Summary
explaining that a motion to strike can be construed as a motion to dismiss in order to "put substance above form"
Summary of this case from Andruss v. Divine Savior Healthcare Inc.Opinion
No. 169.
Submitted November 2, 1972. —
Decided November 28, 1972.
APPEAL from an order of the circuit court for Winnebago county: WILLIAM E. CRANE, Circuit Judge. Dismissed.
For the appellant the cause was submitted on the brief of Holden, Halvorsen Bjork of Sheboygan.
For the respondent the cause was submitted on the brief of Hughes Harrand of Oshkosh.
Plaintiff-respondent, Larry Gauger (hereinafter plaintiff), commenced an action against Donald Ludwig, Jr., and defendant-appellant, Heritage Mutual Insurance Company (hereinafter Heritage), to recover damages sustained in an automobile collision.
Plaintiff filed a motion to strike a portion of the answer of Heritage. An order was entered granting plaintiff's motion, and Heritage has taken this appeal.
Ludwig was operating a truck owned by Donald W. Stowe, Sr., when it collided with an automobile operated by the plaintiff. Heritage had issued a policy of automobile liability insurance to Stowe. Plaintiff's complaint alleged that Ludwig was operating the truck with the consent and permission of Stowe, Heritage's insured. The answer of Heritage denied that the vehicle was being operated at the time and place in question with the permission and consent of the insured.
November 9, 1970, plaintiff served notice of a motion to strike, as irrelevant, that portion of Heritage's answer denying that the vehicle was being operated with the permission and consent of the insured, and alleged that Heritage was estopped from asserting such defense. Plaintiff's affidavit in support of the motion alleges that defendant, Ludwig, filed with the department of transportation, safety responsibility division (hereinafter department), a report of the accident, wherein the defendant, Ludwig, indicated Heritage's liability coverage for the accident and that, on information and belief, Heritage had not submitted a rejection of coverage to the department as required by sec. 344.15 (4), (5), Stats. The affidavit further alleged that more than thirty days had transpired between the filing of the accident report by the defendant, Ludwig, and Heritage's failure to reject coverage.
Sec. 346.70, Stats.
Sec. 344.15 (5), Stats., provides that the insurance company has thirty days after notice is mailed to it by the department, not thirty days from the date the operator notifies the department.
Heritage's affidavit in opposition to plaintiff's motion maintained that no evidence existed, at that time, which could guide the court in making its determination in this matter and that an issue of fact for the determination by a jury at trial existed as to whether the vehicle was operated with the permission and consent of Heritage's insured.
A hearing was scheduled and held on the 27th day of November, 1970. The record is silent as to what transpired at this hearing.
By letter of February 19, 1971, filed with the court February 22, 1971, plaintiff's counsel submitted to the court a certification, dated December 3, 1970, from the department indicating that defendant, Ludwig, had filed an accident report certifying public liability insurance coverage with Heritage; that said information was mailed to Heritage; and that no rejection of policy coverage had been received by the department within the thirty-day limit as required by sec. 344.15 (4), (5), Stats. There is nothing in the record to indicate that Heritage had notice of the submission of this evidence to the court.
The court, by its decision of March 24, 1971, found that Heritage was estopped from using as a defense to liability the insured's failure to give permission to the operator. April 13, 1971, the court ordered that that portion of Heritage's answer be stricken. From this order Heritage is now appealing.
We are of the opinion that the order before us is not an appealable order because it is not one of the orders enumerated in sec. 274.33, Stats.
The issue of appealability is not raised by either party. However, this court has the responsibility of examining the issue because it goes directly to the question of whether this court has subject-matter jurisdiction over the appeal.
United States v. Burczyk (1972), 54 Wis.2d 67, 71, 194 N.W.2d 608; Estate of Hillery (1970), 46 Wis.2d 689, 176 N.W.2d 376; Bohlman v. Mutual Indemnity Co. (1969), 42 Wis.2d 454, 167 N.W.2d 196.
An order striking a portion of a pleading as irrelevant is not an appealable order. Britz v. Chilsen (1956), 273 Wis. 392, 78 N.W.2d 896; Gilbert v. Hoard (1930), 201 Wis. 572, 230 N.W. 720; State v. Lewis (1916), 164 Wis. 363, 159 N.W. 746; Gooding v. Doyle (1908), 134 Wis. 623, 115 N.W. 114; Wiesmann v. Shanley (1905), 124 Wis. 431, 102 N.W. 932. Such an order does not determine the action nor prevent a judgment from which an appeal may be taken.
Sec. 274.33, Stats.
There are instances in which, despite the label given by the parties or the trial court, a motion to strike has been considered by this court to be the legal equivalent of a demurrer. An order sustaining a demurrer is an appealable order. The only purpose of recognizing a motion to strike as the equivalent of a demurrer is to put substance above form.
Paraffine Companies v. Kipp (1935), 219 Wis. 419, 263 N.W. 84; sec. 274.33 (3), Stats.
In State v. Chippewa Cable Co. (1963), 21 Wis.2d 598, 611, 124 N.W.2d 616, this court stated:
"Although the language in the decisions may not have been consistent in every instance, we now hold that a motion to strike an answer or reply, or a portion thereof, as sham, frivolous, or irrelevant, is the equivalent of a demurrer only when all the following propositions are true: (1) The motion is to strike the entire answer or reply, or the whole of one or more defenses separately stated therein. (2) The motion accepts as true for the purpose of the motion all the allegations of fact in the defense attacked and the motion is not supported by affidavits tending to establish facts different from or in addition to those alleged. (3) The only issue raised by the motion is the issue of law, whether the defense attacked states a defense. If a motion to strike fulfils [fulfills] all the foregoing propositions it is the equivalent of a demurrer even though it is not labeled a demurrer and does not expressly specify that the defense attacked does not state a defense. . . ."
The motion to strike now under consideration, although it accepted as true for the purpose of the motion all the allegations of fact in the defense attacked, was based upon affidavits tending to establish facts in addition to those alleged in the answer. The motion raised, in addition to the issue of law whether the defense attacked stated a defense, an issue of fact as to whether Heritage had notice of the coverage claim under its policy and whether such claim had been rejected by Heritage within the time limitations of sec. 344.15 (5), Stats. The circuit court did not treat the motion as a demurrer. The decision of the circuit court, concluding that Heritage was estopped from asserting the defense of nonpermissive use, was based upon the additional evidence submitted by the plaintiff.
In this case, the motion to strike does not have the legal effect of a demurrer and the order granting it is not appealable.
The order before us is not appealable because it is not final. The issues raised by Heritage can be reached after judgment in the event it is necessary to do so. We do not now reach them on the merits.
By the Court. — Appeal dismissed.