                                                                     2014 WI 73

                  SUPREME COURT                 OF   WISCONSIN
CASE NO.:                2012AP858
COMPLETE TITLE:          Vicki L. Blasing,
                                   Plaintiff,
                               v.
                         Zurich American Insurance Company and Menard,
                         Inc.,
                                   Defendants-Appellants,
                         Jefferson County Human Services Department,
                                   Defendant,
                         American Family Mutual Insurance Company,
                                   Intervenor-Respondent-Petitioner.



                           REVIEW OF A DECISION OF THE COURT OF APPEALS
                            Reported at 346 Wis. 2d 30, 827 N.W.2d 909
                                    (Ct. App. 2013 – Published)
                                      PDC No.: 2013 WI App 27

OPINION FILED:           July 17, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:           October 15, 2013

SOURCE OF APPEAL:
   COURT:                Circuit
   COUNTY:               Jefferson
   JUDGE:                William F. Hue

JUSTICES:
   CONCURRED:
   DISSENTED:            ROGGENSACK, ZIEGLER, GABLEMAN, JJJ., dissent.
                         (Opinion filed.)
  NOT PARTICIPATING:

ATTORNEYS:
       For the intervenor-respondent-petitioner, there were briefs
by   David        J.   Pliner,   Chester   A.   Isaacson,   and   Corneille   Law
Group, LLC, Madison, and oral argument by David J. Pliner.


       For the defendants-appellants, there were briefs by Jeffrey
S. Fertl, Melissa J. Lauritch, and Hinshaw & Culbertson LLP,
Milwaukee, and oral argument by Jeffrey S. Fertl.
    An amicus curiae brief was filed by     James A. Friedman,
Jonathan T. Smies, and Godfrey & Kahn, S.C., Madison, on behalf
of the Wisconsin Insurance Alliance.




                                2
                                                                2014 WI 73
                                                          NOTICE
                                            This opinion is subject to further
                                            editing and modification.   The final
                                            version will appear in the bound
                                            volume of the official reports.
No.   2012AP858
(L.C. No.   2011CV71)

STATE OF WISCONSIN                      :            IN SUPREME COURT

Vicki L. Blasing,

            Plaintiff,

      v.

Zurich American Insurance Company and Menard,
Inc.,                                                          FILED
            Defendants-Appellants,
                                                          JUL 17, 2014
Jefferson County Human Services Department,
                                                             Diane M. Fremgen
                                                          Clerk of Supreme Court
            Defendant,

American Family Mutual Insurance Company,

            Intervenor-Respondent-Petitioner.
                                                                       No.    2012AP858



    REVIEW of a decision of the Court of Appeals.                      Affirmed



    ¶1         SHIRLEY S. ABRAHAMSON, C.J.              This is a review of a

published decision of the court of appeals reversing an order of

the circuit court for Jefferson County, William F. Hue, Judge,

and remanding the cause for further proceedings.1                       The circuit

court    granted    American   Family     Insurance       Company's      motion     for

summary judgment, ruling that American Family had no duty to

defend    or    indemnify   under   its       automobile    liability        insurance

policy.     The court of appeals reversed the order of the circuit

court, holding against American Family.                  We affirm the decision

of the court of appeals.

    ¶2         Vicki Blasing, the plaintiff, was injured when lumber

that was being loaded into her pickup truck by an employee of

Menard, Inc. fell on her foot.                  Vicki Blasing is the named

insured in the American Family policy.

    ¶3         The plaintiff, a named insured, brought a tort action

for personal injury damages against Menard and Zurich American
Insurance      Company.     The     plaintiff      did     not   sue    the    Menard

employee.       Menard's potential liability is vicarious liability

for the torts of its employee.            Menard claims its employee is an

insured under the American Family policy, as a permissive user

of the plaintiff's pickup truck.                  Menard is insured under a




    1
       Blasing v. Zurich Am.            Ins.     Co.,    2013    WI    App    27,   346
Wis. 2d 30, 827 N.W.2d 909.

                                          2
                                                                        No.        2012AP858



separate     general     liability     insurance    policy      issued        by    Zurich

Insurance to Menard.

      ¶4      Let us begin by stating what is and what is not at

issue before the court.

      ¶5      The   ultimate    question     before     the     court    is        whether

American Family has a duty to defend and indemnify Menard when

the injury was to the named insured under the American Family

policy and the alleged tortfeasor (a Menard employee) was a

permissive user of the vehicle insured under the American Family

policy.

      ¶6      What is not before the court are the merits of the

personal injury action; the plaintiff's personal injury action

has   been    stayed    pending    resolution      of   this    insurance           policy

dispute.

      ¶7      What is not before the court are the obligations of

Zurich Insurance under its general liability insurance policy

insuring Menard and the respective duties of American Family and

Zurich Insurance if the court holds that American Family has a
duty to defend and indemnify in the present case.                         The Zurich

Insurance policy is not in the record, and the parties are not

debating      Zurich    Insurance's     obligations       in    isolation           or    in

relationship to the obligations of American Family.                            Any such

dispute    between      American   Family    and   Zurich       Insurance          is    for

another      day.      The   parties   apparently       agree    that     the       Zurich

Insurance policy will fully cover Menard's liability, if any,

for damages, if any, incurred by the plaintiff.


                                         3
                                                                      No.    2012AP858



      ¶8    The    issue    presented         in   the    present   case,     simply

stated, is whether American Family is obliged under the policy

it sold to the named insured-plaintiff in the present case to

defend and indemnify an alleged tortfeasor when the tortfeasor

is a permissive user of the insured vehicle and the plaintiff-

injured victim is the named insured.2

      ¶9    In    order    to    answer   this     question,    the    court     must

address three separate inquiries.

      ¶10   First: Do the alleged tortfeasor's actions constitute

a "use" of the pickup truck under the American Family liability

policy?

      ¶11   Second:      Does    American     Family's     automobile       liability

insurance policy require American Family to defend and indemnify

a permissive user tortfeasor when the injured victim is the

named insured under the policy?               The key and sole argument made

by   American     Family   and    by   the     non-party    Wisconsin       Insurance

Alliance    is    that     interpreting        American     Family's    policy     to

provide a permissive user tortfeasor defense and indemnity for
injury to the named insured creates an absurd result.

      2
       The court of appeals similarly stated the issue as
follows:    "The question here is whether American Family must
defend Menards and provide coverage if it is determined that the
Menards employee negligently injured Blasing."       Blasing v.
Zurich Am. Ins. Co., 2013 WI App 27, ¶1, 346 Wis. 2d 30, 827
N.W.2d 909.

     The court of appeals concluded that American Family has a
duty to defend and indemnify Menard in the present case under
its policy. Blasing, 346 Wis. 2d 30, ¶31.

      The dissent addresses issues not argued or briefed.

                                          4
                                                                     No.   2012AP858



     ¶12    Third:    The    third    question     as     phrased    by    American

Family is as follows:         "Does the concept of a permissive user

under the Omnibus Statute, [Wis. Stat.] § 632.32(3)(a) [2011-

12],3 require an injured person's own liability insurer to defend

and indemnify the tortfeasor who injured the insured, [when] the

tortfeasor    has    its    own    liability      insurance?"       (Emphasis   and

footnote added.)      This statement of the issue speaks in terms of

the concept of the omnibus statute and other insurance coverage

available to the permissive user tortfeasor.

     ¶13    Zurich    Insurance        phrases      the     question       somewhat

differently,    referring         directly   to    the    omnibus    statute    and

omitting any reference to the permissive user having its own

liability    insurance:       "Does    the   omnibus      statute,     Wis.   Stat.

§ 632.32(3)(a), require that an automobile insurer defend and

indemnify a negligent tortfeasor who injures the named insured,


     3
       The omnibus statute, Wis. Stat. § 632.32(3), provides as
follows:

     Required provisions. Except as provided in sub. (5),
     every policy subject to this section issued to an
     owner shall provide that:

     (a) Coverage provided to the named insured applies in
     the same manner and under the same provisions to any
     person using any motor vehicle described in the policy
     when the use is for purposes and in the manner
     described in the policy.

     (b) Coverage extends to any person legally responsible
     for the use of the motor vehicle.

     All subsequent references to the Wisconsin Statutes are to
the 2011-2012 version unless otherwise indicated.

                                         5
                                                                           No.     2012AP858



where    the    tortfeasor      was   a   permissive         user     of    the    insured

vehicle?"

     ¶14       The court of appeals answered the first two questions

in the affirmative and answered the third question by stating,

"[P]ermissive user coverage is required in this case by the

omnibus statute, Wis. Stat. § 632.32."4

     ¶15       American    Family     asks        us   to   reverse    the       court   of

appeals and hold that the American Family policy does not cover

the liability of a permissive user tortfeasor who injures a

named    insured      because    such     a       result    is    absurd;        "insurance

policies should be given a reasonable interpretation and not one

which leads to an absurd result."5

     ¶16       We   are   not   convinced         by   American    Family's        argument

that the result that the court of appeals reached and that we

reach is absurd.          Rather, the American Family policy explicitly

provides coverage in the present case: The policy promises to

cover any insured for liability for damages to any person.                               It

does not exclude recovery by an injured victim who happens to be

     4
         Blasing, 346 Wis. 2d 30, ¶3.
     5
       Olguin v. Allstate Ins. Co., 71 Wis. 2d 160, 165, 237
N.W.2d 694 (1976).     An interpretation is absurd when the
application of a policy to a specific fact pattern would produce
an unreasonable result.    See Bethke v. Auto-Owners Ins. Co.,
2013 WI 16, ¶¶55-56, 345 Wis. 2d 533, 825 N.W.2d 482 (holding
that an unambiguous policy could still be held to require
coverage if doing otherwise would lead to an unreasonable
result); Schinner v. Gundrum, 2013 WI 71, ¶91, 349 Wis. 2d 529,
833 N.W.2d 685 (refusing on absurdity grounds to interpret a
policy in such a way that defies "common sense"). For a general
discussion of the case law on absurdity, see 1 Arnold P.
Anderson, Wisconsin Insurance Law § 1.34 (6th ed. 2010).

                                              6
                                                                    No.   2012AP858



the named insured or who happens to be another insured under the

policy.

      ¶17   Our case law demonstrates that our holding today is

not novel and has not been viewed as absurd or unreasonable in

past cases.    Several Wisconsin cases have held that the named

insured under an automobile liability insurance policy is not

precluded   from   recovering    on   the    policy        when    an   additional

insured, while using the vehicle within the terms of the policy,

inflicts injury upon the named insured.6             Indeed, Wisconsin case

law   has   followed   what     appears     to      be     the     majority   rule

"recognizing    that   the    named       insured        under    an    automobile

liability insurance policy may recover from the insurer when

injured by another insured under the policy."7                    "In the greater




      6
       "Being an additional insured does not bar one from
recovery from the insurer for the negligence of the insured."
Blashaski v. Classified Risk Ins. Corp., 48 Wis. 2d 169, 176,
179 N.W.2d 924 (1970).      See also Utica Mut. Ins. Co. v.
Prudential Prop. & Cas. Ins. Co., 477 N.Y.S.2d 657 (App. Div.
1984); Aetna Cas. & Sur. Co. v. Gen. Cas. Co. of Am., 140
N.Y.S.2d 670 (App. Div. 1955) (listing additional cases from
other jurisdictions holding the named insured's policy covers
injury to the named insured).
      7
       L.C. Di Stasi, Jr., Automobile Liability Insurance Policy
as Covering, in the Absence of Specific Exclusion, Personal
Injury or Death of, or Loss Sustained by, Named or Additional
Insured, 15 A.L.R. 3d 711, §§ 2, 3[a] (1967) (citing Archer v.
Gen. Cas. Co. of Wis., 219 Wis. 100, 261 N.W. 9 (1935), reh'g
denied, 219 Wis. 103, 262 N.W. 257 (1935)).

                                      7
                                                                 No.     2012AP858



number of cases, the courts . . . have sustained the right of

the named insured . . . to recover under an automobile liability

policy for an injury to . . . such insured."              7A Steven Plitt et

al., Couch on Insurance 3d § 110:14 (2013).

    ¶18     Because we dispose of the instant case based on the

text of the American Family policy, we need not and do not

address the third question, namely whether exclusion of coverage

of injury to the named insured contravenes the omnibus statute.

An answer to this question would require us to determine the

validity of a hypothetical provision in a hypothetical policy.

We do not know the exact policy exclusion language or the facts.

    ¶19     For the reasons set forth, we affirm the decision of

the court of appeals.

                                        I

    ¶20     This   case     requires    us    to   interpret    and    apply    an

insurance   policy      and    a   statute    to   undisputed   facts.         The

interpretation     of   a     statute   and   insurance   policy       and   their

application to undisputed facts ordinarily present questions of
law that this court decides independently of the circuit court


     Two jurisdictions have apparently ruled that named insureds
are not covered for injuries resulting from the actions of
permissive user tortfeasors. See MacBey v. Hartford Accident &
Indem.   Co.,   197  N.E. 516   (Mass.   1935);  Cain   v.   Am.
Policyholders' Ins. Co., 183 A. 403 (Conn. 1936).        Compare
MacBey (holding that a named insured was not covered for
injuries sustained while the car was operated by a permissive
user), with Transamerica Ins. Co. v. Norfolk & Dedham Mut. Fire
Ins. Co., 279 N.E.2d 686, 688 (Mass. 1972) (holding that the
omnibus clause's use of the words "'by any person' includes the
insured").

                                        8
                                                                              No.    2012AP858



or     court      of   appeals,     but        benefiting       from    their       analyses.

Showers Appraisals, LLC v. Musson Bros., 2013 WI 79, ¶21, 350

Wis. 2d 509, 835 N.W.2d 226; Schinner v. Gundrum, 2013 WI 71,

¶35, 349 Wis. 2d 529, 833 N.W.2d 685.8

       ¶21       We review a grant of summary judgment de novo, using

the    same      methodology       as    the    circuit     court.           Schinner,         349

Wis. 2d 529, ¶36.           Summary judgment is proper when the record

demonstrates that there is no genuine issue of any material fact

and that the moving party is entitled to judgment as a matter of

law.       Wis. Stat. § 802.08(2); Schinner, 349 Wis. 2d 529, ¶36.

                                               II

       ¶22       The   facts   surrounding           the        alleged      incident          and

injuries         are   undisputed       for     purposes        of    this   review.            On

September 16, 2008, the named insured-plaintiff, Vicki Blasing,

visited      a    store    owned    and      operated      by    Menard,      Inc.       in    the

Village of Johnson Creek, Jefferson County, Wisconsin, to pick

up lumber she had purchased at Menard.                               She drove her 1990

Chevrolet         pickup   truck        to    the   store       and    parked       it    in     a
lumberyard area.

       ¶23       An employee of Menard used a forklift to place the

purchased lumber into the plaintiff's pickup truck, which was

insured by the American Family policy.                      The plaintiff stood near

the rear passenger side of her truck.                           While the employee was


       8
       Courts "construe ambiguities in coverage in favor of the
insureds and narrowly construe exclusions against insurers."
Folkman v. Quamme, 2003 WI 116, ¶16, 264 Wis. 2d 617, 665
N.W.2d 857.

                                                9
                                                                        No.   2012AP858



attempting to place the lumber into the pickup truck, some of

the lumber fell and hit the plaintiff's foot.

      ¶24   The      plaintiff       initiated   a     personal     injury      action

against     Menard     and     Zurich     Insurance,     Menard's       insurer,     on

January 24, 2011, for injuries arising out of the falling lumber

incident, alleging both common-law negligence and a violation of

the   Wisconsin      Safe    Place    Statute,    Wis.    Stat.    § 101.11.         It

appears to be undisputed that the Zurich Insurance policy will

fully indemnify Menard and fully compensate the plaintiff for

her injuries if the plaintiff proves her case against Menard on

its merits.

      ¶25   Menard tendered its defense to American Family on May

31, 2011, arguing that it was an insured under the terms of the

American Family policy.           American Family agreed to defend Menard

under a reservation of rights.

      ¶26   American         Family      subsequently      intervened         in    the

plaintiff's tort action against Menard and Zurich Insurance.                         It

moved for summary judgment, requesting a ruling that American
Family is not required to defend or indemnify Menard for the

activities    of     the    Menard    employee    under    either       the   American

Family policy or the omnibus statute.

      ¶27   Menard     and     Zurich     Insurance      moved    for    declaratory

judgment, seeking a declaration that American Family has a duty

to    indemnify      and     defend     Menard   under    the     permissive       user

provisions of the American Family policy and under the omnibus

statute.


                                           10
                                                                          No.   2012AP858



       ¶28   The circuit court granted American Family's summary

judgment motion and denied Menard's motion for a declaratory

judgment,    reasoning      that      the    parties      to   the     policy   did   not

contemplate that there would be coverage for a permissive user

tortfeasor         injuring         the      named        insured       premium-paying

policyholder.

       ¶29   The court of appeals reversed the order of the circuit

court, holding that American Family had a duty to defend and

indemnify Menard under the American Family automobile liability

policy insuring the plaintiff and under the omnibus statute.

                                            III

       ¶30   We first determine whether the tortfeasor's actions

constituted     a   "use"     of    the     pickup    truck     under    the    American

Family automobile liability insurance policy.

       ¶31   The    American        Family       policy    provides       coverage     to

permissive    users.          The    American      Family      policy    includes     the

following relevant coverage language:

       We will pay compensatory 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.

       We will defend any suit or settle any claim for
       damages payable under this policy as we think proper
       (emphasis added).
       ¶32   The American Family policy defines "bodily injury" to

mean   bodily      injury     to,    sickness,       disease,     or    death    of   any

person.      In other words, the policy does not exclude bodily

injury to a named insured or any other insured.



                                            11
                                                                              No.   2012AP858



      ¶33    The    policy       goes   on   to     define    "insured          person"   or

"insured     persons"       to     mean      the     named    insured           (i.e.,    the

policyholder), the named insured's relatives, or persons using

the insured car with the named insured's permission, as follows:

      Insured person or insured persons means:

      1.    You or a relative.

      2.    Any person using your insured car.

      3.   Any other person or organization.     This applies
      only to legal liability for acts or omissions of:

             a.    Any person covered under                   this       Part    while
             using your insured car. . . .
      ¶34    The policy enumerates some users who are not insureds

under the policy, such as persons using the vehicle without the

permission of the policyholder or persons exceeding the scope of

the   permission.          None    of   these       persons       is    involved    in    the

present case.            The alleged user in the present case is the

Menard employee who dropped the lumber.

      ¶35    The        policy    defines          "use"     to        mean     "ownership,

maintenance,       or    use"    and    provides      that    American        Family     will

indemnify and defend an insured person for "bodily injury and

property damage due to the use of a car or utility trailer."

      ¶36    The courts have had several opportunities to interpret

the phrase "use of a vehicle" under both insurance policies and

the omnibus statute.

      ¶37    Courts have interpreted "use" broadly.                             Use is not

limited to the driving of the vehicle.                     "One does not have to be




                                             12
                                                                             No.    2012AP858



driving or operating an automobile to be using it."9                           Our courts

have interpreted "use" of a vehicle to include a wide range of

non-driving activities, including:                     unloading a rifle from the

vehicle,          Allstate   Ins.   Co.       v.       Truck    Ins.        Exchange,      63

Wis. 2d 148, 216 N.W.2d 205 (1974);10 loading and unloading a

vehicle, Amery Motor Co. v. Corey, 46 Wis. 2d 291, 297, 174

N.W.2d 540         (1970);   gesturing       to    a    child       to    assist    her   in

crossing a road, Garcia v. Regent Ins. Co., 167 Wis. 2d 287, 481

N.W.2d 660         (Ct.   App.   1992);   shooting           game    from     the   insured

vehicle, Kemp v. Feltz, 174 Wis. 2d 406, 497 N.W.2d 751 (Ct.

App. 1993); and loading a scrapped dump truck tailgate into a

pickup truck under uninsured motorist coverage, Austin-White ex

rel.       Skow    v.   Young,   2005   WI    App      52,     279       Wis. 2d 420,     694

N.W.2d 436.

       ¶38        A lead case defining "use" in an insurance policy is

Lawver v. Boling, 71 Wis. 2d 408, 238 N.W.2d 514 (1976).                                  In

Lawver, the victim was injured when a rope and pulley system

attached to a truck owned by the insured gave way.                            The dispute
centered on whether the insured's negligence in using the rope


       9
       Blashaski, 48 Wis. 2d at 174 (citing Kanios v. Frederick,
10 Wis. 2d 358, 103 N.W.2d 114 (1960)) (giving hand signals to
traffic from a stopped vehicle); Wiedenhaupt v. Vander Loop, 5
Wis. 2d 311, 92 N.W.2d 815 (l958) (loading a parked truck)).
       10
       "Persons actively engaged in loading and unloading the
automobile in the commonly accepted meaning of those words are
considered to be using or operating the automobile . . . ."
Allstate Ins. Co. v. Truck Ins. Exchange, 63 Wis. 2d 148, 155,
216 N.W.2d 205 (1974) (quoting Amery Motor Co. v. Corey, 46
Wis. 2d 291, 297-99, 174 N.W.2d 540 (1970)).

                                             13
                                                                   No.   2012AP858



and pulley system connected to the truck qualified as use of the

truck under the policy.

      ¶39    The Lawver court explained that the question presented

was whether the vehicle's connection with the conduct that gave

rise to the injuries (and the negligence connected therewith)

was sufficient to bring the conduct within the risk for which

the   parties      to   the   insurance    policy    reasonably    contemplated

there would be coverage.11         The Lawver court then stated that the

reasonable contemplation of the parties to the insurance policy

is usually determined by examining whether the alleged use is

reasonably consistent with the inherent use of the vehicle.                   The

Lawver     court    declared:      "This       question   [of    the   reasonable

contemplation of the parties] is usually resolved by determining

whether the alleged 'use' is one which is reasonably consistent

with the inherent nature of the vehicle."12


      11
       "To determine if an accident arises out of the use of an
automobile, the criterion is whether the activity is reasonably
contemplated by the parties and consistent with the inherent
purpose of an automobile." 1 Anderson, supra note 5, § 2.50.

     See also 8 Lee R. Russ & Thomas F. Segalla, Couch on
Insurance 3d § 111.31 (2005) ("'Use' of a vehicle includes more
than driving or riding in an automobile; it extends to utilizing
the vehicle as an instrumental means to an end in any manner
intended or contemplated by the insured.").
      12
           Lawver v. Boling, 71 Wis. 2d 408,              416,   238 N.W.2d 514
(1976).

     "When a policy does not include the terms loading and
unloading, the issue is whether the act in question was a
natural and reasonable incident or a consequence of the use of
the vehicle." 1 Anderson, supra note 5, § 2.51.

                                          14
                                                                           No.    2012AP858



       ¶40        In Lawver, the court concluded that the injuries arose

out of use of the truck, reasoning that when the insured vehicle

is a pickup truck in a farm setting, it is reasonable to expect

that it will be put to a variety of uses beyond the ordinary

transportation of persons and goods from place to place, and

that within the range of reasonable uses is its use as a power

source in performing necessary farm repairs.13

       ¶41        Similarly, we conclude that loading an insured pickup

truck with lumber is reasonably contemplated by the insured and

insurer           because      it   is      consistent         with      the      ordinary

transportation of persons and goods inherent in the purpose of

the pickup truck.              Thus, we conclude that under the American

Family policy, the Menard employee was a permissive user and as

such        was    an     insured       under     the     American      Family     policy.

Accordingly, we answer the first question in the affirmative.

                                                IV

       ¶42        We    now   address    the     second    issue:        Does     American

Family's policy require American Family to defend and indemnify
a permissive user tortfeasor when the injured victim is a named

insured under the policy?

       ¶43        American Family relies solely on the argument that if

the    court       requires     American        Family    to   defend    and     indemnify

Menard, the result would be absurd, thus violating a cardinal




       13
            Lawver, 71 Wis. 2d at 416.

                                                15
                                                                 No.   2012AP858



rule of interpretation:          A court's interpretation should avoid

absurd or unreasonable results.14

      ¶44     The court of appeals concluded that the result is not

unreasonable or absurd.         We agree with the court of appeals, but

we   acknowledge,    as   did    the   court    of   appeals,   that   holding

against American Family in the present case might appear to some

to be anomalous, and we address a perceived anomaly.

      ¶45    One way of stating the anomaly is that American Family

would be required to defend and possibly indemnify a tortfeasor

who has injured the premium-paying named insured policyholder.

The court of appeals recognizes that this result can be viewed

as   troubling    because   "an    injured     policyholder     bringing   suit

against a tortfeasor would face an attorney supplied by her own

insurance company, and . . . an eventual payout might come from

her insurer."15

      ¶46    Put in perspective, this result is neither troubling

nor anomalous.      American Family drafted the policy, which the

named insured accepted.         In the policy, American Family "has a




      14
       See Bethke, 345 Wis. 2d 533, ¶¶55-56 (holding that an
unambiguous policy could still be held to require coverage if
doing otherwise would lead to an unreasonable result); Schinner,
349 Wis. 2d 529, ¶91 (refusing on absurdity grounds to interpret
a policy in such a way that defies "common sense").       For a
general discussion of the absurdity case law, see 1 Anderson,
supra note 5, § 1.34.
      15
           Blasing, 346 Wis. 2d 30, ¶30.

                                       16
                                                                             No.    2012AP858



contractual duty to defend its insured . . . ."16                              An insured

under the American Family policy is the Menard employee.                               Thus,

the result we reach is in accord with the policy.

    ¶47     American Family is not representing both the injured

insured and the tortfeasor in the present case.                               The injured

named    insured    must        hire   her     own    attorney    to        represent     her

against    any   tortfeasor;           thus,    American       Family       would   not   be

representing     or   assisting          the    injured       named    insured      in    her

lawsuit     against       the     tortfeasor         regardless        of    whether      the

tortfeasor was or was not an insured under the American Family

policy.

    ¶48     Similarly, if the named insured were injured in a car

collision    with     a    third       party    who    also    had     American      Family

liability automobile insurance, the named insured would face an

attorney supplied by her own insurance company.17                              In such a

case, both the injured named insured and the tortfeasor are

paying    premiums    that       support       the    defense     of    the    tortfeasor

against the injured named insured.                    This result may happen with
some frequency and is not viewed as absurd.


    16
       Mowry v. Badger State Mut. Cas. Co., 129 Wis. 2d 496,
527-28, 385 N.W.2d 171 (1986) (citing Gross v. Lloyds of London
Ins. Co., 121 Wis. 2d 78, 84, 358 N.W.2d 266 (1984); U.S.
Guarantee Co. v. Liberty Mut. Ins. Co., 244 Wis. 317, 321, 12
N.W.2d 59 (1943)).
    17
       The court of appeals concluded that, "as American Family
admits, a policyholder generally understands that his or her own
insurance company may provide a defense to parties with
interests adverse to the interests of the policyholder."
Blasing, 346 Wis. 2d 30, ¶24.

                                             17
                                                                          No.    2012AP858



      ¶49    A   second     way    of    stating       the    anomaly     is     that    an

automobile       liability    insurance         policy       ordinarily    covers       the

liability of an insured for injury to third parties who are not

insureds under the policy, rather than liability of an insured

for an injury to an insured.18                  In other words, ordinarily the

liability provisions of an automobile liability insurance policy

do not insure the insured against an injury to the insured.

      ¶50    But in the instant case the named insured plaintiff is

not making a claim against American Family for her injuries.

The   plaintiff      is    suing   Menard       and   Zurich     Insurance       for    her

injuries as a third-party victim of Menard's tort, not as an

insured under the American Family policy.                     The plaintiff's claim

against     Menard   depends       on   Menard's       liability    to     her    as    the

third-party       victim     of    Menard's      tort.         American     Family      is

defending its insured, the Menard employee, against liability

for injury to a person who for purposes of this lawsuit is a

third party to the policy, not a named insured.

      ¶51    A third way of stating the anomaly is that providing
coverage under an automobile liability insurance policy for a

permissive user tortfeasor who allegedly negligently injures a

named      insured    seems       to    provide       greater     coverage        to    the

permissive user than to the named insured herself.                               In other

words, providing coverage in the present case to the permissive


      18
       A policy could, of course, include first-party coverage
such as medical-payments coverage or uninsured and underinsured
automobile liability insurance, but none of these provisions is
at issue here.

                                           18
                                                                              No.      2012AP858



user seems to give the permissive user coverage when injuring

the named insured but would not give the named insured coverage

when    the    named    insured         injured       herself.       The    named      insured

cannot be liable to herself.19                    If the plaintiff in the present

case    had    injured    herself         while       loading    her   pickup       truck      at

Menard,       the    American           Family    policy      would     not      have       been

triggered.          Thus it appears that the permissive user receives

coverage for an injury to the named insured, when the named

insured cannot receive coverage for an injury to herself.

       ¶52    Yet a closer look reveals that the coverage for the

permissive user is no broader than for the named insured.                                      No

insured (including the named insured or a permissive user) is

covered for negligently inflicted self-injury.                              If the named

insured had injured herself, her injury would not be covered,

and    if    the    permissive          user    had    injured   himself,        his      injury

similarly would         not be covered.                 The American Family policy

treats all insureds alike, including a named insured and the

permissive user, covering all of them for liability for injury
to another, regardless of whether the victim is also an insured.

       ¶53    A fourth way of describing the anomaly is that the

Menard      employee    and    Menard          have    liability     insurance       coverage

with Zurich Insurance covering any possible liability to the

plaintiff.           American       Family       places      great     emphasis        in    its

absurdity      argument       on    the        fact   that   Menard     and      the      Menard

employee      are    covered       by    Zurich       Insurance.       It   is      not     clear

       19
            See Blashaski, 48 Wis. 2d at 175-76.

                                                 19
                                                                             No.    2012AP858



whether American Family would be making the same argument that

it has no duty to defend or indemnify if Zurich Insurance were

not capable of fully indemnifying Menard and capable of paying

the   plaintiff's      damages.      It    is    not      for    this    court      in   the

present case to assign relative responsibility to the insurance

companies for indemnification or defense.                      The only issue before

us is whether American Family's policy provides coverage in the

instant     case.      The   issue   before          us   at    this     stage      of   the

proceedings     is    independent     of       the    existence         of    the    Zurich

Insurance coverage and multiple applicable liability policies.

      ¶54    With regard to all four claimed anomalies, their roots

are in the language of the American Family policy itself. The

policy provides coverage to a permissive user tortfeasor for

liability for personal injury to all persons.                          The policy does

not except or exclude an insured's liability for an injury to

another insured.

      ¶55    Our case law demonstrates that our holding today is

not novel and has not been viewed as absurd or unreasonable in
past cases.         Several Wisconsin cases have held that the named

insured under an automobile liability insurance policy is not

precluded    from     recovering     on    the       policy     when     an    additional

insured inflicts injury upon the named insured while using the

vehicle within the terms of the policy.20                        Indeed, as we have

      20
       See also Utica Mut. Ins. Co. v. Prudential Prop. & Cas.
Ins. Co., 477 N.Y.S. 2d 658 (1984); Aetna Cas. & Sur. Co., 140
N.Y.S. 2d 670 (listing additional cases from other jurisdictions
holding the named insured's policy covers injury to the named
insured).

                                          20
                                                                  No.    2012AP858



stated previously, Wisconsin case law has followed what appears

to be the majority rule "recognizing that the named insured

under an automobile liability insurance policy may recover from

the insurer when injured by another insured under the policy."21

"In the greater number of cases, the courts . . . have sustained

the   right    of    the   named   insured . . . to         recover     under   an

automobile      liability     policy    for    an     injury      to . . . such

insured."       7A   Steven   Plitt    et   al.,    Couch    on   Insurance     3d

§ 110:14 (2013).

      ¶56    The Wisconsin rule is best illustrated by Archer v.

General Casualty Co. of Wisconsin, 219 Wis. 100, 261 N.W. 9

(1935), reh'g denied, 219 Wis. 103, 262 N.W. 257 (1935).                        In

Archer, the wife and husband were both named insureds on their

automobile liability insurance policy.               While the husband was

driving, the wife suffered injuries when their car collided with

a train.      The wife sued her husband and the railway company for

damages.      After she recovered a judgment against her husband,

she began an action against their insurer to recover the amount
of the judgment.      The insurer argued that because the wife was a

named insured, she could not recover for her injuries under the

policy.      The court was unconvinced by the insurer's reasoning,

stating that by the terms of the policy, protection is as much



     "Being an additional insured does not bar one from recovery
from the insurer for the negligence of the insured." Blashaski,
48 Wis. 2d at 176.
      21
           See note 7, supra.

                                       21
                                                                         No.   2012AP858



for the benefit of the wife as it is for any other person not

named in the policy:

     Plaintiff makes no claim in this case on account of
     the policy having been issued to her.    Her claim is
     based upon the fact that she has a claim against her
     husband, who is insured against loss by reason of the
     ownership and use of the automobile.

     It is true . . . that a third party has no greater nor
     more extensive right under the terms of the policy
     than the original parties to the contract, but there
     is no limitation contained in the policy which
     excludes the right of recovery by the plaintiff under
     the facts of this case . . . .
Archer, 219 Wis. at 103.             In Archer, that the victim was a named

insured    and       that   the   tortfeasor     was    a    named    insured      were

irrelevant.          The    victim   brought    the    claim   as    a    third-party

rather than as a named insured.22

     ¶57    In the case at bar, the injured victim, the plaintiff,

like the injured victim in Archer, is also the named insured.

The injured victim brings her claim in the instant case, as in

Archer,    as    a    third-party     victim,    not    as   the     named     insured.

Adhering to the principles of Archer, we conclude that under the
facts and circumstances of the instant case, the plaintiff's




     22
       "If the plaintiff and her husband had been held jointly
liable and she had paid the judgment and was seeking to recover
contribution from her husband, the arguments made on behalf of
the defendant here would have greater validity." Archer v. Gen.
Cas. Co. of Wis., 219 Wis. 100, 103, 261 N.W. 9 (1935), reh'g
denied, 219 Wis. 103, 262 N.W. 257 (1935)).

                                         22
                                                                             No.      2012AP858



identity    as    the    named    insured         does   not     affect      the     coverage

American Family affords to the permissive user tortfeasor.23

     ¶58    The rule in favor of coverage of the permissive user

tortfeasor regardless of the identity of the victim as the named

insured is further buttressed by Allstate Insurance Co. v. Truck

Insurance Exchange, 63 Wis. 2d 148, 216 N.W.2d 205 (1974).

     ¶59    In    the     Allstate         case,    a    passenger      in      an    insured

vehicle    shot    and    killed      the     named      insured       driver        when   the

passenger    removed      a     hunting     rifle       from    the    insured       vehicle.

Clearly the insured driver, had he removed the rifle himself and

injured    himself,      would       not    have     been      indemnified         under    his

automobile       liability        insurance         policy.           Yet,      the     court

determined       that     the     driver's         automobile         liability        policy

afforded coverage to the permissive user passenger who allegedly

negligently killed the named insured driver when the widow of

the named insured brought a wrongful death action against the

permissive user.

     ¶60    When the injured party was an insured but not the
named     insured,       courts      have     concluded         that      the      liability

insurance    policy       provided         coverage      to     the    permissive           user

tortfeasor who injured an insured.

     ¶61    In     Nelson       v.     Ohio        Casualty      Insurance           Co.,     29

Wis. 2d 315, 139 N.W.2d 33 (1966), both the injured person and

     23
       See also Aetna Cas. & Sur. Co., 140 N.Y.S.2d 670 (citing
Archer and holding that insurer of passenger-owner was liable
for damages authorized driver became obligated to pay for
injuries sustained by passenger-owner, despite fact        that
passenger-owner was named insured under policy).

                                             23
                                                                                 No.     2012AP858



the tortfeasor were employees of the city of Hartford.                                        The

injured      person     was       unloading            a     garbage    truck,      while     the

tortfeasor     was     driving      it.           The       court    held   that   the    city's

insurance      policy       was    required            to    defend     and    indemnify      the

permissive user tortfeasor.                   Although the case was decided on

different grounds, the victim's status as another insured did

not trouble the Nelson court.

       ¶62    In several cases, an automobile liability insurance

company has been required to defend and indemnify a permissive

user    tortfeasor       who       injured         an        insured    while      loading     or

unloading a covered vehicle.                  The fact pattern is similar in a

number of cases.        A truck driver parks his truck to be loaded or

unloaded; during the loading or unloading the truck driver is

injured by a person who negligently loads or unloads the truck.

The    general        principle         of        according          automobile        liability

insurance coverage to permissive users who cause injury to an

insured has been applied.               See, e.g., Ermis v. Fed. Windows Mfg.

Co.,    7    Wis. 2d 549,          97     N.W.2d 485            (1959);       Lukaszewicz      v.
Concrete Research, Inc., 43 Wis. 2d 335, 168 N.W.2d 581 (1969);

Pitrowski v. Taylor, 55 Wis. 2d 615, 201 N.W.2d 52 (1972).

       ¶63    Our    case    law    demonstrates              that     although    an    injured

person cannot recover under an automobile insurance liability

policy for self-inflicted injury, an injured person who is an

insured      can    recover       under      an    automobile          insurance       liability

policy if injured by a fellow insured.                          Coverage is not based on

the identity of the victim absent language in the policy stating
otherwise.
                                                  24
                                                                             No.     2012AP858



                                              V

       ¶64     The parties frame the third question differently, as

we explained in paragraphs 12 and 13 above.                             Both parties can,

however, be interpreted as asking:                           Does the omnibus statute,

Wis.    Stat.      § 632.32(3),           require            an    automobile      liability

insurance       policy        to    provide       a     permissive       user     tortfeasor

coverage when the permissive user injures a named insured?

       ¶65     The omnibus statute, Wis. Stat. § 632.32(3), provides

as follows:

       Required provisions. Except as provided in sub. (5),
       every policy subject to this section issued to an
       owner shall provide that:

       (a) Coverage provided to the named insured applies in
       the same manner and under the same provisions to any
       person using any motor vehicle described in the policy
       when the use is for purposes and in the manner
       described in the policy.

       (b) Coverage extends to any person legally responsible
       for the use of the vehicle.
       ¶66     We need not and do not decide whether in light of the

omnibus      statute     an    automobile        liability         insurance      policy   may

exclude coverage of liability for personal injuries suffered by

the    named    insured.           We   cannot        rule    on   a   proposed    exclusion

without knowing the precise language of the exclusion and the

facts to which the exclusion is applied.

       ¶67     Nevertheless, we note that the court has decided a

number of cases in which the parties dispute the validity of

exclusion clauses under the omnibus statute.                           See, e.g., Schenke
v. State Farm Mut. Auto. Ins. Co., 246 Wis. 301, 16 N.W.2d 817


                                              25
                                                                         No.   2012AP858



(1944); Frye v. Theige, 253 Wis. 596, 34 N.W.2d 793 (1948);24

Musselman v. Mut. Auto Ins. Co., 266 Wis. 387, 63 N.W.2d 691

(1954); Havlik v. Bittner, 272 Wis. 71, 74 N.W.2d 798 (1956);

Bauman     v.     Gilbertson,    7    Wis. 2d 467,        96    N.W.2d 854      (1959);

Ottinger v. Falkenberg, 11 Wis. 2d 506, 105 N.W.2d 560 (1960).25

      ¶68       In Frye v. Theige, 253 Wis. 596, 601, 34 N.W.2d 793

(1948),     the    named   insured     was     a    passenger    in     an   automobile

driven by another with his permission.                    The named insured was

hurt in an automobile collision and sought to recover against

his   own    automobile     liability        insurance        company    for    damages

caused by the negligence of the permittee driver.                       The insurance

policy had an exclusion providing that the policy did not apply

to bodily injury of a named insured.                      The insurance company

contended that because the provision was a general exclusion of

coverage        that   applied       equally       to   the    named     insured    and

additional insureds, it did not violate the omnibus statute.



      24
       The court in Frye v. Theige, 253 Wis. 596, 34 N.W.2d 793
(1948), distinguished Archer v. General Casualty Co. of
Wisconsin, 219 Wis. 100, 261 N.W. 9 (1935), which accorded
coverage for liability for injury to a named insured, from
Munsert v. Farmers Mutual Automobile Insurance Co., 229
Wis. 581, 281 N.W. 671 (1938), which did not accord coverage for
liability for injury to a named insured, on the ground that the
policy in Munsert contained such an exclusion clause.
      25
       For a collection of cases on provisions of an automobile
liability insurance policy excluding from coverage injury or
death of an insured, see Jonathan M. Purver, Validity,
Construction, and Application of Provision of Automobile
Liability Policy Excluding from Coverage Injury or Death of
Insured, 46 A.L.R. 3d 1061 (1972).

                                          26
                                                                         No.    2012AP858



       ¶69    The Frye court upheld the exclusion, reasoning that

the    exclusion         did   not   necessarily         result     in    giving     the

additional insured (the permittee driver) less protection than

was given the named insured.                The court emphasized the language

in    what    is    now    subsection       (3)(a)      of   the   omnibus     statute,

reasoning that the clause did not necessarily result in giving

to an insured less protection than the policy gave to the named

insured.

       ¶70    The Frye court explained:

       The additional assured is not protected in case
       plaintiff is the named assured. Neither, however, is
       the named assured protected in that same situation.
       The mere fact that the situation does not come up in
       respect to the named assured because he is ordinarily
       driving his car and injured by his own negligence
       appears to us to be wholly immaterial. Nobody can or
       does receive protection against liability for injuries
       to the named assured. The named assured is excluded
       from protection as well as the additional assured.26
       ¶71    In dissent in Frye, Justice Fairchild explained that

the named insured as a passenger had a cause of action against

the driver for his injuries due to the driver's negligence.

Nevertheless,        the    exclusion       did   not    indemnify    the      permittee

driver      for    the    damages    that    the     named    insured    may    recover

against the driver.            Yet the legislature had said that insurance

policies shall extend equal coverage to anyone driving the car

with the owner's permission.                 Had the named insured been the

driver, he would have been indemnified for all damages recovered

against him, But the permittee driver was not indemnified for

       26
            Frye, 253 Wis. at 601.

                                            27
                                                              No.    2012AP858



liability for all damages recovered against him.              According to

Justice Fairchild, such an exclusion would "defeat the avowed

purpose of the statute."27

     ¶72    The parties seem to think that whether the permissive

user has other insurance coverage affects the validity of a

hypothetical policy exclusion under the omnibus statute.               We do

not know whether the arguments about the omnibus statute change

if the permissive driver is not fully insured under a policy

other than the policy acquired by the named insured.

     ¶73    Past cases inform us that we should not rule on the

omnibus    statute   without   the   exact   language   of   the    exclusion

proposed, the facts of the case, and briefs and oral argument——

none of which is present here with regard to this issue.                 This

court does not issue advisory opinions based on non-existent

facts.28

     ¶74    In sum, American Family asks us to reverse the court

of appeals and hold that the American Family policy does not

cover the liability of a permissive user tortfeasor who injures
a named insured.     We are not persuaded to do so.          Such a holding

contravenes the terms of the American Family insurance policy

and settled case law of this state.             Our case law makes no

distinction between injured parties who are named insureds and




     27
          Frye, 253 Wis. At 605 (Fairchild, J., dissenting).
     28
       See State ex rel. La Follette v. Dammann, 220 Wis. 17,
22, 264 N.W. 627 (1936).

                                     28
                                                  No.   2012AP858



other insureds.     Accordingly, we affirm the decision of the

court of appeals.

    By the Court.——The decision of the court of appeals is

affirmed.




                               29
                                                                          No.    2012AP858.pdr


    ¶75     PATIENCE DRAKE ROGGENSACK, J. (dissenting).                              I write

in dissent because, based on the pleadings and the materials

submitted    in       the    summary        judgment       and   declaratory        judgment

motions,     I    conclude          that    the     majority       opinion       erroneously

decides that American Family Insurance Company, Vicki Blasing's

automobile       liability       carrier,          must    assume     the       defense        and

indemnification of Menard, Inc. that was initially undertaken by

Zurich American Insurance Company, Menard's liability carrier.1

The majority opinion errs because it does not fully address the

issue   American        Family       presented:            "Does    the     concept       of    a

permissive       user       under     the     Omnibus      Statute,       § 632.32(3)(a),

Stats., require an injured person's own liability insurer to

defend and indemnify the tortfeasor who injured the insured, and

where the tortfeasor has its own liability insurance?"2                              It also

errs in failing to follow proper summary judgment procedure.

    ¶76     I conclude that the majority opinion should not avoid

American    Family's         stated        issue,    but    rather,       address     it   and

conclude that when a direct action has been commenced against
the insurer of a named defendant, as is the case here, the

defendant's insurer must provide the defense unless that insurer

first can prove there is no coverage for any of the claims made.

Public policy requires that order of proceeding in the case at

hand to meet American Family's stated issue and to prevent the

conversion       of     Blasing's           personal       automobile        policy        into

comprehensive liability insurance for Menard.

    1
        Majority op., ¶8.
    2
        American Family brief, p. 1.

                                               1
                                                                    No.    2012AP858.pdr


       ¶77    By   ignoring       American       Family's       stated     issue     and

Blasing's      direct      action     claims      against       Zurich3     and      then

permitting      Zurich    and     Menard   to    shift    the    court's     focus    to

whether Menard's employee was a "permissive user" of Blasing's

vehicle under the policy American Family issued to Blasing,4 the

majority opinion contravenes basic summary judgment principles

and    decides     disputed       issues    of    material      fact      relative    to

Blasing's direct action against Zurich.5

       ¶78    I would reverse the court of appeals and remand the

matter to the circuit court, with Zurich providing the defense

to    Blasing's       claims    because    Zurich   has     provided       nothing    to

disprove Blasing's allegation that Zurich insured Menard for her

claims.       Because the majority opinion chooses not to address

American Family's stated issue and then ignores Blasing's direct

action against Zurich in this summary judgment proceeding and

erroneously converts Blasing's automobile liability policy into

comprehensive         liability    insurance      for    Menard,    I     respectfully

dissent.6




       3
           Majority op., ¶74.
       4
           Id., ¶5.
       5
           Complaint, ¶2; Zurich's and Menard's answer, ¶2.
       6
       The majority opinion misperceives the dissent when it
asserts that "[t]he dissent addresses issues not argued or
briefed." Majority op., ¶8 n.2. The focus of American Family's
question and of the dissent are whether an injured party's
automobile policy should be converted into liability insurance
for a tortfeasor who has insurance of its own for the accident.

                                           2
                                                                        No.    2012AP858.pdr


                                  I.    BACKGROUND

     ¶79    This lawsuit against Menard involves Blasing's safe-

place    claims,    which   are    based      on        Menard's      conduct,       and    her

common law negligence claim, which seeks to impose vicarious

liability on Menard based on Menard's employee's conduct.                                  This

dispute    is     not   about     whether          an    injured       person      will     be

compensated for the injuries sustained.                       Rather, it concerns who

will defend Menard and if Blasing is successful, who will pay.7

     ¶80    Stated      otherwise,       we        are    concerned         with     whether

American Family's automobile liability policy, for which Blasing

paid, will be converted into comprehensive liability insurance

for Menard, by causing American Family to defend and indemnify

Menard.      It    is   also    about    whether          Blasing's         direct    action

against Zurich will be overlooked by focusing on the coverage

provisions of Blasing's automobile policy, rather than on the

summary    judgment     procedure       applicable            to    motions    under       Wis.

Stat.    § 802.08.      Accordingly,          it    is    critically         important       to

recognize that the context in which this case arises includes a
tortfeasor who has its own insurance and a direct action claim

against    the    tortfeasor's     insurer.              It    is    this    context       that

drives my dissent from the majority opinion.

     ¶81    Blasing's injuries arose on September 16, 2008, when

she purchased boards from Menard and proceeded to a loading area

     7
       It is also about Erickson v. Menard, Inc., La Crosse
County Case No. 10CV324, which is pending in La Crosse County
and presents the same issue, i.e., whether Menard will be
permitted to convert an injured party's automobile liability
policy into comprehensive insurance for Menard.  Petition for
Review, p. 19.

                                          3
                                                                  No.   2012AP858.pdr


to have them placed in her vehicle.                  She was standing near the

rear passenger side of her vehicle as a Menard employee began to

load the boards with a forklift.                   During the loading, some of

the boards fell onto Blasing's foot, causing her injury.

      ¶82    On January 24, 2011, Blasing sued Menard based on two

theories:      (1) liability for Menard's violations of the safe-

place statute, Wis. Stat. § 101.01 et seq.; and (2) liability

for the acts of its employee in negligently handling the boards

while loading Blasing's vehicle.               Blasing also brought a direct

action against Zurich, Menard's liability carrier.                      She did not

sue the Menard employee who loaded the boards onto her vehicle.

      ¶83    On    March 7,       2011,     Zurich     and     Menard     answered,

admitting that Zurich "issued a policy of liability insurance"

to   Menard,      but   denying    Blasing's        allegations    of    safe-place

violations and negligence.8

      ¶84    On    May 31,    2011,       Menard    tendered    its     defense   to

American Family, who was Blasing's automobile liability carrier

at the time of the accident.              Menard's tender ignored Blasing's
safe-place claims.           Instead, Menard focused on the common law

negligence claim and contended that its employee was "using"

Blasing's vehicle with her permission while loading the boards;

and therefore, there was coverage for Blasing's injuries under

her own automobile liability policy due to the requirements of

the omnibus statute, Wis. Stat. § 632.32(3).

      ¶85    On August 2, 2011, American Family moved to intervene

in the action to defend against Menard's tender.                   On January 23,

      8
          Zurich answer, ¶¶2-12.

                                           4
                                                                             No.   2012AP858.pdr


2012, American Family moved for summary judgment that it had no

duty     to    defend     or    indemnify            Menard    for     Blasing's       claims.

American      Family     submitted        the    automobile         liability       policy     it

issued to Blasing for court interpretation.

       ¶86     On    January 24,       2012,         Menard     and    Zurich       moved    for

declaratory judgment asking the court to summarily hold that

American Family had a duty to defend and indemnify Menard for

liability      arising     from      Blasing's         claims.         Although      documents

were submitted in support of their motion, Zurich chose not to

submit    the       liability     policy        it    admitted        that    it    issued    to

Menard.        Therefore, Zurich's liability policy is not in the

record for us to interpret.

       ¶87     The circuit court granted American Family's motion,

holding that it had no duty to defend or to indemnify Menard for

Blasing's injuries under her automobile liability policy.                                    The

circuit court concluded that it would not have been within the

reasonable          expectation      of       Blasing       when      she     purchased      the

American       Family     policy       that         American       Family      would      defend
tortfeasors who injured her and provide indemnity to Menard if

Blasing succeeded on her claims against Menard and Zurich.                                   The

circuit court found Lawver v. Boling, 71 Wis. 2d 408, 238 N.W.2d

514 (1976), most persuasive.

       ¶88     The     court    of     appeals          reversed,           concluding      that

American      Family     had    both      a   duty     to     defend    and    to    indemnify

Menard,       relying    largely       on     the     omnibus      statute,        Wis.     Stat.

§ 632.32(3).          Blasing v. Zurich Am. Ins. Co., 2013 WI App 27,
¶33, 346 Wis. 2d 30, 827 N.W.2d 909.

                                                5
                                                              No.   2012AP858.pdr


                                II.   DISCUSSION

                       A.       Standard of Review

    ¶89    In this review of summary judgment, we apply the same

standard of review as did the court of appeals and the circuit

court, but benefitting from their analyses.9               Hoida, Inc. v. M&I

Midstate Bank, 2006 WI 69, ¶16, 291 Wis. 2d 283, 717 N.W.2d 17.

Summary   judgment   begins      with   a    review   of   the   complaint    to

determine whether it states a claim.               Westphal v. Farmers Ins.

Exch., 2003 WI App 170, ¶9, 266 Wis. 2d 569, 669 N.W.2d 166.

Next, "we review the answer to determine whether it joins a

material issue of fact or law."             Id.   If we determine that issue

has been joined, we examine the submissions of the parties to

determine whether there are material facts in dispute that would

require a trial and whether the evidence is sufficient to decide

the legal issues that have been joined.             See id.

                           B.    Blasing's Claims

                      1.    Safe-place violations

    ¶90    Blasing sued Menard for violations of the safe-place
statute, Wis. Stat. § 101.01 et seq.               Blasing alleged that she

was a frequenter or invitee within the meaning of the safe-place

statute and that Menard:

         a. Failed to furnish a place for employees,
    frequenters, and/or invitees, which was safe, as that
    term is defined in Wis. Stat. § 101.01;


    9
       Actions for declaratory judgment relief may be determined
in summary judgment proceedings. Northernaire Resort & Spa, LLC
v. Northernaire Condo. Ass'n, 2013 WI App 116, ¶12, 351 Wis. 2d
156, 839 N.W.2d 117 (concluding that a motion for declaratory
judgment is better described as one for summary judgment).

                                        6
                                                               No.    2012AP858.pdr

         b. Failed to furnish and use safety devices and
    safeguards and failed to adopt and use methods and
    processes reasonably adequate to render the subject
    property safe, as that term is defined in Wis. Stat.
    § 101.01;

         c. Failed to do every other thing reasonably
    necessary to protect the life, health, safety, and
    welfare of employees, invitees and/or frequenters at
    the subject property where the Plaintiff, Vicki L.
    Blasing, was injured;

         d. Failed to properly construct the subject
    property/parking   lot/surrounding   areas,  inspect,
    maintain, repair, safeguard, and warn so as to render
    the subject property safe, as those terms are defined
    in Wis. Stat. § 101.01[.]
    ¶91     Pursuant to Wis. Stat. § 101.11, "[e]very employer and

every owner of a place of employment or a public building . . .

shall so construct, repair or maintain such place of employment

or public building as to render the same safe."                Accordingly, a

safe-place claim may be based on the allegation that an employer

or owner of a place of employment or public building failed to

maintain the building as safely as the nature of the facility

would   reasonably   permit.   Kochanski         v.    Speedway      SuperAmerica

LLC, 2014 WI 72, ¶30, __ Wis. 2d __, __ N.W.2d __; Megal v.
Green Bay Area Visitor & Convention Bureau, Inc., 2004 WI 98,

¶22, 274 Wis. 2d 162, 682 N.W.2d 857.            What constitutes a safe-

place violation depends on "the facts and conditions present,

and the use to which the place 'was likely to be put.'"                      Gross

v. Denow, 61 Wis. 2d 40, 47, 212 N.W.2d 2 (1973) (citations

omitted).

    ¶92     Blasing's   safe-place       claim        arises   from      Menard's
policies and facilities at the time the boards were loaded onto


                                     7
                                                                           No.       2012AP858.pdr


her vehicle.10            This claim is grounded in a failure of Menard,

not in a failure of its employee.                      See Megal, 274 Wis. 2d 162,

¶9.         Blasing's       safe-place       claims    do   not        constitute        use    or

operation of her vehicle.                    Cont'l Nat'l Ins. Co. v. Carriers

Ins.     Co.,       55    Wis. 2d     533,     536-37,      200        N.W.2d    584      (1972)

(concluding that unsafe loading and unloading facilities that

violated the safe-place statute were not part of the act of

unloading and therefore, did not constitute use or operation of

a vehicle).              In addition, there are different tortfeasors for

Blasing's two claims.                 Menard is the putative tortfeasor for

Blasing's         safe-place     claim,       while     Menard's         employee        is    the

putative       tortfeasor       for    her     negligence         claim,        as     explained

below.

       ¶93     In    Amery    Motor    Co.     v.     Corey,      46    Wis. 2d        291,    174

N.W.2d       540    (1970),     we     also     concluded         that     unsafe        loading

facilities are not part of loading or unloading a vehicle.                                     We

explained that faulty construction of the premises "was not a

part of the loading and unloading operation but resulted in a
condition of the premises which would normally be covered under

a comprehensive liability policy on the premises."                               Id. at 300.

We    said     that       "loading    and     unloading        coverage         added     to   an

automobile liability policy . . . was not intended to take the

place of comprehensive insurance on the premises."                              Id. at 301.

       ¶94     In Sampson v. Laskin, 66 Wis. 2d 318, 224 N.W.2d 594

(1975),      we     again    considered       the     differing        factual        predicates

between safe-place claims and those based on the "use" of a

       10
            Complaint, ¶¶8-12.

                                               8
                                                                        No.   2012AP858.pdr


vehicle.      There,      prior   to    the      accident,        two   employees       were

loading barrels of waste material from an elevator into a truck

owned by their employer.            Id. at 321.           In order to get the last

of the barrels into the truck, they employed a bypass switch on

the elevator so it rose without the door being closed.                             Id. at

322.    When they raised the elevator to the level of the truck

bed, there was an 18-inch gap between the truck and the elevator

floor on which the barrels sat.                  Id.      In an effort to move the

barrels from the elevator over the gap and into the truck, the

employees placed a loose sheet of metal as a make-shift bridge

over the gap.       Id.     Unfortunately, as the employees were using

this makeshift bridge, it slipped and both employees fell 26

feet into the pit of the elevator.                    Id. at 322-23.

       ¶95   The injured employee and the estate of the deceased

employee sued the owners of the building alleging violations of

the safe-place statute because of the availability of the bypass

switch that the plaintiffs used to override a safety feature of

the elevator.       Id. at 326.          The jury found for the plaintiffs
and that determination was not appealed.                    Id.

       ¶96   The   defendant-owners,             in    turn,   filed     a    third-party

complaint    against      Liberty      Mutual         Insurance    Company      under    the

automobile liability policy issued to the plaintiffs' employer,

into whose truck the barrels were being loaded.                               Id. at 334.

The defendant-owners claimed that they were covered under the

automobile    policy      because      the       accident      occurred       during    the

loading of the truck.         Id.       In dismissing the defendant-owners'
claim    under     the    automobile      policy,         we   explained        that    the

                                             9
                                                                     No.    2012AP858.pdr


"[l]oading     and    unloading       coverage,        added   to     an     automobile

liability policy, . . . 'was not intended to take the place of

comprehensive insurance on the premises,' particularly not so in

safe-place cases."          Id. at 336 (citation omitted).

     ¶97     Other jurisdictions also adhere to our view that safe-

place     claims    based    on    loading       and   unloading     facilities         and

policies     are    excluded       from   use     or   operation      of    a    vehicle

"because the owner's duty to maintain a safe place 'was not a

step in the specific operation of unloading a truck.'"                             Amery,

46 Wis. 2d at 301 (citation omitted).11

     ¶98     Accordingly,         safe-place      violations    are    not       part    of

loading or unloading a vehicle or a "use" of a vehicle.                                 Id.

Therefore, in regard to Blasing's safe-place claims, there is no

basis for coverage under Blasing's automobile policy. Sampson,

66 Wis. 2d at 335-36; Continental, 55 Wis. 2d at 536-37; Amery,

46 Wis. 2d at 301.

                            2.    Common law negligence

     ¶99     Blasing also sued Menard for the common law negligence
of its employee in loading boards onto her vehicle.                              On that

claim,     Menard     has    potential       liability      based      on       vicarious

liability     under    the       doctrine    of    respondeat       superior,       which

imposes liability on an employer for the acts of its employee

within the scope of the employee's employment.                      Brown v. Acuity,

Mut. Ins. Co., 2013 WI 60, ¶27, 348 Wis. 2d 603, 833 N.W.2d 96;



     11
       See also Suter, Loading and Unloading, 31 Insurance
Counsel Journal 112 (Jan. 1964); Cosmopolitan Mut. Ins. Co. v.
Balt. & Ohio R.R., 240 N.Y.S.2d 88 (1963).

                                            10
                                                                     No.    2012AP858.pdr


Peters v. Menard, Inc., 224 Wis. 2d 174, 193 n.8, 589 N.W.2d 395

(1999).

       ¶100 Respondeat superior imposes vicarious liability based

on the existence of a master-servant relationship.                                Kerl v.

Dennis Rasmussen, Inc., 2004 WI 86, ¶4, 273 Wis. 2d 106, 682

N.W.2d 328.         "Vicarious liability under respondeat superior is a

form of liability without fault."                Id.    Vicarious liability may

result from the right to control the activities of another, such

as is found in the control of an employee by an employer during

the scope of the employee's employment.                      Lewis v. Physicians

Ins. Co. of Wis., 2001 WI 60, ¶12, 243 Wis. 2d 648, 627 N.W.2d

484; see also Restatement (Second) of Agency § 219 (1958).

       ¶101 There is a difference between an employer's vicarious

liability     for     an   employee's      conduct     and   the    conduct       of   the

employee, himself.          For example, an employer who is liable due

to the doctrine of respondeat superior is not a tortfeasor;12

rather, the employer's liability stems from the particular type

of   agency    relationship         created     when   the   employee        is     acting
within the scope of his employment.                    See Schinner v. Gundrum,

2013    WI    71,    ¶47    n.13,    349    Wis. 2d     529,       833     N.W.2d      685;

Restatement (Second) of Agency § 219 (1958); see also St. Paul

Fire & Marine Ins. Co. v. MAG Mut. Ins. Co., 433 S.E.2d 112, 113

(Ga. Ct. App. 1993).13

       12
       A tortfeasor is "[o]ne who commits a tort," i.e., a
legally cognizable wrong. Black's Law Dictionary 1627 (9th ed.
2009).
       13
       See also 18B Am. Jur. 2d Corporations                         § 1832       (2014);
Restatement (Third) of Agency § 2.04 (2006).

                                           11
                                                                     No.    2012AP858.pdr


       ¶102 In Schinner, we recently explained that an employer,

       is subject to the liability for damages flowing from
       the tortious conduct of its employee. This liability
       is imposed upon [the] assured by law under the rule of
       respondeat superior.   Although the [employer] may be
       held liable for such tort, it cannot be said that [the
       employer] committed the assault.
Schinner, 349 Wis. 2d 529, ¶47 n.13 (quoting Fox Wis. Corp. v.

Century Indem. Co., 219 Wis. 549, 551-52, 263 N.W. 567 (1935)).

The    conclusion      that   an    employer     who    has    vicarious       liability

under the doctrine of respondeat superior is not a tortfeasor is

consistent with our conclusion that vicarious liability under

respondeat      superior      is    liability     without      fault.        Kerl,    273

Wis. 2d 106, ¶4.

       ¶103 It is only the common law negligence claim for which

there potentially could be coverage under the American Family

policy.       American Family focuses on this claim with two facts

that    are    significant,        one   of     which    the     majority      does   not

address.      American Family questions whether the "concept of use"

should be applied to the insured's policy under the omnibus

statute when (1) the insured is injured by a tortfeasor and (2)

the tortfeasor has insurance of its own.

       ¶104 The      second   fact,      that    the    tortfeasor       has    its   own

insurance for the accident, is extremely significant because the

omnibus      statute    has    as    its   purpose       assuring     that      accident

victims have insurance coverage.                 Nordahl v. Peterson, 68 Wis.

2d 538, 551, 229 N.W.2d 682 (1975); Venerable v. Adams, 2009 WI

App    76,    ¶14,   318   Wis.     2d   784,    767    N.W.2d    386.       Therefore,
construing the "concept of use" narrowly under the policy to


                                           12
                                                                  No.   2012AP858.pdr


exclude those tortfeasors who injure the insured and also have

their own insurance will not conflict with the omnibus statute's

purpose    of    providing     insurance        coverage    to   injured    persons

because of Zurich's insurance policy.

                              C.    Summary Judgment

     ¶105 Zurich      moved        for   summary    declaration      that   American

Family has the duty to defend and indemnify Menard.                     Consistent

with summary judgment methodology, I begin with an examination

of the complaint to determine what it alleges in regard to the

duty to defend and indemnify.              See Admanco, Inc. v. 700 Stanton

Drive, LLC, 2010 WI 76, ¶28, 326 Wis. 2d 586, 786 N.W.2d 759.

The complaint shows that Blasing sued Menard.                    She also brought

a direct action against Zurich, as is permitted by Wis. Stat.

§ 632.34.       Backus Elec., Inc. v. Petro Chem. Sys., Inc., 2013 WI

App 35, ¶12, 346 Wis. 2d 668, 829 N.W.2d 516.                        In regard to

Menard, Blasing pled safe-place violations based on allegations

that Menard did not make the loading facility as safe as it

would reasonably permit.             She also pled a common law negligence
claim based on the acts of Menard's employee during the scope of

his employment.       In regard to Zurich, she claimed that Zurich

provided    insurance    to    Menard      and     its   employees    "against   the

liability of the type" for which she had claimed, i.e., for

safe-place violations and for negligence.                    Blasing adequately

stated her claims.14

     ¶106 The second step in summary judgment determinations is

to examine the answer.             Admanco, 326 Wis. 2d 586, ¶28.            Zurich

     14
          Complaint, ¶2.

                                           13
                                                                         No.    2012AP858.pdr


admits     that    it   "issued    a   policy     of    liability         insurance"      to

Menard,     with    unstated      conditions.15          Accordingly,            issues   of

material fact were joined in regard to whether Zurich insured

Menard for the alleged safe-place violations and the negligence

claim set out in the complaint.

      ¶107 The third step in summary judgment methodology is to

examine     the    materials    submitted        by    the    moving      party     to    see

whether that party has made a prima facie showing that there are

no material issues of fact in dispute and that that party should

prevail on a question of law without a trial.                      Id.         In regard to

Zurich, it submitted no evidence that it does not insure Menard

"against the liability of the type" set out in the complaint,

i.e., safe-place violations and vicarious liability for common

law negligence.

      ¶108 Instead, Zurich artfully shifted all court focus to

American Family's automobile liability policy, which prevented a

summary     judgment     analysis      of   Blasing's         direct      claim     against

Zurich.16      Zurich's skillful approach also prevented the court
from fully addressing the issue American Family presented for

our review.        However, when I apply summary judgment procedures,

it   becomes       apparent    that    Zurich     has        not   met     the     standard

necessary to negate Blasing's direct action claim that Zurich


      15
           Answer, ¶2.
      16
       Menard has used this same approach in other venues to
shift its insurer's obligation to defend and indemnify for harm
a Menard employee caused to a customer who had automobile
liability insurance. See Menard, Inc. v. Country Preferred Ins.
Co., 992 N.W.2d 643 (Ill. App. Ct. 2013).

                                            14
                                                                            No.    2012AP858.pdr


insured Menard for Blasing's claims.                     Summary judgment should be

denied and Zurich must proceed to defend Menard unless it first

can prove that the liability policy it admits it provided to

Menard covers none of Blasing's claims.

       ¶109 If Zurich's obligations to defend and indemnify Menard

are    not    determined        before      this    matter       proceeds,         Zurich    and

Menard       will    have    succeeded       in    converting          American       Family's

automobile          liability     policy      into       a    comprehensive          liability

policy for Menard because American Family will have to shoulder

a defense to claims, at least one of which falls outside of the

scope of its policy and the omnibus statute.                                See Sampson, 66

Wis. 2d at 336.             Failing to first address Zurich's obligations

also   will     prevent      court        consideration        of     the   issue     American

Family       presented      for     our    review:           "Does    the     concept       of   a

permissive          user    under    the     Omnibus         Statute,       § 632.32(3)(a),

Stats., require an injured person's own liability insurer to

defend and indemnify the tortfeasor who injured the insured, and

where the tortfeasor has its own liability insurance?"
                                    III.     CONCLUSION

       ¶110 In conclusion, I write in dissent because, based on

the    issue        American      Family      submitted         for     our       review,    the

pleadings and the materials submitted in the summary judgment

and declaratory judgment motions, I conclude that the majority

opinion       erroneously         decides         that       American       Family,         Vicki

Blasing's automobile liability carrier, must assume the defense

and indemnification of Menard that was initially undertaken by
Zurich, Menard's liability carrier.                          The majority opinion errs

                                              15
                                                                      No.    2012AP858.pdr


because it does not fully address the issue American Family

presented:        "Does the concept of a permissive user under the

Omnibus    Statute,      § 632.32(3)(a),        Stats.,        require       an    injured

person's    own      liability    insurer      to    defend     and    indemnify          the

tortfeasor who injured the insured, and where the tortfeasor has

its own liability insurance?"             It also errs in failing to follow

proper summary judgment procedure.

      ¶111 I conclude that the majority opinion should not avoid

American    Family's      stated    issue,      but    rather,        address      it     and

conclude that when a direct action has been commenced against

the insurer of a named defendant, as is the case here, the

defendant's insurer must provide the defense unless that insurer

first can prove there is no coverage for any of the claims made.

Public policy requires that order of proceeding in the case at

hand to meet American Family's stated issue and to prevent the

conversion      of     Blasing's     personal          automobile        policy         into

comprehensive liability insurance for Menard.

      ¶112 By      ignoring      American       Family's        stated       issue        and
Blasing's    direct       action     claims         against     Zurich        and       then

permitting   Zurich      and     Menard   to    shift     the    court's          focus    to

whether Menard's employee was a "permissive user" of Blasing's

vehicle under the policy American Family issued to Blasing, the

majority opinion contravenes basic summary judgment principles

and   decides      disputed      issues    of       material    fact        relative      to

Blasing's direct action against Zurich.

      ¶113 I would reverse the court of appeals and remand the
matter to the circuit court, with Zurich providing the defense

                                          16
                                                              No.    2012AP858.pdr


to   Blasing's    claims   because    Zurich       has   provided    nothing   to

disprove Blasing's allegation that Zurich insured Menard for her

claims.    Because the majority opinion chooses not to address

American Family's stated issue and then ignores Blasing's direct

action against Zurich in this summary judgment proceeding and

erroneously converts Blasing's automobile liability policy into

comprehensive     liability   insurance      for    Menard,   I     respectfully

dissent.

      ¶114 I     am   authorized     to    state     that   Justices     ANNETTE

KINGSLAND ZIEGLER and MICHAEL J. GABLEMAN join this dissent.




                                      17
    No.   2012AP858.pdr




1
