Accola v. Fontana Builders, Inc.

2010 WI App 143, 792 N.W.2d 635, 330 Wis. 2d 41, 2010 Wisc. App. LEXIS 759
CourtCourt of Appeals of Wisconsin
DecidedSeptember 22, 2010
DocketNo. 2009AP2810
StatusPublished
Cited by2 cases

This text of 2010 WI App 143 (Accola v. Fontana Builders, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Accola v. Fontana Builders, Inc., 2010 WI App 143, 792 N.W.2d 635, 330 Wis. 2d 41, 2010 Wisc. App. LEXIS 759 (Wis. Ct. App. 2010).

Opinion

¶ 1. BROWN, C.J.

James and Suzanne Accola are suing Fontana Builders, Inc., along with its liability insurer, Westfield Insurance Company, to recover damages for their personal property that burned while they were asleep in their soon-to-be home. Westfield claims that because the house was still owned by Fontana — the general contractor working to put finishing touches on the home at the time of the fire — the house and its contents were excluded from coverage. Specifically, Westfield contends that the contents of the house are excluded as property in the "care, custody, or control" of Fontana. The Accolas argue that their personal property was neither owned by nor in the "care, custody, or control" of Fontana — and was therefore covered. The trial court agreed with West-field, and granted summary judgment in its favor, dismissing it from the lawsuit. We disagree, and reverse.

FACTS

¶ 2. The relevant facts of this case are complicated, but undisputed. The Accolas were sleeping in a house with their children when a fire broke out, destroying both the house and its contents. At the time of the fire, the house was owned by Fontana, but legally occupied by the Accolas under a thirty-day temporary occupancy permit. Interestingly, James Accola happens to be both [44]*44owner and president of Fontana.1 The fire was allegedly caused by some dirty (and apparently flammable) rags left behind by a Fontana employee.

¶ 3. After the fire, the Accolas filed a negligence claim against Fontana and Westfield, Fontana's liability insurer. They acknowledged that damage to the house itself was not covered because the liability policy excludes coverage for property owned by the insured (here, Fontana). However, they claim that the personal property they moved into the house was covered because it was not owned by Fontana and was not in Fontana's care, custody, or control.

¶ 4. Westfield filed for summary judgment, claiming that the Accolas' personal property was excluded from their policy by the "care, custody, or control" exclusion.2 It claims that this exclusion is in place to avoid precisely this scenario, where an insured allows valuable property to be stored on its property while it is [45]*45still doing work on it. Westfield also claims that James Accola's status as owner of Fontana strengthens its argument that his personal property should be excluded because it was under supervision "24 hours a day" by a Fontana employee — Accola himself. The trial court granted summary judgment to Westfield and dismissed it from the lawsuit. The Accolas appeal.

DISCUSSION

¶ 5. We review summary judgment de novo. See Green Spring Farms v. Kersten, 136 Wis. 2d 304, 317, 401 N.W.2d 816 (1987). We use the same methodology as the trial court, but we owe it no deference. Id. at 315-17; Silverton Enters., Inc. v. General Cas. Co. of Wis., 143 Wis. 2d 661, 669, 422 N.W.2d 154 (Ct. App. 1988). Summary judgment is appropriate when there are no genuine issues of material fact and a party is entitled to a judgment as a matter of law. Green Spring Farms, 136 Wis. 2d at 315; Wis. Stat. § 802.08(2) (2007-08).

¶ 6. The question that is central to this case is whether the Accolas' personal property is excluded by the "care, custody, or control" clause of Westfield's policy with Fontana. The parties agree as to all of the relevant facts: the Accolas owned personal property inside the house, but Fontana still owned the house itself; the [46]*46Accolas had permission to move themselves and their belongings into the house; and James Accola was (and is) president and owner of Fontana, but he was asleep with his family inside when the fire occurred. Thus, the only remaining question is one of law — how do these undisputed facts fit with the law regarding the "care, custody, or control" exclusion? Both parties were able to provide us with Wisconsin case law addressing this type of clause. Predictably, they disagree as to how the facts apply.

¶ 7. We begin with some basic insurance law principles. Insurance companies, of course, may limit coverage, but they must do so explicitly and with clear language. Meiser v. Aetna Cas. & Sur. Co., 8 Wis. 2d 233, 238, 98 N.W.2d 919 (1959). If an exclusion clause is ambiguous, it must be construed against the insurer. Id. The purpose of the strict construction is to protect the reasonable expectations of the insured. See Patrick v. Head of the Lakes Coop. Elec. Ass'n, 98 Wis. 2d 66, 69, 295 N.W.2d 205 (Ct. App. 1980).

¶ 8. Our supreme court has already found the "care, custody, or control" clause to be ambiguous. Meiser, 8 Wis. 2d at 238. We even have a test that we use to determine whether property is covered by the "care, custody, or control" clause of an insurance contract. See id. at 236, 238; Silverton, 143 Wis. 2d at 670-71. Property is in the care, custody, or control of the insured if it is "under the supervision of the insured" and it is a necessary element of the work involved. Silverton, 143 Wis. 2d at 670-71; see also Meiser, 8 Wis. 2d at 236, 238. We agree with Westfield that the personal property was under the general supervision of Fontana as general contractor. But we cannot see how [47]*47the Accolas personal property was necessary to the work involved in finishing — or, for that matter, building —their house.

¶ 9. We know of two Wisconsin cases that discuss the "care, custody, or control" test in depth, and both confirm our reasoning. In Meiser, the insured was a subcontractor whose job was to plaster walls and ceilings in a house. Meiser, 8 Wis. 2d at 239. The general contractor asked him to clean some stray plaster off of the windows, and the windows were scratched when one of his employees did so. Id. at 234, 239. Our supreme court held that the damaged windows were not under the care, custody, or control of the insured subcontractor because they were not "essential," or necessary, to the work of plastering walls and ceilings. Id. at 239-40.

¶ 10. In Silverton, the insureds were two companies in the business of repairing automobile transmissions. Silverton, 143 Wis. 2d at 669. They argued for coverage of damage to automobiles left in their garage for repair. Id. at 670. The court of appeals said that the cars were excluded from coverage by the "care, custody, or control" exclusion because " [supervision over an automobile left with plaintiffs for repair is a necessary element of the repair." Id. at 671.

¶ 11. Westfield argues that both Meiser and Silverton show that supervision is a "primary element of an insured's 'necessary work." Its brief states,

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Cite This Page — Counsel Stack

Bluebook (online)
2010 WI App 143, 792 N.W.2d 635, 330 Wis. 2d 41, 2010 Wisc. App. LEXIS 759, Counsel Stack Legal Research, https://law.counselstack.com/opinion/accola-v-fontana-builders-inc-wisctapp-2010.