2014 WI 20

SUPREME COURT OF WISCONSIN

CASE NO.: 2012AP667 

COMPLETE TITLE: Brian Casey,

 Plaintiff,

 v.

Ronald Smith, John Zeverino, Taylor Truck Line, 

Inc., 

Allstate Property and Casualty Insurance 

Company, Austin 

Mutual Insurance Company and Health Partners,

 Defendants,

Acceptance Casualty Insurance Company,

 Defendant-Appellant-Petitioner,

Great West Casualty Company,

 Defendant-Respondent. 

REVIEW OF A DECISION OF THE COURT OF APPEALS

346 Wis. 2d 111, 827 N.W.2d 917

(Ct. App. – Published)

PDC No: 2013 WI App 24

OPINION FILED: April 18, 2014

SUBMITTED ON BRIEFS: 

ORAL ARGUMENT: January 14, 2014 

SOURCE OF APPEAL:

COURT: Circuit 

COUNTY: Dunn

JUDGE: Rod W. Smeltzer

JUSTICES:

CONCURRED: 

DISSENTED: 

NOT PARTICIPATING: 

ATTORNEYS:

For the defendant-appellant-petitioner, there were briefs 

by Charles J. Noel and Charles J. Noel & Associates, P.A., 

Minneapolis, and oral argument by Charles J. Noel.

For the defendant-respondent, the cause was argued by 

Tamara L. Novotny with whom on the brief was Michael W. McNee, 

and Cousineau McGuire Chartered, Minneapolis.
2014 WI 20

NOTICE

This opinion is subject to further 

editing and modification. The final 

version will appear in the bound 

volume of the official reports. 

No. 2012AP667

(L.C. No. 2010CF295)

STATE OF WISCONSIN : IN SUPREME COURT

Brian Casey,

 Plaintiff,

 v.

Ronald Smith, John Zeverino, Taylor Truck Line, 

Inc., Allstate Property and Casualty Insurance 

Company, Austin Mutual Insurance Company and 

Health Partners,

 Defendants,

Acceptance Casualty Insurance Company,

 Defendant-Appellant-Petitioner,

Great West Casualty Company,

 Defendant-Respondent.

FILED

APR 18, 2014

Diane M. Fremgen

Clerk of Supreme Court

REVIEW of a decision of the Court of Appeals. Affirmed. 

¶1 ANN WALSH BRADLEY, J. Defendant Acceptance Casualty 

Insurance Company (Acceptance) seeks review of a published 

decision of the court of appeals affirming the circuit court's 

grant of summary judgment in favor of Great West Casualty 
No. 2012AP667 

2

Company (Great West).1 Both Acceptance and Great West issued 

liability insurance policies for a semi-tractor that was owned 

by John Zeverino and leased to Taylor Truck Line. Acceptance 

provided a non-trucking use policy and Great West provided a 

commercial truckers' policy. 

¶2 Both parties agree that the accident is covered by 

insurance, but disagree as to which of the two policies provides 

the coverage. Each insurer filed a summary judgment motion 

asserting the other was responsible for coverage. Both the 

circuit court and the court of appeals concluded that of the two 

policies, the Acceptance policy provided coverage for the multivehicle accident.

¶3 Acceptance asserts that its policy provides no 

coverage because it contains two exclusions which preclude 

coverage. It primarily focuses on 14(b) that excludes coverage 

when a semi-tractor is being used "in the business of" a lessee. 

Acceptance contends that because the accident occurred while the 

semi-tractor's driver, John Zeverino, was on his way to a 

maintenance facility for repairs to the grille and oil filler 

tube, the semi-tractor was being used in the business of Taylor 

Truck Line at the time of the accident. 

¶4 Alternatively, it advances that 14(a) excludes 

coverage when a semi-tractor is "en route to" a "business 

purpose" and that obtaining maintenance is a business purpose. 

 

1 Casey v. Smith, 2013 WI App 24, 346 Wis. 2d 111, 827 

N.W.2d 917 (affirming judgment of the circuit court for Dunn 

County, Rod W. Smeltzer, Judge).
No. 2012AP667 

3

Acceptance argues that because obtaining repairs constitutes a 

business purpose, there is no coverage under its non-trucking 

use policy. 

¶5 We determine that neither of the exclusions in 

Acceptance's policy precludes coverage. The facts of record do 

not support the application of exclusion 14(b). Zeverino was 

not using the semi-tractor "in the business of" Taylor Truck 

Line because the repairs here did not further Taylor's 

commercial interests. There is nothing in the record that shows 

the repairs were required by the lease. Additionally, the 

repairs were not done pursuant to orders from Taylor Truck Line, 

and they were not necessary for the semi-tractor to continue its 

service. 

¶6 Further, Acceptance's argument that coverage is 

excluded because Zeverino was en route to the business purpose 

of obtaining maintenance reflects an overly expansive 

interpretation of the text of exclusion 14(a). Like the court 

of appeals, we are concerned that its interpretation may render 

coverage illusory. Instead, in examining the text of exclusion 

14(a) we determine that it refers to maintenance necessary to 

allow the semi-tractor to carry property. It is undisputed that 

the semi-tractor could and did carry loads without the repairs 

to the grille and oil filler tube. 

¶7 Because the exclusions in Acceptance's policy do not 

apply, we conclude that its non-trucking use policy provides 

coverage for the accident. Accordingly, we affirm the court of 

appeals. 
No. 2012AP667 

4

I.

¶8 The parties repeatedly asserted that the facts in this 

case are not in dispute. Zeverino owned a 2003 Freightliner 

semi-tractor which he leased to Taylor Truck Line, Inc. Under 

the terms of the lease Zeverino agreed to provide a driver and 

use his semi-tractor exclusively for Taylor Truck Line. The 

lease also provided that Zeverino would "bear all expenses to 

the operation to the equipment, including . . . [r]epairs and 

maintenance" and "[m]aintain[] the equipment in a state of 

repair required by all applicable regulations."2 The lease 

further required Taylor Truck Line to obtain insurance as 

required by federal law3 and Zeverino to obtain "bobtail 

 

2 Section 23 of the lease states: 

The contractor shall have the responsibility to 

carrier of satisfying various regulatory requirements, 

and safety requirements of carrier and/or insurance 

company, by:

A) Maintaining the equipment in the state of repair 

required by all applicable regulations.

B)

3 Section 17(A) of the lease provides:

LIABILITY-PROPERTY DAMAGE INSURANCE. During the 

existence of this agreement, carrier will provide and 

maintain insurance coverage for the protection of the 

public from damage to persons and property, pursuant to 

its statutory obligations under 49 U.S.C. 10927.
No. 2012AP667 

5

liability insurance"4 to cover the semi-tractor "when not used in 

performance under this agreement." 

¶9 Pursuant to the lease, Zeverino obtained an insurance 

policy for non-trucking use coverage from Acceptance. An 

exclusion in section 14(a) of the policy states that it does not 

cover the semi-tractor "[w]hile being operated, maintained or 

used to carry property in any business or en route to or from 

such business purpose." Section 14(b) of the policy sets forth 

another exclusion that states that it does not cover the semitractor "[w]hile used in the business of anyone to whom the 

'auto' is rented."

¶10 Taylor Truck Line obtained a commercial truckers'

insurance policy from Great West. The policy provides coverage 

for:

[t]he owner or anyone else from whom you lease, for 

more than 30 consecutive days, a covered "auto" with a 

driver that is not a "trailer" while the covered 

"auto": 

(1) Is being used exclusively in your business as a 

"trucker." 

The policy defines a "trucker" as "any person or organization 

engaged in the business of transporting property by 'auto' for 

hire." 

 

4 "A bobtail is the popular term for a tractor (cab) without 

an attached trailer. Since a trucker who is 'bobtailing' is 

generally not using the vehicle for trucking purposes, nontrucking-use insurance is often called bobtail insurance." 

Royal Indem. Co. v. Providence Wash. Ins. Co., 707 N.E.2d 425, 

426 n.1 (N.Y. 1998).
No. 2012AP667 

6

¶11 In January 2009, Zeverino took the semi-tractor to 

FABCO, a truck maintenance facility in Eau Claire, to have its 

engine control module recalibrated. While the semi-tractor was 

there, FABCO inadvertently damaged its grille. FABCO ordered a 

new one and called Zeverino when it arrived. Instead of making 

an appointment to replace the grille, Zeverino was to return to 

FABCO to have the grille replaced whenever it was convenient for 

him. In addition, Zeverino had previously ordered a new oil 

filler tube which he had intended to install himself. FABCO 

offered to install the new tube at the same time it replaced the 

grille.

¶12 The damaged grille did not put the truck out of 

service or prevent Zeverino from completing or accepting new 

loads to haul. Zeverino indicated that he was on duty several 

hours from February 20 through February 25, 2009. He testified 

that having the grille replaced "was not a routine maintenance, 

but it was a repair that they had broken, they had to replace." 

He agreed that he needed to have the repair work done "to have 

[the] tractor the way [he] needed it to . . . operate as an 

owner, operator for Taylor Truck Line." 

¶13 On February 27, 2009, approximately a month after the 

grille was broken, Zeverino left his home in Prescott and headed 

to Eau Claire to have the grille replaced. Zeverino was offduty at the time. Taylor Truck Line did not know he was going 

to Eau Claire that day and he was not under any order or 

instruction from Taylor Truck Line to do so. Zeverino stated in 

his deposition that he did not consider himself to be "in the 
No. 2012AP667 

7

business of Taylor Truck Line at the time." Although he 

indicated that the grille was "starting to fall apart and fall 

off on the highway," Zeverino also testified that he could have 

taken a load that day without service to his grille or oil 

filler tube.

¶14 While en route to Eau Claire, Zeverino's tractor was 

involved in a multi-vehicle accident that included vehicles 

driven by Ronald Smith and Brian Casey. Zeverino wrote in his 

Driver's Daily Log that he was "driving" at the time of the 

accident and "on duty" while at the scene of the accident. 

While there, Zeverino filled out an accident report which 

indicated that there was nothing wrong with the semi-tractor 

prior to the accident. A Wisconsin state trooper who arrived at 

the scene conducted a Level 1 DOT inspection of Zeverino's semitractor, apparently the most comprehensive type of post-accident 

inspection. The trooper also completed a "Driver/Vehicle 

Examination Report" and noted that no violations were discovered 

during the inspection. Thereafter, the trooper permitted 

Zeverino to continue on to Eau Claire, where FABCO replaced the 

grille and oil filler tube. Together the repairs took 

approximately an hour.

¶15 Casey filed a complaint on June 29, 2010, seeking 

recovery for injuries he sustained in the accident. He included 

Zeverino, Taylor Truck Line, Acceptance, and Great West as named 

defendants. 

¶16 Both insurance companies filed cross motions for 

summary judgment on April 6, 2011. Acceptance pointed to two 
No. 2012AP667 

8

relevant exclusions in its non-trucking policy, section 14(a) 

and section 14(b). It asserted that at the time of the accident 

the semi-tractor was being used "in the business of" Taylor 

Truck Line. Additionally, it argued that because the accident 

occurred while Zeverino was "en route" to have maintenance done 

on the semi-tractor, it was being used for a "business purpose" 

of the lessee. Acceptance contended that the exclusions 

precluded coverage. 

¶17 Great West asserted that Zeverino was not using the 

semi-tractor in the business of the lessee because the repairs 

were not needed to make the semi-tractor safe or available for 

Taylor Truck Line's use, and Taylor Truck Line had not directed 

Zeverino to have the repairs done. Great West argued that it 

was not responsible for providing coverage for the accident 

because its policy afforded coverage only while the semi-tractor 

was "being used exclusively in [Taylor's] business." 

¶18 The circuit court issued an order denying both 

motions. It determined that there was a triable issue of fact 

as to whether Zeverino was performing in furtherance of the 

business or commercial interests of Taylor Truck Line. 

¶19 Upon a motion for reconsideration, together with 

supplemental memoranda of law and supplemental affidavits, the 

circuit court granted summary judgment in favor of Great West. 

It found that Zeverino was having non-essential repairs done on 

his own time. Accordingly, the circuit court determined that 

Zeverino was not involved in furthering the business of Taylor 

Truck Line at the time of the accident.
No. 2012AP667 

9

¶20 The court of appeals affirmed. Casey v. Smith, 2013 

WI App 24, 346 Wis. 2d 111, 827 N.W.2d 917. It noted the 

parties' agreement that one of their policies afforded coverage 

for the accident and that resolution of which policy applied 

depended on whether Zeverino was operating the semi-tractor "in 

the business of" Taylor Truck Line. Id., ¶10. 

¶21 The court considered first the exclusion set forth in 

section 14(b) of Acceptance's policy. Quoting the Seventh 

Circuit Court of Appeals, the court stated that a tractor is 

being operated "in the business of" the lessee when "the truck 

is being used to further the commercial interests of the 

lessee." Id., ¶17 (quoting Hartford Ins. Co. v. Occidental Fire 

& Cas. Co., 908 F.2d 235, 237 n.5, 239 (7th Cir. 1990)). The 

court noted Zeverino's testimony that the defects did not 

prevent him from hauling loads and his concession that the semitractor was never taken out of service. Id., ¶23. 

Consequently, the court determined that the repairs to the semitractor's grille and oil filler tube were not necessary for 

Zeverino to continue operating in Taylor Truck Line's business. 

Id. Therefore, it concluded that "the repairs did not further 

Taylor's commercial interests and Zeverino was not acting 'in 

the business of' Taylor at the time of the accident." Id. 

¶22 Next, the court considered the exclusion set forth in 

section 14(a) of Acceptance's policy. It recounted Acceptance's 

contention that the exception lists three activities that 

qualify as "business purposes:" (1) operation, (2) maintenance, 

and (3) being used to carry property in any business. Id., ¶31. 
No. 2012AP667 

10

The court determined that such an interpretation "produces 

absurd results" as it would mean "the mere operation of the 

tractor, for any reason, would be a business purpose." Id., 

¶32. Accordingly, the court rejected Acceptance's 

interpretation of section 14(a). It concluded that the business 

purposes referred to in section 14(a) were: (1) operation to 

carry property in any business, (2) maintenance to carry 

property in any business, and (3) use to carry property in any 

business. Id., ¶33. 

II.

¶23 In this case, we are called upon to review the circuit 

court's grant of summary judgment to Great West. We review 

grants of summary judgment independently of the determinations 

rendered by the circuit court and the court of appeals, but we 

apply the same methodology as the circuit court. Park Bank v. 

Westburg, 2013 WI 57, ¶36, 348 Wis. 2d 409, 832 N.W.2d 539. 

Summary judgment is appropriate where "there is no genuine issue 

as to any material fact and [] the moving party is entitled to a 

judgment as a matter of law." Wis. Stat. § 802.08(2).

¶24 Here, the parties agree that there are no material 

facts in dispute. At issue is the interpretation of 

Acceptance's and Great West's policies. The interpretation of 

an insurance policy is a question of law that we review 

independently of the decisions rendered by the circuit court and 

the court of appeals. Schinner v. Gundrum, 2013 WI 71, ¶35, 349 

Wis. 2d 529, 833 N.W.2d 685.
No. 2012AP667 

11

¶25 This court has a well-established methodology for 

determining insurance coverage. First, we look to a policy's 

initial grant of coverage. Wadzinski v. Auto-Owners Ins. Co., 

2012 WI 75, ¶14, 342 Wis. 2d 311, 818 N.W.2d 819. Second, if 

there is an initial grant of coverage, the court will examine 

whether any exclusions withdraw coverage from a claim. Id. 

Third, if an exclusion applies, the court will then consider 

whether there are any exceptions to the exclusion that reinstate 

coverage. Id. 

¶26 Our inquiry is also guided by the canons of 

construction applicable to insurance policies. "[W]e interpret 

policy language according to its plain and ordinary meaning as 

understood by a reasonable person in the position of the 

insured." Hirschhorn v. Auto-Owners Ins. Co., 2012 WI 20, ¶22, 

338 Wis. 2d 761, 809 N.W.2d 529. Ambiguities in the policy 

language are construed against the insurer. Marlowe v. IDS 

Prop. Cas. Ins. Co., 2013 WI 29, ¶48, 346 Wis. 2d 450, 828 

N.W.2d 812. Further, polices should be construed to avoid 

absurd or unreasonable results. McPhee v. American Motorists 

Ins. Co., 57 Wis. 2d 669, 679, 205 N.W.2d 152 (1973).

III.

¶27 We turn first to Acceptance's policy. It is 

undisputed that Acceptance's non-trucking use policy makes an 

initial grant of coverage for the accident. Accordingly, we 

look to the policy exclusions to determine if any remove the 

accident from coverage. 
No. 2012AP667 

12

¶28 Central to this inquiry is exclusion 14(b) of 

Acceptance's policy, which provides: "[t]his insurance does not 

apply to any of the following: . . . [a] covered 'auto' 

. . . [w]hile used in the business of anyone to whom the 'auto' 

is rented." The parties disagree about whether Zeverino was 

using the semi-tractor "in the business of" Taylor Truck Line at 

the time of the accident.

¶29 The Seventh Circuit has articulated how the phrase "in 

the business of" is to be interpreted in the context of a nontrucking use insurance policy. Hartford Ins. Co. v. Occidental 

Fire & Casualty Co., 908 F.2d 235 (7th Cir. 1990). In Hartford

a tractor owner leased its truck and a driver to an interstate 

carrier. Id. at 236. The carrier dispatched the driver from 

Florida to Indiana to deliver frozen orange juice. Id. Before 

the driver left Florida, the owner instructed him to have a 

faulty Freon valve repaired after he delivered his load in 

Indiana. Id. The trailer leaked Freon throughout the trip and 

the buyer refused to accept the orange juice because it was too 

warm. Id. 

¶30 After the driver informed the carrier of the refusal, 

it instructed him to take the juice to a cold-storage facility. 

Id. Complying with those instructions, the driver placed the 

juice in storage. Then, the driver took the trailer to have the 

Freon valve repaired. Id. The next day the driver got into an 

accident while on his way to pick up the trailer. Id. 

Thereafter, pursuant to the carrier's instructions, the driver 
No. 2012AP667 

13

made another attempt to deliver the orange juice and returned to 

Florida with it after the juice was refused. Id. at 236-37.

¶31 At issue in Hartford was whether the truck's nontrucking insurer was required to indemnify the other insurer. 

The non-trucking insurance policy contained a clause excluding 

coverage when the truck was "being used in the business of any 

person or organization to whom the automobile is rented." Id.

at 237. Applying Wisconsin law, the court determined that this 

language was unambiguous. Id. at 238. 

¶32 The Hartford court explained that "'in the business of 

an . . . organization to whom an automobile is rented' clearly 

refers to occasions when the truck is being used to further the 

commercial interests of the lessee." Id. at 239. Because the 

truck driver had not completed his delivery for the carrier and 

was on his way to pick up his trailer for delivery, the court 

concluded that the truck was being used to further the business 

interest of the carrier and thus the exclusion in the nontrucking policy applied. Id.

¶33 The Wisconsin Court of Appeals applied the Hartford

test in Martinez v. Jefferson Ins., 225 Wis. 2d 544, 550, 593 

N.W.2d 475 (Ct. App. 1999). It determined that a driver was 

acting in furtherance of a lessee when he was on his way to 

return a billing ticket to the office as required by the lessee. 

Id. at 549-50. Accordingly, the driver was acting in the 

business of the lessee for purposes of insurance coverage. Id. 

¶34 A number of other jurisdictions also follow the rule 

espoused by Hartford. See, e.g., Empire Fire & Marine Ins. Co. 
No. 2012AP667 

14

v. Brantley Trucking, Inc., 220 F.3d 679, 682 (5th Cir. 2000); 

National Continental Ins. Co. v. Empire Fire & Marine Ins. Co., 

157 F.3d 610, 612 (8th Cir. 1998); Planet Ins. Co. v. Anglo 

American Ins. Co., Ltd., 711 A.2d 899, 902 (N.J. App. Div. 

1998); Empire Fire & Marine Ins. Co. v. Liberty Mut. Ins. Co., 

699 A.2d 482, 495 (Md. Ct. Spec. App. 1997); Lime City Mut. Ins. 

Ass'n v. Mullins, 615 N.E.2d 305, 308 (Ohio Ct. App. 1992). 

Likewise, we adopt Hartford's interpretation of the phrase "in 

the business of" as it presents a clear rule that is consistent 

with the plain language of the exclusion. 

¶35 Not all repairs and maintenance to a leased semitractor further the commercial interest of the lessee. Hartford

demonstrates that repairs are in furtherance of a lessee's 

commercial interests when they are necessary to allow the semitractor to continue to accept and complete hauls for the lessee. 

In Hartford, the broken Freon valve hampered the trucker's 

ability to deliver the orange juice, causing the buyer to reject 

the orange juice because it was too warm. Hartford, 908 F.2d at 

240. Accordingly, the court rejected the argument that the 

repair was not necessary for the lessee's business. Id.

¶36 The principle that obtaining necessary repairs is in 

furtherance of a lessee's business is also illustrated in Ehlers 

v. Automobile Liability Co., 169 Wis. 494, 173 N.W. 325 (1919). 

In that case, the driver was not on his route, had quit for the 

day and was driving to a repair shop when he was involved in an 

accident. Id. at 498. The vehicle was covered by an indemnity 

bond, which provided coverage "while said motor vehicle is being 
No. 2012AP667 

15

operated in the service of a common carrier." Id. at 495. The 

court determined that the coverage applied because the vehicle 

was "running to a repair shop to receive the repairs necessary 

to enable it to continue its service as a common carrier." Id.

at 498.

¶37 Repairs may also be in furtherance of a lessee's 

commercial interest when they are being done to comply with the 

lessee's orders or the lessor's contractual duties.5 See Freed 

v. Travelers, 300 F.2d 395 (7th Cir. 1962) (driver's trip to a 

repair shop was part of the lessee's business when the lease 

required the driver to keep the tractor ready at all times for 

the use of the lessee); National Continental Ins. Co., 157 F.3d 

at 612 ("To the extent that [lessor] was executing his 

contractual duties, he was clearly acting 'in the business of'

 

5 We acknowledge that not all jurisdictions agree that a 

lessor is acting in the interests of the lessee when it is 

fulfilling its contractual duties. For example, in Neal v. St. 

Paul Fire & Marine Ins. Co., 250 N.W.2d 648 (Neb. 1977), the 

Nebraska Supreme Court determined that bobtail coverage did not 

apply when the owner was getting maintenance work done on the 

truck pursuant to its contractual duties. It explained:

While the carrier derived some benefit from the fact 

that the plaintiff attended to the maintenance of the 

tractor between trips, since that was essential to the 

continued use of the tractor in hauling commodities, 

the servicing and maintenance of the tractor was the 

responsibility of the plaintiff. The maintenance of 

the tractor was the "business" of the plaintiff, not 

that of the carrier.

Id. at 650. We find this reasoning unpersuasive as it is based 

on a narrower construction of the term "in the business of" than 

the one we adopt from Hartford.
No. 2012AP667 

16

[the lessee] and thus outside the scope of [non-trucking 

insurance] coverage."); Carriers Ins. Co. v. Griffie, 357 F. 

Supp. 441, 442 (W.D. Pa. 1973) (truck was being "used in the 

business" of lessee when the lessee requested that lessor get 

equipment inspected at a certain inspection station selected by 

the lessee and an accident occurred while at that station); 

Planet Ins. Co., 711 A.2d at 903 (tractor was being used in 

furtherance of lessee when it was on its way home after 

obtaining "repair[s] pursuant to the terms of the lease so that 

it could be used in [lessee's] business").

¶38 In essence, both parties agree that the Hartford test 

applies. They disagree about how the facts here apply to that 

standard. As illustrated by the cases discussed above, whether 

a repair is in furtherance of a carrier's commercial interest 

depends on the totality of the circumstances. It is a factintensive inquiry that will not always be amenable to summary 

judgment. See, e.g., Martinez, 225 Wis. 2d at 548 (noting that 

the issue of whether the truck was being operated for the 

lessee's business at the time of the accident required a factual 

conclusion). Relevant considerations include the terms of the 

lease agreement, any instructions from the lessee, and the 

nature and extent of the repairs.

¶39 Here, the lease required that the lessor "[m]aintain[] 

the equipment in the state of repair required by all applicable 

regulations." Acceptance asserts that the repairs were 

necessary to comply with 49 C.F.R. § 396.3(a), which requires 

all parts and accessories to be in a safe and proper operating 
No. 2012AP667 

17

condition, and 49 C.F.R. § 396.7(a), which prohibits commercial 

motor vehicles from being operated in a condition likely to 

cause an accident or breakdown.

¶40 Contrary to Acceptance's assertions, the undisputed 

facts in the record establish that the repairs to the grille and 

oil filler tube were not required to comply with the federal 

regulations. The record contains the report of the state 

trooper who inspected the semi-tractor after the accident. 

Federal regulations require the trooper to mark the semi-tractor 

out-of-service if the condition of the vehicle or equipment 

would likely cause an accident or a breakdown. 49 C.F.R. 

§ 396.9(c). Rather than marking the semi-tractor out-ofservice, the trooper indicated in his inspection report that 

there were no violations and permitted Zeverino to continue on 

to Eau Claire. Because there is no evidence in the record which 

indicates that the repairs were necessary to comply with federal 

regulations, there is no support for the argument that the 

repairs were necessary to fulfill Zeverino's contractual duties. 

¶41 Acceptance further contends that because the lease 

gave exclusive possession, control, and use of the semi-tractor 

to Taylor Truck Line, that Zeverino's actions were necessarily 

in the business of Taylor Truck Line. Again, we disagree. 

¶42 That language in the lease is required by federal 

regulations governing motor carriers. 49 C.F.R. § 376.12(c) 

(formerly 49 C.F.R. § 1057.12) (requiring the lease to provide 

that "the authorized carrier lessee shall have exclusive 

possession, control, and use of the equipment for the duration 
No. 2012AP667 

18

of the lease."). As the Seventh Circuit explained in Hartford, 

the requirement was intended "to safeguard the public by 

preventing authorized carriers from circumventing applicable 

regulations by leasing the equipment and services of independent 

contractors exempt from federal regulation." 908 F.2d at 238. 

However, it does not prevent indemnification of the lessee by 

the lessor. Id. (citing Transamerican Freight Lines, Inc. v. 

Brada Miller Freight Systems, Inc., 423 U.S. 28, 40 (1975)). 

¶43 When a lease includes a clause requiring the lessor to 

obtain bobtail coverage, it clearly contemplated a situation 

where the vehicle, "though rented, would not be engaged 'in the 

business' of another." Hartford, 908 F.2d at 231. Accordingly, 

the fact that the lease gave Taylor Truck Line exclusive 

possession, control, and use of the semi-tractor is not 

dispositive of whether the semi-tractor was operating in Taylor 

Truck Line’s business at the time of the accident.6

¶44 The facts also demonstrate that Zeverino was not acting 

pursuant to orders from Taylor Truck Line at the time of the 

accident. Zeverino testified that he was not on duty on the day 

of the accident. It is undisputed that Taylor Truck Line had 

not ordered him to have the repairs done and that Taylor Truck 

Line was unaware that he was doing so. 

 

6 Acceptance also advances the argument that the differing 

amounts which the two insurance companies charged for their 

premiums demonstrate that its policy was intended to have very 

limited coverage. We decline to consider this argument as the 

record is silent on the methods and considerations employed in 

setting the premiums. 
No. 2012AP667 

19

¶45 Acceptance references the fact that Zeverino had 

indicated in his Daily Trip Log that he was "driving" prior to 

the accident and "on duty" at the scene of the accident, to 

suggest that Zeverino was working on behalf of Taylor Truck Line 

while he was on his way to obtain the repairs. These references

are not persuasive. Federal regulations require drivers to keep 

daily logs of their driving status. 49 C.F.R. § 395.8. Under 

the regulations, "driving" means "all time spent at the driving 

controls of a commercial motor vehicle in operation." 49 C.F.R. 

§ 395.2. It does not indicate whether the driving is being done 

for personal or business reasons. 

¶46 Likewise, under the federal regulations the notation 

of "on duty" in a log book is appropriate for "[a]ll time 

inspecting, servicing, or conditioning any commercial motor 

vehicle at any time" and "[a]ll time repairing, obtaining 

assistance, or remaining in attendance upon a disabled 

commercial motor vehicle." 49 C.F.R. § 395.2. It does not 

indicate whether those functions are necessary or being done on 

behalf of a business. Accordingly, we reject Acceptance's 

argument that the log book indicates that Zeverino was acting in 

the business of Taylor Truck Line at the time of the accident.

¶47 Finally, we are not persuaded that the repairs were 

necessary to enable the semi-tractor to continue service for 

Taylor Truck Line. The parts being repaired on the semi-tractor 

were its grille and an oil filler tube. Both repairs were 

completed in approximately an hour. 
No. 2012AP667 

20

¶48 The damaged grille did not put the semi-tractor out of 

service or prevent Zeverino from accepting or completing hauls 

for Taylor Truck Line. The record reflects that Zeverino had 

been doing so for over a month during the time between the 

damage to the grille and its repair. Acceptance asserts that 

Zeverino's testimony that the grille was starting to fall apart 

indicates that it would need to be repaired at some point. 

However, Zeverino's testimony on this point was vague and he did 

not provide further details. The inspection of the semi-tractor 

after the accident revealed no violations and placed no 

limitations on the continued operation of the vehicle. 

¶49 In sum, because the repairs were not required by the 

lease agreement, were not done pursuant to orders by Taylor 

Truck Line, and were not necessary for the semi-tractor to 

continue its service, we conclude that Zeverino was not acting 

in furtherance of Taylor Truck Line's commercial interest at the 

time of the accident. Accordingly, the accident does not fall 

within the exclusion in section 14(b) of Acceptance's policy.

IV.

¶50 Acceptance also points to section 14(a) of its policy 

as a clause excluding coverage. That exclusion provides that 

the policy does not cover the semi-tractor "[w]hile being 

operated, maintained or used to carry property in any business 

or en route to or from such business purpose." 

¶51 Acceptance reads section 14(a) as excluding the semitractor from coverage when it is being "operated, maintained, or 

used . . . or en route to or from such business purpose. 
No. 2012AP667 

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Acceptance contends that the phrase "such business purpose" 

refers back to maintenance, indicating that maintenance is a 

business purpose. 

¶52 However, under Acceptance's interpretation of section 

14(a), operation and use would also constitute business 

purposes. As recognized by the court of appeals, if that were 

the case, Acceptance's policy would not cover any situations in 

which the semi-tractor was being driven. Casey, 346 Wis. 2d 

111, ¶32. Indeed, it is unclear that Acceptance's policy would 

ever apply if we were to adopt the interpretation it suggests. 

Wisconsin has a strong public policy against illusory coverage. 

Meyer v. Classified Ins. Co., 192 Wis. 2d 463, 468-69, 531 

N.W.2d 416 (Ct. App. 1995). 

¶53 In contrast, Great West asserts that section 14(a) 

should be read to exclude the semi-tractor from coverage when it 

is being operated to carry property, maintained to carry 

property, or used to carry property, or when it is en route to 

or from those activities. In other words, 14(a) would exclude 

the semi-tractor from coverage when it is en route to obtain 

maintenance if that maintenance is necessary to allow the semitractor to carry property.

¶54 We agree with Great West's interpretation of section 

14(a). It comports with the plain language of the policy and 

affords the insured some coverage. To the extent that section 

14(a) is ambiguous, we construe ambiguity against the insurer, 

Acceptance. Marlowe, 346 Wis. 2d 450, ¶48. 
No. 2012AP667 

22

¶55 Applying section 14(a) to the facts of this case, we 

conclude that it does not exclude coverage. Here, Zeverino was 

on his way to have the grille and oil filler tube on the semitractor replaced when the accident occurred. It is undisputed 

that the semi-tractor could still carry loads without the 

repairs. Thus, the repairs were not necessary to allow the 

semi-tractor to carry property and the exclusion in section 

14(a) of Acceptance's policy does not apply.

¶56 Acceptance has identified no other possible exclusions 

that would apply to preclude coverage. As it has conceded that 

there was an initial grant of coverage, we conclude that 

Acceptance is responsible for providing coverage for the claims 

resulting from the accident. 

¶57 Finally, we turn to address Great West's insurance 

policy. The parties agree that the Great West policy provides 

coverage for the accident only if Zeverino was acting in the 

business of Taylor Truck Line at the time that the accident 

occurred. As discussed above, we have determined that he was 

not. Therefore, we conclude that the Great West policy provides 

no coverage for the claims resulting from the accident.

V.

¶58 We determine that neither of the exclusions in 

Acceptance's policy precludes coverage. The facts of record do 

not support the application of exclusion 14(b). Zeverino was 

not using the semi-tractor "in the business of" Taylor Truck 

Line because the repairs here did not further Taylor's 

commercial interests. There is nothing in the record that shows 
No. 2012AP667 

23

the repairs were required by the lease. Additionally, the 

repairs were not done pursuant to orders from Taylor Truck Line, 

and they were not necessary for the semi-tractor to continue its 

service. 

¶59 Further, Acceptance's argument that coverage is 

excluded because Zeverino was en route to the business purpose 

of obtaining maintenance reflects an overly expansive 

interpretation of the text of exclusion 14(a). Like the court 

of appeals, we are concerned that its interpretation may render 

coverage illusory. Instead, in examining the text of exclusion 

14(a) we determine that it refers to maintenance necessary to 

allow the semi-tractor to carry property. It is undisputed that 

the semi-tractor could and did carry loads without the repairs 

to the grille and oil filler tube. 

¶60 Because the exclusions in Acceptance's policy do not 

apply, we conclude that its non-trucking use policy provides 

coverage for the accident. Accordingly, we affirm the court of 

appeals. 

By the Court.—The decision of the court of appeals is 

affirmed.
No. 2012AP667 

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