Day v. Allstate Indem. Co.

2010 WI App 72, 784 N.W.2d 694
CourtCourt of Appeals of Wisconsin
DecidedApril 13, 2010
Docket2008AP2929
StatusPublished
Cited by1 cases

This text of 2010 WI App 72 (Day v. Allstate Indem. Co.) 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
Day v. Allstate Indem. Co., 2010 WI App 72, 784 N.W.2d 694 (Wis. Ct. App. 2010).

Opinion

784 N.W.2d 694 (2010)
2010 WI App 72

Wendy M. DAY, individually and as Personal Representative of the deceased, *695 Emma Day, Plaintiff-Respondent,[†]
v.
ALLSTATE INDEMNITY COMPANY, Defendant-Third-Party Plaintiff-Appellant,
v.
Clinton Day, Third-Party Defendant.

No. 2008AP2929.

Court of Appeals of Wisconsin.

Oral Argument October 6, 2009.
Opinion Filed April 13, 2010.

*696 On behalf of the defendant-third party plaintiff-appellant, the cause was submitted on the briefs of John J. Swietlik, Jr. and Michael D. Aiken of Kasdorf, Lewis and Swietlik, S.C. of Milwaukee. There was oral argument by John J. Swietlik, Jr.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of C.M. Bye and Brian F. Laule of Bye, Goff & Rohde, Ltd. of River Falls. There was oral argument by Brian F. Laule.

Before HOOVER, P.J., PETERSON and BRUNNER, JJ.

¶ 1 BRUNNER, J.

Allstate Indemnity Company appeals a nonfinal order granting Wendy Day's motion for summary judgment and denying Allstate's motion for summary judgment in this insurance coverage dispute. Allstate argues the family member exclusion clause in Clinton and Holly Day's homeowners' liability policy precludes coverage for Wendy's wrongful death and survivorship claims. We agree the clause bars coverage, reverse the grant of summary judgment, and remand with directions to grant summary judgment in favor of Allstate.

BACKGROUND

¶ 2 This case stems from the tragic death of eight-year-old Emma Day, who frequently experienced severe epileptic seizures. On November 27, 2006, Emma suffered two seizures at school and was sent home. Her parents, Wendy and Clinton Day, were divorced, and Emma was staying with her father and her step-mother, *697 Holly Day, that night. Holly prepared a bath for Emma in the evening. The complaint alleges that while temporarily unattended in the bath, Emma suffered a severe seizure and drowned.

¶ 3 At the time of Emma's death, Clinton and Holly carried a homeowners' insurance policy with Allstate. Like most homeowners' policies, theirs insured against liability for injury to third persons.[1]See Shannon v. Shannon, 150 Wis.2d 434, 455-56, 442 N.W.2d 25 (1989) (citing A.G. v. Travelers Ins. Co., 112 Wis.2d 18, 20-21, 331 N.W.2d 643 (Ct.App. 1983)). A family exclusion clause limited this broad grant of coverage by excluding losses for "bodily injury to an insured person... whenever any benefit of this coverage would accrue directly or indirectly to an insured person." There is no dispute that Clinton, Holly and Emma are all "insured persons" under the policy.[2] Similarly, it is undisputed that Wendy is not an insured person.

¶ 4 Wendy brought wrongful death and survivorship claims against Holly, alleging Holly's negligent supervision caused Emma's death. Holly tendered her defense to Allstate. By stipulation, Holly was dismissed from the action and Wendy was left to pursue her claims against Allstate. The court bifurcated the insurance coverage and liability issues.

¶ 5 On cross-motions for summary judgment, the circuit court construed the policy to require coverage. It rejected Allstate's reliance on the family exclusion clause, reasoning no insured person would benefit from coverage. We granted Allstate's petition for leave to appeal a nonfinal order.[3]

DISCUSSION

¶ 6 We review a grant of summary judgment de novo, applying the same standard as the circuit court. See Green Spring Farms v. Kersten, 136 Wis.2d 304, 315-16, 401 N.W.2d 816 (1987). Summary judgment is appropriate where no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. WIS. STAT. § 802.08(2);[4]Kersten, 136 Wis.2d at 315, 401 N.W.2d 816.

¶ 7 Although Wendy does not contend the family exclusion clause is contrary to public policy, we briefly review the exclusion's purpose to provide context for our analysis. Family exclusion clauses are valid in Wisconsin regardless whether the suit involves a direct claim against an insured family member or an indirect action, such as a contribution claim by a third party. Rabas v. Claim Mgmt. Servs., Inc., 205 Wis.2d 483, 487, 556 N.W.2d 410 (Ct. App.1996). The exclusion protects insurers from situations where an insured, because of close family ties, might not completely cooperate and assist an insurance *698 company's administration of the case. Shannon, 150 Wis.2d at 455-56, 442 N.W.2d 25; Rabas, 205 Wis.2d at 487, 556 N.W.2d 410. Family exclusions also preserve the function of liability coverage, which is to protect the insured against the risk of liability for injuries suffered by others, not injuries suffered by the insured. 9A STEVEN PLITT ET AL., COUCH ON INSURANCE § 128:2 (3d ed.2006).

¶ 8 The issue in this case is whether the family exclusion encompasses wrongful death and survivorship claims brought by someone other than an insured person. Construction of an insurance policy is a question of law which this court reviews de novo. Whirlpool Corp. v. Ziebert, 197 Wis.2d 144, 152, 539 N.W.2d 883 (1995). We interpret contracts to give effect to the parties' intent. Ehlers v. Colonial Penn. Ins. Co., 81 Wis.2d 64, 74, 259 N.W.2d 718 (1977). Ambiguities are construed in favor of coverage, and exclusions are narrowly construed against the insurer. Whirlpool, 197 Wis.2d at 152, 539 N.W.2d 883; Ehlers, 81 Wis.2d at 74, 259 N.W.2d 718. We cannot, however, use rules of construction to rewrite the clear and precise language of the agreement. Whirlpool, 197 Wis.2d at 152, 539 N.W.2d 883.

¶ 9 In Whirlpool, our supreme court concluded an identical exclusion was unambiguous and contemplated contribution claims. Id. at 153, 539 N.W.2d 883. In that case, the manufacturer filed a contribution action alleging the mother of a young girl injured by one of its products negligently supervised her child. Whirlpool, 197 Wis.2d at 148-49, 539 N.W.2d 883. Allstate, with whom the mother carried a homeowners' policy, argued the family exclusion clause precluded coverage for the contribution claim. Id. at 148, 539 N.W.2d 883.

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Bluebook (online)
2010 WI App 72, 784 N.W.2d 694, Counsel Stack Legal Research, https://law.counselstack.com/opinion/day-v-allstate-indem-co-wisctapp-2010.