Carrington v. St. Paul Fire & Marine Ins. Co.

Decision Date30 July 1991
Docket NumberNo. 90-0834,90-0834
Citation473 N.W.2d 591,164 Wis.2d 148
PartiesCameron J. CARRINGTON, f/k/a Cameron J. Cotton, by his Guardian ad Litem, Arthur B. Nathan, Plaintiff-Co-Appellant, v. ST. PAUL FIRE & MARINE INSURANCE COMPANY, a foreign corporation, Defendant-Respondent, d Wesley R. Jarrell and Jonathan A. Wollman, Defendants, Dorthea Evans, Defendant-Appellant. Lori L. JARRELL, Plaintiff, v. ST. PAUL FIRE & MARINE INSURANCE COMPANY, Defendant-Respondent,d State Farm Mutual Automobile Insurance Company, a foreign corporation, Wesley R. Jarrell, Cameron J. Carrington, f/k/a Cameron J. Cotton, and Jonathan A. Wollman, Defendants, Dorthea Evans, Defendant-Appellant.
CourtWisconsin Court of Appeals

Ronald Bornstein of Robert Silverstein & Associates, S.C., Milwaukee, for appellant Dorthea Evans.

Arthur B. Nathan of Nathan Law Office, S.C., Racine, for co-appellant Cameron Carrington.

Douglas J. Carroll of O'Neill, Schimmel, Quirk & Carroll, S.C., Milwaukee, for respondent St. Paul Fire & Marine Ins. Co.

Before MOSER, P.J., and FINE and SULLIVAN, JJ.

SULLIVAN, Judge.

This case involves the construction of an insurance contract and the coverage afforded under the uninsured motorist (UM) clause contained in a policy issued to a youth home. 1 There are no material facts in question. The issues present a question of law which we review de novo. Martin v. Milwaukee Mut. Ins. Co., 146 Wis.2d 759, 766, 433 N.W.2d 1, 3 (1988).

The undisputed facts involve a car accident. On the day of the collision, the appellants, Cameron J. Carrington and Dorthea Evans (collectively, the children), both minors, resided at Sunburst Youth Homes, Inc. (Sunburst) under orders extending dispositional orders of the juvenile court. These orders determined that Carrington and Evans were children in need of protection and services (CHIPS), and placed their custody with the department of social services of their respective counties of residence. 2 They were on an outing with a Sunburst employee, Wesley Jarrell, and another adult, Lori Jarrell. Both children sustained injuries when, as passengers in a Sunburst-owned 1986 Dodge Omni, they were struck by an uninsured vehicle which allegedly crossed the center line of the highway. St. Paul Fire & Marine Insurance Company (St. Paul) had issued a commercial fleet policy to Sunburst, including coverage for the occupied vehicle.

Evans appeals from a summary judgment granted to St. Paul which declared inter alia, that its UM provision afforded occupancy coverage only, and which also dismissed her complaint. 3 Carrington appeals the same judgment.

The trial court determined that Evans and Carrington were not named insureds, but occupancy insureds. Applying the single-limit provision, 4 the court limited all injured parties' recovery to a total of $100,000. The consequence of finding the children to be occupancy insureds and applying the single-limit provision is that it precludes stacking the UM coverage of the other vehicles owned by Sunburst and insured by St. Paul.

This case presents two issues. First, does a UM provision of a commercial fleet policy issued to a corporate insured include two minors who had been placed by juvenile courts at a corporate insured facility under CHIPS dispositional orders as named insureds. 5 Second, if the children were named insureds, does the single limit UM policy coverage of $100,000 preclude the stacking of the coverages of multiple insured vehicles, regardless of the number of insured vehicles and the number of protected persons or the number of claims filed, and whether the single-limit language of the policy violates sec. 631.43(1), Stats.

I.

The resolution of whether the children may stack the UM coverage of the noninvolved vehicles is dependent upon first, their status under the insurance policy. The children can either be "occupancy insureds," 6 i.e., individuals having insurance coverage merely because they were occupants of the insured vehicle struck by an uninsured motorist, or they can be "named insureds." As occupancy insureds, they cannot stack the UM coverage of the noninvolved vehicles. If they are also named insureds, they may stack the insurance coverage. 7

In answering the question of whether the children were named insureds under Sunburst's fleet policy, St. Paul argues that because the policy was issued to Sunburst, its unambiguous language defining protected persons could not apply to the children. The policy, in part, provides:

Who Is Protected Under This Agreement

Protected persons are people and organizations protected under this agreement. Each is protected separately. However, the limits of coverage shown in the Coverage Summary are shared by all protected persons.

Here's a list of "protected persons" and certain limitations on their liability protection.

You.

A member of your family.

A member of your family is a person who is related to you by blood, marriage or adoption and lives in your home. A ward or foster child who lives with you is also considered to be a member of your family.

Anyone else in a covered auto. Anyone else while in a covered auto or a temporary substitute auto is protected.

The children are occupancy insureds at the very least because they were passengers in the insured vehicle. However, St. Paul contends that because Sunburst is an inanimate and bloodless corporate entity, it could not have a family of which any children could be members, nor does it have a home where children, as wards or foster children, could live. Because no "family" exists, St. Paul argues that the children's recovery is limited to their status as occupants and not amenable to stacking. In Martin, 146 Wis.2d at 766, 433 N.W.2d at 3, the supreme court determined that passengers, occupancy insureds who were not named insureds, were not covered by insurance on a noninvolved vehicle. St. Paul contends that the policy's failure to name any insured other than the Sunburst corporate entity eliminates the children as named insureds. See, e.g., American Fire and Casualty Co. v. Sinz, 487 So.2d 340, 340-41 (Fla.Dist.Ct.App.1986).

The children contend that they are named insureds, and hence, covered by approximately eighteen noninvolved vehicles named in St. Paul's fleet policy. 8 They reason that the term "protected person" includes "You," which the policy defines as:

The words you, your and yours mean the insured named here:

Sunburst Inc. of Wisconsin

Sunburst Youth Homes, Inc.

Sunburst Care Facilities, Ltd.

Sunburst Foundation, Inc.

Neillsville, WI 54456

Which is a:

x corporation

partnership

other

individual

joint venture

condominium

Their reasoning posits that Sunburst is named as a protected person, or insured, and that protected persons include "[a] ward or foster child who lives with you" as a member of "your family." Because the juvenile court placed the children with Sunburst, a group home, they assert that they qualify under St. Paul's policy as named insured wards or foster children. If the children are named insureds, they may stack UM coverage provided to all noninvolved vehicles. As persons operating a home which receives children under court order, Sunburst's owners could reasonably expect that such children would benefit from coverage as named insureds. We agree.

A.G. v. Travelers Insurance Co., 112 Wis.2d 18, 24, 331 N.W.2d 643, 646 (Ct.App.1983), determined that a one-year, juvenile court placement of a child in a family foster home 9 upon a delinquency finding qualified the child as a "resident" of the household for insurance purposes. In A.G., we limited the scope of our holding in the following language:

We hasten to add that we expressly are not deciding whether foster homes owned by the state or a county agency fall within the ambit of this case; nor are we deciding whether group homes are of the same genre.

Id. at 25, 331 N.W.2d at 647.

There are certain practical considerations to warrant a consistency in determining that a foster child, placed by a county agency or court in a facility other than a family foster home, is a "member of the family" for insurance purposes of that facility. After a court finds that a child is in need of protection or services, it is faced with the consideration of numerous placement alternatives. Among other things, the court may consider placing the child in the home of a relative, an unlicensed foster home, a licensed foster home, a group home, or a residential treatment center. See secs. 48.345, 48.34(3), Stats.

In determining the type of placement that would be in the best interest of the child, an unnecessary burden would be placed upon the courts and child welfare agencies if there was an inconsistency whereby a child, as a matter of law, would be held to be a member of the family for insurance purposes while a resident of a foster home, but not at a group home; or at a group home or a foster home, but not at a residential care facility.

We now determine that the rationale of A.G. should be extended to include as named insureds, for UM stacking purposes, CHIPS children placed by court order into a corporate home to which the UM policy is issued. Evans and Carrington, as court-placed children in a group home, 10 are therefore named insureds under a fleet liability policy issued to Sunburst, the corporate home.

II.

Since we have determined that Evans and Carrington are named insureds, the second issue is whether St. Paul's $100,000 single-limit policy provision 11 precludes stacking and whether the single-limit language of the policy violates sec. 631.43(1), Stats. The statute provides in part:

Other insurance provisions. (1) General. When 2 or more policies promise to indemnify an insured against the same loss, no "other insurance" provisions of the policy may reduce the aggregate protection of the insured below the lesser of the actual insured loss suffered by the insured or...

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  • Carrington by Nathan v. St. Paul Fire & Marine Ins. Co., 90-0834
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