thomas W. Kyle and Cyndi Anderson, Intervening-Plaintiffs, Oneida County Department of Social Services, Involuntary-Plaintiff, v. Wisconsin American Mutual Insurance Company, Defendant-Respondent-Petitioner, Interstate Brands Corporation, ACE American Insurance Company and Ryan Friberg, Defendants. REVIEW OF A DECISION OF THE COURT OF APPEALS 2010 WI App 94 Reported at: 325 Wis. 2d 740, 787 N.W.2d 54 (Ct. App. 2010-Published) OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: SOURCE OF APPEAL: COURT: COUNTY: JUDGE: JUSTICES: CONCURRED: DISSENTED: May 24, 2011 March 2, 2011 Circuit Oneida Patrick F. O Melia CROOKS, J. dissents (Opinion filed). ABRAHAMSON, C.J. and BRADLEY, J. join dissent. NOT PARTICIPATING: ATTORNEYS: For the defendant-respondent-petitioner there were briefs by John M. Swietlik, Jr., Michael D. Aiken and Kasdorf, Lewis, and Swietlik, Swietlik. S.C., Milwaukee, and oral argument by Mr. For the plaintiff-appellant there was a brief by D.J. Weis, Rhonda Lanford, and Habush, Habush & Rottier, S.C., Rhinelander, and oral argument by Ms. Lanford. 2 2011 WI 35 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2009AP1422 (L.C. No. 2007CV80) STATE OF WISCONSIN : IN SUPREME COURT Jessica L. Siebert, by her Guardian ad Litem, D.J. Weis and Lynette A. Siebert, Plaintiffs-Appellants, Steve Albrecht, Jr., by his Guardian ad Litem, Thomas W. Kyle, Steven Albrecht, Sr., Kari Sosnowski, by her Guardian ad Litem, Thomas W. Kyle and Cyndi Anderson, Intervening-Plaintiffs, FILED Oneida County Department of Social Services, MAY 24, 2011 Involuntary-Plaintiff, v. A. John Voelker Acting Clerk of Supreme Court Wisconsin American Mutual Insurance Company, Defendant-Respondent-Petitioner, Interstate Brands Corporation, ACE American Insurance Company and Ryan Friberg, Defendants. REVIEW of a decision of the Court of Appeals. Reversed. No. ¶1 ANNETTE KINGSLAND ZIEGLER, J. 2009AP1422 This is a review of a published decision of the court of appeals, Siebert v. Wisconsin American Mutual Insurance Co., 2010 WI App 94, 325 Wis. 2d 740, 787 N.W.2d 54, that reversed an order of the Oneida County Circuit Court1 granting summary judgment in favor of Wisconsin American Mutual dismissing the entrustment. Insurance plaintiffs' Based upon Company direct its (Wisconsin action earlier claim American) for and negligent determination that the insurance policy issued by Wisconsin American did not cover the driver's alleged negligent operation of the vehicle, the circuit court concluded that the policy likewise does not cover the plaintiffs' negligent entrustment claim. ¶2 Two of the plaintiffs, Jessica Siebert and her mother, Lynette Siebert (collectively, Siebert),2 appealed, and the court of appeals reversed. ¶3 We granted Wisconsin American's petition for review. We now reverse the decision of the court of appeals. ¶4 (1) Wisconsin American presents two issues for our review: Does the alleged negligent entrustment of the vehicle constitute an independent concurrent cause of Jessica Siebert's injuries sufficient to trigger coverage under Wisconsin American's insurance policy when no coverage 1 The Honorable Patrick F. O'Melia presided. 2 For clarity, we use Jessica Siebert and Lynette Siebert's full names when referring to them individually. 2 No. 2009AP1422 exists for the driver's alleged negligent operation of the vehicle? (2) Is Siebert's negligent entrustment claim barred by claim or issue preclusion by virtue of the fact that Siebert asserted the claim against Wisconsin American after the circuit court dismissing entered with judgment prejudice on Siebert's the jury original verdict complaint against Wisconsin American? ¶5 We conclude that the alleged negligent entrustment of the vehicle does not constitute an independent concurrent cause of Jessica Siebert's injuries sufficient to trigger coverage, when no coverage exists for the alleged negligent operation of the vehicle. the vehicle Specifically, the alleged negligent entrustment of is not actionable without the occurrence of an excluded risk the alleged negligent operation of the vehicle. Therefore, there is no coverage for Siebert's negligent entrustment claim, and Wisconsin American is entitled to summary judgment. ¶6 Our conclusion that Wisconsin American is entitled to summary judgment by virtue of the lack of coverage for Siebert's negligent entrustment Accordingly, we do not negligent entrustment claim reach claim is the is dispositive issue barred of in this whether by claim case. Siebert's or issue preclusion. I. FACTUAL BACKGROUND ¶7 On June 17, 2006, Jessica Koehler (Koehler) gave permission to her boyfriend, Jesse Raddatz (Raddatz), to drive 3 No. 2009AP1422 her father's 1996 Chevrolet Lumina to a food pantry in Eagle River, the city in which Koehler and Raddatz lived. Koehler advised Raddatz that he and his friend "could use [the vehicle] as long as they went to the Food Pantry and came right back . . . ." ¶8 Raddatz did not use the vehicle to drive to the food pantry. Instead, Raddatz and his friend picked up four more passengers, including Jessica Siebert, and headed to a party in Rhinelander. ¶9 While traveling south on two-lane Highway 17, Raddatz approached a Hostess truck also traveling south. The Hostess truck was nearing the intersection of Highway 17 and County Road A in the township of Sugar Camp. southbound Highway 17 gave A passing lane to the right of vehicles the opportunity to pass those vehicles turning left onto County Road A. According to deposition the testimony, Raddatz attempted to pass Hostess truck on the right when the truck suddenly swerved in and out of the passing lane. Raddatz lost control of the vehicle and drove into the ditch, causing the vehicle to roll. Raddatz and four of the other five passengers, including Jessica Siebert, were ejected from the vehicle. ¶10 accident. Raddatz and one other passenger were killed in the The other four passengers were injured, Jessica Siebert severely. ¶11 The vehicle was insured by Wisconsin American through an automobile insurance policy issued to Koehler's father. II. PROCEDURAL POSTURE 4 No. 2009AP1422 On February 14, 2007, Siebert filed a direct action3 ¶12 against Wisconsin American, operation vehicle of the serious injuries. alleging caused that Jessica Raddatz's Siebert negligent to sustain The complaint further alleged that Jessica Siebert's injuries, in turn, caused Lynette Siebert to suffer the loss of her daughter's society and companionship and to incur medical expenses. ¶13 On May 9, 2007, two other surviving passengers (the intervening plaintiffs) filed an intervening complaint against Wisconsin American and similarly alleged Raddatz's negligent operation of the vehicle. ¶14 Wisconsin American answered both complaints by, inter alia, raising an affirmative defense that Raddatz exceeded the scope of permission to use the vehicle and therefore did not qualify as an insured under the policy issued to Koehler's father. ¶15 Wisconsin American moved the circuit court to bifurcate the issue of insurance coverage from the underlying 3 See Wis. Stat. § 632.24 (2005-06) ("Any bond or policy of insurance covering liability to others for negligence makes the insurer liable, up to the amounts stated in the bond or policy, to the persons entitled to recover against the insured for the death of any person or for injury to persons or property, irrespective of whether the liability is presently established or is contingent and to become fixed or certain by final judgment against the insured."). All subsequent references to the Wisconsin Statutes are to the 2005-06 version unless otherwise indicated. 5 No. issues of liability and damages.4 2009AP1422 The circuit court granted Wisconsin American's motion.5 ¶16 On June 23, 2008, the coverage issue proceeded to a two-day jury trial. The jury was asked the following question: "At and immediately before the time of the accident, did Jesse Raddatz exceed the scope of permission that he was provided by Jessica Koehler to use the 1996 Chevrolet Lumina?" The jury answered, "Yes." ¶17 Soon after, on July 11, 2008, Siebert and the intervening plaintiffs filed a motion to amend their complaints against Wisconsin American Koehler's negligent Wisconsin American to add a of the entrustment opposed the motion, cause of vehicle arguing action to that for Raddatz. the new cause of action was barred by claim and issue preclusion. ¶18 On September 29, 2008, the circuit court entered judgment on the jury verdict and determined that "because Jesse Raddatz provided exceeded by the Jessica scope of the permission Koehler to use the 1996 that he was Lumina at and 4 See Wis. Stat. § 803.04(2)(b) (permitting the circuit court to "direct[] and conduct[] separate trials on the issue of liability to the plaintiff or other party seeking affirmative relief and on the issue of whether the insurance policy in question affords coverage"). 5 Thereafter, on October 12, 2007, and November 15, 2007, respectively, Siebert and the intervening plaintiffs amended their complaints to add a negligence cause of action against Ryan Friberg, the driver of the Hostess truck, and Interstate Brands Corporation, the owner of the Hostess truck. Those defendants and Wisconsin American then asserted cross-claims against each other for contribution. Friberg and Interstate Brands Corporation are not parties to this appeal. 6 No. 2009AP1422 immediately before the time the accident occurred[,] there is no insurance coverage available under the Wisconsin American Mutual Insurance Company policy . . . ." The circuit court therefore dismissed "on the merits and with prejudice" Siebert and the intervening plaintiffs' complaints against Wisconsin American.6 ¶19 Subsequent to the judgment, however, the circuit court granted Siebert and the intervening plaintiffs' motion to amend their complaints. each filed action Siebert and the intervening plaintiffs then a second amended against Wisconsin complaint, American for asserting a negligent cause of entrustment. Specifically, the complaints alleged that Koehler entrusted her father's vehicle to Raddatz with full knowledge of the fact that Raddatz did not have a valid driver's license. As such, the complaints alleged, Koehler knew, or in the exercise of ordinary care should have known, that Raddatz intended or was likely to use the vehicle in a way that would create an unreasonable risk of harm to others. The complaints further asserted that Koehler's negligent entrustment was "a separate and distinct act of negligence from Jesse Raddatz'[s] negligent operation of the vehicle." ¶20 Wisconsin American moved for summary judgment, arguing that there is no coverage under the policy for Koehler's alleged negligent entrustment. maintained that Koehler's Specifically, act of 6 The circuit court similarly against Wisconsin American. 7 Wisconsin entrusting dismissed the all American vehicle to cross-claims No. 2009AP1422 Raddatz is not an independent concurrent cause of the injuries suffered by Jessica Siebert and the intervening plaintiffs; that is, Koehler's act requires the occurrence of a non-covered risk Raddatz's negligent operation of the vehicle to be actionable. ¶21 Alternatively, Wisconsin American argued that the jury's finding that Raddatz exceeded the scope of permission prevents Siebert and the intervening plaintiffs from being able to relitigate and prove an element of negligent entrustment, namely, whether Koehler permitted Raddatz to operate her father's vehicle. ¶22 On April 2, 2009, the circuit court held a hearing on Wisconsin granted American's the motion motion on April for summary 20, judgment 2009. The and circuit then court determined that coverage is not available under the policy for Koehler's applying alleged this negligent court's entrustment. decision in Bankert In v. particular, Threshermen's Mutual Insurance Co., 110 Wis. 2d 469, 329 N.W.2d 150 (1983), the circuit court agreed with Wisconsin American that Koehler's alleged negligent entrustment does not constitute an independent concurrent cause of the injuries suffered by Jessica Siebert and the intervening plaintiffs: Siebert's claim for negligent entrustment is dependent upon Raddatz's negligent operation of the vehicle. The alleged negligence of Raddatz is not covered under the policy pursuant to the jury's finding last summer when they found that Raddatz exceeded the scope of permission. And so Raddatz's negligent operation of the vehicle is an excluded risk. And because the negligent entrustment claim against Koehler requires the occurrence of Raddatz's negligence and because a 8 No. 2009AP1422 claim for Raddatz's negligence is excluded under the policy, the alleged negligent entrustment by Koehler is not an independent concurrent cause. Siebert appealed,7 and the court of appeals reversed, ¶23 holding that there is coverage for Koehler's alleged negligent entrustment. Siebert, 325 Wis. 2d 740. The court of appeals concluded that the independent concurrent cause rule does not apply in this case because Koehler's alleged entrustment does not implicate an excluded risk. ¶24 negligent Id., ¶7. The court of appeals began its analysis by drawing a distinction between lack of coverage and an "excluded risk." Id., ¶8. In this case, the court of appeals explained, the fact that the policy does not cover Raddatz's negligent operation of the vehicle does not mean that the policy excludes the risk. Id. "The [independent concurrent cause] rule is concerned not with who is covered for their actions, but with whether the risk is one the policy insures." Id., ¶10. The court of appeals concluded that Koehler's alleged negligent entrustment is a risk insured under the policy: "Raddatz's own negligence may be excluded from coverage, but the risk associated with Koehler lending her car to him is not." Accordingly, the court of Id., ¶11; see also id., ¶9. appeals concurrent cause rule does not apply. ¶25 The court of appeals reasoned, the independent Id., ¶11. also rejected Wisconsin American's argument that Siebert's negligent entrustment claim is barred by claim preclusion. 7 Id., ¶¶12-13. The court of The intervening plaintiffs did not appeal from the circuit court's order granting summary judgment to Wisconsin American. 9 No. appeals explained that Siebert's ability to 2009AP1422 prove Koehler's negligent entrustment does not bear on whether Koehler permitted Raddatz to use the vehicle in the specific manner he did. Id., ¶13. ¶26 Wisconsin American petitioned this court for review, which we granted on October 27, 2010. We now reverse. III. STANDARD OF REVIEW ¶27 In this case, judgment to Wisconsin the circuit American. court Whether granted the summary circuit court properly granted summary judgment presents a question of law that this court reviews de novo, applying the well-established standards Corp., set 2010 forth WI in 90, Wis. ¶15, Stat. 328 § 802.08. Wis. 2d 320, Tatera 786 v. FMC N.W.2d 810. Pursuant to § 802.08(2), summary judgment "shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." ¶28 The issue of insurance coverage through a motion for summary judgment. insurance contract independently. States Ins. is a question is often addressed The interpretation of an of law that we review Froedert Mem'l Lutheran Hosp., Inc. v. Nat'l Co., 2009 WI 33, ¶33, 317 Wis. 2d 54, 765 N.W.2d 251. IV. ANALYSIS ¶29 entrusted In this case, Siebert alleges that Koehler negligently her father's vehicle 10 to Raddatz. Siebert seeks No. 2009AP1422 coverage for her claim under the automobile insurance policy issued to Koehler's father. ¶30 We, like the circuit court, conclude that there is no coverage under the policy for Siebert's negligent entrustment claim. Specifically, we negligent entrustment does concurrent cause of conclude Jessica not that Koehler's constitute Siebert's an injuries alleged independent sufficient to trigger coverage, when no coverage exists for Raddatz's alleged negligent operation of the vehicle. by first considering the We arrive at our conclusion relevant policy language and then applying the independent concurrent cause rule to the facts of this case. A. Wisconsin American's Automobile Insurance Policy ¶31 To negligent determine entrustment whether claim Siebert under may the recover automobile for her insurance policy issued to Koehler's father, we begin with the language of the policy. See Zarder v. Humana Ins. Co., 2010 WI 35, ¶25, 324 Wis. 2d 325, 782 N.W.2d 682. "The court's goal in construing an insurance policy is to determine and carry out the intentions of the parties." Id., ¶26. In doing so, we give the policy language its common and ordinary meaning, that is, the meaning understood insured. by a reasonable person in the position of the State Farm Mut. Auto. Ins. Co. v. Langridge, 2004 WI 113, ¶14, 275 Wis. 2d 35, 683 N.W.2d 75. At the same time, "we do provide not interpret insurance policies to coverage for risks that the insurer did not contemplate or underwrite and for which it has not received a premium." 11 Am. Family Mut. Ins. Co. No. v. Am. Girl, Inc., 2004 WI 2, ¶23, 268 2009AP1422 Wis. 2d 16, 673 N.W.2d 65. ¶32 In this case, the policy's initial grant of liability coverage provides that Wisconsin American "will pay damages an insured person is legally liable for because of bodily injury and property damage due to the use of a car or utility trailer." ¶33 several The initial grant definitions. of The coverage, policy in defines turn, "car," implicates in part, as "[the policyholder's] insured car . . . ." relevant The parties do not dispute that the 1996 Chevrolet Lumina owned by Koehler's father and driven by Raddatz on the day of the accident is an insured car under the policy. ¶34 In addition, the policy defines "bodily injury" as "bodily injury to or sickness, disease or death of any person." It is clear that Jessica Siebert's injuries constitute "bodily injury." ¶35 For purposes of liability coverage, the policy defines "insured person," in relevant part, as "[the policyholder] or a relative" insured and car." as "[a]ny There person is no using dispute [the policyholder's] that Koehler, the policyholder's daughter, qualifies as an "insured person." ¶36 However, relevant to this case, the policy expressly excludes from the definition of "insured person" "[a]ny person using a vehicle with the permission of the person having lawful possession, but who exceeds the scope of that permission." There is no question that the exclusion applies in this case. Pursuant to the circuit court's September 29, 2008, judgment on 12 No. the jury verdict, Raddatz does not qualify as 2009AP1422 an "insured person" because he exceeded the scope of Koehler's permission when he drove the 1996 Chevrolet Lumina to Rhinelander. Because Raddatz does not qualify as an "insured person," his alleged negligent operation of the vehicle falls outside the scope of the policy's initial grant of coverage.8 Stated otherwise, Raddatz's alleged negligent operation of the vehicle constitutes an excluded risk under the policy.9 8 The dissent repeatedly asserts that the circuit court determined only that Raddatz is not an "insured person" under the policy, see, e.g., dissent, ¶¶60, 67, 70, 71, 81, and that such a determination does not amount to a conclusion that there is no coverage for Raddatz's alleged negligent operation of the vehicle, see id., ¶¶70, 71, 81. That is simply not accurate. The jury found that Raddatz exceeded the scope of permission that he was provided by Koehler to use the 1996 Chevrolet Lumina. See supra ¶16. The circuit court then entered judgment on the jury verdict and concluded, as a matter of law, that there is no coverage for Raddatz's negligent operation of the vehicle because he exceeded the scope of permission to use the vehicle. See supra ¶18. Consequently, the circuit court dismissed Siebert and the intervening plaintiffs' complaints against Wisconsin American, in which they claimed that Raddatz negligently operated the vehicle. That judgment was never appealed from and now stands. 9 The court of appeals drew a distinction between lack of coverage and an excluded risk, explaining that "[a]n excluded risk is a risk for which the insurance company did not receive a premium." Siebert v. Wis. Am. Mut. Ins. Co., 2010 WI App 94, ¶8, 325 Wis. 2d 740, 787 N.W.2d 54 (citing Lawver v. Boling, 71 Wis. 2d 408, 422, 238 N.W.2d 514 (1976)). The court of appeals seemed to suggest that while an insurance company does not receive a premium for an excluded risk, the insurance company does receive a premium for a risk that is not covered. We reject such a distinction. An insurance company does not receive a premium for any risk that is not covered under the policy, whether the risk is expressly excluded or simply not covered in a particular case. See Malone v. Gaengel, 221 Wis. 2d 92, 99 n.4, 583 N.W.2d 882 (Ct. App. 1998). 13 No. ¶37 However, as previously mentioned, it is 2009AP1422 undisputed that Koehler qualifies as an "insured person" under the policy. Thus, in order to resolve whether Siebert's negligent entrustment claim falls within the scope of the policy's initial grant of legally coverage, we liable injury . . . due must determine whether for . . . [Jessica to the use of "[Koehler] Siebert's] [the 1996 is bodily Chevrolet Lumina] . . . ."10 ¶38 In Bankert, this court established that the act of entrusting a vehicle to another may constitute an exercise of "use" of the vehicle. 110 Wis. 2d at 480. Accordingly, in this case, we assume without deciding that Koehler's entrustment of the 1996 Chevrolet Lumina constitutes "use" of the vehicle. It follows that Koehler's alleged negligent entrustment of the 1996 Chevrolet Lumina is a covered risk under the policy. ¶39 Nevertheless, in this case, maintains that there is no coverage negligent entrustment of the vehicle for to Wisconsin Koehler's Raddatz American alleged because it requires the occurrence of an excluded risk namely, Raddatz's For example, in this case, it is true that the risk of negligently operating an insured vehicle is not itself excluded under the policy. Nevertheless, Raddatz's alleged negligent operation of the vehicle is an excluded risk, by virtue of the fact that he drove the vehicle outside the scope of permission. 10 The policy defines "use" as "ownership, maintenance, or use." 14 No. 2009AP1422 alleged negligent operation of the vehicle to be actionable.11 In other words, Wisconsin American argues that Koehler's alleged negligent entrustment is not an independent concurrent cause of Jessica Siebert's injuries sufficient to trigger coverage. We agree. B. Independent Concurrent Cause Rule ¶40 The independent concurrent cause rule provides that "[w]here a policy expressly insures against loss caused by one risk but excludes loss caused by another risk, coverage is extended to a loss caused by the insured risk even though the excluded risk is a contributory cause." Kraemer Bros., Inc. v. U.S. Fire Ins. Co., 89 Wis. 2d 555, 570, 278 N.W.2d 857 (1979). However, in order to trigger coverage, "[t]he 'independent concurrent cause must provide the basis for a cause of action in and of itself excluded Smith, risk 2009 and to WI must make App it 88, not require the actionable.'" ¶5, 320 occurrence Estate Wis. 2d 470, of 768 of the Jones v. N.W.2d 245 (quoting Smith v. State Farm Fire & Cas. Co., 192 Wis. 2d 322, 332, 531 N.W.2d 376 (Ct. App. 1995)). covered risk is excluded risk, not actionable then the Stated conversely, if the without covered risk the is occurrence not of an sufficiently independent to trigger coverage under the policy. 11 See Zarnstorff v. Neenah Creek Custom Trucking, 2010 WI App 147, ¶23, 330 Wis. 2d 174, 792 N.W.2d 594 (explaining that the independent concurrent cause analysis applies once it is determined that some injury-causing conduct comes within the language of an exclusion while other injury-causing conduct does not). 15 No. ¶41 In this case, the question is whether 2009AP1422 the covered risk, Koehler's alleged negligent entrustment of her father's vehicle, is actionable without the occurrence of the excluded risk, Raddatz's alleged negligent operation of the vehicle. The answer is no. ¶42 In regards specifically, to liability negligent can entrustment arise when a of person a vehicle who has a vehicle under his or her control permits another to use the vehicle when he or she knows, or should know, that the other person intends or is likely to use the vehicle in a manner that would create an unreasonable risk of harm to others. Bankert, 110 Wis. 2d at 475-76; see also Restatement (Second) of Torts § 308 (1965). negligent This court entrustment has expressly constitutes an held that independent while act of negligence, that negligence is nonactionable in the absence of a negligent act by the entrustee. ¶43 Bankert, 110 Wis. 2d at 478. Accordingly, in Bankert, we concluded that the insured parents' alleged negligent entrustment of a motorcycle to their minor son was not an independent concurrent cause of the plaintiff's injuries sufficient to trigger coverage under their farmowner's liability policy, when coverage was their son's negligent operation of the motorcycle. excluded for Id. at 484. In that case, 15-year-old Bankert was injured while riding on a motorcycle operated by 15-year-old Mueller. Id. at 472. Bankert and his parents sued Mueller and his parents, claiming, inter alia, that Mueller negligently operated the motorcycle and that his parents negligently entrusted the motorcycle to him. 16 No. See id. 2009AP1422 The Bankerts sought coverage for their claims under a farmowner's liability Threshermen's Mutual policy issued Company Insurance to the Muellers (Threshermen's). by Id. Threshermen's denied that coverage was available, id., and we agreed, id. at 473. ¶44 The farmowner's policy provided that Threshermen's "'will pay on behalf of the insured all sums which the insured shall become bodily legally obligated to pay injury or property damage as to damages which this Id. at 478. applies, caused by an occurrence.'" because of insurance The policy then defined "occurrence" as "'an accident, including injurious exposure to property damage standpoint policy conditions, of which neither the results expected insured.'" expressly excluded in nor Id. at from bodily intended 478-79. coverage injury from However, "the or the the ownership, operation, maintenance or use, including loading and unloading of . . . automobiles while away from the premises or the ways immediately adjoining.'" ¶45 Mueller's Id. at 479. The Bankerts conceded that coverage was excluded for negligent operation of the motorcycle, since the motorcycle accident took place "away from the premises," that is, away from the Muellers' farm. See id. The Bankerts argued, however, that coverage was still afforded under the policy for Mueller's parents' alleged negligent entrustment of the motorcycle because that act took place on the farm premises. Id. We rejected the Bankerts' argument, concluding that there was no coverage for Mueller's 17 parents' alleged negligent No. 2009AP1422 entrustment of the motorcycle because their negligent act could not render them liable without the occurrence of an excluded risk their son's negligent operation of the motorcycle. Id. at 484. ¶46 As we explained, while negligent entrustment is a separate act of negligence, liability cannot ensue without the entrustee acting in a negligent manner and inflicting injury as a result. Id. at 476. Hence, in the case of negligent entrustment of a vehicle, "it is the negligent use and operation of the vehicle by the entrustee entrustment relevant at all." ¶47 In concluding that which makes the negligent Id. there was no coverage for the Bankerts' negligent entrustment claim, we contrasted the facts in Bankert with those in State Farm Mutual Automobile Insurance Co. v. Partridge, 514 P.2d 123 (Cal. 1973). See Bankert, 110 Wis. 2d at 483-84. ¶48 that a In Partridge, homeowner's accident caused the policy jointly by Supreme afforded a Court of California coverage covered risk, for a the held vehicle insured's negligent modification of a pistol, and an excluded risk, the insured's negligent driving, because the former was actionable without the occurrence of the latter. 514 P.2d at 129. In that case, Partridge, an avid hunter, filed the trigger mechanism of his pistol to create a "hair trigger" action. Id. at 125. While driving with two friends, Partridge then used his modified pistol to hunt jackrabbits vehicle's windows. Id. by shooting out of the moving One of the passengers was shot and 18 No. 2009AP1422 severely injured when Partridge drove his vehicle off the paved road and hit a bump, causing his pistol to discharge. 125-26. The injured passenger then filed suit Id. at against Partridge, claiming that Partridge's negligent modification of the pistol injuries. coverage and negligent See id. at 126-27. was available homeowner's policy. ¶49 driving The caused the passenger's A dispute arose as to whether for the accident under Partridge's See id. at 126, 128. homeowner's policy contained a comprehensive personal liability provision, providing coverage for "'all sums which the Insured shall become legally obligated to pay as damages because of bodily injury or property damage, to which Id. at 126 this insurance applies, caused by an occurrence.'" n.5. The accident, policy, including in turn, injurious defined exposure "occurrence" to as conditions, "'an which results, during the policy term, in bodily injury or property damage.'" Id. Relevant to the facts in Partridge, however, the policy excluded from coverage "'bodily injury . . . arising out of the . . . use of . . . any motor vehicle.'" Id. at 126 (omissions in original). ¶50 Assuming that Partridge's negligent driving constituted the "use of" a motor vehicle, thereby implicating the exclusionary clause, id. at 128-29, the Supreme Court of California concluded that coverage was nevertheless afforded for the accident because Partridge's negligent modification of the pistol "suffice[d], in itself, to render him fully liable for the resulting injuries," id. 19 at 129. Stated otherwise, No. Partridge's negligent modification of independently of any 'use' of his car." ¶51 Bankert, the pistol 2009AP1422 "exist[ed] Id.12 Distinguishing the facts in Partridge from those in this court recognized that "[i]n Partridge, the modification of the gun could have resulted in an accident which would render the defendant liable without the involvement of an automobile." Bankert, 110 Bankert, parents' motorcycle the could not alleged render operation of the motorcycle. ¶52 Wis. 2d at 484. negligent them liable By contrast, entrustment without of their in the son's Id. Likewise, in Malone v. Gaengel, 221 Wis. 2d 92, 583 N.W.2d 882 (Ct. App. 1998), the court of appeals applied Bankert and concluded that there was no coverage for the insured 12 For a parallel analysis, see Estate of Jones v. Smith, 2009 WI App 88, ¶9, 320 Wis. 2d 470, 768 N.W.2d 245, in which the court of appeals concluded that a commercial general liability policy afforded coverage for a two-year-old's death caused jointly by a covered risk, the day care staff's alleged negligent failure to inquire about the toddler's absence, and an excluded risk, the van driver's alleged negligent failure to remove the toddler from the transport van, because the former was actionable without the occurrence of the latter. The court of appeals explained: The staff has a duty to make sure that all the children who are expected to be at the Day Care Center on any given day are accounted for regardless of how they arrive at the center. Thus, the staff's alleged negligence does not require the use of an automobile to be actionable. The staff's responsibility to ensure children who are expected to attend the center that day are actually in the center exists independent of mode of arrival. Id. 20 No. 2009AP1422 parents' alleged negligent entrustment of an all-terrain vehicle (ATV) to without their the minor son occurrence because of a Damian Gaengel, Jason's mother ATV rolled filed a could ensue son's In Malone, 10-year-old Jason operated over not risk their non-covered negligent operation of the ATV. Malone died when an liability and by his 12-year-old him. crushed complaint cousin, at against Id. Damian's 93. parents, alleging, inter alia, that they negligently entrusted the ATV to Damian. Id. at 94. ¶53 No claim was asserted against Damian. Id. Jason's mother sought coverage for the accident under a comprehensive liability policy issued to the Gaengels by West Bend Mutual Insurance Company (West Bend). she sought coverage under the policy's Id. Specifically, "'Home and Personal Activities Legal Liability'" provision, which stated that West Bend will "'insure the liability of you and your family to pay because of bodily injury or property damage to others in an accident or incident that happens in your home property, as listed on the Declarations Page.'" or on your Id. at 95. The policy then defined "accident or incident," in relevant part, as "'anything that causes . . . death.'" Id. (omission in original). ¶54 It was undisputed that the policy did not cover Damian's negligent operation of the ATV; the ATV was not listed on the policy's declarations page, and moreover, the roll-over accident took place away from the Gaengels' property. at 94-95. Consequently, applying this court's See id. holding in Bankert, the court of appeals concluded that the policy also did 21 No. 2009AP1422 not cover the Gaengels' alleged negligent entrustment of the ATV to Damian because that act was not an independent concurrent cause of Jason's death. Id. at 99. That is, the alleged negligent entrustment would not have resulted in the roll-over accident unless Damian was negligent in operating the ATV a risk not covered under the policy. ¶55 teach Id. Turning to the case now before us, Bankert and Malone us that there is no coverage for Koehler's alleged negligent entrustment of the vehicle to Raddatz because that act is not an injuries. independent More concurrent specifically, cause of Koehler's Jessica alleged Siebert's negligent entrustment could not render her liable for Jessica Siebert's injuries without the occurrence of an excluded risk Raddatz's alleged negligent operation of the vehicle.13 13 See Bankert, 110 The dissent attempts to distinguish Bankert on the grounds that in that case, the motorcycle accident itself was excluded under the policy because it took place away from the premises. Dissent, ¶73. By contrast, in this case, the dissent reasons, "the exclusion leads only to a lack of coverage for Raddatz as an 'insured person,'" while coverage still exists for Koehler's alleged negligent entrustment. Id. However, the same type of argument was considered and then rejected by this court in Bankert. The Bankerts unsuccessfully argued that coverage was still afforded for Mueller's parents' alleged negligent entrustment of the motorcycle because that act, distinct from the motorcycle accident, took place on the farm premises and therefore did not implicate the exclusion. Bankert v. Threshermen's Mut. Ins. Co., 110 Wis. 2d 469, 479, 329 N.W.2d 150 (1983). We rejected the Bankerts' argument, concluding that there was no coverage for Mueller's parents' alleged negligent entrustment of the motorcycle because their negligent act could not render them liable without their son's negligent operation of the motorcycle. Id. at 484. We similarly reject the dissent's argument in this case. 22 No. Wis. 2d at 484; Malone, 221 Wis. 2d at 99. 2009AP1422 Indeed, it is Raddatz's alleged negligent operation of the vehicle that makes Koehler's alleged negligent entrustment relevant at all. See Bankert, 110 Wis. 2d at 476, 478. V. CONCLUSION ¶56 We conclude that the alleged negligent entrustment of the vehicle does not constitute an independent concurrent cause of Jessica Siebert's injuries sufficient to trigger coverage, when no coverage exists for the alleged negligent operation of the vehicle. the vehicle Specifically, the alleged negligent entrustment of is not actionable without the occurrence of an excluded risk the alleged negligent operation of the vehicle. Therefore, there is no coverage for Siebert's negligent entrustment claim, and Wisconsin American is entitled to summary judgment. ¶57 Our conclusion that Wisconsin American is entitled to summary judgment by virtue of the lack of coverage for Siebert's negligent entrustment Accordingly, we negligent do not entrustment claim is dispositive reach the claim is in this issue of whether barred by claim case. Siebert's or issue preclusion. By the Court. The decision reversed. 23 of the court of appeals is No. ¶58 N. PATRICK CROOKS, J. (dissenting). 2009AP1422.npc In my view, this case is controlled by a straightforward interpretation of the insurance arguments policy language concerning the concurrent cause rule. but has application been of complicated the by independent The majority opinion correctly begins with the policy language but takes a wrong turn by concluding that the circuit is (Raddatz) court's an not determination "insured person" that under Jesse the Raddatz policy is equivalent to a finding that his alleged negligent operation of the car is an excluded risk. The policy language explicitly provides coverage for Siebert's claim against Wisconsin American Mutual Insurance Company (Wisconsin American) for Koehler's alleged negligent entrustment, and no exclusion bars coverage. The analysis ends there. ¶59 This case Therefore, I respectfully dissent. involves direct action claims against Wisconsin American by Jessica Siebert and her mother Lynette Siebert, referred to collectively as "Siebert." Jessica Siebert suffered injuries in an auto accident involving an insured car Raddatz was daughter, driving Jessica with Koehler the permission (Koehler). of The the car insured's belonged to Koehler's father and was insured under an automobile liability policy issued by Wisconsin American. ¶60 alleging Siebert's first claim against that Raddatz negligently Wisconsin operated Koehler's American, father's car causing Siebert's injuries, was premised upon coverage for Raddatz as permission an to "insured use the person" car. In 1 because the Koehler coverage gave phase him of a No. 2009AP1422.npc bifurcated trial, regarding whether Raddatz exceeded the scope of Koehler's permission, the following facts were developed. Koehler lent her father's car to Raddatz on the condition that he use it only to go to the Food Pantry and come right back. Instead, Raddatz picked up friends, including Jessica Siebert, to go to Rhinelander. On the way to Rhinelander, Raddatz got into an accident in which he was killed and Jessica Siebert was injured. The circuit court determined, based on the jury's special verdict finding, that Raddatz is not an "insured person" under the policy because the definition of "insured person" excludes a person using an insured car who exceeds the scope of the permission. Presented with the following special verdict question, the jury responded "yes": "At and immediately before the time of the accident, did Jesse Raddatz exceed the scope of permission that he was provided by Jessica Koehler to use the 1996 Chevrolet Lumina?" ¶61 As a result, Siebert amended the complaint against Wisconsin American to add a second claim premised upon coverage for Koehler's alleged negligent entrustment of her father's car to Raddatz. this case. It is coverage for this claim that is at issue in The circuit court granted summary judgment in favor of Wisconsin American, concluding that there was no coverage for Siebert's negligent entrustment claim. Because there are no disputed issues of material fact regarding coverage for this claim, this court reviews whether Wisconsin American's policy provides coverage as a matter of law. Kremers-Urban Co. v. Am. Emp'rs Ins. Co., 119 Wis. 2d 722, 733-34, 351 N.W.2d 156 (1984). 2 No. ¶62 2009AP1422.npc The majority appropriately begins with the language of the policy to determine whether coverage exists for Siebert's claim based on Koehler's alleged negligent entrustment. The interpretation of an insurance policy is a three-step process. Arnold P. Anderson, Wisconsin Insurance Law § 1.25, at 34 (6th ed. 2010). The court examines, first, whether there is an initial grant of coverage by applying the facts to the policy's insuring coverage; agreement; and reinstates second, third, whether coverage. Id. whether any If any exclusions exception the policy to the preclude exclusion language provides coverage for the claim, and no exclusions apply, then coverage exists for that claim. "[W]hen the terms of an insurance policy are plain on their face, the policy must not be rewritten by construction." Wis. 2d 808, coverage are Id. (quoting Smith v. Atl. Mut. Ins. Co., 155 811, to 456 be N.W.2d 597 construed (1990)). in favor of "Ambiguities coverage, exclusions are narrowly construed against the insurer." in while Smith, 155 Wis. 2d at 811. ¶63 The Wisconsin American policy provides in relevant part: We will pay damages an insured person is legally liable for because of bodily injury and property damage due to the use of a car or utility trailer. . . . Insured person or insured persons means: 1. You or a relative. 2. Any person using your insured car. . . . 3 No. 2009AP1422.npc But the following are not insured persons: . . . 3. Any person using a vehicle with the permission of the person having lawful possession, but who exceeds the scope of that permission. ¶64 Applying the above policy language, there is coverage for Siebert's claim that Koehler allegedly negligently entrusted the car to Raddatz, causing Siebert's injuries. As the majority notes, it is undisputed that several elements of Siebert's claim for Koehler's alleged negligent entrustment are covered by the policy. The majority and the parties agree (1) that Koehler is an "insured person" because it is her father's policy so under the policy language she is an "insured person" as a relative of the insured and (2) that Koehler's father gave her possession of the car. It is also undisputed that Jessica Siebert suffered bodily injuries and the car involved in the accident was an insured car. Additionally, if Siebert can prove the elements of her negligent entrustment claim, Koehler would be legally liable for Jessica Siebert's bodily injuries caused by Raddatz's use of Koehler's father's car. The policy language does not require that the "insured person" be the person using the car, so under Siebert's negligent entrustment claim, it is Raddatz's use of the car for which the insured, Koehler, may be legally liable. Thus, the policy provides coverage policy exclusion for Siebert's negligent entrustment claim. ¶65 The only that is even arguably relevant is the one from the definition of "insured person" as a person using the insured car "who exceeds the scope of [the] 4 No. permission." Raddatz. of 2009AP1422.npc However, the jury has answered this in regard to Since Koehler is the "insured person" for the purposes Siebert's negligent entrustment claim against Wisconsin American, that exclusion does not preclude coverage. majority notes and the parties agree, Koehler is As the clearly an insured person under the policy. ¶66 The claim we consider is Siebert's claim against Wisconsin American that Koehler allegedly negligently entrusted her father's relevant car to Raddatz. exclusions under Upon the finding clear coverage policy analysis of coverage for that claim is complete. erroneously concludes that the circuit court's and language, no the The majority determination that Raddatz is not an "insured person" under the policy means that Raddatz's alleged negligent operation is an excluded risk. ¶67 Regarding Siebert's initial claim that Raddatz, as an "insured person," was legally liable for his alleged negligent operation of Koehler's car, the circuit court determined that Raddatz was not an "insured person" based on the jury's finding that he exceeded the scope of Koehler's permission to use the car. The majority concludes that "[b]ecause Raddatz does not qualify as an 'insured person,' his alleged negligent operation of the vehicle falls outside the scope of the policy's initial grant of coverage. Stated otherwise, Raddatz's alleged negligent operation of the vehicle constitutes an excluded risk under the policy." ¶68 scope of Majority op., ¶36 (footnotes omitted). Equating the jury's finding that Raddatz exceeded the Koehler's permission with 5 a finding that Raddatz's No. 2009AP1422.npc alleged negligent operation of the vehicle is an excluded risk is unsupported by the policy language or by controlling law. ¶69 Regarding Siebert's subsequent claim that Koehler, as an "insured person," is legally liable for allegedly negligently entrusting her father's car to Raddatz, the jury's finding on the initial claim that Raddatz used the car outside the scope of Koehler's permission is irrelevant. To establish negligent entrustment, Siebert must prove that Koehler knew or should have known that Raddatz intended or was likely to use her father's car "in such a manner as to create an unreasonable risk of harm to others." Wis. 2d 469, Bankert 476, 329 v. Threshermen's N.W.2d 150 (1983) Mut. Ins. (quoting Co., 110 Restatement (Second) of Torts § 308, at 100 (1965)). The Bankert court held that the the underlying negligent act of entrustee indispensible element of a negligent entrustment claim. is an Id. at 476-77. ¶70 alleged This policy does not exclude the risk of Raddatz's negligent operation when Koehler, as the "insured person," allegedly negligently entrusts an insured car to him. The circuit court's determination in the coverage phase of the trial on Raddatz's Siebert's alleged claim negligent against Wisconsin operation of the American car was for only a determination that Raddatz was excluded from the definition of "insured person" under the policy. It was not a finding that Raddatz was not negligent or that his act of negligence was not covered under the policy. court's determination The jury's finding and the circuit indicate 6 not that Raddatz's alleged No. negligent under operation the person," policy, was not was but an "excluded rather covered risk" or that his for Raddatz, potential 2009AP1422.npc "not covered" an "insured as separate legal liability because he exceeded the scope of his permission from Koehler. ¶71 policy The does majority not concludes cover someone that as a an determination "insured that person" a is essentially a determination that there is no coverage for any of that person's acts and that the person's negligence is thus an excluded risk. This conclusion is premised upon the assumption that all policy exclusions are created equal. To the contrary, a policy that does not provide coverage for a claim because the allegedly negligent actor is not an "insured person" has a very different effect than a policy that excludes particular acts from all coverage under any claim. This is evident by comparing the policy language at issue here with the very different policy language at issue in Bankert, where this court held that the negligent entrustment claim could not proceed because the underlying negligent operation was an excluded risk. ¶72 based The farmowners policy in Bankert was an occurrencecertain occurrences, defined as accidents that took place on the farm. Id. at 478- 79. policy that provided coverage for It explicitly excluded any coverage under the policy for any automobile accident that occurred away from the farm. Id. at 479. This is similar to other occurrence-based comprehensive general liability policies and distinct policies, which cover auto accidents generally. 7 from automobile See id. at 479- No. 2009AP1422.npc 80 (noting that construing the policy to provide coverage "would convert policy") the farmowners (emphasis liability added). The policy policy into an automobile exclusion in Bankert provided in relevant part: This policy does not apply . . . (b) under any of the coverages, to the ownership, operation, maintenance or use, including loading and unloading of (1) automobiles while away from the premises or the ways immediately adjoining. Id. at 479 (emphasis added). ¶73 As it inextricably exclusion. tied ought to to the be, the language holding of that in Bankert particular was policy The motorcycle accident in Bankert took place off of the farm ("away from the premises"), but the plaintiff injured in that accident sought negligent entrustment driver. Id. explicit and at of 472. coverage the The wholesale, for the motorcycle policy providing parents' to their exclusion that the excludes, only son, the Bankert was "policy apply" for accidents "away from the premises." this case, the policy in from alleged does not Id. at 479. In the definition of "insured person," a person using an insured car who exceeds the scope of the permission. Bankert created an The application of the exclusion in excluded risk, while in this case the exclusion leads only to a lack of coverage for Raddatz as an "insured still person." covered under Raddatz's a claim alleged that 8 negligent Koehler, as operation the is "insured No. person," allegedly negligently entrusted her 2009AP1422.npc father's car to Raddatz. ¶74 As have are coverage we to be noted previously, construed in favor "[a]mbiguities of coverage, exclusions are narrowly construed against the insurer." 155 Wis. 2d at 811. policy indicates premised in while Smith, In this case, where the language in the that coverage upon Raddatz as an exists insured except person, interpret the policy in favor of coverage. for this a claim court must It is Wisconsin American's argument regarding the independent concurrent cause rule that engenders unnecessary confusion in this case. ¶75 Unlike in Bankert, no excluded risk is implicated by Siebert's claim against Wisconsin American for Koehler's alleged negligent entrustment of her father's car to Raddatz. Thus, the independent concurrent cause rule should not be at issue in this case. "The independent concurrent cause rule operates to extend coverage 'to a loss caused by the insured risk even though the excluded risk is a contributory cause, [w]here a policy expressly insures against loss caused by one risk but excludes loss caused by another risk." Estate of Jones v. Smith, 2009 WI App 88, ¶5, 320 Wis. 2d 470, 768 N.W.2d 245 (emphasis added). ¶76 The majority summarily reaches the erroneous conclusion that the jury's finding that Raddatz exceeded the scope of Koehler's permission to use the car means that his alleged negligent operation is an excluded risk, by comparison to other negligent entrustment cases such as starkly different policy exclusions were applied. 9 Bankert, where This error is No. compounded by the majority's reliance the on 2009AP1422.npc independent concurrent cause rule to bar coverage, which takes up a large part of the analysis. As noted above, the independent concurrent cause rule extends coverage; the rule does not bar coverage where the policy language provides it, nor does it serve as a means to create an excluded risk. ¶77 As explained above, in Bankert, the allegedly negligent act itself driving a motorcycle off of the farm was entirely excluded Wis. 2d at 480. from any policy coverage. Bankert, 110 The Bankert court concluded that there was no coverage for a negligent entrustment claim when the negligent act or occurrence was excluded because that act was a necessary component of the negligent entrustment claim. Id. at 478-80. In other words, after Bankert, the independent concurrent cause rule cannot extend coverage to a negligent entrustment claim if, for example, the policy language provides that the underlying negligent act driving a vehicle away from the farm property is an excluded risk. This holding is relevant to this case only if Raddatz's alleged negligent operation of Koehler's father's car is an excluded risk. As explained above, it is not. There is coverage under Wisconsin American's policy for Siebert's claim that Koehler negligently entrusted her father's car to Raddatz. ¶78 As determination the that majority the notes, insurance "[b]ased policy upon issued its by earlier Wisconsin American did not cover the driver's alleged negligent operation of the vehicle, the circuit court concluded that the policy likewise does not cover the plaintiffs' negligent entrustment 10 No. claim." Majority op., ¶1. 2009AP1422.npc Based on the above analysis, I am satisfied that the circuit court's determination that there is no coverage for Siebert's negligent entrustment claim is wrong as a matter of law. ¶79 Because I would hold that the policy provides coverage for Siebert's address negligent Wisconsin entrustment American's claim, argument preclusion bars Siebert's claim. that I also claim briefly or issue The majority does not address these arguments because of its contrary coverage determination. Majority op., ¶6. ¶80 Issue preclusion prevents "relitigation in a subsequent action of an issue of law or fact that has been actually litigated and decided in a prior action." Power Co. (1995). v. Bugher, 189 Wis. 2d 541, 550, 525 N. States N.W.2d 723 Claim preclusion bars the relitigation of claims that were decided in an earlier action between the same parties or the litigation of claims that could have been raised in the earlier case. Id. A claim is barred where (1) the same parties or their privies are involved in both actions, (2) the causes of action are identical, and (3) there has been "a final judgment on the merits." ¶81 Id. at 551. It is important to remember that there has been no trial, and thus no final judgment, on the merits of either claim in this case. The jury trial was limited to the narrow question of whether Raddatz was an "insured person" under the policy. The circuit court concluded that Raddatz was not an "insured person" since the jury found that 11 he exceeded the scope of No. Koehler's permission. None of the issues of 2009AP1422.npc law or fact neither those regarding Koehler's alleged negligent entrustment, nor those regarding Raddatz's alleged negligent operation has been litigated or decided. Therefore, neither issue preclusion nor Siebert's claim American preclusion for bars Koehler's alleged action negligent against Wisconsin entrustment of her father's car to Raddatz. ¶82 For the reasons set forth herein, I respectfully dissent. ¶83 I am authorized to state that Chief Justice SHIRLEY S. ABRAHAMSON and Justice ANN WALSH BRADLEY join this dissent. 12 No. 1 2009AP1422.npc
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