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Mueller v. McMillan Warner Insurance Co.8/2/2005
Before Cane, C.J., Hoover, P.J., and Peterson, J.
Lina Mueller appeals a decision granting summary judgment to Merlin and Stephani Switlick in this personal injury case. Mueller also appeals a separate declaratory judgment that the Switlicks' homeowner's policy with McMillan Warner Insurance Company did not provide coverage for the all-terrain vehicle (ATV) Mueller was riding when her accident occurred.
Mueller argues the trial court erred when it concluded she was not an injured third party for the purposes of WIS. STAT.§ 125.035(4)(b), which establishes an exception to immunity from liability for those who furnish alcohol to underage drinkers. Mueller also argues the court erred when it determined that what the Switlicks did for her after her accident constituted "emergency care" under WIS. STAT. § 895.48(1), Wisconsin's Good Samaritan Law. Finally, Mueller argues that McMillan's policy provides coverage because the ATV involved in her accident was not "garaged" on the Switlicks' property.
We conclude that material questions of fact remain as to whether Mueller was a party to the transaction in which Merlin and Stephani provided alcohol to their nineteen-year old son, Apollo. We also conclude that Merlin and Stephani did not render "emergency care" to Mueller and are thus not immune from liability under WIS. STAT. § 895.48(1). Finally, we conclude that the ATV involved in Mueller's accident was not "garaged" on the Switlicks' property. The judgments are therefore reversed and the cause remanded for further proceedings consistent with this opinion.
BACKGROUND
In October 2003, Merlin and Stephani held a party for friends and business associates on property they owned in Lincoln County. The Switlicks used the property for a variety of recreational purposes, including hunting, and guests often spent the night at the family "shack," which had a number of bunkhouse style bedrooms.
According to Apollo's deposition testimony, he arrived at the party around 2 p.m. He drank what he described as a couple of twelve-ounce beers before 6 p.m. and a few more beers between 6 p.m. and 10 p.m. Sometime between 6 p.m. and 7 p.m., Mueller arrived at the party, went inside the shack with Apollo to play pool, and possibly to drink. The adult guests stayed outside the shack, near a pit where the Switlicks had built a bonfire.
At about 10 p.m., Apollo and Mueller joined the adults outside by the fire. Apollo testified that, once outside, he heard an ATV "puttering like it was running out of gas or was having a problem." Because Apollo knew his sister and her children had taken one of the family ATVs to check a field for deer, he thought that they might be in trouble. He noticed Randy Van Loh's ATV parked near the fire. He got on Van Loh's ATV and Mueller got on behind him. Neither wore a helmet. After checking on his sister, Apollo and Mueller headed back to the shack on a trail that was not on the family property.
During that return trip, the accident that gave rise to this lawsuit occurred. According to Apollo, he hit a stump or saw an overhanging branch, slammed on his brakes, and then remembered nothing until he and Mueller got back to the shack around 11 p.m. Both Apollo and Mueller were bleeding and vomiting. Although the details of what happened next are in dispute, the basic sequence of events is not. Apollo and Mueller talked to Stephani and Merlin. Mueller went into the bathroom and wanted to lie down on the floor. Stephani eventually convinced Mueller to lie down in one of the bedrooms instead. Apollo also lay down in the same bed. Stephani testified that she woke Apollo and Mueller approximately every hou
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