Frost v. Whitbeck, 01-0327.

• Decision Date: 01 November 2001
• Docket Number: No. 01-0327.,01-0327.
• Citation: 249 Wis.2d 206,2001 WI App 289,638 N.W.2d 325
• Parties: Brittany FROST, by her Guardian ad Litem, Michael S. Anderson, and Tina Frost, Plaintiffs-Appellants, v. Doreen WHITBECK, Defendant, AMERICAN FAMILY MUTUAL INSURANCE COMPANY, Defendant-Respondent.
• Court: Wisconsin Court of Appeals

249 Wis.2d 206

2001 WI App 289

638 N.W.2d 325

Brittany FROST, by her Guardian ad Litem, Michael S. Anderson, and Tina Frost, Plaintiffs-Appellants, v. Doreen WHITBECK, Defendant, AMERICAN FAMILY MUTUAL INSURANCE COMPANY, Defendant-Respondent.¹

No. 01-0327.

Court of Appeals of Wisconsin.

Submitted on briefs July 9, 2001.

Decided November 1, 2001.

On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Michael S. Anderson of Axley Brynelson, LLP of Madison.

On behalf of the defendant-respondent, the cause was submitted on the brief of Virginia L. Newcomb and Paul F. Graves of Borgelt, Powell, Peterson & Frauen, S.C. of Madison.

Before Vergeront, P.J., Dykman and Roggensack, JJ.

¶ 1. ROGGENSACK, J.

Tina Frost and her daughter, Brittany Frost, sued Doreen Whitbeck and Doreen's insurer, American Family Mutual Insurance Company, for damages related to dog bites sustained by Brittany while she and her mother were staying in Doreen's home. The circuit court granted summary judgment dismissing all claims against American Family, after concluding that the Frosts' claims came within the policy's "intra-insured" exclusion for bodily injury to a resident relative. We conclude that the term "relative," used in the policy as an exclusion from coverage, is ambiguous and therefore, as construed against American Family, it does not exclude the Frosts' claims. Accordingly, the judgment and order of the circuit court are reversed, and we remand for further proceedings.

BACKGROUND

¶ 2. Tina and Brittany came to Wisconsin in May 1996 after Tina was divorced from her husband in Kentucky. Tina arranged to stay with Doreen in a home Doreen rented. The women, who were friends, had known each other since their teenage years. Apparently, Doreen's mother told them they were "shirttail" relatives. The supposed connection is that their great grandfathers, John Van Ert and Barney Van Ert, were brothers, and therefore, Doreen and Tina share a common great, great grandfather.

¶ 3. The intended duration of Tina's and Brittany's stay with Doreen was uncertain. Although Tina accepted a full-time job in Wisconsin and Brittany enrolled in a Wisconsin school in the fall of 1996, some of their belongings remained in Kentucky. In addition, Tina remained in contact with her ex-husband and told him that their stay in Wisconsin was not intended to be permanent. Doreen paid all of the rent while Tina and Brittany were living in the house, but Tina paid some of the utility bills.

¶ 4. Brittany returned to live with her father in Kentucky for the month of August and then permanently returned to Kentucky after being bitten by Doreen's dog in November 1996. This was the second time that Brittany had been bitten, and she suffered injuries on each occasion. In December of 1996, Tina returned to Kentucky, and two years later the Frosts sued for the dog bites, naming Doreen and her homeowner's insurer, American Family, as defendants.

¶ 5. American Family moved for summary judgment on coverage, arguing that Brittany was an "insured" for purposes of a bodily injury claim and that Doreen's policy contains an express exclusion for intra-insured claims. The policy provides in relevant part:

DEFINITIONS

. . . .

5. Insured

a. Insured means you and, if residents of your household:

(1) your relatives; and

(2) any other person under the age of 21 in your care or in the care of your resident relatives.

. . . .

EXCLUSIONS — SECTION II

. . . .

11. Intra-insured Suits. We will not cover bodily injury to any insured.

(Emphasis in original.) The circuit court granted American Family's motion for summary judgment, concluding that the Frosts' claims came within the exclusion. The Frosts appeal, contending that Tina and Brittany were not resident relatives under Doreen's policy.

DISCUSSION

Standard of Review.

[1, 2]

¶ 6. We review summary judgment decisions de novo, applying the same standards employed by the circuit court. Guenther v. City of Onalaska, 223 Wis. 2d 206, 210, 588 N.W.2d 375, 376 (Ct. App. 1998). We first examine the complaint to determine whether it states a claim, and then we review the answer to determine whether it joins a material issue of fact or law. Smith v. Dodgeville Mut. Ins. Co., 212 Wis. 2d 226, 232, 568 N.W.2d 31, 34 (Ct. App. 1997). If we conclude that the complaint and answer are sufficient to join issue, we examine the moving party's affidavits to determine whether they establish a prima facie case for summary judgment. Id. at 232-33, 568 N.W.2d at 34. If they do, we look to the opposing party's affidavits to determine whether there are any material facts in dispute that entitle the opposing party to a trial. Id.

[3]

¶ 7. Interpretation of a written insurance policy is a question of law, which we review without deference to the decision of the circuit court. Guenther, 223 Wis. 2d at 210, 588 N.W.2d at 377.

Resident-Relative Exclusion.

¶ 8. The dispute between the parties centers on the meaning of the terms "resident" and "relative" as used in Doreen's homeowner's policy. Tina and Brittany present three contentions: (1) there are material facts in dispute relevant to whether they were "residents" of Doreen's household when the injuries occurred; (2) American Family failed to produce admissible evidence sufficient to support a prima facie showing that Doreen is a relative of either Tina or Brittany; and (3) the policy's use of "relative" is ambiguous in regard to persons so remotely connected, and therefore, neither Tina nor Brittany comes within the policy's resident-relative exclusion. We base our decision on our agreement with their third contention.²

[4-7]

¶ 9. The interpretation of an insurance policy is governed by the same rules of construction that apply to other contracts. Peace v. Northwestern Nat'l Ins. Co., 228 Wis. 2d 106, 120-21, 596 N.W.2d 429, 435-36 (1999). When the terms of an insurance policy are unambiguous, we will not rewrite the policy by construction. Taylor v. Greatway Ins. Co., 2001 WI 93, ¶ 10, 245 Wis. 2d 134, 628 N.W.2d 916. However, if words or phrases in a policy are susceptible to more than one reasonable construction, they are ambiguous, Smith v. Atlantic Mut. Ins. Co., 155 Wis. 2d 808, 811, 456 N.W.2d 597, 598-99 (1990), and ambiguous terms in exclusion clauses are narrowly construed against the insurer because the insurer is better situated to eliminate ambiguity. Peace, 228 Wis. 2d at 121,596 N.W.2d at 436; Guenther, 223 Wis. 2d at 210-11,588 N.W.2d at 377.

[8]

¶ 10. American Family contends that the term "relative" is unambiguous because its common meaning is a person related by blood or marriage to another. It contends that any reasonable insured would have this understanding of the term. American Family also argues that the common definition does not create an unreasonably broad exclusion, even when taken to its literal extreme of including absolutely anyone who has any relationship by blood or marriage no matter how many generations ago that relationship existed, because the exclusion will apply to a very distant relative only if that distant relative is also a resident of the policyholder's household. To be persuaded by American Family's argument, we would have to conclude that a reasonable policyholder would understand from reading the policy that by agreeing to host a distant relative in her home she would reduce the coverage available to her if she were held liable for bodily injury to that person, while such coverage would not be affected if she hosted a very close friend in her home under the same circumstances.

¶ 11. On the other hand, Tina and Brittany contend that, at some point, the fact that one shares a distant ancestor with another person becomes irrelevant to decisions that reasonable people make about their daily lives, including decisions about homeowner's insurance. They argue that a reasonable insured would not interpret "relative," as used in a resident-relative exclusion, to presumptively include all those persons with whom they share any remote ancestor by blood or by marriage no matter how many generations ago that occurred. Instead, they contend that a reasonable insured would understand "relative" to have a more restricted meaning. The Frosts do not indicate where a reasonable insured would draw the line,³ but they assert that the line falls somewhere short of persons who share only a great, great grandparent and who are separated, as the circuit court noted in this case, by ten degrees of kinship.

¶ 12. In construing the insurance policy, we note that it provides differing forms of coverage. For example, Section I generally⁴ provides coverage for first-party claims for property loss, with some exclusions from coverage for certain causes and types of loss. However, Section II of the policy provides coverage only for third-party claims,⁵ with the intra-insured suit exclusion as the mechanism used to accomplish this limitation.

¶ 13. In limiting Section II coverage to third-party claims, the policy does not exclude claims for bodily injury brought by all relatives, only those who are also residents of the policyholder's household. (Presumably, Doreen's mother could sue her for bodily injury if she lived in a house down the street, and the policy would potentially provide coverage.) Additionally, the policy does not exclude claims for bodily injury brought by all residents of the household, only those who are also relatives. (Presumably, Doreen's best friend could sue her for bodily injury even though they lived together, and the policy would potentially provide coverage.) However, when one recognizes that the purpose of the intra-insured suit exclusion is to preclude first-party claims, the closeness of the resident-relative connection necessary to accomplish this purpose becomes apparent. The degree of consanguinity or affinity must be such that a reasonable policyholder would understand that co-habitation would reduce the...