Aasen-Robles v. Lac Courte Oreilles Band

• Decision Date: 03 September 2003
• Docket Number: No. 03-1143-FT.,03-1143-FT.
• Citation: 671 N.W.2d 709,267 Wis.2d 333,2003 WI App 224
• Parties: Julie AASEN-ROBLES, Plaintiff-Appellant, MINNESOTA DEPARTMENT OF HUMAN SERVICES and Corporate Benefit Services of America, Involuntary-Plaintiffs-Appellants, v. LAC COURTE OREILLES BAND OF LAKE SUPERIOR CHIPPEWA INDIANS and St. Paul Companies, Defendants-Respondents.
• Court: Wisconsin Court of Appeals

267 Wis.2d 333

2003 WI App 224

671 N.W.2d 709

Julie AASEN-ROBLES, Plaintiff-Appellant, MINNESOTA DEPARTMENT OF HUMAN SERVICES and Corporate Benefit Services of America, Involuntary-Plaintiffs-Appellants, v. LAC COURTE OREILLES BAND OF LAKE SUPERIOR CHIPPEWA INDIANS and St. Paul Companies, Defendants-Respondents.

No. 03-1143-FT.

Court of Appeals of Wisconsin.

Submitted on briefs August 12, 2003.

Decided September 3, 2003.

On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Andrew H. Morgan of Charlton, Morgan & Joy, Ltd. of Milwaukee.

On behalf of the defendants-respondents, the cause was submitted on the brief of Eric D. Hylden of Downs, Reyelts, Leighton, Bateman & Hylden, Ltd. of Duluth, MN.

Before Cane, C.J., Hoover, P.J., and Peterson, J.

¶ 1. CANE, C.J.

This case presents the issue of whether an employee exclusion in a general liability insurance policy bars coverage for Julie Aasen-Robles, a Lac Courte Oreilles Band of Lake Superior Chippewa Indians' employee, when she slipped and fell on her employer's premises before she started work.¹ Because a reasonable insured would interpret the language to only encompass those injuries originating from the employee's job and incurred while the employee is engaged in work, we reverse the judgment and remand to the trial court.

BACKGROUND

¶ 2. For purposes of this appeal, the facts of the case are undisputed. Julie Aasen-Robles was an employee of the Lac Courte Oreilles Band of Lake Superior Chippewa Indians (LCO) and worked at LCO's casino in the housekeeping department. On December 31, 1998, Aasen-Robles slipped and fell on an icy patch of sidewalk while walking toward an employee entrance on LCO's premises. When she fell, Aasen-Robles was on her way to work and had not yet punched in or commenced work. Her injuries prevented her from returning to her job. ¶ 3. LCO conducts its casino business pursuant to a gaming compact with the State of Wisconsin. At the time of the accident, the Gaming Compact of 1991 was in effect. This compact regulates the conduct of class III gaming by LCO.²See 25 U.S.C. § 2703(6)-(8) (2001) (defining class III gaming). Among other things, it required LCO to maintain public liability insurance coverage with minimum policy limits.³ In light of this requirement, LCO purchased a Public Entity General Liability Insurance Policy from St. Paul Fire & Marine Insurance Company (St. Paul). The gaming compact did not require LCO to provide worker's compensation for its employees, but LCO self-insured its employees to provide coverage for all work-related injuries or illnesses. LCO retained Corporate Benefit Services of America (CBSA) to administer this program.

¶ 4. Aasen-Robles obtained treatment for her injuries at the LCO clinic. There, she was referred to a hospital for physical therapy. While the CBSA administrator initially concluded her physical therapy would be paid by its policy, the administrator later told Aasen-Robles her injuries were not work-related because she was not "in the door" or "on the clock" when she fell. The administrator advised Aasen-Robles to file a claim under LCO's general liability insurance. Aasen-Robles eventually sued St. Paul.

¶ 5. Before trial, St. Paul moved for summary judgment. The circuit court granted summary judgment to St. Paul for two reasons. First, the court stated the insurance policy "specifically excluded employees of the tribe from coverage. Aasen-Robles was an employee of the tribe at the time of her injury. She was on her way to work, on the employer's property when she fell and was injured.... The policy does not cover employees."⁴ Second, the court rejected the fact that the administrator of CBSA informed Aasen-Robles her injury would be covered under the general liability policy because these representations could not change the language of the policy. Aasen-Robles appeals.

¶ 6. Aasen-Robles argues she is entitled to coverage for her injuries from St. Paul for two reasons. First, under the terms of the gaming compact, she argues her injury was sufficiently related to the "conduct of class III gaming" to allow recovery against St. Paul. Second, she claims the exclusion in St. Paul's policy that bars coverage for injuries to employees "arising out of and in the course of [her] ... employment" should not apply to her because she was not working at the time of her injury. ¶ 7. St. Paul, on the other hand, claims Aasen-Robles is not entitled to coverage under the policy for two reasons. First, St. Paul argues LCO was only required to obtain liability insurance for "class III gaming activities" under the gaming compact. Aasen-Robles, however, was not engaged in class III gaming activity at the time she slipped and fell. Therefore, the policy does not afford coverage to her claim. Second, St. Paul claims Aasen-Robles's injuries fall under the employee exclusion.

¶ 8. We conclude the circuit court erred by granting summary judgment to St. Paul. In so doing, we hold (1) the Gaming Compact of 1991, which required LCO to obtain liability insurance for class III gaming activities, has no bearing on whether Aasen-Robles's injuries are covered under the provisions of St. Paul's general liability insurance policy, and (2) Aasen-Robles's injuries are not barred by the exclusion because a reasonable insured would interpret the language to encompass only those injuries originating from an employee's job and incurred while the employee is engaged in work.⁵

DISCUSSION

[1, 2]

¶ 9. When reviewing a summary judgment, our review is de novo. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816 (1987). We perform the same function as the trial court. Id. On summary judgment, a court must view the facts in the light most favorable to the nonmoving party. State Bank of La Crosse v. Elsen, 128 Wis. 2d 508, 512, 383 N.W.2d 916 (Ct. App. 1986). Summary judgment is appropriate when no material facts are in dispute and the moving party is entitled to judgment as a matter of law. WIS. STAT. § 802.08.

[3]

¶ 10. Turning to the parties' first arguments, both seem to agree that in order for the injuries to be compensable under the insurance policy, a connection must be made between the general liability insurance policy, the gaming compact (which only regulates class III gaming activities), and the circumstances surrounding Aasen-Robles's injuries. Aasen-Robles spends a great deal of time in her appellate brief explaining her injury was related to class III gaming activities by virtue of her job duties, despite the fact she was not working, and thus concluding her injuries involve class III gaming activities which entitles her to coverage under the policy. In contrast, St. Paul argues Aasen-Robles was not engaged in gaming activities when she slipped and fell, but was rather engaged in, what it calls, "employment activities." Consequently, St. Paul claims Aasen-Robles is not entitled to coverage under the insurance policy.

¶ 11. Both parties construct their arguments on the premise that Taylor v. St. Croix Chippewa Indians, 229 Wis. 2d 688, 694-95, 599 N.W.2d 924 (Ct. App. 1999), stands for the proposition that an insurance policy purchased in light of a gaming compact will always be limited to class III gaming activities. This is a misunderstanding of Taylor. ¶ 12. In Taylor, the St. Croix nation entered into a gaming compact with Wisconsin to operate gaming facilities on its reservation. This compact, like the compact between Wisconsin and LCO, required St. Croix to "maintain public liability insurance with limits of not less than $250,000 for any one person." Id. at 694. In response, St. Croix purchased a comprehensive business policy that included general liability insurance. This insurance policy, similar to the insurance policy in this case, excluded employees injured in the course and scope of employment.

¶ 13. Taylor was a St. Croix employee and was injured while building a youth center on St. Croix nation territory. Taylor did not dispute his injuries were barred from coverage under the liability insurance by virtue of the employee exclusion. Rather, Taylor argued the construction of the youth center was a class III gaming activity because it was funded by gaming revenues. The exclusion of his injuries under the liability policy violated the gaming compact's requirement to obtain liability insurance for all class III gaming activities. Accordingly, Taylor claimed he was entitled to sue St. Croix because they waived their sovereign immunity by failing to insure a class III gaming activity as mandated by the compact, or, in the alternative, sought to reform the general liability insurance contract to strike the provision excluding employees from coverage.

¶ 14. We held Taylor was not engaged in a class III gaming activity when he was injured while constructing the youth center. Id. at 695. The mere fact the construction project was funded by gaming revenue did not transform the activity into a gaming activity. Id. Thus, there was no reason to address Taylor's arguments of whether St. Croix waived its sovereign immunity by failing to insure a particular gaming activity or if reformation of the insurance policy was appropriate. The insurance policy's employee exclusion applied to the circumstances of Taylor's injuries did not violate the gaming compact. Id. at 694-95. The gaming compact "required St. Croix to maintain liability insurance only with respect to its gaming activities." Id. at 694. We noted that "Wisconsin has no reason or authority to impose an obligation on the tribe to maintain liability insurance for anything beyond its gaming activities" because to do so would "obviously reach beyond the purpose and intent of the gaming compact." Id. at 695.

¶ 15. The parties interpret this to mean the gaming compact's requirement to obtain liability insurance for class III gaming activities necessarily limits the coverage of an insurance policy,...