ANDERSON, P.J.
The Aetna Casualty & Surety Company (Aetna), Manitowoc Clinic, Inc. and Manitowoc Clinic, S.C. appeal from a summary judgment in favor of Kossuth Mutual Insurance Company (Kossuth), the third party defendant-respondent. Aetna maintains that the family exclusion clause in the Rabases' insurance policy only applies to direct action claims and therefore does not apply to this indirect claim for contribution. Because we conclude that the family exclusion clause applies to direct and indirect actions against insured family members, we affirm the trial court's order for summary judgment.
On June 20,1991, Dorothy Rabas, accompanied by her daughter, Diane Rabas, went to the Manitowoc Clinic, Inc. and Manitowoc Clinic, S.C. (collectively the Clinic) for treatment. While on the premises, Dorothy tripped and fell over a hose which resulted in severe and disabling injuries. The following day, Dorothy passed away allegedly as a result of the injuries.
Otmar Rabas, Dorothy's surviving spouse and the sole beneficiary of her estate, filed an action against the Clinic; Aetna, the Clinic's insurer and Claim Management Services, Inc., the third-party administrator of the Fisher-Hamilton Scientific, Inc. Health and Welfare Plan which paid certain medical bills for Dorothy, to recover damages for Dorothy's death. This appeal arises from a separate contribution action filed by Aetna against Diane, who lived with her parents, and their homeowner's liability insurer, [486]*486Kossuth. Aetna alleges that Dorothy's injuries were caused by Diane's negligent care other mother.
Kossuth moved for summary judgment in the contribution action, arguing that the family exclusion clause precluded coverage for her alleged conduct in any claim Otmar, her father, may have. The circuit court granted the motion ordering that the complaint against Kossuth be dismissed and assessing costs against Aetna. Aetna appeals.1
The issue on appeal turns on the family exclusion clause in Kossuth's policy. There are no disputed issues of fact. We conduct a de novo review of a motion for summary judgment using the same methodology as the trial court. M & I First Nat'l Bank v. Episcopal Homes, 195 Wis. 2d 485, 496, 536 N.W.2d 175, 182 (Ct. App. 1995). In addition, the construction of an insurance policy is a question of law which we also decide de novo. Whirlpool Corp. v. Ziebert, 197 Wis. 2d 144, 152, 539 N.W.2d 883, 886 (1995).
The family exclusion clause states: "[Personal liability coverage] does not apply to liability: 1. for bodily injury to you, and if residents of your household, your relatives, and persons under the age of 21 in your care or in the care of your resident relatives . .. ."2 The [487]*487family exclusion clause is not ambiguous. Accordingly, it must be construed "as it stands." See Borchardt v. Wilk, 156 Wis. 2d 420, 427, 456 N.W.2d 653, 656 (Ct. App. 1990). The exclusion precludes coverage for any insured or resident of the household, in this case, all three members of the Rabas family.
Family exclusion clauses are valid in Wisconsin involving both a direct suit against an insured family member or an indirect action, such as a contribution claim by a third party. See Shannon v. Shannon, 150 Wis. 2d 434, 455-56, 442 N.W.2d 25, 35 (1989); see also Whirlpool, 197 Wis. 2d at 151-52, 539 N.W.2d at 886. "The potential for collusion is virtually the same in either situation [direct suits against family members or third-party contribution claims against family members] — at least in the sense that. . . the parents would have no incentive to defeat or reduce the claim." Id. at 151, 539 N.W.2d at 885 (quoting Groff v. State Farm Fire & Casualty Co., 646 F. Supp. 973, 975 (E.D. Pa. 1986)). Thus, the family exclusion clause furthers the legitimate public policy of protecting insurers from situations, both direct and indirect actions, where an insured may not completely cooperate and assist the insurance company's administration of the case. See Whirlpool, 197 Wis. 2d at 149-50, 539 N.W.2d at 885.
The supreme court further explained the family exclusion clause as follows:
The liability being asserted in Whirlpool's contribution claim against Sharon Ziebert is based on the claim for damages suffered by Jaclyn Ziebert. That liability is identical whether there is a direct [488]*488claim against Sharon Ziebert by her daughter or whether the claim is indirectly asserted through a contribution claim by Whirlpool. To say that Jaclyn Ziebert is not receiving a benefit because her recovery comes from a contribution claim rather than a direct claim for personal injuries is the ultimate tribute to form over substance. Such a conclusion defies logic and common sense.
Id, at 155, 539 N.W.2d at 887.
This reasoning also applies here.3 The liability asserted in Aetna's contribution claim against Diane is based on the negligence claim brought by Otmar against the Clinic, Aetna's insured. That liability is identical whether there is a direct claim against Diane by her father or whether the claim is indirectly asserted through a contribution claim by Aetna. This is precisely the exposure the Kossuth policy eliminates. See id. at 150-51, 539 N.W.2d at 885.
Aetna attempts to distinguish the reasoning and holding in Whirlpool based upon the direct/indirect language in that policy which is not contained in the Kossuth policy. Aetna argues that Whirlpool only barred "coverage for contribution claims which expressly applied to both direct and indirect claims."
We do not read Whirlpool as mandating the magic words "direct and indirect;" to do so would place form over substance. The court agreed with the California appellate court that the additional language clarifies the scope of the standard clause which excludes coverage liability for bodily injury to the insured so [489]*489that it is more clearly understood that contribution claims are covered by the clause. Id. at 154, 539 N.W.2d at 886-87 (citing State Farm Mut. Auto. Ins. Co. v. Vaughn, 208 Cal. Rptr. 601, 603 (Cal. App. 1984)). It does not follow that a family exclusion clause without this language is rendered ambiguous. This was not the holding of the Whirlpool court. The basic principle in Whirlpool is that family exclusion clauses cover contribution claims when the liability is identical, whether there is a direct claim between family members or whether the claim is indirectly asserted through a contribution claim by a third party because the possibility of collusion is present in both situations.
This argument also ignores the important public policy reasons for applying family exclusion clauses to indirect claims, such as contribution actions. On this point, the court stated:
[T]here are times when we must look beyond the immediate facts to principles of public policy and the broader ramifications that our decisions have on the people of this state as a whole.
Free access — add to your briefcase to read the full text and ask questions with AI
ANDERSON, P.J.
The Aetna Casualty & Surety Company (Aetna), Manitowoc Clinic, Inc. and Manitowoc Clinic, S.C. appeal from a summary judgment in favor of Kossuth Mutual Insurance Company (Kossuth), the third party defendant-respondent. Aetna maintains that the family exclusion clause in the Rabases' insurance policy only applies to direct action claims and therefore does not apply to this indirect claim for contribution. Because we conclude that the family exclusion clause applies to direct and indirect actions against insured family members, we affirm the trial court's order for summary judgment.
On June 20,1991, Dorothy Rabas, accompanied by her daughter, Diane Rabas, went to the Manitowoc Clinic, Inc. and Manitowoc Clinic, S.C. (collectively the Clinic) for treatment. While on the premises, Dorothy tripped and fell over a hose which resulted in severe and disabling injuries. The following day, Dorothy passed away allegedly as a result of the injuries.
Otmar Rabas, Dorothy's surviving spouse and the sole beneficiary of her estate, filed an action against the Clinic; Aetna, the Clinic's insurer and Claim Management Services, Inc., the third-party administrator of the Fisher-Hamilton Scientific, Inc. Health and Welfare Plan which paid certain medical bills for Dorothy, to recover damages for Dorothy's death. This appeal arises from a separate contribution action filed by Aetna against Diane, who lived with her parents, and their homeowner's liability insurer, [486]*486Kossuth. Aetna alleges that Dorothy's injuries were caused by Diane's negligent care other mother.
Kossuth moved for summary judgment in the contribution action, arguing that the family exclusion clause precluded coverage for her alleged conduct in any claim Otmar, her father, may have. The circuit court granted the motion ordering that the complaint against Kossuth be dismissed and assessing costs against Aetna. Aetna appeals.1
The issue on appeal turns on the family exclusion clause in Kossuth's policy. There are no disputed issues of fact. We conduct a de novo review of a motion for summary judgment using the same methodology as the trial court. M & I First Nat'l Bank v. Episcopal Homes, 195 Wis. 2d 485, 496, 536 N.W.2d 175, 182 (Ct. App. 1995). In addition, the construction of an insurance policy is a question of law which we also decide de novo. Whirlpool Corp. v. Ziebert, 197 Wis. 2d 144, 152, 539 N.W.2d 883, 886 (1995).
The family exclusion clause states: "[Personal liability coverage] does not apply to liability: 1. for bodily injury to you, and if residents of your household, your relatives, and persons under the age of 21 in your care or in the care of your resident relatives . .. ."2 The [487]*487family exclusion clause is not ambiguous. Accordingly, it must be construed "as it stands." See Borchardt v. Wilk, 156 Wis. 2d 420, 427, 456 N.W.2d 653, 656 (Ct. App. 1990). The exclusion precludes coverage for any insured or resident of the household, in this case, all three members of the Rabas family.
Family exclusion clauses are valid in Wisconsin involving both a direct suit against an insured family member or an indirect action, such as a contribution claim by a third party. See Shannon v. Shannon, 150 Wis. 2d 434, 455-56, 442 N.W.2d 25, 35 (1989); see also Whirlpool, 197 Wis. 2d at 151-52, 539 N.W.2d at 886. "The potential for collusion is virtually the same in either situation [direct suits against family members or third-party contribution claims against family members] — at least in the sense that. . . the parents would have no incentive to defeat or reduce the claim." Id. at 151, 539 N.W.2d at 885 (quoting Groff v. State Farm Fire & Casualty Co., 646 F. Supp. 973, 975 (E.D. Pa. 1986)). Thus, the family exclusion clause furthers the legitimate public policy of protecting insurers from situations, both direct and indirect actions, where an insured may not completely cooperate and assist the insurance company's administration of the case. See Whirlpool, 197 Wis. 2d at 149-50, 539 N.W.2d at 885.
The supreme court further explained the family exclusion clause as follows:
The liability being asserted in Whirlpool's contribution claim against Sharon Ziebert is based on the claim for damages suffered by Jaclyn Ziebert. That liability is identical whether there is a direct [488]*488claim against Sharon Ziebert by her daughter or whether the claim is indirectly asserted through a contribution claim by Whirlpool. To say that Jaclyn Ziebert is not receiving a benefit because her recovery comes from a contribution claim rather than a direct claim for personal injuries is the ultimate tribute to form over substance. Such a conclusion defies logic and common sense.
Id, at 155, 539 N.W.2d at 887.
This reasoning also applies here.3 The liability asserted in Aetna's contribution claim against Diane is based on the negligence claim brought by Otmar against the Clinic, Aetna's insured. That liability is identical whether there is a direct claim against Diane by her father or whether the claim is indirectly asserted through a contribution claim by Aetna. This is precisely the exposure the Kossuth policy eliminates. See id. at 150-51, 539 N.W.2d at 885.
Aetna attempts to distinguish the reasoning and holding in Whirlpool based upon the direct/indirect language in that policy which is not contained in the Kossuth policy. Aetna argues that Whirlpool only barred "coverage for contribution claims which expressly applied to both direct and indirect claims."
We do not read Whirlpool as mandating the magic words "direct and indirect;" to do so would place form over substance. The court agreed with the California appellate court that the additional language clarifies the scope of the standard clause which excludes coverage liability for bodily injury to the insured so [489]*489that it is more clearly understood that contribution claims are covered by the clause. Id. at 154, 539 N.W.2d at 886-87 (citing State Farm Mut. Auto. Ins. Co. v. Vaughn, 208 Cal. Rptr. 601, 603 (Cal. App. 1984)). It does not follow that a family exclusion clause without this language is rendered ambiguous. This was not the holding of the Whirlpool court. The basic principle in Whirlpool is that family exclusion clauses cover contribution claims when the liability is identical, whether there is a direct claim between family members or whether the claim is indirectly asserted through a contribution claim by a third party because the possibility of collusion is present in both situations.
This argument also ignores the important public policy reasons for applying family exclusion clauses to indirect claims, such as contribution actions. On this point, the court stated:
[T]here are times when we must look beyond the immediate facts to principles of public policy and the broader ramifications that our decisions have on the people of this state as a whole. We are persuaded that the possibility of collusion is great enough to warrant allowing family exclusion clauses to cover contribution actions. Therefore, we hold that such clauses are not contrary to public policy....
Id. at 151-52, 539 N.W.2d at 886 (emphasis added). Because the liability is identical in this case, we conclude that the family exclusion clause precludes coverage for Aetna's contribution claim.
Moreover, "[contribution is the 'process by which one person obtains reimbursement from another for a proportionate share of an obligation paid by the first [490]*490person but for which they are both liable.' This process is based upon principles of equity and natural justice, not express contract." Kafka v. Pope, 186 Wis. 2d 472, 475, 521 N.W.2d 174, 176 (Ct. App. 1994) (quoted source omitted), aff'd, 194 Wis. 2d 234, 533 N.W.2d 491 (1995). "When no express agreement confers a right of contribution, a party's right to seek contribution against another is premised on two conditions: (1) the parties must be liable for the same obligation; and (2) the party seeking contribution must have paid more than a fair share of the obligation." Kafka v. Pope, 194 Wis. 2d 234, 242-43, 533 N.W.2d 491, 494 (1995). Aetna's argument fails because Kossuth has no liability for Dorothy's injuries.
In sum, Aetna's claim for contribution stems from its liability for Dorothy's injuries; if Diane's negligence contributed to her mother's injuries, Aetna could have a potential claim for contribution against her. However, Aetna does not have a claim against Diane's insurer because Kossuth's policy does not insure her liability to a family member.
By the Court. — Judgment affirmed.