Charles Rood v. Selective Insurance Company of South Carolina

2022 WI APP 50

COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION

Case No.: 2021AP392

†Petition for Review filed

Complete Title of Case:

CHARLES ROOD,

PLAINTIFF-APPELLANT,†

SELECTIVE INSURANCE COMPANY OF SOUTH CAROLINA,

INVOLUNTARY-PLAINTIFF-RESPONDENT,

V.

SELECTIVE INSURANCE COMPANY OF SOUTH CAROLINA AND
RANDALL RADEMAKER,

DEFENDANTS-RESPONDENTS,

MT. MORRIS MUTUAL INSURANCE COMPANY,

DEFENDANT.

Opinion Filed: August 16, 2022
Submitted on Briefs: September 29, 2021
Oral Argument:

JUDGES: Stark, P.J., Hruz and Gill, JJ.
Concurred:
Dissented:

Appellant
ATTORNEYS: On behalf of the plaintiff-appellant, the cause was submitted on the
briefs of Garett T. Pankratz and James G. Curtis of Hale, Skemp,
Hanson, Skemp & Sleik, La Crosse.

Respondent
ATTORNEYS: On behalf of the defendant-respondent, Selective Insurance Company
of South Carolina, the cause was submitted on the brief of Ruth S.
Marcott and Nathan T. Boone of Kutak Rock LLP, Minneapolis,
Minnesota.

On behalf of the defendant-respondent, Randall Rademaker, the cause
was submitted on the brief of Lawrence J. Drabot of Crivello Carlson,
S.C., Milwaukee

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2022 WI App 50

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
August 16, 2022
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10 and
RULE 809.62.

Appeal No. 2021AP392 Cir. Ct. No. 2018CV403

STATE OF WISCONSIN IN COURT OF APPEALS

CHARLES ROOD,

PLAINTIFF-APPELLANT,

SELECTIVE INSURANCE COMPANY OF SOUTH CAROLINA,

INVOLUNTARY-PLAINTIFF-RESPONDENT,

V.

SELECTIVE INSURANCE COMPANY OF SOUTH CAROLINA AND
RANDALL RADEMAKER,

DEFENDANTS-RESPONDENTS,

MT. MORRIS MUTUAL INSURANCE COMPANY,

DEFENDANT.

APPEAL from an order of the circuit court for St. Croix County:
EDWARD F. VLACK III, Judge. Affirmed.
No. 2021AP392

Before Stark, P.J., Hruz and Gill, JJ.

¶1 HRUZ, J. Charles Rood was injured in the course of his employment
with Stockton Stainless, Inc., when his supervisor, Randall Rademaker, drove a
large, telescopic forklift (also known as a “telehandler” or a “lull”) over Rood’s left
foot and leg. Rood collected worker’s compensation benefits from his employer’s
insurer, Selective Insurance Company of South Carolina (“Selective”), but he later
filed this negligence action against Rademaker and Selective, pursuant to his
employer’s “Commercial General Liability” policy (“the Policy”) with Selective.
The circuit court later dismissed Rood’s negligence claim on summary judgment,
concluding that the claim was barred by the exclusive remedy provision in
Wisconsin’s Worker’s Compensation Act. See WIS. STAT. § 102.03(2) (2019-20).1

¶2 Rood now appeals and argues that an endorsement to the Policy, the
“Fellow Employee Extension,” waives the exclusive remedy provision in WIS.
STAT. § 102.03(2). In the alternative, Rood contends that an exception to the
exclusive remedy provision in § 102.03(2) applies because the telehandler was not
owned or leased by his employer and it constitutes a “motor vehicle.”

¶3 We conclude that the Policy’s express terms, including the Fellow
Employee Extension, do not demonstrate an intent to waive the exclusive remedy
provision. The Fellow Employee Extension can be reasonably construed as
broadening the definition of an insured to include an employee where worker’s
compensation law would not apply and where an employee’s conduct might fall
under an exception to the exclusive remedy provision in WIS. STAT. § 102.03(2). In
addition, the telehandler that caused Rood’s injury does not constitute a “motor

1
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

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No. 2021AP392

vehicle” as that term is used in § 102.03(2). Consistent with the purposes of the
Worker’s Compensation Act and its exclusive remedy provision, the term “motor
vehicle” in § 102.03(2) encompasses only those vehicles that are designed primarily
for travel on a public roadway or those vehicles that are used on a public roadway
at the time of an accident. Here, the telehandler’s primary purpose was not for travel
on a public road, nor was it used on a public roadway at the time of Rood’s injuries.
Accordingly, we affirm.

BACKGROUND

¶4 The following facts are not in dispute for purposes of this appeal. For
several months in the fall of 2016, Rood was employed by Stockton Stainless, and
his work involved installing stainless steel piping at a factory in Texas. On October
19, 2016, Rood suffered serious foot and ankle injuries after Rademaker drove a
telehandler over Rood’s left foot and leg. Rademaker was using the telehandler to
lift and transport steel piping from an unloading area into the factory while Rood
walked alongside the telehandler.

¶5 A telehandler is designed to generally “meet[] the needs of most
construction, masonry, landscape and agricultural applications.” The telehandler at
issue was not owned or leased by Stockton Stainless but, rather, was located at the
Texas factory “for all contractors to use.” According to Rood, the telehandler was
capable of being driven on a public highway and had a driver’s cockpit, a “15-foot
boom lift,” tractor tires, headlights, signal blinkers, and a slow-moving-vehicle sign
on the back.

¶6 At the time of Rood’s injuries, Stockton Stainless had both a worker’s
compensation insurance policy and a commercial general liability insurance policy
with Selective—the Policy at issue in this appeal. Selective subsequently paid

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Rood’s worker’s compensation benefits pursuant to Wisconsin law and the worker’s
compensation insurance policy.

¶7 Sometime later, Rood filed this lawsuit, alleging that he suffered
injuries due to Rademaker’s negligent operation of a motor vehicle and that
Selective agreed to defend and indemnify Rademaker under the Policy issued to
Stockton Stainless. The parties eventually filed cross-motions for summary
judgment.

¶8 The circuit court issued a written decision granting summary
judgment in favor of Selective and Rademaker while denying Rood’s motion for
summary judgment, dismissing his negligence claim in the process. Applying the
reasoning in Brantner v. ABC Manufacturing Co., 217 Wis. 2d 143, 579 N.W.2d
742 (Ct. App. 1998), the court concluded that the Policy did not waive the exclusive
remedy provision in WIS. STAT. § 102.03(2). It also determined that the telehandler
was not a “motor vehicle” within the meaning of § 102.03(2), pursuant to our
supreme court’s interpretation of the term “motor vehicle” in Rice v. Gruetzmacher,
27 Wis. 2d 46, 133 N.W.2d 401 (1965).2

¶9 Rood now appeals. Additional facts will be noted as necessary below.

DISCUSSION

I. Standard of Review

2
In deciding the motions for summary judgment, the circuit court also conducted a choice-
of-law analysis and concluded that Wisconsin law should apply. It did so on the bases that Rood
and Rademaker were both Wisconsin residents, Selective paid Rood’s worker’s compensation
benefits pursuant to Wisconsin law, and, other than an emergency visit in Texas, all of Rood’s
medical care and treatment occurred in Wisconsin. Rood does not challenge that determination on
appeal, and we therefore do not address that issue further.

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No. 2021AP392

¶10 We review a grant of summary judgment de novo, using the same
methodology as the circuit court. Ehr v. West Bend Mut. Ins. Co., 2018 WI App
14, ¶7, 380 Wis. 2d 138, 908 N.W.2d 486. Summary judgment must be granted if
the pleadings, depositions, answers to interrogatories, admissions and affidavits
establish that there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law. WIS. STAT. § 802.08(2).

¶11 Rood’s appeal challenges the circuit court’s summary judgment
decision, and it requires the resolution of two main issues. First, whether the
“Fellow Employee Extension” in the Policy waived the exclusive remedy provision
in WIS. STAT. § 102.03(2), and, second, whether the telehandler was a “motor
vehicle” pursuant to an exception to § 102.03(2). To determine whether summary
judgment is appropriate in this appeal, we must interpret both the Policy and
§ 102.03(2). The interpretation of an insurance contract is a question of law that we
review de novo. Grigg v. Aarrowcast, Inc., 2018 WI App 17, ¶26, 380 Wis. 2d 464,
909 N.W.2d 183. In addition, the interpretation and application of a statute to
undisputed facts are also questions of law that we review de novo. Ehr, 380 Wis. 2d
138, ¶7.

II. “Fellow Employee Extension”

¶12 In Wisconsin, worker’s compensation is generally an injured
employee’s exclusive remedy against an employer, coemployee, and worker’s
compensation insurance carrier. WIS. STAT. § 102.03(2). An insurer, however, can
waive statutory immunity under § 102.03(2) when the express terms of the
insurance policy demonstrate an intent to waive that immunity. Brantner, 217
Wis. 2d at 147; Maas v. Ziegler, 172 Wis. 2d 70, 82-83, 492 N.W.2d 621 (1992).

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No. 2021AP392

¶13 When interpreting an insurance policy, “[t]he same rules of
construction that govern general contracts are applied to the language in insurance
policies. An insurance policy is construed to give effect to the intent of the parties
as expressed in the language of the policy.” Jackson v. Wisconsin Cnty. Mut. Ins.
Corp., 2014 WI 36, ¶17, 354 Wis. 2d 327, 847 N.W.2d 384 (citation omitted). A
contract must also be construed so as to give a reasonable meaning to each provision
of the contract and to avoid a construction which renders portions of a contract
meaningless, inexplicable or mere surplusage. See Goebel v. First Fed. Sav. &
Loan Ass’n of Racine, 83 Wis. 2d 668, 680, 266 N.W.2d 352 (1978).

¶14 As relevant to this appeal, under the Policy’s “SECTION I —
COVERAGES,” “COVERAGE A,” Selective agrees to “pay those sums that the
insured becomes legally obligated to pay as damages because of ‘bodily injury’ or
‘property damage’ to which this insurance applies.” (Emphasis added.) The
Policy’s “SECTION I — COVERAGES,” “COVERAGE A,” also contains several
exclusions, including exclusions for obligations arising under a worker’s
compensation law and for bodily injury to an employee:

2. Exclusions

This insurance does not apply to:

….

d. Workers’ Compensation And Similar Laws

Any obligation of the insured under a workers’
compensation, disability benefits or unemployment
compensation law or any similar law.

e. Employer’s Liability

“Bodily injury” to:

(1) An “employee” of the insured arising out of and
in the course of:

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No. 2021AP392

(a) Employment by the insured; or

(b) Performing duties related to the conduct of the
insured’s business ….

In addition, an “insured” is initially defined under the Policy as including employees
acting in the scope of their employment, but not if the employee causes bodily injury
to a coemployee while in the course of his or her employment:

SECTION II — WHO IS AN INSURED

….

2. Each of the following is also an insured:

a. Your … “employees” … but only for acts within the
scope of their employment by you or while performing
duties related to the conduct of your business. However,
none of these “employees” … are insureds for:

(1) “Bodily injury” or “personal and advertising
injury”:

(a) To … a co-“employee” while in the course of his
or her employment or performing duties related to
the conduct of your business ….

¶15 Rood recognizes that this initial policy language does not provide
coverage for his injuries, nor does it waive the exclusive remedy provision in WIS.
STAT. § 102.03(2). He argues, however, that an endorsement to the Policy alters
these provisions in such a manner as to waive the exclusive remedy provision.
Specifically, Rood emphasizes that the “Fellow Employee Extension” changes the
definition of an insured—removing the exception for an employee’s actions that
cause bodily injury to a coemployee—and renders the “Employer’s Liability”
exclusion inapplicable. The Fellow Employee Extension provides in relevant part:

4. FELLOW EMPLOYEE EXTENSION

Under SECTION II — WHO IS AN INSURED
Paragraphs 2.a. and 2.a. (1) are replaced by the following:

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No. 2021AP392

a. Your … “employees” … but only for acts within the
scope of their employment by you or while performing
duties related to the conduct of your business. The
Employers Liability exclusion (SECTION I —
COVERAGES; COVERAGE A, exclusion e.) does not
apply to this provision.

¶16 From the outset, we note that nothing in the Fellow Employee
Extension modifies the Policy’s insuring agreement that Selective will “pay those
sums that the insured becomes legally obligated to pay as damages because of
‘bodily injury’ or ‘property damage’ to which this insurance applies.” (Emphasis
added.) Although the “legally obligated to pay” language is not dispositive of
whether Selective expressly waived the exclusive remedy provision in WIS. STAT.
§ 102.03(2), the language does demonstrate Selective’s intent that it will pay only
those sums that an insured becomes legally obligated to pay. In other words, absent
an express waiver of the exclusive remedy provision in § 102.03(2), Selective has
not agreed to pay for damages that would otherwise be barred by § 102.03(2). See
Danielson v. Larsen Co., 197 Wis. 2d 799, 809, 541 N.W.2d 507 (Ct. App. 1995).

¶17 In addition, the Fellow Employee Extension does not alter or
eliminate the Policy’s Workers’ Compensation exclusion, which precludes
coverage for obligations arising under a worker’s compensation law. Rood
correctly observes that the Workers’ Compensation exclusion would not bar
coverage for his negligence claim because his claim arises under tort law, not under
the Worker’s Compensation Act. See Severin v. Luchinske, 271 Wis. 378, 383, 73
N.W.2d 477 (1955); see also United States Fid. & Guar. Co. v. PBC Prods., Inc.,
153 Wis. 2d 638, 642, 451 N.W.2d 778 (Ct. App. 1989). Nonetheless, the exclusion
plainly demonstrates Selective’s intent that it will not cover an insured’s obligations
that arise under a worker’s compensation law. Such an intent is consistent with, and

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No. 2021AP392

does not contradict, the exclusive remedy provision.3 See Danielson, 197 Wis. 2d
at 809; Brantner, 217 Wis. 2d at 152.

¶18 In arguing that the Fellow Employee Extension waives the exclusive
remedy provision, Rood relies primarily on three cases: Maas; PBC Products; and
Backhaus v. Krueger, 126 Wis. 2d 178, 376 N.W.2d 377 (Ct. App. 1985). None of
these cases are on point, however. In each case, the court determined that the insurer
waived the exclusive remedy provision through policy language that expressly
removed an exclusion to coverage for bodily injury to coemployees. See Maas, 172
Wis. 2d at 77, 80-81; PBC Prods., 153 Wis. 2d at 643; Backhaus, 126 Wis. 2d at
181-82. In contrast, the Fellow Employee Extension in this case did not remove an
exclusion for bodily injury to a coemployee but rather modified the definition of an
“insured” to include an employee, under certain circumstances, when the employee
caused bodily injury to a coemployee.

¶19 We previously considered a nearly identical modification to the
definition of an insured in Brantner. See Brantner, 217 Wis. 2d at 147-48, 150. In

3
Although Rood is correct that the Policy’s Workers’ Compensation exclusion does not
preclude coverage for his negligence claim, the outcome of this case is not controlled by Severin
v. Luchinske, 271 Wis. 378, 73 N.W.2d 477 (1955), as he contends. In Severin, our supreme court
determined that a worker’s compensation exclusion did not preclude coverage under an employer’s
insurance policy because the plaintiff’s negligence claim against a coemployee did not arise under
a worker’s compensation law. Id. at 381-84. The starting point of the court’s analysis in that case,
however, began with a determination that the policy at issue provided coverage unless precluded
by another provision in the policy. Id. at 381. The court did not interpret the worker’s
compensation exclusion in light of the exclusive remedy provision, which at that time protected
only employers, see WIS. STAT. § 102.03(2) (1953-54), nor did the court determine whether the
terms of the policy waived any kind of statutory immunity.

In contrast, the critical question in our analysis is whether the express terms of the Policy
demonstrate an intent to waive the exclusive remedy provision. We conclude that the existence of
the Workers’ Compensation exclusion in the Policy is consistent with, and does not contradict, the
exclusive remedy provision, and it therefore does not demonstrate an intent to waive the exclusive
remedy provision.

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No. 2021AP392

that case, an injured employee argued that her employer’s insurer had waived the
exclusive remedy provision under WIS. STAT. § 102.03(2) based on a modification
to the definition of an insured. Brantner, 217 Wis. 2d at 145-47, 150-51. The
policy at issue included an endorsement with a “Fellow Employee Amendment,”
which removed a previous exception from the definition of an insured for employees
who cause bodily injury to coemployees in the course of their employment. Id. at
150. We recognized that “the endorsement [did] not waive or override any of the
original policy exclusions” and “[e]ven with the expanded definition of an insured,”
the policy still excluded coverage for the employer’s liability under worker’s
compensation law and for injury to insureds or to employees. Id. at 152. We
concluded:

Reading the insurance policy as a whole, we do not construe
the endorsement to mean that the policy was intended to
waive liability where the worker’s compensation law
applied. Instead, the only reasonable construction is that the
endorsement was intended to broaden the definition of an
insured to include an employee in situations where the
worker’s compensation law would not apply.

Id. (emphasis added).

¶20 This court’s analysis and conclusion in Brantner are instructive in this
case. Here, the Fellow Employee Extension expanded the definition of an insured
to include an employee who causes bodily injury to a coemployee in the course of
his or her employment. Although the Fellow Employee Extension also renders the
Policy’s Employer’s Liability exclusion inapplicable, that modification does not
demonstrate an intent to waive the exclusive remedy provision. In circumstances
where it applies, the Employer’s Liability exclusion excludes coverage for bodily
injury to an employee arising out of and in the course of the employee’s employment
or performing duties related to the conduct of the insured’s business. The disabling

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No. 2021AP392

of that exclusion in the context of an employee causing bodily injury to a
coemployee, however, does not conflict with, or contradict, the exclusive remedy
provision in WIS. STAT. § 102.03(2).

¶21 Indeed, the exclusive remedy provision itself contains several
exceptions where an employee might be held liable for bodily injury to a
coemployee. See WIS. STAT. § 102.03(2). In particular, the exclusive remedy
provision

does not limit the right of an employee to bring action
against any coemployee for an assault intended to cause
bodily harm, or against a coemployee for negligent operation
of a motor vehicle not owned or leased by the employer, or
against a coemployee of the same employer to the extent that
there would be liability of a governmental unit to pay
judgments against employees under a collective bargaining
agreement or a local ordinance.

Id. Accordingly, the Fellow Employee Extension can be reasonably construed as
broadening the definition of an insured to include an employee in circumstances
where worker’s compensation law does not apply and where that employee’s
conduct might fall under an exception to the exclusive remedy provision in
§ 102.03(2).

¶22 Citing Maas, Rood argues that the Fellow Employee Extension would
be rendered meaningless if it were not construed as waiving the exclusive remedy
provision in WIS. STAT. § 102.03(2). Maas, however, is readily distinguishable. In
Maas, our supreme court concluded that the policy language removing a fellow
employee exclusion would be rendered meaningless unless the language was
construed as waiving the exclusive remedy provision. Maas, 172 Wis. 2d at 80-83.
The relevant policy language provided that “[t]he exclusion relating to bodily injury
to fellow employees does not apply if the bodily injury results from the use of a

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No. 2021AP392

covered auto you own.” Id. at 77 (emphasis added). That policy language, however,
could not be construed as filling the gap for exceptions to the exclusive remedy
provision because the exception for negligent operation of a motor vehicle in
§ 102.03(2) involves only motor vehicles “not owned or leased by the employer.”
Thus, that policy language could not be reasonably construed as having any effect,
unless the language waived the exclusive remedy provision in such circumstances.

¶23 In contrast, and as explained above, our construction of the Fellow
Employee Extension gives reasonable meaning to each provision, including the
Fellow Employee Extension itself. See Maas, 172 Wis. 2d at 79. The Fellow
Employee Extension can be reasonably construed as broadening the definition of an
insured where an exception to the exclusive remedy provision might apply and
where the claim does not arise under a worker’s compensation law. In addition, the
Fellow Employee Extension and its modifications do not expressly contradict any
of the exceptions in WIS. STAT. § 102.03(2), such that the Fellow Employee
Extension could not provide coverage under any circumstances unless the exclusive
remedy provision was waived.4

¶24 Finally, Rood argues that if we reject his arguments, we should deem
the Policy ambiguous and interpret it in favor of coverage. We disagree that the
policy language at issue is ambiguous. The language of an insurance policy is
ambiguous if it “is susceptible to more than one reasonable construction.”

4
Rood further argues—for the first time in his reply brief and in conclusory fashion—that
the Fellow Employee Extension would not provide coverage for any exceptions to the exclusive
remedy provision because the Policy contains an “Auto” exclusion and an “Expected or Intended
Injury” exclusion. We need not address these arguments, however, because they are undeveloped
and were raised for the first time in a reply brief. See State v. Pettit, 171 Wis. 2d 627, 646-47, 492
N.W.2d 633 (Ct. App. 1992); A.O. Smith Corp. v. Allstate Ins. Cos., 222 Wis. 2d 475, 492, 588
N.W.2d 285 (Ct. App. 1998).

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No. 2021AP392

Wadzinski v. Auto-Owners Ins. Co., 2012 WI 75, ¶11, 342 Wis. 2d 311, 818
N.W.2d 819 (citation omitted).

¶25 The Policy’s language at issue here is not susceptible to more than one
reasonable construction. The Policy unambiguously states that Selective will pay
only those sums that an insured becomes “legally obligated to pay.” The Policy also
contains a Workers’ Compensation exclusion that unambiguously provides that
Selective will not cover any obligations arising under a worker’s compensation law.
Although Rood erroneously interprets the Fellow Employee Extension as waiving
the exclusive remedy provision, that interpretation is not reasonable because the
Fellow Employee Extension neither expressly waives the exclusive remedy
provision nor does it contradict the exclusive remedy provision. Therefore, the
Policy’s relevant language is unambiguous and its express terms do not waive the
exclusive remedy provision.5

III. The Meaning of “motor vehicle” under WIS. STAT. § 102.03(2)

¶26 In the alternative, Rood argues that the circuit court should not have
dismissed his negligence claim because the underlying facts of his injury fall within
an exception to WIS. STAT. § 102.03(2), specifically, the exception for a
5
Rood’s final argument regarding waiver of the exclusive remedy provision focuses on
the Policy’s “Separation of Insureds” clause and this court’s interpretation of a similar clause in
Gulmire v. St. Paul Fire & Marine Insurance Co., 2004 WI App 18, 269 Wis. 2d 501, 674 N.W.2d
629 (2003). That argument, however, is contingent on this court construing the Workers’
Compensation exclusion as “retaining” the exclusive remedy provision. As we have explained, we
do not construe the Workers’ Compensation exclusion as excluding coverage for Rood’s
negligence claims. Rather, we construe the Workers’ Compensation exclusion as demonstrating
Selective’s intent not to provide coverage for claims arising under a worker’s compensation law,
which is consistent with the exclusive remedy provision. In addition, the Fellow Employee
Extension does not contradict, or conflict with, the exclusive remedy provision, such that it would
demonstrate an intent to waive that provision. We therefore need not address Rood’s final argument
because our construction of the Policy does not implicate Rood’s concerns. See Turner v. Taylor,
2003 WI App 256, ¶1 n.1, 268 Wis. 2d 628, 673 N.W.2d 716 (court of appeals need not address all
issues raised by the parties if one is dispositive).

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No. 2021AP392

coemployee’s negligent operation of a motor vehicle. That exception provides that
the exclusive remedy provision “does not limit the right of an employee to bring
action … against a coemployee for negligent operation of a motor vehicle not
owned or leased by the employer.” Sec. 102.03(2). As noted earlier, the sole issue
related to the applicability of this exception, here, is whether the telehandler
constitutes a “motor vehicle” within the meaning of § 102.03(2).

¶27 Our interpretation of a statute’s meaning begins with the statute’s
language. Townsend v. ChartSwap, LLC, 2021 WI 86, ¶12, 399 Wis. 2d 599, 967
N.W.2d 21. If the meaning is plain and unambiguous, we ordinarily stop our
inquiry. Id. We give statutory language its “common, ordinary, and accepted
meaning, except that technical or specially-defined words or phrases are given their
technical or special definitional meaning.” Id. (citation omitted). We also interpret
statutory language “in the context in which it is used; not in isolation but as part of
a whole.” Id., ¶13 (citation omitted). “A statute is ambiguous ‘if it is capable of
being understood by reasonably well-informed persons in two or more senses.’”
McNeil v. Hansen, 2007 WI 56, ¶9, 300 Wis. 2d 358, 731 N.W.2d 273 (citation
omitted). If a statute is ambiguous, we may consider external sources, such as
legislative history, to assist in our interpretation. Id.

¶28 Rood contends that the meaning of “motor vehicle” in WIS. STAT.
§ 102.03(2) is ambiguous and “susceptible to multiple meanings.” He notes that
“motor vehicle” is not defined under WIS. STAT. ch. 102 and that “motor vehicle
could include an automobile, a forklift, a lawn mower, a boat, a pallet jack, … a
tractor[, or] … a vehicle that ‘could be’ driven on a public highway.” Selective and
Rademaker, on the other hand, contend that the meaning of “motor vehicle” is
unambiguous and means only those vehicles that operate on a public highway.
Selective urges us to follow our supreme court’s interpretation of “motor vehicle”

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in Rice, which involved an interpretation of Wisconsin’s direct-action statutes. See
Rice, 27 Wis. 2d at 48-49; see also WIS. STAT. §§ 204.30(4), 260.11 (1963-64). To
our knowledge, no published or authored Wisconsin appellate opinion has
interpreted the term “motor vehicle” in § 102.03(2).

¶29 Beginning with the language of the statute, WIS. STAT. ch. 102 does
not define the term “motor vehicle,” nor does it use the term in any section other
than WIS. STAT. § 102.03(2). In addition, the context of § 102.03(2) does not
provide any hints regarding how the term “motor vehicle” should be interpreted.
Beyond ch. 102, the Wisconsin Statutes contain several broad, but sometimes
technical, definitions of “motor vehicle” and “vehicle.” See, e.g., WIS. STAT.
§§ 340.01(35), (74), 344.01(2)(b), 632.32(2)(at). Those definitions, however, are
not particularly helpful to our interpretation of “motor vehicle” in § 102.03(2)
because they generally bear some relation to the particular context of the statutes in
which they appear.

¶30 Ultimately, both parties have identified reasonable interpretations of
the term “motor vehicle” in WIS. STAT. § 102.03(2). “Motor vehicle” could be
reasonably interpreted broadly as including any self-propelled vehicle or device that
is capable of being used to transport persons or property on a public roadway. See
generally WIS. STAT. § 340.01(35), (74).6 On the other hand, “motor vehicle” could
also be reasonably construed narrowly—consistent with the more ordinary use of

6
“Motor vehicle” is defined in WIS. STAT. ch. 340 as “a vehicle, including a combination
of 2 or more vehicles or an articulated vehicle, which is self-propelled, except a vehicle operated
exclusively on a rail.” WIS. STAT. § 340.01(35). Chapter 340 also defines “vehicle” as meaning
“every device in, upon, or by which any person or property is or may be transported or drawn upon
a highway, except railroad trains.” Sec. 340.01(74).

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No. 2021AP392

the term—as including only self-propelled vehicles or devices that are designed and
primarily used to transport persons or property on a public roadway. See Motor
vehicle, WEBSTER’S THIRD NEW INT’L DICTIONARY (unabr. 1993) (“[A]n
automotive vehicle not operated on rails; esp: one with rubber tires for use on
highways.”); see generally WIS. STAT. §§ 340.01(35), (74), 632.32(2)(at).7 Indeed,
in the context of a different statute, our supreme court has interpreted the meaning
of “motor vehicle” as not encompassing vehicles “designed primarily for uses
dissimilar to transporting or drawing persons or property upon a highway … unless
[it is] being operated upon a highway at the time of accident.” See Rice, 27 Wis. 2d
at 51 (concluding that a forklift was not a “motor vehicle” under the direct-action
statutes unless it was being operated on a highway at the time of an accident). 8
Because the term “motor vehicle” could be reasonably interpreted in multiple ways,
we conclude that the term is ambiguous, and we therefore consider the legislative
history of § 102.03(2) in ascertaining the meaning of “motor vehicle.”

¶31 We previously examined the legislative history and purpose of WIS.
STAT. § 102.03(2) in Hake v. Zimmerlee, 178 Wis. 2d 417, 504 N.W.2d 411
(Ct. App. 1993), while discerning the meaning of “operation” in the phrase
“operation of a motor vehicle.” Id. at 420-22. In doing so, we recognized that
“[o]ne purpose of the Worker’s Compensation Act is to allocate the cost of
employment injuries to the industry or business in which they occur and, ultimately,

7
WISCONSIN STAT. § 632.32(2)(at) defines “motor vehicle” as “a self-propelled land
motor vehicle designed for travel on public roads and subject to motor vehicle registration under
[WIS. STAT.] ch. 341.”
8
Although Rice v. Gruetzmacher, 27 Wis. 2d 46, 51, 133 N.W.2d 401 (1965), provides a
persuasive and reasonable interpretation of the term “motor vehicle” in a different statute, Selective
fails to explain—based on the plain language of WIS. STAT. § 102.03(2)—why a broader
construction of “motor vehicle” would be unreasonable. We therefore reject Selective’s argument
that the term “motor vehicle” in § 102.03(2) is unambiguous.

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to the consuming public as part of the price for the goods or services offered.” Id.
at 421-22. We also noted that the legislature amended § 102.03(2) in 1977 to
prohibit most work-related injury suits between coemployees. Hake, 178 Wis. 2d
at 422.

¶32 That 1977 amendment occurred in accordance with recommendations
from the Worker’s Compensation Advisory Council (“the Advisory Council”),
which explained that the amendment

would permit a suit where there was an assault by the
co-employe or where there was negligent operation of a
motor vehicle not owned or leased by the employer. It is a
fact that virtually all insurance policies issued to employers
for public liability or for fleet coverage on employer owned
or leased vehicles exclude payment of damages where the
claim of an employe is against a co-employe. The result is
that the employe who is being sued is left without protection
and the little person is the one who gets hurt. The attention
of the Advisory Council has been called to cases
where … [the co-employe] who was sued was placed in a
financial position[,] because of the cost of defending or
because of the judgment for damages that was recovered[,]
that the employe would not be able to recover from
financially for many years or for the balance of his [or her]
life.

Id. at 422-23 (some alterations in original). The Advisory Council was thus
concerned with “the financial burden that coemployee suits imposed upon workers”
and “advised the legislature to recreate the statute so that coemployee immunity
would be the rule, and coemployee liability would be the exception to that rule.” Id.
at 423. Based on “the strong policy concerns [underlying] the rule of coemployee
immunity,” we concluded in Hake that we had to narrowly construe the phrase

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“operation of a motor vehicle” in WIS. STAT. § 102.03(2).9 Hake, 178 Wis. 2d at
423, 426.

¶33 Rood acknowledges that WIS. STAT. § 102.03(2) seeks to protect
coemployees from the financial burdens of a lawsuit. Still, he argues that we should
construe “motor vehicle” broadly to include all self-propelled devices that “could
be” driven on a public roadway. He contends the telehandler that caused his injuries
was capable of being driven on a public road because it was equipped with tractor
tires, headlights, signal blinkers, and a slow-moving-vehicle sign.10 In support of
his definition of “motor vehicle,” Rood cites our decision in State v. Shoeder, 2019
WI App 60, 389 Wis. 2d 244, 936 N.W.2d 172.

¶34 Rood’s reliance on Shoeder is misplaced. In that case, we concluded
the riding lawn mower at issue was a “motor vehicle” as the term is used in the
operating while intoxicated (OWI) statute, WIS. STAT. § 346.63(1). Shoeder, 389
Wis. 2d 244, ¶21. We reached that conclusion based on the express statutory
definitions provided in WIS. STAT. § 340.01(35) and (74). Shoeder, 389 Wis. 2d
244, ¶11. Unlike the statutory definition of “motor vehicle” that applies for

9
In a more recent case, our supreme court again examined the legislative history of WIS.
STAT. § 102.03(2). See McNeil v. Hansen, 2007 WI 56, ¶¶12-15, 300 Wis. 2d 358, 731 N.W.2d
273. The court cited our discussion in Hake v. Zimmerlee, 178 Wis. 2d 417, 504 N.W.2d 411 (Ct.
App. 1993), and concluded that the exception at issue in § 102.03(2) must be narrowly interpreted
because of both the purpose of § 102.03(2) and the general rule of interpreting statutory exceptions
narrowly. See McNeil, 300 Wis. 2d 358, ¶16.
10
There were factual issues regarding whether the telehandler had lights, signal blinkers,
and a slow-moving-vehicle sign. For our purposes, we will assume that the telehandler had all of
the disputed equipment and was capable of being driven on a public roadway because we must
draw all reasonable inferences in favor of Rood as the nonprevailing party on summary judgment.
See H&R Block E. Enters. v. Swenson, 2008 WI App 3, ¶11, 307 Wis. 2d 390, 745 N.W.2d 421
(2007).

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purposes of the OWI statute, the term “motor vehicle” is not expressly defined in
WIS. STAT. § 102.03(2) or elsewhere in the Worker’s Compensation Act.

¶35 In addition, the purpose of the OWI statute—as well as other statutes
to which the definition of “motor vehicle” in WIS. STAT. § 340.01(35) applies—is
to deter drunk driving and to promote and ensure the safety of all highway users in
Wisconsin. See McNeil, 300 Wis. 2d 358, ¶17; see also WIS. STAT. § 351.01(1);
State v. Hart, 89 Wis. 2d 58, 66, 277 N.W.2d 843 (1979) (“The primary purpose of
defining and proscribing conduct in [WIS. STAT. chs. 340 to 349] is the regulation
of drivers and motor vehicles for the promotion of safety on the highways.”). A
broad definition and construction of “motor vehicle” under § 340.01(35) facilitates
those purposes. In contrast, the purposes of WIS. STAT. § 102.03(2) necessitate that
the term “motor vehicle” be interpreted narrowly to allocate the cost of workers’
injuries to the industry in which they occur and to protect workers from financial
burdens of coemployee suits.

¶36 Rood also suggests that McNeil supports his argument that the term
“motor vehicle” in WIS. STAT. § 102.03(2) includes vehicles that “could be” driven
on a public roadway because the court noted several times that the vehicle at issue
was not in a condition in which it could be driven on a public roadway. We disagree.
Although the court in McNeil recognized that “the condition of the vehicle is such
that it could not then be driven on a public roadway,” those statements were based
on the factual circumstances of the case. See McNeil, 300 Wis. 2d 358, ¶¶2-3, 8,
23, 28. The court never addressed the meaning of the term “motor vehicle” in
§ 102.03(2) or whether the vehicle in that case constituted a “motor vehicle.”
Rather, the court’s discussion was tailored to the issue at hand: whether the
defendant’s actions constituted “operation of a motor vehicle.” McNeil, 300
Wis. 2d 358, ¶8 (emphasis added). The court’s comments that the vehicle could not

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be driven on a public roadway are therefore neither controlling nor instructive to
our analysis here.

¶37 In light of the plain purposes underlying WIS. STAT. § 102.03(2), we
conclude that the term “motor vehicle” in § 102.03(2) must be interpreted narrowly
in a manner consistent with our supreme court’s interpretation of “motor vehicle”
in Rice. That is to say, the term “motor vehicle” in § 102.03(2) does not include
vehicles that are designed primarily for uses other than transporting persons or
property upon a public roadway, unless the vehicle was being operated upon a
public roadway at the time the employee was injured. See Rice, 27 Wis. 2d at 51.
Work injuries are a foreseeable and common consequence of a coemployee’s
negligent use of a large, self-propelled machine that is not owned or leased by the
employer and that has a primary purpose and use other than transporting persons or
property on a public roadway—especially in the context of multiple contractors and
subcontractors working together and sharing equipment. These injuries are directly
related to an employee’s employment, and the industry and the consuming public
should bear the costs of these injuries, not the negligent coemployee. The purposes
of § 102.03(2) are therefore advanced by interpreting the term “motor vehicle” in
§ 102.03(2) in the same manner as our supreme court interpreted the term in Rice.

¶38 When applying the meaning of the term “motor vehicle” in WIS.
STAT. § 102.03(2) to the facts of this case, the telehandler that caused Rood’s
injuries does not qualify as a “motor vehicle.” Although the telehandler was capable
of being driven on a public roadway, its primary purpose and intended use was not
for transporting persons or property on a public roadway. Rather, it was designed
to “meet[] the needs of most construction, masonry, landscape and agricultural
applications.” In addition, the telehandler was not being operated on a public
roadway at the time of Rood’s injuries but rather was being used to move steel

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piping within a factory. The underlying facts of Rood’s injuries are precisely the
kind of circumstances under which the exclusive remedy provision in § 102.03(2)
sought to limit an injured employee’s recovery to worker’s compensation benefits.

By the Court.—Order affirmed.

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