Karl McNeil v. Brandon Hansen

Annotate this Case

Download PDF

2007 WI 56 SUPREME COURT CASE NO.: OF WISCONSIN 2005AP423 COMPLETE TITLE: Karl McNeil, Plaintiff-Appellant, v. Brandon Hansen and Maryland Casualty Company, Defendants-Respondents. ON CERTIFICATION FROM THE COURT OF APPEALS OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: SOURCE OF APPEAL: COURT: COUNTY: JUDGE: JUSTICES: CONCURRED: May 18, 2007 October 13, 2006 Circuit Milwaukee Martin J. Donald ABRAHAMSON, C.J., concurs (opinion filed). BRADLEY, J., joins the concurrence. DISSENTED: NOT PARTICIPATING: ATTORNEYS: For the plaintiff-appellant there were briefs by John A. Becker and Becker, French & DeMatthew, Racine, and oral argument by John A. Becker. For the defendants-respondents there was a brief by Edward W. Stewart, Danielle R. McCollister, and Lowe & Associates, Waukesha, and oral argument by Edward W. Stewart. An amicus curiae brief was filed by James A. Friedman, Linda S. Schmidt, and LaFollette Godfrey & Kahn, Madison, on behalf of Wisconsin Manufacturers & Commerce. 2007 WI 56 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2005AP423 (L.C. No. 2003CV10418) STATE OF WISCONSIN : IN SUPREME COURT Karl McNeil, FILED Plaintiff-Appellant, MAY 18, 2007 v. Brandon Hansen and Maryland Casualty Company, David R. Schanker Clerk of Supreme Court Defendants-Respondents. APPEAL from a judgment of the Circuit Court for Milwaukee County, M. Joseph Donald, Judge. ¶1 Affirmed. PATIENCE DRAKE ROGGENSACK, J. This case comes to us on certification from the court of appeals. concluded through that an Brandon automobile's Hansen's window (Hansen) and The circuit court action attempting of to reaching start the vehicle by turning the key did not constitute "operation of a motor vehicle" as that term is used in an exception to the exclusive remedy provision of the Worker's Compensation Act (the Wis. Stat. § 102.03(2) (2003-04).1 Act). 1 As a result, the All subsequent references to the Wisconsin Statutes are to the 2003-04 version unless otherwise indicated. No. 2005AP423 circuit court concluded that the suit was barred by § 102.03(2), and it granted the defendants' motion for summary judgment, dismissing Karl McNeil's (McNeil's) complaint. ¶2 We conclude that when the action under consideration is undertaken to service or repair a vehicle, and the condition of the vehicle is such that it could not then be driven on a public roadway, the action does not constitute "operation of a motor vehicle" within the meaning of Wis. Stat. § 102.03(2). The action at issue here was attempting to start the vehicle when it was connected to a machine to flush the radiator. This action was undertaken to service the vehicle while it could not be driven on a public roadway. Therefore, it does not constitute the "operation of a motor vehicle" as that term is used in § 102.03(2). Accordingly, we affirm the circuit court's summary judgment dismissing McNeil's claims. I. ¶3 Fast BACKGROUND On April 12, 2003, McNeil and Hansen were working at Track Oil Change, performing customer's Jeep Wrangler. a radiator flush on a McNeil, Hansen's supervisor, hooked the Jeep up to a machine that flushes the radiator. The Jeep's engine had to be started in order for the machine to function, so McNeil asked Hansen to start the Jeep's engine while he remained in front of the Jeep to determine whether the hoses being used to flush the radiator were leaking. Hansen, while standing outside of the Jeep, leaned in through an open window and turned the ignition switch. 2 The Jeep had a manual No. 2005AP423 transmission and upon ignition it lurched forward and struck and injured McNeil. ¶4 also McNeil named as sued a Hansen. Maryland Company It defendant. Casualty worker's compensation paid was benefits to McNeil as a result of the accident, and therefore, it has subrogation rights with regard pursuant to Wis. Stat. § 102.29.2 to McNeil's claim, Hansen and Maryland Casualty Company moved for summary judgment of dismissal based on Wis. Stat. § 102.03(2), which provides that the Act is generally the exclusive remedy against employers and coemployees for job- related injuries. The circuit court granted summary judgment, after that concluding "operation exception The of to court a the motor Hansen's vehicle" exclusive concluded that action as remedy the Act the did not constitute term is used provision in § required a in the 102.03(2). "very narrow approach" when defining "operation of a motor vehicle" because the exceptions to the Act's coemployee immunity provisions are to be narrowly construed. ¶5 McNeil appealed the circuit court's decision and the court of appeals certified the case due to the conflict between 2 The Complaint alleges Maryland Casualty Company paid McNeil worker's compensation benefits, and the Answer admits that allegation. We also note that the record contains a letter from Susan L. Banahasky of Maryland Casualty Company stating "Zurich Insurance Company" made payments to McNeil for worker's compensation benefits. We have not attempted to reconcile these two statements, but have relied on the factual assertion and admission in the pleadings that Maryland Casualty was the worker's compensation carrier. 3 No. 2005AP423 (1) its conclusion that the facts could come within existing definitions of "operation of a motor vehicle" in other statutes, and (2) its exclusive conclusion remedy for that the Act work-related generally injuries. provides We the granted certification. II. A. DISCUSSION Standard of Review ¶6 We review a grant of summary judgment independently, applying the same methodology as the circuit court. AKG Real Estate, LLC v. Kosterman, 2006 WI 106, ¶14, 296 Wis. 2d 1, 717 N.W.2d 835 (citing O'Neill v. Reemer, 2003 WI 13, ¶8, 259 Wis. 2d 544, 657 N.W.2d 403); Green Spring Farms v. Kersten, 136 Wis. 2d 304, 401 N.W.2d 816 (1987). ¶7 To determine whether summary judgment is appropriate in the case before us, we interpret Wis. Stat. § 102.03(2). The interpretation and application of a statute to an undisputed set of facts are questions of law that we review independently. Rocker v. USAA Cas. Ins. Co., 2006 WI 26, ¶23, 289 Wis. 2d 294, 711 N.W.2d 634; State v. Sostre, 198 Wis. 2d 409, 414, 542 N.W.2d 774 (1996) (citing Ynocencio v. Fesko, 114 Wis. 2d 391, 396, 338 N.W.2d 461 (1983)). 4 No. B. 2005AP423 Operation of a Motor Vehicle ¶8 related In general, an employee's exclusive remedy for a jobinjury is under the Act. Wis. Stat. § 102.03(2). However, there are three limited exceptions in that statute that allow an employee to bring an action against a coemployee. Id. Section 102.03(2) provides: Where such conditions exist the right to the recovery of compensation under this chapter shall be the exclusive remedy against the employer, any other employee of the same employer and the worker's compensation insurance carrier. This section does not limit the right of an employee to bring action against any coemployee for an assault intended to cause bodily harm, or against a coemployee for negligent operation of a motor vehicle not owned or leased by the employer, or against a coemployee of the same employer to the extent that there would be liability of a governmental unit to pay judgments against employees under a collective bargaining agreement or a local ordinance. Id. In this case, we must decide whether Hansen's action of reaching through the vehicle's window during service of that vehicle and turning the ignition switch while the vehicle could not be driven on a public roadway falls within the term "operation of a motor vehicle" under the second exception in § 102.03(2). ¶9 "[S]tatutory interpretation 'begins with the language of the statute. If the meaning of the statute is plain, we ordinarily stop the inquiry.'" State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110 (quoting Seider v. O'Connell, 2000 WI 76, 236 Wis. 2d 211, 232, 612 N.W.2d 659). The context in which the operative 5 No. language appears is important. 2005AP423 Therefore, the language should be "interpreted in the context in which it is used; not in isolation but as part of a whole." language is unambiguous, extrinsic generally are not consulted. is capable of being Id. a court understood may turn sources If the statutory of interpretation A statute is ambiguous "if it persons in two or more senses." ambiguous, Id., ¶46. by reasonably Id., ¶47. to external If a statute is sources, legislative history, to assist its interpretation. ¶10 A general rule of statutory well-informed such as Id., ¶48. construction is that exceptions within a statute "should be strictly, and reasonably, construed and warrants." extend only as far as their 82 C.J.S. Statutes § 371 (2006). language fairly If a statute is liberally construed, "it follows that the exceptions must be narrowly construed." 2003 WI App 58, Miller v. Wausau Underwriters Ins. Co., ¶18, 260 Wis. 2d 581, 659 N.W.2d 494 (interpreting exceptions to the recreational immunity statute, Wis. Stat. § 895.52, narrowly because the statute is liberally construed in favor of property owners). ¶11 The term "operation of a motor vehicle" is not defined in the Act. depending on The word "operation" may have different meanings, the context in which it is used. Hake v. Zimmerlee, 178 Wis. 2d 417, 421, 504 N.W.2d 411 (Ct. App. 1993) (citing Lukaszewicz v. Concrete Research, Inc., 43 Wis. 2d 335, 342, 168 N.W.2d 581 (1969)). For example, depending on the context, "operation" could require actually driving a vehicle, or it could refer to simply activating any of the controls of a 6 No. vehicle.3 2005AP423 The meaning of "operation of a motor vehicle" in Wis. Stat. § 102.03(2) is not readily discernable from its context. Therefore, we ambiguous agree with it because interpretation. Id. the court has of more appeals; than the one term is reasonable Since the term is ambiguous, we turn to the legislative history to aid our interpretation. ¶12 In Hake, the court of appeals reviewed the legislative history and examined the purpose of Wis. Stat. § 102.03(2) while determining whether an employee's action of closing the door of a vehicle on a coemployee's hand constituted negligent "operation of a motor vehicle" under § 102.03(2). Id. at 420- 422. The court stated allocate the that one cost of employment purpose of the Act "is to injuries to the industry or business in which they occur and, ultimately, to the consuming public as part of the price for the goods or services offered." Id. at 421-22 (quoting Oliver v. Travelers Ins. Co., 103 Wis. 2d 644, 648, 309 N.W.2d 383 (Ct. App. 1981)). ¶13 against Hake noted that prior to 1977, the Act precluded suits the employer and the worker's compensation insurance carrier, but it did not prohibit suits between coemployees for work-related injuries. Id. at 422. Consistent with the purpose of the Act, in 1977 the Act was revised in accordance with recommendations from the Worker's Compensation Advisory Council 3 See, e.g., Wis. Stat. § 340.01(41) (defining "operator" as "a person who drives or is in actual physical control of a vehicle"); Wis. Stat. § 346.63(3)(b) (defining "operate" as "the physical manipulation or activation of any of the controls of a motor vehicle necessary to put it in motion"). 7 No. (the Advisory Council) to suits between coemployees. prohibit Id. most work-related 2005AP423 injury The Advisory Council explained the amendment to Wis. Stat. § 102.03(2) as follows: [The amendment] would permit a suit where there was an assault by the co-employe or where there was negligent operation of a motor vehicle not owned or leased by the employer. It is a fact that virtually all insurance policies issued to employers for public liability or for fleet coverage on employer owned or leased vehicles exclude payment of damages where the claim of an employe is against a co-employe. The result is that the employe who is being sued is left without protection and the little person is the one who gets hurt. The attention of the Advisory Council has been called to cases where . . . [the co-employe] who was sued was placed in a financial position[,] because of the cost of defending or because of the judgment for damages that was recovered[,] that the employe would not be able to recover from financially for many years or for the balance of his life. Id. at 422-23 (emphasis added). Since the main concern of the Advisory Council was the financial burden coemployee suits could impose upon workers, the Advisory Council encouraged the legislature "to recreate the statute so that coemployee immunity would be the rule, and exception to that rule." ¶14 coemployee liability would be the Id. at 423. The court further explained the purpose of coemployee immunity as follows: "Injuries caused by a negligent coemployee are everyday occurrences. Such injuries are directly related to the employment, and pursuant to the stated purpose or objective of the Worker's Compensation Act, the costs should be passed on to the consuming public." 648). Id. (quoting Oliver, 103 Wis. 2d at In examining the exception for the negligent operation of 8 No. 2005AP423 a motor vehicle that is not owned or leased by the employer, the court presumed the legislature believed such a vehicle would be privately insured for its negligent operation. Advisory Council meeting minutes from Id. at 424. December 13, The 1976, indicate that the exceptions to the exclusive remedy provision were drafted with the intent of limiting coemployee liability to instances where some person or entity other than the coemployee would satisfy any resulting judgment. See Keller v. Kraft, 2003 WI App 212, ¶11, 267 Wis. 2d 444, 671 N.W.2d 361 (interpreting the scope of the third exception in Wis. Stat. § 102.03(2), which allows a claim against a coemployee when a governmental unit will pay any judgment under agreement or a local ordinance).4 instances where the coemployee a collective bargaining Limiting the exception to will be covered by other insurance rectifies the concern the legislature had regarding the financial burden that workplace injuries could place on workers due to coemployee liability. ¶15 In accord with the purpose and intent of the Act, to make coemployee immunity the rule and coemployee liability the exception thereby protecting workers from the financial burden of coemployee suits, the court in Hake narrowly construed the exception to coemployee immunity due to negligent operation of a 4 The minutes state: "Discussion was held on the proposed co-employe exclusion. Mr. Grenell inquired about the possibility of drafting a provision that would limit the coemploye liability but permit recovery against a fellow employe in the event that there were auto or other insurance." Keller v. Kraft, 2003 WI App 212, ¶11, 267 Wis. 2d 444, 671 N.W.2d 361. 9 No. Hake, 178 Wis. 2d at 426.5 vehicle. follows the statutory general exceptions rule of should A narrow construction also statutory be 2005AP423 interpretation strictly construed. that See 82 C.J.S. Statutes § 371 (2006); Miller, 260 Wis. 2d 581, ¶18. To do otherwise, would cause the exception to swallow the rule of coemployee immunity. ¶16 of While the purpose of the statute and the general rule statutory exception in interpretation Wis. Stat. instruct § 102.03(2) us to interpret narrowly, we the must more specifically define what "operation of a motor vehicle" means to determine whether turning the ignition switch of a vehicle under the circumstances in coemployee because this immunity. other case This Wisconsin falls task is statutes within not employ an easily the exception to accomplished term "operate." See, e.g., Wis. Stat. § 346.63(3)(b) (relating to prohibition of operating a § 350.01(9r) explained motor (relating below, § 102.03(2), interpretation vehicle to these while intoxicated); snowmobile safety). statutes and the purpose of it. Klein of v. differ in Wis. Stat. However, purpose a statute Board of informs Regents of as from our the University of Wis. Sys., 2003 WI App 118, ¶13, 265 Wis. 2d 543, 5 Other states have also narrowly construed exceptions to their respective worker's compensation exclusivity provisions. See Kuhar v. Phillips, 881 A.2d 554, 555 (Conn. Super. Ct. 2005) (stating the exception based on fellow "employee's negligence in the operation of a motor vehicle" must be narrowly construed); Taylor v. Sch. Bd. of Brevard County, 888 So.2d 1, 5 (Fla. 2004) (interpreting the exception to fellow employee immunity narrowly under ordinary rules of statutory construction). 10 No. 666 N.W.2d 67 (concluding that statutory 2005AP423 interpretation that contravenes the purpose of a statute is not favored). ¶17 a motor important For example, the statute prohibiting the operation of vehicle while respects. intoxicated First, it (OMVWI) defines differs "operate" in two within the statute itself as "the physical manipulation or activation of any of the controls of a motor vehicle necessary to put it in motion." Wis. § 346.63(3)(b).6 Stat. Wisconsin Stat. § 102.03(2) contains no definition of "operation," nor does any other provision of worker's compensation law define it. Second, the purpose of the OMVWI statute "is to deter a person who is intoxicated from getting behind the wheel of a motor vehicle in the first instance, rather than to have a court or jury make a fine distinction later [about] position to cause harm." 555 N.W.2d Proegler, 399 95 whether the person was in a State v. Modory, 204 Wis. 2d 538, 544, (Ct. App. 1996) Wis. 2d 614, 291 (citing N.W.2d Milwaukee 608 (Ct. County App. v. 1980)). Since the purpose of the OMVWI statute is to deter intoxicated persons from being in a position where they could enable a motor vehicle to cause harm, operation is broadly construed to facilitate that purpose. 6 See also Wis. Stat. § 343.305 (1)(c) (defining "operate" the same as Wis. Stat. § 346.63(3)(b) in regard to implied consent for driver intoxication tests); Wis. Stat. § 943.23(1)(c) (defining "operate" the same as § 346.63(3)(b) in regard to penalties for operating a vehicle without the owner's consent). 11 No. ¶18 In contrast, coemployee liability for 2005AP423 negligent operation of a motor vehicle under Wis. Stat. § 102.03(2) is a narrow exception to the general rule that worker's compensation is the exclusive remedy for work-related injuries. the definition of "operate" from the OMVWI Therefore, statutes is inappropriate for § 102.03(2), given the different purposes of the statutes.7 ¶19 Similar to the broad interpretation under the OMVWI statute, we interpreted the term "operate" under a snowmobile 7 Since Wis. Stat. § 343.305(1)(c) (the implied consent statute) defines "operate" the same as Wis. Stat. § 346.63(3)(b), relates to the same subject matter as § 346.63(3)(b), and is part of the same statutory scheme, we interpret "operate" in § 343.305(1)(c) the same as "operate" in § 346.63(3)(b). See State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶46, 271 Wis. 2d 633, 681 N.W.2d 110 (stating that statutory language is interpreted "not in isolation but as part of a whole; in relation to the language of surrounding or closely-related statutes; and reasonably, to avoid absurd or unreasonable results"). Therefore, for the reasons discussed above, the definition of "operate" in § 343.305(1)(c) does not apply to Wis. Stat. § 102.03(2). Wisconsin Stat. § 943.23(1)(c) also defines "operate" the same as Wis. Stat. § 346.63(3)(b). The purpose of § 943.23(1)(c) is to prohibit so-called "joy-riding." Bass v. State, 29 Wis. 2d 201, 207, 138 N.W.2d 154 (1965). The statute is aimed at addressing "evils" resulting from "joy-riding" such as: "(1) the owner is, temporarily at least, deprived of the use of his vehicle, (2) the vehicle is frequently abused and damaged, and (3) not infrequently the vehicle is used in such a manner as to cause danger and injury to other members of the public." Id. Therefore, as with the OMVWI statute, the purpose of § 943.23 is to deter persons from assuming a position where they could cause harm with a vehicle. Due to the purpose of the statute and context in which the term "operate" is used, the definition of "operate" in § 943.23 also does not apply to Wis. Stat. § 102.03(2). 12 No. safety statute, Wis. Stat. § 350.09, broadly. defined in Wis. control over the Stat. ch. speed or 350 as "the direction "Operate" is also exercise of a 2005AP423 of physical snowmobile or the physical manipulation or activation of any of the controls of a snowmobile necessary § 350.01(9r). Wis. Stat. "operate" to put in motion." Wis. Stat. This is a different definition from that found in § 346.63(3)(b). in it regard to a However, snowmobile we determined was not the ambiguous term in § 350.09, and relying on Modory, we concluded that a snowmobile need not be put in motion in order for it to be operated, but some affirmative action must have occurred. Burg v. Cincinnati Cas. Ins. Co., 2002 WI 76, ¶¶21-22, 254 Wis. 2d 36, 645 N.W.2d 880.8 However, the definition of the term "operate" under the snowmobile safety statute is not appropriate to engraft onto Wis. Stat. § 102.03(2) because, similar to the OMVWI statute, the purpose of § 350.09 is to limit occasions that could lead to 8 We decided the definition of "operate" did require an "affirmative physical act of manipulation or activation of the snowmobile's controls necessary to put it in motion." Burg v. Cincinnati Cas. Ins. Co., 2002 WI 76, ¶22, 254 Wis. 2d 36, 645 N.W.2d 880 (concluding that sitting on a parked snowmobile with its engine off is not operating the snowmobile under the statute). 13 No. harm. 2005AP423 This purpose is facilitated by a broad and inclusive construction of the term, operate.9 ¶20 However, some cases do construe the term "operation of a motor vehicle" more narrowly than those we discussed above. In so doing, they distinguish operation of a vehicle from actions associated with the maintenance or repair of a vehicle. See Graf v. Bloechl, 36 Wis. 2d 635, 154 N.W.2d 340 (1967); Frye v. Angst, 28 Wis. 2d 575, 137 N.W.2d 430 (1965). ¶21 In Graf, an inoperable vehicle was towed to a service station for repairs. During the course of these repairs, the mechanics attempted to start the engine by pouring gasoline into the carburetor as the ignition switch was turned. This caused the gasoline in the container to catch fire, and one of the workers, Bloechl, threw the burning gasoline over his shoulder without knowing that Graf was standing behind him. injured. Graf was We were asked to determine whether turning the key that activated the engine's ignition was operation of a motor vehicle, as that term was used 9 in the former direct action See also Wis. Stat. § 23.33(1)(ir) (defining "operate" the same as Wis. Stat. § 350.01(9r) for the purposes of all-terrain vehicle provisions, including the prohibition of the intoxicated operation of an all-terrain vehicle under § 23.33(4c)). Since § 23.33(1)(ir) has the same definition of operate as § 350.01(9r) and the same purposes (to (1) promote safety and (2) deter intoxicated operation) as chs. 350 and 346, we conclude the term "operate" in § 23.33(1)(ir) is not applicable to Wis. Stat. § 102.03(2). We note that "operation" is defined in § 23.33(1)(it) the same as operate, but with grammatical word choices consistent with the noun, "operation." 14 No. statute.10 Graf, 36 Wis. 2d at 638. 2005AP423 We concluded that Bloechl's action did not constitute operation of a motor vehicle because Bloechl's "primary intention and purpose in attempting to start the car was to finish the repairs." Id. at 642. We distinguished maintenance from operation and stated: 'Maintenance' of an automobile has never been considered a part of operation, or of management and control. Maintenance connotes a state of physical repair; management and control refers to the manner of its use. And even in their dictionary senses these words do not readily admit of the inclusion of maintenance. . . . The attempt to start the motor in the case at bar was a part of the process of repair and consequently an act of 'maintenance,' not 'use, operation, management or control' of the vehicle. Id. at 643 (quoting Frye, 28 Wis. 2d at 582).11 We explained that maintenance and repair are actions that fall outside of 10 Wisconsin Stat. § 260.11, the direct action statute at that time, was repealed by a Supreme Court Order dated February 17, 1975, effective on January 1, 1976. 11 See also Chase v. Dunbar, 185 So.2d 563 (La. Ct. App. 1966). In Chase, the court interpreted the term "use" under an insurance policy, which the court characterized as embracing and including "operation." Id. at 569. The court distinguished "use" from "maintenance" based on "the intent, purpose and objective of the person concerned." Id. at 570. Therefore, the court concluded that the action of one mechanic starting the car while another mechanic poured gasoline into the carburetor was maintenance and not use of the vehicle because the mechanics were not starting the car with the intent to use the vehicle for any purpose other than to repair the vehicle so that it could be used later by its owner. Id. (citing a "nearly analogous" case, Wall v. Windmann, 142 So.2d 537 (La. Ct. App. 1962), "wherein [the court] held the starting of a truck's motor at the request of a mechanic repairing the engine constituted 'maintenance'"). 15 No. 2005AP423 "use, operation, management or control" of the vehicle.12 643. We concluded this was so because Bloechl's Id. at "primary intention and purpose in attempting to start the car was to finish the repairs." Id. at 642. Therefore, we Bloechl's action was not operation of the vehicle. concluded Id. at 642- 43. ¶22 concluded Although that we cited maintenance past and decisions repairs were that not also the had use or operation of a motor vehicle, id. at 642, our decision rested on a common sense understanding that there is an inherent difference between repairing a vehicle and operating or using it, id. ¶23 We maintenance exception conclude or to § 102.03(2). repairs the the distinction should exclusivity apply between in the provision operation context in Wis. of and the Stat. An interpretation of the term "operation" that 12 "[N]egligent operation, management or control" were the words used in then Wis. Stat. § 260.11(1), which we were interpreting. Graf v. Bloechl, 36 Wis. 2d 635, 639, 154 N.W.2d 340 (1967). In Graf, we held that the plaintiff's injuries arose out of the "maintenance" of a motor vehicle. Id. at 64041. Hasselstrom v. Rex Chainbelt, Inc., 50 Wis. 2d 487, 184 N.W.2d 902 (1971) reviewed Graf and Frye v. Angst, 28 Wis. 2d 575, 137 N.W.2d 430 (1965), in the context of a revision to the direct action statute, then Wis. Stat. § 260.11(1). We noted that the revision expanded "the direct-action statute, sec. 260.11(1), to include actions for damages caused by the negligent maintenance, use or defective construction of a motor vehicle." Hasselstrom, 50 Wis. 2d at 497. Hasselstrom has no effect on whether the acts under consideration constitute "maintenance" or "operation" of a motor vehicle because Hasselstrom did not re-examine that question. 16 No. 2005AP423 distinguishes between operation and maintenance or repairs is consistent with the purposes of the Act: (1) to allocate the cost of workers' injuries to the industry in which they occur and (2) to coemployee protect suits. workers Injuries from to the financial workers caused burdens by of negligent coemployees while performing maintenance or repairs on a motor vehicle that could not then be driven on a public roadway are common occurrences for those workers in the vehicle maintenance and repair employment. industry. They are directly related to their Therefore, the costs of these injuries should be passed on to the industry and ultimately the consuming public; they should not be born by the worker. ¶24 owned Furthermore, while a vehicle that is not leased or by the employer liability coverage for alleviate some the may burden on required.13 of workers. its be negligent concern In privately operation, regarding Wisconsin, insured placing vehicle and which a have could financial insurance is not Therefore, simply because the vehicle is not owned or leased by the employer, it does not follow that there will be insurance to cover any injury a negligent coemployee inflicts upon an employee. Furthermore, the potential lack of insurance by owner a third-party of a motor vehicle is especially troubling because the coemployee who has a judgment rendered 13 See Wis. Stat. ch. 344 that requires proof of financial responsibility by insurance or bond only after notice of an unpaid judgment against the vehicle owner has been presented to the Department of Transportation. 17 No. against him for the negligent operation of motor a 2005AP423 vehicle during the course of his employment cannot sue his employer for contribution or indemnification as the Act establishes that it is the employer's sole liability for an injured worker.14 Mulder v. ACME-Cleveland Corp., 95 Wis. 2d 173, 177, 290 N.W.2d 276 (1980). Therefore, under the current statute, any judgment against an uninsured coemployee who negligently operates a motor vehicle during the course of his employment will remain with the worker, contrary to the purpose of the 1977 statutory to coemployee revisions.15 ¶25 Furthermore, construing the exception immunity narrowly will not result in leaving an injured employee without relief because worker's compensation benefits will be paid for the employee's injuries. In this compensation benefits have been paid to McNeil. case, worker's We recognize 14 Because automobile owners are not required to purchase insurance for their vehicles and because many insurance policies are for a minimal amount of insurance that may be insufficient to cover a severe personal injury, a negligent coemployee who causes an injury to a coworker could be saddled with a money judgment that he will never be able to satisfy. Accordingly, the legislature may wish to examine "operation of a motor vehicle" exception to Wis. Stat. § 102.03(2) and determine whether it should modify the statute such that a coemployee who negligently operates a motor vehicle will be liable only to the extent that there is insurance to pay a judgment. 15 Accordingly, the legislature may wish to revisit the second exception to the exclusive remedy provision of Wis. Stat. § 102.03(2) to determine whether the statute needs further revision, in light of its purpose of making coemployee immunity the rule and coemployee liability the exception. 18 No. that our decision in this regard some requires 2005AP423 further clarification of our discussion in Rocker. ¶26 In Rocker, a coemployee in a full-service car wash drove a customer's automobile into a fellow employee. 289 Wis. 2d 294, ¶6. Rocker, We were called upon to decide whether a full-service car wash was a "motor vehicle handler" within the meaning of Wis. Stat. § 632.32(2)(b). the context of an exclusion in the Id., ¶3. We did so in employer's comprehensive policy that purported to exclude coverage for the employee's Id., ¶4. injury. because a We concluded that the exclusion was invalid full-service car wash is a motor vehicle handler within § 632.32(2)(b), and accordingly, § 632.32(6)(a) precludes a policy injury. provision that excludes coverage for an employee's Id., ¶49. ¶27 whether However, we were also Gorzalski v. Frankenmuth asked in Mutual Rocker Insurance to decide Co., 145 Wis. 2d 794, 429 N.W.2d 537 (Ct. App. 1988) was still good law. Rocker, 289 Wis. 2d 294, ¶50. In Gorzalski, a coemployee had driven a customer's car into a fellow employee, causing injury. The employer's policy had an exclusion for coemployee injuries that the court of appeals upheld, notwithstanding Wis. Stat. § 632.32(6)(a). Gorzalski, 145 Wis. 2d at 804. that conclusion. Rocker, 289 Wis. 2d 294, ¶52. We overruled We then went on to opine that the injured employee in Gorzalski had a remedy in addition to that provided by the Act because the negligent employee was not operating a vehicle owned or leased by the employer. Id., ¶53. And, while we explained that a negligent 19 No. 2005AP423 employee had "potential liability" to a fellow employee, we did not attempt Rocker to determine actually fell Stat. § 102.03(2). ¶28 in whether within the the employee's statutory conduct exclusion of in Wis. Id. Our decision herein is consistent with our discussion Rocker when we conclude that actions that constitute maintenance or repairs of a motor vehicle, while the condition of the vehicle is such that it could not then be driven on a public roadway, cannot constitute operation of a motor vehicle. Here, action Hansen in was standing attempting to outside start the of the engine vehicle. was Hansen's undertaken to service the vehicle by finishing the maintenance of its radiator when it was connected to a machine and could not be driven on a public roadway. Accordingly, his action did not constitute "operation of a motor vehicle" under Wis. Stat. § 102.03(2). III. ¶29 CONCLUSION We conclude that when the action under consideration is undertaken to service or repair a vehicle, and the condition of the vehicle is such that it could not then be driven on a public roadway, the action does not constitute "operation of a motor vehicle" within the meaning of Wis. Stat. § 102.03(2). The action at issue here was attempting to start the vehicle when it was connected to a machine to flush the radiator. This action was undertaken to service the vehicle while it could not be driven on a public roadway. Therefore, it does not constitute the "operation of a motor vehicle" as that term is 20 No. used in § 102.03(2). 2005AP423 Accordingly, we affirm the circuit court's summary judgment dismissing McNeil's claims. By the Court. The decision affirmed. 21 of the circuit court is No. ¶30 SHIRLEY S. ABRAHAMSON, C.J. presented is whether the 2005AP423.ssa (concurring). following conduct The issue constitutes "operation of a motor vehicle" under Wis. Stat. § 102.03(2) when the motor vehicle lurches forward on the turn of the ignition key and injures a co-employee: An employee who is outside a vehicle turns the ignition key of a vehicle that is connected to a machine to flush the radiator and the vehicle cannot be driven on a public roadway while attached to the machine. I agree with the majority opinion that the answer to this question is NO. ¶31 The instant case does not present the only fact situation in which the question of whether particular conduct constitutes § 102.03(2). "operation of a motor vehicle" under Wis. Stat. The court's decision does not provide the answer to other fact situations because the court, like the statute, does not define specifically or generally what "operation of a motor vehicle" means under Wis. Stat. § 102.03(2). ¶32 Furthermore, other statutes defining "operation of a vehicle" (or a variation of this phrase) are of no assistance in defining "operation § 102.03(2). of a motor vehicle" under Wis. Stat. In many of these other statutes the legislature has defined "operation of a vehicle," and in cases coming to this court, the court interprets the statutory definition of operation of a vehicle. Furthermore, the meaning of the phrase "operation of a vehicle" depends on the purpose of the statute. ¶33 Today's opinion decides this case. Different conduct will be evaluated on a case-by-case basis not on a standard set forth in the instant case. 1 No. ¶34 Accordingly, I concur. ¶35 I 2005AP423.ssa am authorized to state BRADLEY joins this opinion. 2 that Justice ANN WALSH No. 1 2005AP423.ssa

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.