A western Wisconsin judge erred in ordering a car insurance company to pay benefits to a demolition derby flagman who was seriously injured when a car slammed into him as he tried to help the driver of a disabled vehicle, an appeals court ruled Tuesday.
The state’s 3rd District Court of Appeals held that the uninsured motorist provisions of the injured man’s car insurance did not cover his injuries in the competition, in which cars crash into each other until only one can still move.
The appeals court reasoned that the insurance didn’t apply because the car that hit David Schleusner, 49, of Amery, had been altered for use off public roads, and his insurance policy excluded coverage for such vehicles.
The decision overturned Polk County Circuit Judge Robert Rasmussen’s ruling that Schleusner could collect on the policy’s limit of $100,000.
Rasmussen said the 1975 Chrysler Newport that struck Schleusner at the Burnett County Fair demolition derby in August 2004 was originally designed mainly for use on public roads and that any alterations for the crash derby did not change its initial intended purpose or intended use.
The driver of the Newport did not have insurance on it, leading Schleusner’s uninsured policy with IMT Insurance Co. of Des Moines, Iowa, to come into play, court records said.
IMT Insurance appealed the judge’s decision.
According to court records, Schleusner and other flagmen at the competition waved for drivers to stop so people could get onto the track to help a driver who was being burned by steam from his vehicle.
As Schleusner was reaching into the disabled vehicle, the driver of the Newport accelerated in reverse and pinned Schleusner against the disabled car, court records said.
Schleusner’s hip was fractured, leading to months of hospitalization and more than $200,000 in medical expenses, court records said.
The three-judge appeals court said it had to consider the existing condition of the negligent driver’s car at the time of the accident in deciding whether the insurance coverage applied.
“Vehicles whose intended use or purpose is on public highways as of the time of the accident would be covered, regardless of any previous design for another purpose,” the panel said. “On the other hand, there would be no coverage for injuries caused by vehicles retrofitted for use as monster trucks, flower beds or coral reefs.”
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