                                                                           2014 WI 20

                  SUPREME COURT                  OF    WISCONSIN
CASE NO.:                 2012AP667
COMPLETE TITLE:           Brian Casey,
                                    Plaintiff,
                                v.
                          Ronald Smith, John Zeverino, Taylor Truck Line,
                          Inc.,
                          Allstate Property and Casualty Insurance
                          Company, Austin
                          Mutual Insurance Company and Health Partners,
                                    Defendants,
                          Acceptance Casualty Insurance Company,
                                    Defendant-Appellant-Petitioner,
                          Great West Casualty Company,
                                    Defendant-Respondent.

                            REVIEW OF A DECISION OF THE COURT OF APPEALS
                                   346 Wis. 2d 111, 827 N.W.2d 917
                                        (Ct. App. – Published)
                                        PDC No: 2013 WI App 24

OPINION FILED:            April 18, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:            January 14, 2014

SOURCE OF APPEAL:
   COURT:                 Circuit
   COUNTY:                Dunn
   JUDGE:                 Rod W. Smeltzer

JUSTICES:
   CONCURRED:
   DISSENTED:
   NOT PARTICIPATING:


ATTORNEYS:
       For the defendant-appellant-petitioner, there were briefs
by   Charles        J.    Noel   and   Charles   J.   Noel    &   Associates,   P.A.,
Minneapolis, and oral argument by Charles J. Noel.


       For    the        defendant-respondent,        the    cause   was   argued   by
Tamara L. Novotny with whom on the brief was Michael W. McNee,
and Cousineau McGuire Chartered, Minneapolis.
                                                                           2014 WI 20
                                                                NOTICE
                                                  This opinion is subject to further
                                                  editing and modification.   The final
                                                  version will appear in the bound
                                                  volume of the official reports.
No.     2012AP667
(L.C. No.    2010CF295)

STATE OF WISCONSIN                            :            IN SUPREME COURT

Brian Casey,

             Plaintiff,

      v.

Ronald Smith, John Zeverino, Taylor Truck Line,
Inc., Allstate Property and Casualty Insurance
Company, Austin Mutual Insurance Company and
Health Partners,
                                                                      FILED
             Defendants,                                        APR 18, 2014

Acceptance Casualty Insurance Company,                             Diane M. Fremgen
                                                                Clerk of Supreme Court

             Defendant-Appellant-Petitioner,

Great West Casualty Company,

             Defendant-Respondent.




      REVIEW of a decision of the Court of Appeals.                 Affirmed.



      ¶1     ANN WALSH BRADLEY, J.          Defendant Acceptance Casualty

Insurance     Company     (Acceptance)    seeks    review      of    a     published

decision of the court of appeals affirming the circuit court's
grant   of    summary     judgment   in   favor   of    Great       West    Casualty
                                                                      No.     2012AP667



Company (Great West).1          Both Acceptance and Great West issued

liability insurance policies for a semi-tractor that was owned

by John Zeverino and leased to Taylor Truck Line.                          Acceptance

provided a non-trucking use policy and Great West provided a

commercial truckers' policy.

    ¶2      Both parties agree that the accident is covered by

insurance, but disagree as to which of the two policies provides

the coverage.          Each insurer filed a summary judgment motion

asserting the other was responsible for coverage.                            Both the

circuit court and the court of appeals concluded that of the two

policies, the Acceptance policy provided coverage for the multi-

vehicle accident.

    ¶3      Acceptance       asserts    that     its     policy       provides         no

coverage    because     it   contains    two    exclusions         which     preclude

coverage.    It primarily focuses on 14(b) that excludes coverage

when a semi-tractor is being used "in the business of" a lessee.

Acceptance contends that because the accident occurred while the

semi-tractor's     driver,     John    Zeverino,       was    on    his     way   to    a
maintenance facility for repairs to the grille and oil filler

tube, the semi-tractor was being used in the business of Taylor

Truck Line at the time of the accident.

    ¶4      Alternatively,       it     advances       that        14(a)     excludes

coverage    when   a    semi-tractor    is     "en   route     to"    a     "business

purpose" and that obtaining maintenance is a business purpose.

    1
       Casey v. Smith, 2013 WI App 24, 346 Wis. 2d 111, 827
N.W.2d 917 (affirming judgment of the circuit court for Dunn
County, Rod W. Smeltzer, Judge).

                                        2
                                                                       No.    2012AP667



Acceptance argues that because obtaining repairs constitutes a

business purpose, there is no coverage under its non-trucking

use policy.

       ¶5   We     determine     that     neither      of     the    exclusions     in

Acceptance's policy precludes coverage.                The facts of record do

not support the application of exclusion 14(b).                        Zeverino was

not using the semi-tractor "in the business of" Taylor Truck

Line    because     the    repairs      here     did    not     further      Taylor's

commercial interests.          There is nothing in the record that shows

the    repairs    were    required   by    the   lease.        Additionally,       the

repairs were not done pursuant to orders from Taylor Truck Line,

and they were not necessary for the semi-tractor to continue its

service.

       ¶6   Further,       Acceptance's        argument       that    coverage      is

excluded because Zeverino was en route to the business purpose

of     obtaining     maintenance        reflects       an      overly        expansive

interpretation of the text of exclusion 14(a).                       Like the court

of appeals, we are concerned that its interpretation may render
coverage illusory.         Instead, in examining the text of exclusion

14(a) we determine that it refers to maintenance necessary to

allow the semi-tractor to carry property.                   It is undisputed that

the semi-tractor could and did carry loads without the repairs

to the grille and oil filler tube.

       ¶7   Because the exclusions in Acceptance's policy do not

apply, we conclude that its non-trucking use policy provides

coverage for the accident.           Accordingly, we affirm the court of
appeals.
                                          3
                                                                         No.     2012AP667



                                          I.

    ¶8         The parties repeatedly asserted that the facts in this

case are not in dispute.                Zeverino owned a 2003 Freightliner

semi-tractor which he leased to Taylor Truck Line, Inc.                              Under

the terms of the lease Zeverino agreed to provide a driver and

use his semi-tractor exclusively for Taylor Truck Line.                                The

lease also provided that Zeverino would "bear all expenses to

the operation to the equipment, including . . . [r]epairs and

maintenance"        and    "[m]aintain[]         the    equipment   in    a    state   of

repair    required        by   all   applicable        regulations."2          The   lease

further    required        Taylor    Truck       Line    to   obtain     insurance      as

required       by   federal      law3   and      Zeverino     to    obtain      "bobtail




    2
         Section 23 of the lease states:

    The contractor shall have the responsibility to
    carrier of satisfying various regulatory requirements,
    and safety requirements of carrier and/or insurance
    company, by:

          A) Maintaining the equipment in the state of repair
             required by all applicable regulations.
          B)
    3
         Section 17(A) of the lease provides:

    LIABILITY-PROPERTY   DAMAGE  INSURANCE.     During  the
    existence of this agreement, carrier will provide and
    maintain insurance coverage for the protection of the
    public from damage to persons and property, pursuant to
    its statutory obligations under 49 U.S.C. 10927.
                                             4
                                                                   No.    2012AP667



liability insurance"4 to cover the semi-tractor "when not used in

performance under this agreement."

       ¶9     Pursuant to the lease, Zeverino obtained an insurance

policy      for   non-trucking    use    coverage       from   Acceptance.      An

exclusion in section 14(a) of the policy states that it does not

cover the semi-tractor "[w]hile being operated, maintained or

used to carry property in any business or en route to or from

such business purpose."          Section 14(b) of the policy sets forth

another exclusion that states that it does not cover the semi-

tractor "[w]hile used in the business of anyone to whom the

'auto' is rented."

       ¶10    Taylor   Truck   Line     obtained    a    commercial      truckers'

insurance policy from Great West.            The policy provides coverage

for:

       [t]he owner or anyone else from whom you lease, for
       more than 30 consecutive days, a covered "auto" with a
       driver that is not a "trailer" while the covered
       "auto":

       (1) Is being used exclusively in your business as a
       "trucker."
The policy defines a "trucker" as "any person or organization

engaged in the business of transporting property by 'auto' for

hire."



       4
       "A bobtail is the popular term for a tractor (cab) without
an attached trailer. Since a trucker who is 'bobtailing' is
generally not using the vehicle for trucking purposes, non-
trucking-use insurance is often called bobtail insurance."
Royal Indem. Co. v. Providence Wash. Ins. Co., 707 N.E.2d 425,
426 n.1 (N.Y. 1998).

                                         5
                                                                           No.     2012AP667



       ¶11    In    January     2009,   Zeverino        took     the    semi-tractor      to

FABCO, a truck maintenance facility in Eau Claire, to have its

engine control module recalibrated.                     While the semi-tractor was

there, FABCO inadvertently damaged its grille.                          FABCO ordered a

new one and called Zeverino when it arrived.                           Instead of making

an appointment to replace the grille, Zeverino was to return to

FABCO to have the grille replaced whenever it was convenient for

him.       In addition, Zeverino had previously ordered a new oil

filler tube which he had intended to install himself.                                FABCO

offered to install the new tube at the same time it replaced the

grille.

       ¶12    The     damaged    grille     did    not     put    the     truck    out    of

service or prevent Zeverino from completing or accepting new

loads to haul.          Zeverino indicated that he was on duty several

hours from February 20 through February 25, 2009.                           He testified

that having the grille replaced "was not a routine maintenance,

but it was a repair that they had broken, they had to replace."

He agreed that he needed to have the repair work done "to have
[the] tractor the way [he] needed it to . . . operate as an

owner, operator for Taylor Truck Line."

       ¶13    On February 27, 2009, approximately a month after the

grille was broken, Zeverino left his home in Prescott and headed

to Eau Claire to have the grille replaced.                         Zeverino was off-

duty at the time.          Taylor Truck Line did not know he was going

to   Eau     Claire    that     day   and   he    was    not     under    any     order   or

instruction from Taylor Truck Line to do so.                       Zeverino stated in
his deposition that he did not consider himself to be "in the
                                            6
                                                                               No.    2012AP667



business    of    Taylor       Truck    Line        at    the    time."         Although    he

indicated that the grille was "starting to fall apart and fall

off on the highway," Zeverino also testified that he could have

taken a load that day without service to his grille or oil

filler tube.

    ¶14     While en route to Eau Claire, Zeverino's tractor was

involved    in    a     multi-vehicle         accident         that    included       vehicles

driven by Ronald Smith and Brian Casey.                          Zeverino wrote in his

Driver's Daily Log that he was "driving" at the time of the

accident    and    "on      duty"    while     at    the       scene    of    the    accident.

While    there,       Zeverino       filled    out        an    accident       report    which

indicated that there was nothing wrong with the semi-tractor

prior to the accident.              A Wisconsin state trooper who arrived at

the scene conducted a Level 1 DOT inspection of Zeverino's semi-

tractor, apparently the most comprehensive type of post-accident

inspection.           The    trooper     also        completed         a     "Driver/Vehicle

Examination Report" and noted that no violations were discovered

during     the    inspection.           Thereafter,             the    trooper       permitted
Zeverino to continue on to Eau Claire, where FABCO replaced the

grille     and    oil       filler     tube.         Together          the    repairs     took

approximately an hour.

    ¶15     Casey       filed    a    complaint          on    June    29,    2010,    seeking

recovery for injuries he sustained in the accident.                              He included

Zeverino, Taylor Truck Line, Acceptance, and Great West as named

defendants.

    ¶16     Both       insurance       companies          filed       cross    motions     for
summary judgment on April 6, 2011.                        Acceptance pointed to two
                                               7
                                                                    No.   2012AP667



relevant exclusions in its non-trucking policy, section 14(a)

and section 14(b).          It asserted that at the time of the accident

the semi-tractor was being used "in the business of" Taylor

Truck Line.         Additionally, it argued that because the accident

occurred while Zeverino was "en route" to have maintenance done

on the semi-tractor, it was being used for a "business purpose"

of    the    lessee.         Acceptance       contended   that    the   exclusions

precluded coverage.

       ¶17     Great West asserted that Zeverino was not using the

semi-tractor in the business of the lessee because the repairs

were not needed to make the semi-tractor safe or available for

Taylor Truck Line's use, and Taylor Truck Line had not directed

Zeverino to have the repairs done.                 Great West argued that it

was   not    responsible     for    providing     coverage   for    the   accident

because its policy afforded coverage only while the semi-tractor

was "being used exclusively in [Taylor's] business."

       ¶18    The    circuit    court     issued    an    order    denying    both

motions.      It determined that there was a triable issue of fact
as to whether Zeverino was performing in furtherance of the

business or commercial interests of Taylor Truck Line.

       ¶19    Upon     a   motion   for   reconsideration,         together   with

supplemental memoranda of law and supplemental affidavits, the

circuit court granted summary judgment in favor of Great West.

It found that Zeverino was having non-essential repairs done on

his own time.          Accordingly, the circuit court determined that

Zeverino was not involved in furthering the business of Taylor
Truck Line at the time of the accident.
                                          8
                                                                       No.     2012AP667



       ¶20    The court of appeals affirmed.                 Casey v. Smith, 2013

WI App 24, 346 Wis. 2d 111, 827 N.W.2d 917.                            It noted the

parties' agreement that one of their policies afforded coverage

for the accident and that resolution of which policy applied

depended on whether Zeverino was operating the semi-tractor "in

the business of" Taylor Truck Line.                Id., ¶10.

       ¶21    The court considered first the exclusion set forth in

section      14(b)    of     Acceptance's       policy.      Quoting    the    Seventh

Circuit Court of Appeals, the court stated that a tractor is

being operated "in the business of" the lessee when "the truck

is    being    used     to    further    the     commercial       interests    of   the

lessee."      Id., ¶17 (quoting Hartford Ins. Co. v. Occidental Fire

& Cas. Co., 908 F.2d 235, 237 n.5, 239 (7th Cir. 1990)).                            The

court    noted       Zeverino's    testimony       that     the    defects    did   not

prevent him from hauling loads and his concession that the semi-

tractor       was     never      taken   out      of      service.       Id.,       ¶23.

Consequently, the court determined that the repairs to the semi-

tractor's grille and oil filler tube were not necessary for
Zeverino to continue operating in Taylor Truck Line's business.

Id.     Therefore, it concluded that "the repairs did not further

Taylor's commercial interests and Zeverino was not acting 'in

the business of' Taylor at the time of the accident."                        Id.

       ¶22    Next, the court considered the exclusion set forth in

section 14(a) of Acceptance's policy.                    It recounted Acceptance's

contention       that      the   exception       lists    three    activities       that

qualify as "business purposes:" (1) operation, (2) maintenance,
and (3) being used to carry property in any business.                        Id., ¶31.
                                            9
                                                                         No.       2012AP667



The    court    determined    that         such     an    interpretation        "produces

absurd results" as it would mean "the mere operation of the

tractor, for any reason, would be a business purpose."                                 Id.,

¶32.           Accordingly,        the        court        rejected          Acceptance's

interpretation of section 14(a).                   It concluded that the business

purposes referred to in section 14(a) were: (1) operation to

carry    property     in    any    business,         (2)       maintenance     to    carry

property in any business, and (3) use to carry property in any

business.      Id., ¶33.

                                            II.

       ¶23     In this case, we are called upon to review the circuit

court's grant of summary judgment to Great West.                               We review

grants of summary judgment independently of the determinations

rendered by the circuit court and the court of appeals, but we

apply the same methodology as the circuit court.                         Park Bank v.

Westburg, 2013 WI 57, ¶36, 348 Wis. 2d 409, 832 N.W.2d 539.

Summary judgment is appropriate where "there is no genuine issue

as to any material fact and [] the moving party is entitled to a
judgment as a matter of law."               Wis.     Stat. § 802.08(2).

       ¶24     Here, the parties agree that there are no material

facts    in     dispute.          At       issue     is    the    interpretation         of

Acceptance's and Great West's policies.                        The interpretation of

an    insurance    policy    is        a   question       of    law   that    we    review

independently of the decisions rendered by the circuit court and

the court of appeals.         Schinner v. Gundrum, 2013 WI 71, ¶35, 349

Wis. 2d 529, 833 N.W.2d 685.


                                             10
                                                                              No.    2012AP667



    ¶25     This      court     has    a    well-established            methodology           for

determining insurance coverage.                    First, we look to a policy's

initial grant of coverage.                 Wadzinski v. Auto-Owners Ins. Co.,

2012 WI 75, ¶14, 342 Wis. 2d 311, 818 N.W.2d 819.                               Second, if

there is an initial grant of coverage, the court will examine

whether any exclusions withdraw coverage from a claim.                                        Id.

Third, if an exclusion applies, the court will then consider

whether there are any exceptions to the exclusion that reinstate

coverage.    Id.

    ¶26     Our       inquiry     is       also     guided       by     the     canons        of

construction applicable to insurance policies.                          "[W]e interpret

policy language according to its plain and ordinary meaning as

understood      by    a     reasonable      person     in    the       position      of       the

insured."    Hirschhorn v. Auto-Owners Ins. Co., 2012 WI 20, ¶22,

338 Wis. 2d 761, 809 N.W.2d 529.                      Ambiguities in the policy

language are construed against the insurer.                             Marlowe v. IDS

Prop. Cas. Ins. Co., 2013 WI 29, ¶48, 346 Wis. 2d 450, 828

N.W.2d   812.        Further,     polices         should    be   construed          to    avoid
absurd or unreasonable results.                    McPhee v. American Motorists

Ins. Co., 57 Wis. 2d 669, 679, 205 N.W.2d 152 (1973).

                                            III.

    ¶27     We       turn    first     to    Acceptance's             policy.            It    is

undisputed that Acceptance's non-trucking use policy makes an

initial grant of coverage for the accident.                             Accordingly, we

look to the policy exclusions to determine if any remove the

accident from coverage.


                                             11
                                                                      No.       2012AP667



      ¶28      Central       to   this    inquiry       is    exclusion     14(b)      of

Acceptance's policy, which provides: "[t]his insurance does not

apply    to     any     of    the   following:       . . . [a]      covered      'auto'

 . . . [w]hile used in the business of anyone to whom the 'auto'

is rented."           The parties disagree about whether Zeverino was

using the semi-tractor "in the business of" Taylor Truck Line at

the time of the accident.

      ¶29      The Seventh Circuit has articulated how the phrase "in

the business of" is to be interpreted in the context of a non-

trucking use insurance policy.                  Hartford Ins. Co. v. Occidental

Fire & Casualty Co., 908 F.2d 235 (7th Cir. 1990).                        In Hartford

a tractor owner leased its truck and a driver to an interstate

carrier.       Id. at 236.          The carrier dispatched the driver from

Florida to Indiana to deliver frozen orange juice.                        Id.    Before

the driver left Florida, the owner instructed him to have a

faulty   Freon        valve   repaired     after    he   delivered    his       load   in

Indiana.       Id.     The trailer leaked Freon throughout the trip and

the buyer refused to accept the orange juice because it was too
warm.    Id.

      ¶30      After the driver informed the carrier of the refusal,

it instructed him to take the juice to a cold-storage facility.

Id.     Complying with those instructions, the driver placed the

juice in storage.            Then, the driver took the trailer to have the

Freon valve repaired.             Id.    The next day the driver got into an

accident      while     on    his   way    to    pick    up   the   trailer.           Id.

Thereafter, pursuant to the carrier's instructions, the driver


                                           12
                                                                      No.    2012AP667



made another attempt to deliver the orange juice and returned to

Florida with it after the juice was refused.                   Id. at 236-37.

      ¶31    At   issue    in   Hartford      was    whether    the   truck's     non-

trucking insurer was required to indemnify the other insurer.

The non-trucking insurance policy contained a clause excluding

coverage when the truck was "being used in the business of any

person or organization to whom the automobile is rented."                          Id.

at 237.     Applying Wisconsin law, the court determined that this

language was unambiguous.          Id. at 238.

      ¶32    The Hartford court explained that "'in the business of

an . . . organization to whom an automobile is rented' clearly

refers to occasions when the truck is being used to further the

commercial interests of the lessee."                  Id. at 239.      Because the

truck driver had not completed his delivery for the carrier and

was on his way to pick up his trailer for delivery, the court

concluded that the truck was being used to further the business

interest     of   the   carrier   and    thus       the   exclusion   in    the   non-

trucking policy applied.          Id.
      ¶33    The Wisconsin Court of Appeals applied the Hartford

test in Martinez v. Jefferson Ins., 225 Wis. 2d 544, 550, 593

N.W.2d 475 (Ct. App. 1999).              It determined that a driver was

acting in furtherance of a lessee when he was on his way to

return a billing ticket to the office as required by the lessee.

Id.   at    549-50.       Accordingly,     the      driver   was   acting    in    the

business of the lessee for purposes of insurance coverage.                        Id.

      ¶34    A number of other jurisdictions also follow the rule
espoused by Hartford.           See, e.g., Empire Fire & Marine Ins. Co.
                                         13
                                                                           No.     2012AP667



v. Brantley Trucking, Inc., 220 F.3d 679, 682 (5th Cir. 2000);

National Continental Ins. Co. v. Empire Fire & Marine Ins. Co.,

157 F.3d 610, 612 (8th Cir. 1998); Planet Ins. Co. v. Anglo

American      Ins.    Co.,    Ltd.,    711     A.2d    899,   902    (N.J.       App.   Div.

1998); Empire Fire & Marine Ins. Co. v. Liberty Mut. Ins. Co.,

699 A.2d 482, 495 (Md. Ct. Spec. App. 1997); Lime City Mut. Ins.

Ass'n v. Mullins, 615 N.E.2d 305, 308 (Ohio Ct. App. 1992).

Likewise, we adopt Hartford's interpretation of the phrase "in

the business of" as it presents a clear rule that is consistent

with the plain language of the exclusion.

       ¶35     Not all repairs and maintenance to a leased semi-

tractor further the commercial interest of the lessee.                            Hartford

demonstrates         that    repairs    are       in   furtherance    of     a    lessee's

commercial interests when they are necessary to allow the semi-

tractor to continue to accept and complete hauls for the lessee.

In   Hartford,       the     broken    Freon      valve   hampered     the       trucker's

ability to deliver the orange juice, causing the buyer to reject

the orange juice because it was too warm.                     Hartford, 908 F.2d at
240.     Accordingly, the court rejected the argument that the

repair was not necessary for the lessee's business.                        Id.

        ¶36    The principle that obtaining necessary repairs is in

furtherance of a lessee's business is also illustrated in Ehlers

v. Automobile Liability Co., 169 Wis. 494, 173 N.W. 325 (1919).

In that case, the driver was not on his route, had quit for the

day and was driving to a repair shop when he was involved in an

accident.      Id. at 498.        The vehicle was covered by an indemnity
bond, which provided coverage "while said motor vehicle is being
                                             14
                                                                     No.    2012AP667



operated in the service of a common carrier."                  Id. at 495.       The

court determined that the coverage applied because the vehicle

was "running to a repair shop to receive the repairs necessary

to enable it to continue its service as a common carrier."                       Id.

at 498.

     ¶37   Repairs      may   also   be     in   furtherance    of    a     lessee's

commercial interest when they are being done to comply with the

lessee's orders or the lessor's contractual duties.5                       See Freed

v. Travelers, 300 F.2d 395 (7th Cir. 1962) (driver's trip to a

repair shop was part of the lessee's business when the lease

required the driver to keep the tractor ready at all times for

the use of the lessee); National Continental Ins. Co., 157 F.3d

at   612   ("To   the     extent     that    [lessor]    was     executing       his

contractual duties, he was clearly acting 'in the business of'


     5
       We acknowledge that not all jurisdictions agree that a
lessor is acting in the interests of the lessee when it is
fulfilling its contractual duties. For example, in Neal v. St.
Paul Fire & Marine Ins. Co., 250 N.W.2d 648 (Neb. 1977), the
Nebraska Supreme Court determined that bobtail coverage did not
apply when the owner was getting maintenance work done on the
truck pursuant to its contractual duties. It explained:

     While the carrier derived some benefit from the fact
     that the plaintiff attended to the maintenance of the
     tractor between trips, since that was essential to the
     continued use of the tractor in hauling commodities,
     the servicing and maintenance of the tractor was the
     responsibility of the plaintiff. The maintenance of
     the tractor was the "business" of the plaintiff, not
     that of the carrier.

Id. at 650. We find this reasoning unpersuasive as it is based
on a narrower construction of the term "in the business of" than
the one we adopt from Hartford.

                                       15
                                                                           No.   2012AP667



[the    lessee]       and    thus    outside     the    scope       of    [non-trucking

insurance] coverage."); Carriers Ins. Co. v. Griffie, 357 F.

Supp. 441, 442 (W.D. Pa. 1973) (truck was being "used in the

business" of lessee when the lessee requested that lessor get

equipment inspected at a certain inspection station selected by

the lessee and an accident occurred while at that station);

Planet Ins. Co., 711 A.2d at 903 (tractor was being used in

furtherance      of    lessee       when   it    was   on     its    way    home   after

obtaining "repair[s] pursuant to the terms of the lease so that

it could be used in [lessee's] business").

       ¶38     In essence, both parties agree that the Hartford test

applies.       They disagree about how the facts here apply to that

standard.       As illustrated by the cases discussed above, whether

a repair is in furtherance of a carrier's commercial interest

depends on the totality of the circumstances.                            It is a fact-

intensive inquiry that will not always be amenable to summary

judgment.       See, e.g., Martinez, 225 Wis. 2d at 548 (noting that

the    issue    of    whether     the   truck    was    being       operated     for   the
lessee's business at the time of the accident required a factual

conclusion).         Relevant considerations include the terms of the

lease    agreement,         any   instructions       from   the     lessee,      and    the

nature and extent of the repairs.

       ¶39     Here, the lease required that the lessor "[m]aintain[]

the equipment in the state of repair required by all applicable

regulations."           Acceptance         asserts     that     the      repairs       were

necessary to comply with 49 C.F.R. § 396.3(a), which requires
all parts and accessories to be in a safe and proper operating
                                            16
                                                                               No.        2012AP667



condition, and 49 C.F.R. § 396.7(a), which prohibits commercial

motor vehicles from being operated in a condition likely to

cause an accident or breakdown.

       ¶40    Contrary       to    Acceptance's          assertions,        the      undisputed

facts in the record establish that the repairs to the grille and

oil filler tube were not required to comply with the federal

regulations.          The    record        contains       the      report    of      the     state

trooper      who    inspected        the    semi-tractor           after     the     accident.

Federal regulations require the trooper to mark the semi-tractor

out-of-service        if    the     condition       of    the      vehicle    or     equipment

would   likely       cause    an     accident      or     a     breakdown.           49    C.F.R.

§ 396.9(c).          Rather        than     marking       the      semi-tractor           out-of-

service, the trooper indicated in his inspection report that

there were no violations and permitted Zeverino to continue on

to Eau Claire.        Because there is no evidence in the record which

indicates that the repairs were necessary to comply with federal

regulations,        there    is     no     support    for       the   argument        that     the

repairs were necessary to fulfill Zeverino's contractual duties.
       ¶41    Acceptance          further    contends         that    because        the    lease

gave exclusive possession, control, and use of the semi-tractor

to Taylor Truck Line, that Zeverino's actions were necessarily

in the business of Taylor Truck Line.                      Again, we disagree.

       ¶42    That    language       in     the    lease      is    required       by     federal

regulations governing motor carriers.                           49 C.F.R. § 376.12(c)

(formerly 49 C.F.R. § 1057.12) (requiring the lease to provide

that    "the       authorized        carrier       lessee       shall       have     exclusive
possession, control, and use of the equipment for the duration
                                              17
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of the lease.").       As the Seventh Circuit explained in Hartford,

the   requirement      was    intended       "to      safeguard      the       public   by

preventing    authorized       carriers        from    circumventing           applicable

regulations by leasing the equipment and services of independent

contractors exempt from federal regulation."                        908 F.2d at 238.

However, it does not prevent indemnification of the lessee by

the lessor.     Id.     (citing Transamerican Freight Lines, Inc. v.

Brada Miller Freight Systems, Inc., 423 U.S. 28, 40 (1975)).

      ¶43    When a lease includes a clause requiring the lessor to

obtain    bobtail   coverage,        it   clearly      contemplated        a    situation

where the vehicle, "though rented, would not be engaged 'in the

business' of another."         Hartford, 908 F.2d at 231.                  Accordingly,

the   fact   that     the    lease    gave     Taylor       Truck    Line       exclusive

possession,     control,      and     use      of     the   semi-tractor         is     not

dispositive of whether the semi-tractor was operating in Taylor

Truck Line’s business at the time of the accident.6

      ¶44 The facts also demonstrate that Zeverino was not acting

pursuant to orders from Taylor Truck Line at the time of the
accident.     Zeverino testified that he was not on duty on the day

of the accident.        It is undisputed that Taylor Truck Line had

not ordered him to have the repairs done and that Taylor Truck

Line was unaware that he was doing so.



      6
       Acceptance also advances the argument that the differing
amounts which the two insurance companies charged for their
premiums demonstrate that its policy was intended to have very
limited coverage.   We decline to consider this argument as the
record is silent on the methods and considerations employed in
setting the premiums.
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      ¶45        Acceptance         references           the    fact     that    Zeverino    had

indicated in his Daily Trip Log that he was "driving" prior to

the accident and "on duty" at the scene of the accident, to

suggest that Zeverino was working on behalf of Taylor Truck Line

while he was on his way to obtain the repairs.                             These references

are not persuasive.              Federal regulations require drivers to keep

daily logs of their driving status.                            49 C.F.R. § 395.8.          Under

the regulations, "driving" means "all time spent at the driving

controls of a commercial motor vehicle in operation."                                  49 C.F.R.

§ 395.2.        It does not indicate whether the driving is being done

for personal or business reasons.

      ¶46       Likewise, under the federal regulations the notation

of   "on    duty"      in   a    log    book       is    appropriate       for    "[a]ll    time

inspecting,          servicing,        or    conditioning          any    commercial       motor

vehicle     at       any    time"      and    "[a]ll       time       repairing,       obtaining

assistance,          or     remaining         in        attendance       upon     a     disabled

commercial motor vehicle."                    49 C.F.R. § 395.2.                 It does not

indicate whether those functions are necessary or being done on
behalf     of    a    business.             Accordingly,         we    reject    Acceptance's

argument that the log book indicates that Zeverino was acting in

the business of Taylor Truck Line at the time of the accident.

      ¶47        Finally, we are not persuaded that the repairs were

necessary to enable the semi-tractor to continue service for

Taylor Truck Line.              The parts being repaired on the semi-tractor

were its grille and an oil filler tube.                                  Both repairs were

completed in approximately an hour.


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       ¶48   The damaged grille did not put the semi-tractor out of

service or prevent Zeverino from accepting or completing hauls

for Taylor Truck Line.               The record reflects that Zeverino had

been doing so for over a month during the time between the

damage to the grille and its repair.                         Acceptance asserts that

Zeverino's testimony that the grille was starting to fall apart

indicates      that   it    would     need    to       be   repaired    at    some    point.

However, Zeverino's testimony on this point was vague and he did

not provide further details.               The inspection of the semi-tractor

after    the    accident          revealed        no    violations      and     placed     no

limitations on the continued operation of the vehicle.

       ¶49   In sum, because the repairs were not required by the

lease agreement,           were not done pursuant to orders by Taylor

Truck   Line,    and       were    not   necessary          for   the   semi-tractor       to

continue its service, we conclude that Zeverino was not acting

in furtherance of Taylor Truck Line's commercial interest at the

time of the accident.              Accordingly, the accident does not fall

within the exclusion in section 14(b) of Acceptance's policy.
                                             IV.

       ¶50   Acceptance also points to section 14(a) of its policy

as a clause excluding coverage.                        That exclusion provides that

the    policy    does      not     cover     the       semi-tractor     "[w]hile       being

operated, maintained or used to carry property in any business

or en route to or from such business purpose."

       ¶51   Acceptance reads section 14(a) as excluding the semi-

tractor from coverage when it is being "operated, maintained, or
used    . . . or      en    route     to     or    from      such   business        purpose.
                                             20
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Acceptance      contends    that    the    phrase    "such       business      purpose"

refers back to maintenance, indicating that maintenance is a

business purpose.

     ¶52       However, under Acceptance's interpretation of section

14(a),     operation       and   use      would    also     constitute         business

purposes.       As recognized by the court of appeals, if that were

the case, Acceptance's policy would not cover any situations in

which the semi-tractor was being driven.                     Casey, 346 Wis. 2d

111, ¶32.       Indeed, it is unclear that Acceptance's policy would

ever apply if we were to adopt the interpretation it suggests.

Wisconsin has a strong public policy against illusory coverage.

Meyer    v.    Classified    Ins.   Co.,    192    Wis.     2d   463,   468-69,      531

N.W.2d 416 (Ct. App. 1995).

     ¶53       In   contrast,    Great    West    asserts    that    section       14(a)

should be read to exclude the semi-tractor from coverage when it

is   being      operated    to    carry    property,      maintained          to   carry

property, or used to carry property, or when it is en route to

or from those activities.              In other words, 14(a) would exclude
the semi-tractor from coverage when it is en route to obtain

maintenance if that maintenance is necessary to allow the semi-

tractor to carry property.

     ¶54       We agree with Great West's interpretation of section

14(a).        It comports with the plain language of the policy and

affords the insured some coverage.                To the extent that section

14(a) is ambiguous, we construe ambiguity against the insurer,

Acceptance.         Marlowe, 346 Wis. 2d 450, ¶48.


                                          21
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       ¶55     Applying section 14(a) to the facts of this case, we

conclude that it does not exclude coverage.                          Here, Zeverino was

on his way to have the grille and oil filler tube on the semi-

tractor replaced when the accident occurred.                          It is undisputed

that    the    semi-tractor       could      still      carry       loads   without     the

repairs.        Thus, the repairs were not necessary to allow the

semi-tractor      to    carry    property         and   the    exclusion      in    section

14(a) of Acceptance's policy does not apply.

       ¶56     Acceptance has identified no other possible exclusions

that would apply to preclude coverage.                    As it has conceded that

there    was    an     initial    grant      of    coverage,         we   conclude     that

Acceptance is responsible for providing coverage for the claims

resulting from the accident.

       ¶57     Finally,     we   turn   to    address     Great       West's      insurance

policy.       The parties agree that the Great West policy provides

coverage for the accident only if Zeverino was acting in the

business of Taylor Truck Line at the time that the accident

occurred.       As discussed above, we have determined that he was
not.    Therefore, we conclude that the Great West policy provides

no coverage for the claims resulting from the accident.

                                             V.

        ¶58 We       determine     that      neither      of        the   exclusions     in

Acceptance's policy precludes coverage.                       The facts of record do

not support the application of exclusion 14(b).                             Zeverino was

not using the semi-tractor "in the business of" Taylor Truck

Line    because       the    repairs      here      did       not     further      Taylor's
commercial interests.            There is nothing in the record that shows
                                             22
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the   repairs   were   required   by    the   lease.      Additionally,       the

repairs were not done pursuant to orders from Taylor Truck Line,

and they were not necessary for the semi-tractor to continue its

service.

      ¶59   Further,    Acceptance's        argument     that    coverage      is

excluded because Zeverino was en route to the business purpose

of    obtaining    maintenance     reflects       an      overly        expansive

interpretation of the text of exclusion 14(a).                  Like the court

of appeals, we are concerned that its interpretation may render

coverage illusory.      Instead, in examining the text of exclusion

14(a) we determine that it refers to maintenance necessary to

allow the semi-tractor to carry property.              It is undisputed that

the semi-tractor could and did carry loads without the repairs

to the grille and oil filler tube.

      ¶60   Because the exclusions in Acceptance's policy do not

apply, we conclude that its non-trucking use policy provides

coverage for the accident.        Accordingly, we affirm the court of

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

affirmed.




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