Alexander Gohlke v. West Bend Insurance Company

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.
February 4, 2026
A party may file with the Supreme Court a
Samuel A. Christensen 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. 2025AP498 Cir. Ct. No. 2024CV215

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

ALEXANDER GOHLKE AND ACACIA GOHLKE,

PLAINTIFFS-APPELLANTS,

V.

WEST BEND INSURANCE COMPANY,

DEFENDANT-RESPONDENT.

APPEAL from a judgment of the circuit court for Fond du Lac
County: DOUGLAS R. EDELSTEIN, Judge. Affirmed.

Before Gundrum, Grogan, and Lazar, JJ.

¶1 GUNDRUM, J. Alexander Gohlke and Acacia Gohlke, husband and
wife, appeal from a grant of summary judgment in favor of West Bend Mutual
Insurance Company (West Bend), dismissing their action. Seeking underinsured
motorist coverage, the Gohlkes argue the circuit court erred in determining
No. 2025AP498

Alexander was not “occupying” a covered auto when a vehicle struck him while he
was operating a concrete-cutting saw on a public highway. For the following
reasons, we affirm.

PROCEDURAL BACKGROUND

¶2 The Gohlkes filed a complaint against West Bend seeking a
declaratory judgment that the insurance policy West Bend issued to Alexander’s
employer provides underinsured motorist coverage for the Gohlkes with regard to
the accident. The parties both requested summary judgment, which the circuit court
granted in favor of West Bend, concluding, based on the “plain language” of the
policy and “the ordinary meaning of the term occupying,” that the Gohlkes had “no
claim … within the underinsured motorist provision” of the policy. The Gohlkes
appeal.

DISCUSSION

¶3 We review de novo a circuit court’s grant of summary judgment.
Behrendt v. Gulf Underwriters Ins. Co., 2009 WI 71, ¶11, 318 Wis. 2d 622, 768
N.W.2d 568. “Summary judgment is properly granted if there is no genuine issue
of material fact in dispute and the moving party is entitled to judgment as a matter
of law.” Secura Ins. v. 33 Allenton Venture, L.L.C., 2023 WI App 3, ¶4, 405
Wis. 2d 700, 985 N.W.2d 109 (quoting American Fam. Mut. Ins. Co. v. American
Girl, Inc., 2004 WI 2, ¶22, 268 Wis. 2d 16, 673 N.W.2d 65). Where, as here, the
relevant facts are undisputed, we review de novo the circuit court’s construction and
application of the terms of an insurance contract. See Kemp v. Feltz, 174 Wis. 2d
406, 410, 497 N.W.2d 751 (Ct. App. 1993); First Weber Grp. N. Wis., LLC v.
Guyant, 2011 WI App 84, ¶11, 334 Wis. 2d 790, 800 N.W.2d 494.

2
No. 2025AP498

¶4 In this case, a vehicle struck Alexander as he was cutting concrete on
the side of a roadway with a saw he previously had unloaded off a trailer attached
to a company truck. At the time of the accident, Alexander was approximately
20 feet from the truck and 15 feet from the trailer and was “actively cutting
concrete” with the saw. The saw required a continuous supply of water for cooling,
and this was provided by water pumped through a one-inch-thick hose running from
the saw, through the trailer, and to a tank bolted to the bed of the truck. Alexander
began operating the saw at approximately 7:30 a.m., after driving it off of the trailer
and onto the highway. Aside from requiring the water provided by the tank on the
truck, the saw operated independently from the truck and the trailer and possessed
its own engine, steering mechanism, and transmission. Alexander had already made
his first cut on the highway surface and was in the process of making his second
when he was struck at approximately 8:15 a.m., about an hour after he had parked
and exited the truck.

¶5 West Bend’s policy provides coverage for “[a]nyone ‘occupying’ a
covered ‘auto’” and defines “‘[o]ccupying’” as “in, upon, getting in, on, out, or off.”
While the truck and trailer were covered autos under the policy, the saw was not.

¶6 The Gohlkes argue that at the time Alexander was struck, he was
legally “occupying” either the truck or the trailer, or both, because he was
“physically connected to [them] while acting in reference to [them].” The physical
connection, they explain, was by virtue of the hose that carried water from the tank
on the truck through the trailer to the saw Alexander was operating on the highway.
They also argue they had a reasonable expectation of coverage and that “the facts
demonstrate it was the intent of the parties to cover users of these vehicles in their
ordinary use.” Finally, they assert that the policy language is ambiguous and should
be resolved in favor of coverage.

3
No. 2025AP498

¶7 In support of their position that Alexander was “occupying” a covered
vehicle at the time he was struck, the Golhkes rely heavily upon Moherek v. Tucker,
69 Wis. 2d 41, 230 N.W.2d 148 (1975), Sentry Insurance Co. v. Providence
Washington Insurance Co., 91 Wis. 2d 457, 283 N.W.2d 455 (Ct. App. 1979), and
Kreuser by Kreuser v. Heritage Mutual Insurance Co., 158 Wis. 2d 166, 461
N.W.2d 806 (Ct. App. 1990). These cases do not carry the day for the Gohlkes.

¶8 In Moherek, the plaintiff, a passenger of the covered vehicle, was
injured when he stood behind the vehicle and held its spare tire up against its rear
bumper “to protect [it] from the front bumper of a second car that [was] about to
push it.” 69 Wis. 2d at 42. A third vehicle hit the second, pinning the tire-holding
plaintiff between the covered and second vehicles, injuring him. Id. at 43. The
insurance policy provided coverage for those “occupying” the vehicle, defined as
being “in or upon, entering into or alighting from” it. Id. at 44. Our state supreme
court stated that the plaintiff “[c]learly … was not entering into or alighting from
the automobile nor was he in the car at the time of the accident.” Id. It concluded,
however, that he had been “upon” the vehicle, and thus occupying it, because “he
had very close physical contact” with the covered vehicle and “[e]verything that he
did after getting out of the vehicle [45 minutes earlier] and especially at the time
that his injury occurred had to do with trying to start the vehicle again so that he and
his companions could continue on their journey.” Id. at 48.

¶9 In Sentry, this court concluded there was coverage for a passenger
who had just exited a covered vehicle and was walking around the front of it to reach
the sidewalk when the vehicle was struck from behind by a second vehicle, which
caused the covered vehicle to strike and injure the passenger. 91 Wis. 2d at 458-59.
As in Moherek, the policy in Sentry provided that “occupying” meant “in or upon
or entering into or alighting from.” Sentry, 91 Wis. 2d at 459. This court concluded

4
No. 2025AP498

the passenger “had not completed his act of alighting from the [vehicle]” and thus
“had not ceased occup[ying]” it at the time of the accident. Id. at 460-61.

¶10 In Kreuser, the plaintiff was injured under the following
circumstances: (1) she was waiting at a street corner to be picked up by the driver
with whom she carpooled; (2) the driver had begun his maneuvers to pull the
covered vehicle to the curb to pick her up; (3) the plaintiff had started to turn her
body “so that she would be in a position to enter his automobile”; and (4) she was
approximately ten feet from the vehicle at the time it was struck from behind by a
motorcyclist who then also struck her. 158 Wis. 2d at 168-69. As in Moherek and
Sentry, coverage in Kreuser turned on whether the plaintiff was “occupying” the
covered vehicle, with “getting into” the vehicle listed as one way of “occupying” it.
Kreuser, 158 Wis. 2d at 171. We expressed that “[w]hile the insurance policy’s
definition of ‘occupying’ d[id] not appear to be ambiguous when considered in a
vacuum, it becomes ambiguous when determining the scope of coverage in fact
situations such as that presented in this case.” Id. at 173. Considering the “nature
of the act engaged in at the time of the injury,” “the intent of the person injured,”
and “whether the injured person was within the reasonable geographical perimeter
of the vehicle,” we concluded the plaintiff was occupying the vehicle at the time of
the injury because she “was within ten feet of [the] vehicle and she was beginning
to turn to prepare to enter the vehicle when she was struck by the motorcycle. There
is no doubt that both her intent and [the] intent [of the driver of the vehicle] was to
have [her] occupy the automobile.” Id. at 173-74. We added, “[w]e are satisfied
that an ordinary lay person would expect that people preparing to board an
automobile come within the definition of occupying and would be afforded
coverage if injured during the boarding process.” Id. at 174.

5
No. 2025AP498

¶11 Moherek, Sentry and Kreuser do not aid the Gohlkes because, unlike
in the instant case, in each of those cases, the factual scenarios were such that they
at least arguably satisfied the key “occupying” definition at issue. When the
passenger in Sentry was injured, he was immediately in front of the covered vehicle
and had just exited it seconds earlier, so it is not surprising we were able to conclude
he “had not completed his act of alighting from the car.” 91 Wis. 2d at 461. In
Kreuser, the plaintiff was within ten feet of the covered vehicle that was stopping
to pick her up, and she had begun the physical motions to enter it when she was
injured. 158 Wis. 2d at 173-74. Again, there is no surprise that any ambiguity in
the “occupying” definition of “getting into” was resolved in favor of coverage.

¶12 Unlike Sentry and Kreuser, Moherek focused on the same
“occupying” definition at issue in the instant case, “upon.” As noted, the plaintiff
in Moherek was holding the covered vehicle’s spare tire against the covered vehicle
at the time of injury and thus “had very close physical contact” with the vehicle; so
close in fact that the collision resulted in the plaintiff being pinned against the
covered vehicle. 69 Wis. 2d at 48. Thus, there is nothing shocking about our
supreme court resolving ambiguity with the word “‘upon,’ in relation to ‘in’ and
‘entering into or alighting from,’” see id. at 45, in favor of coverage, especially
where the court further noted that “[e]verything [the plaintiff] did after getting out
of the vehicle [45 minutes earlier] and especially at the time that his injury occurred
had to do with trying to start the vehicle again so that he and his companions could
continue on their journey,” id. at 48.

¶13 We conclude the circuit court in the case now before us properly
construed the insurance contract language and properly applied it to the relevant,
undisputed facts. This is not even a close call. Unlike the plaintiff in Moherek,
Alexander was not in “very close physical contact” with either the truck or trailer at

6
No. 2025AP498

the time he was struck and injured; he was 15 feet from the trailer and 20 feet from
the truck. See Moherek, 69 Wis. 2d at 48. Indeed, the only physical connection at
all between him and the truck or trailer at the time he was struck was by way of a
one-inch-thick hose carrying water to the saw he was operating. Alexander
“[c]learly … was not [in or getting in, on, out, or off] the [truck or trailer] at the time
of the accident.” See id. at 44. Neither could it be said that he was “upon” either
the truck or trailer at the time he was struck. No legitimate stretch of the English
language could shoehorn these facts into coming within the meaning of the word
“upon”; there is zero ambiguity that Alexander was not upon either the truck or
trailer at the time of his injury. Furthermore, unlike the plaintiff in Moherek, who
for the 45 minutes he was outside of the covered vehicle remained constantly
focused on the vehicle and getting it to function so he could continue on his journey
in it, which was “especially [true] at the time that his injury occurred,” Alexander
was not focused on either the truck or trailer during his 45 minutes away from them.
See id. at 48. He instead was focused on performing his duties of cutting concrete
on the road, which was “especially [true] at the time that his injury occurred.”
See id. No insured could reasonably expect he or she would be covered under the
policy in light of its language and the facts of this case.

By the Court.—Judgment affirmed.

Recommended for publication in the official reports.

7