Negligent Entrustment Claim Not Independent Concurrent Cause of Loss So Precluded by Finding of No Permissive Use
The plaintiff sued the defendant for injuries sustained in a car accident. The defendant’s insured had loaned his car to his daughter who in turn loaned the car to her boyfriend, Jesse Raddatz. Raddatz was given permission to run an errand, but instead picked up the plaintiff and was driving to a party when the car accident occurred. The plaintiff alleged that the defendant’s automobile liability policy covered Raddatz's negligence because he had permissive use of the car. The case went to trial on a permissive use coverage question where a jury found that Raddatz had exceeded the scope of permission and there was no coverage. The plaintiff then brought a negligent entrustment claim and the defendant moved for summary judgment, arguing that under the independent concurrent cause rule the plaintiff’s claim for negligent entrustment—a covered risk—was barred because it depended upon the occurrence of Raddatz’s negligence, which was an excluded risk. The circuit court agreed with the defendant and granted summary judgment.
The plaintiff appealed to the court of appeals which reversed the circuit court, concluding that the negligent entrustment cause of action did not require the occurrence of an excluded risk—Raddatz’s negligence—because the harm arose at least in part from the negligent entrustment of the car. The defendant appealed to the Wisconsin supreme court.
The supreme court reversed, holding that negligent entrustment in this case was only actionable with the occurrence Raddatz’s negligence, which was an excluded risk by virtue of a jury’s previous finding that Raddatz’s use of the car was not permissive use. The independent concurrent cause rule extends coverage to a loss caused by an insured risk even though an excluded risk is a contributory cause. The independent concurrent cause must provide the basis for a cause of action in and of itself and cannot require the occurrence of the excluded risk to make it actionable. Here, there could be no negligent entrustment without a finding of Raddatz’s negligence, which, even if it were shown, would be excluded from coverage.
Siebert v. Wisconsin American Mutual Ins. Co., 2011 WI 35 (2009AP1422) Supreme Court opinion
