Augsburger v. Homestead Mut. Ins. Co.

• Decision Date: 26 December 2014
• Docket Number: No. 2012AP641.,2012AP641.
• Citation: 856 N.W.2d 874,359 Wis.2d 385
• Parties: Julie A. AUGSBURGER, Plaintiff–Respondent, v. HOMESTEAD MUTUAL INSURANCE COMPANY and George Kontos, Defendants–Appellants–Petitioners, ABC Insurance Company, Janet C. Veith, Edward Veith and Convergys Corporation, Defendants.
• Court: Wisconsin Supreme Court

359 Wis.2d 385

856 N.W.2d 874

Julie A. AUGSBURGER, Plaintiff–Respondent

v. HOMESTEAD MUTUAL INSURANCE COMPANY and George Kontos, Defendants–Appellants–PetitionersABC Insurance Company, Janet C. Veith, Edward Veith and Convergys Corporation, Defendants.

No. 2012AP641.

Supreme Court of Wisconsin.

Argued Sept. 4, 2014.

Decided Dec. 26, 2014.

For the defendants-appellants-petitioners, there were briefs by Robert N. Duimstra, Jarrod J. Papendorf, Kurt F. Ellison, and Menn Law Firm, Ltd., Appleton. Oral argument by Jarrod J. Papendorf.

For the plaintiff-respondent, the cause was argued by Susan R. Tyndall, with whom on the briefs was Joseph M. Troy and Habush, Habush & Rottier S.C., Appleton and Waukesha.

An amicus curiae brief was filed by Timothy M. Barber and Axley Brynelson LLP, Madison; and Monte E. Weiss and Weiss Law Office S.C., Mequon, on behalf of Wisconsin Defense Counsel.

An amicus curiae brief was filed by William C. Gleisner III and Law Offices of William Gleisner, Hartland, on behalf of Wisconsin Association for Justice.

Opinion

ANN WALSH BRADLEY, J.

¶ 1 Petitioners, George Kontos and his insurance company, Homestead Mutual Insurance Company, seek review of a published decision of the court of appeals. It affirmed the circuit court's determination that Kontos could be held liable to the plaintiff, Julie Augsburger, for injuries caused by his daughter's dogs.¹

¶ 2 Kontos contends that he cannot be held strictly liable for injuries caused by the dogs because he is not an “owner” of the dogs under the statutory definition. According to Kontos, although the statutory definition of “owner” includes a “harborer,” he did not harbor his daughter's dogs when he permitted his daughter and her family to live in a house he owned while he resided elsewhere. Kontos asserts that because he lived elsewhere, he did not have the requisite control to be a harborer under the statute.

¶ 3 We conclude that mere ownership of the property on which a dog resides is not sufficient to establish that an individual is an owner of a dog under Wis. Stat. § 174.02 (2011–12).² Rather, the totality of the circumstances determines whether the legal owner of the property has exercised the requisite control over the property to be considered a harborer and thus an owner under the statute.

¶ 4 We determine that Kontos is not an “owner” under the statute.³ A statutory owner includes one who “owns, harbors or keeps a dog.” Wis. Stat. § 174.001(5). It is undisputed that Kontos did not legally own the dogs and did not “keep” them. Additionally, we conclude that he was not a harborer as evidenced by the totality of the circumstances. He neither lived in the same household as the dogs nor exercised control over the property on which the dogs were kept. Accordingly, we reverse the court of appeals.

I

¶ 5 The relevant facts in this case are undisputed. Kontos owned a property in Larsen, Wisconsin on Grandview Road (“the Grandview property”). He purchased the Grandview property for his daughter, Janet Veith, and her family to live in so that she could be near her mother who was having medical difficulties at the time.

¶ 6 Kontos did not reside at the property with the Veiths. General repairs and maintenance were done by Veith's husband. This included partially remodeling the interior of the home. There was no formal lease between Kontos and the Veiths. Kontos was aware that the Veiths were having financial difficulties and he did not expect them to pay rent. At times he gave his daughter money to help with the bills. She dealt with Kontos as her dad and did not think of him as her landlord. In explaining the arrangement, Veith explained that the Grandview property was “[Kontos'] house. We live there.” In contrast, her husband did consider Kontos to be their landlord.

¶ 7 At the time Kontos purchased the property he was aware that the Veiths owned horses and two dogs and that the animals would be living with the family. Kontos' deposition testimony reflects that part of the reason he chose the Grandview property was its suitability for the horses. After the Veiths moved in, they rescued another dog named Bailey. Bailey was pregnant and had four puppies. The Veiths kept three of the puppies. Although Kontos was not fond of the dogs, he did not tell his daughter to remove them from the property. The Veiths acknowledged he had the authority to prohibit the dogs from the property, but that he did not exercise that authority. Although Kontos apparently appeared on the property on multiple occasions, the record reveals that it was not frequent.

¶ 8 When he did visit, Kontos would rarely go near the dogs. He never fed the dogs, watered, or bathed them. Further, he did not groom them or take them to the vet. He did not pay for their food, take care of them, or instruct his daughter how to take care of them. He did, however, yell at the dogs a few times to be quiet.

¶ 9 On the date of the incident Veith invited Augsburger to visit her at the Grandview property. When Augsburger arrived, Veith's daughter informed her that Veith was in the barn. As Augsburger made her way to the barn, four dogs ran at her from the house. They attacked her and bit her multiple times.

¶ 10 Augsburger filed a complaint against the Veiths, Kontos, and Homestead Mutual Insurance Company. In the complaint Augsburger alleged that Kontos and the Veiths were negligent in keeping and controlling the dogs and were liable for her injuries under Wis. Stat. § 174.02(1), which imposes strict liability on dog owners for injuries caused by their dogs.

¶ 11 Both Kontos and Augsburger filed summary judgment motions addressing the issue of whether Kontos was a statutory owner.⁴ Kontos relied on Smaxwell v. Bayard, 2004 WI 101, 274 Wis.2d 278, 682 N.W.2d 923, which held that under the circumstances a landlord could not be held liable for injuries caused by a tenant's dog. Augsburger relied on Pawlowski v. American Family Ins. Co.,

2009 WI 105, 322 Wis.2d 21, 777 N.W.2d 67, which determined that a landowner was a statutory owner when she harbored a dog by allowing the dog and its legal owner to reside in her residence.

¶ 12 The circuit court determined that the term “harbor” means “to give shelter or refuge to” and concluded that Kontos gave shelter to the Veiths and their dogs. Accordingly, it determined that he was a statutory owner.

¶ 13 Kontos and his insurer filed an interlocutory appeal, asserting that he was not a statutory owner because he did not exercise custody or control over or care for the dogs, and that public policy precluded his liability. The court of appeals affirmed the circuit court, reasoning that Kontos was a harborer under the statute because he was the owner of the home and knowingly afforded lodging and shelter to the dogs. Augsburger v. Homestead Mutual Ins. Co., 2013 WI App 106, ¶¶ 13–14, 350 Wis.2d 486, 838 N.W.2d 88. It further determined that public policy considerations did not preclude Kontos' liability. Id., ¶ 23.

II

¶ 14 In this case, we are asked to review the court of appeals' decision affirming the circuit court's grant of summary judgment to Augsburger. When we review grants of summary judgment we apply the same methodology as does the court of appeals and the circuit court. Pawlowski, 322 Wis.2d 21, ¶ 15, 777 N.W.2d 67. Summary judgment is appropriate where “there is no genuine issue as to any material fact and [ ] the moving party is entitled to a judgment as a matter of law.” Wis. Stat. § 802.08(2).

¶ 15 Here, the relevant facts are not in dispute. At issue is whether Kontos can be held liable as an “owner” under Wis. Stat. § 174. 02. Statutory interpretation is a question of law that we review independently of the determinations rendered by the circuit court and the court of appeals. Pawlowski, 322 Wis.2d 21, ¶ 16, 777 N.W.2d 67.

¶ 16 We look first to the statutory language at issue. State ex rel. Kalal v. Circuit Court for Dane Cnty., 2004 WI 58, ¶ 45, 271 Wis.2d 633, 681 N.W.2d 110. We interpret statutory language “in the context in which it is used; not in isolation but as part of a whole; in relation to the language of surrounding or closely-related statutes.” Id., ¶ 46. Prior caselaw can aid in this inquiry as it “may illumine how we have previously interpreted or applied the statutory language.” Belding v. Demoulin, 2014 WI 8, ¶ 16, 352 Wis.2d 359, 843 N.W.2d 373.

¶ 17 Our interpretation of a statute is guided also by the canons of statutory construction. “When the legislature chooses to use two different words, we generally consider each separately and presume that different words have different meanings.” Pawlowski, 322 Wis.2d 21, ¶ 22, 777 N.W.2d 67. Further, “[s]tatutes in derogation of the common law are strictly construed.” Fuchsgruber v. Custom Accessories, Inc., 2001 WI 81, ¶ 26, 244 Wis.2d 758, 628 N.W.2d 833 ; see also NBZ, Inc. v. Pilarski, 185 Wis.2d 827, 836, 520 N.W.2d 93 (Ct.App.1994) (“A statute in derogation of the common law must be strictly construed so as to have minimal effect on the common law rule.”).

III

¶ 18 We begin with the language of the statutes. Wisconsin Stat. § 174.02, often referred to as the dog bite statute, imposes strict liability on dog owners for injuries caused by their dogs. It states: “the owner of a dog is liable for the full amount of damages caused by the dog injuring or causing injury to a person, domestic animal or property.” Wis. Stat. § 174.02(a).⁵

¶ 19 A neighboring statute contains a definition of the term “owner.” Wisconsin Stat. § 174.001 provides: “As used in this chapter, unless the context indicates otherwise: ... ‘Owner’ includes any person who owns, harbors or keeps a dog.” Wis. Stat. § 174.001(5). The parties agree that Kontos was not the legal owner of the dogs and did not keep them, but dispute whether he harbored them.

¶ 20 The term “harbor” is not defined in the statute. Accordingly, the plain language of the statutory scheme fails to provide clear guidance on how the term “harbor” should be interpreted in...