Gillund v. Meridian Mut. Ins. Co.

Decision Date01 December 2009
Docket NumberNo. 2008AP1301.,2008AP1301.
Citation778 N.W.2d 662,2010 WI App 4
PartiesDaniele GILLUND, Plaintiff-Appellant, v. MERIDIAN MUTUAL INSURANCE COMPANY, State Automobile Mutual Insurance Company and Harleysville Insurance Company, Defendants-Respondents, Terry Pfeiffer, Defendant-Co-Appellant.
CourtWisconsin Court of Appeals

On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Paul D. Peterson of Harper & Peterson PLLC, of Woodbury, MN, with Roger L. Kramer of Kramer & Short, LLC, pro hac vice, of Mendota Heights, MN.

On behalf of the defendant-co-appellant, the cause was submitted on the briefs of David A. Ray of First Law Group SC, of Stevens Point, WI.

On behalf of the defendants-respondents, the cause was submitted on the brief of Robert L. McCracken and Jacqueline Lorenz Sehloff of Nash, Spindler, Grimstad & McCracken LLP, of Manitowoc, WI.

Before BROWN, C.J., ANDERSON and BRENNAN, JJ.

¶ 1 BRENNAN, J

Daniele Gillund appeals from two circuit court orders: (1) granting summary judgment to Meridian Mutual Insurance Company ("Meridian") and State Automobile Mutual Insurance Company ("State Automobile"); and (2) granting summary judgment to Harleysville Insurance Company ("Harleysville"). The circuit court concluded that none of the three homeowners' insurance policies covered the claimed personal injury to Gillund. We agree that there is no coverage under the Meridian and State Automobile policies and, therefore, affirm that circuit court order. But we conclude that the circuit court's order regarding coverage under the Harleysville policy must be reversed and remanded, because Harleysville's failure to file any pleading and its filing of improper affidavits make summary judgment analysis impossible.

BACKGROUND1

¶ 2 From 1999 until the fall of 2001, Gillund periodically stayed with her aunt and uncle, Nancy and Terry Pfeiffer, at the Pfeiffers' residence in Menasha, Wisconsin. Thereafter, when the Pfeiffers moved to Hurley, Wisconsin, Gillund occasionally stayed with them there. At other times between 1999 and 2001, Gillund stayed with her grandmother in Park Falls, Wisconsin. Gillund claims in her complaint that during the time that she stayed with the Pfeiffers, Pfeiffer "surreptitiously and without notice to Plaintiff, took videos, photographs, computer generated images, and other images of Plaintiff either fully unclothed or at various states of undress." Gillund claims that the videotaping and photographs were taken without her knowledge and consent; in places she had a clear expectation of privacy, such as her bedroom and bathroom; and that they caused her damages.

¶ 3 In July 2005, prior to when Gillund filed this tort case, Pfeiffer was charged in Winnebago County Circuit Court with four counts of the criminal offense of Making a Visual Representation of Nudity, contrary to WIS. STAT. § 944.205(2)(a) (1999-2000), for videotaping Gillund between July 13, 1999 and September 1, 2001. The facts at issue in the criminal case are the same at issue in the civil suit before this court. Pfeiffer admitted at his deposition that he was guilty of the offenses charged in the criminal complaint. The charges were dismissed by the circuit court in October 2005 based on the assistant district attorney's motion informing the court that the statute on which the charges were based had been ruled unconstitutional in 2000, in State v. Stevenson, 2000 WI 71, 236 Wis.2d 86, 613 N.W.2d 90.2

¶ 4 The assistant district attorney stated in her motion that the State had considered three other possible criminal charges against Pfeiffer, but concluded that none were then prosecutable. First, the State considered charging Pfeiffer with WIS. STAT. § 942.09 (2001-02), the legislature's re-creation of the unconstitutional WIS. STAT. § 944.205(2)(a) (1999-2000). But because the effective date of § 942.09 was December 2001, the statute was enacted too late to cover Pfeiffer's actions.

¶ 5 The assistant district attorney's motion further explained that the State also considered charging Pfeiffer with WIS. STAT. § 942.08 (1999-2000), Invasion of Privacy, but the charge was a misdemeanor and the statute of limitations for misdemeanors, three years, had run by the time the assistant district attorney discovered the unconstitutionality of WIS. STAT. § 944.205(2)(a) (1999-2000). See also WIS. STAT. § 939.74(1) (1999-2000).

¶ 6 Finally, the State considered charging WIS. STAT. § 948.12 (1999-2000), Possession of Child Pornography, but could not proceed with that charge because the State lacked the required proof that Gillund was a minor when the images were taken, and the State did not believe it could fairly characterize the images of Gillund as being sexually explicit. Accordingly, the assistant district attorney moved for dismissal of all charges against Pfeiffer with prejudice, and the circuit court granted the motion in October 2005.

¶ 7 On December 19, 2005, Gillund filed a complaint in Winnebago County Circuit Court against both Pfeiffers and "XYZ Insurance Company" based on Pfeiffer's conduct. She later dismissed the claim against Nancy Pfeiffer. The Pfeiffers answered Gillund's complaint in January 2006, admitting that they resided at the address listed in Menasha, Wisconsin from 1999 through the fall of 2001, and that Gillund stayed with them at that address. They also admitted that in 2001 they moved to Hurley, Wisconsin, and that Gillund stayed with them there periodically.

¶ 8 Meridian answered in March 2006 that it was "XYZ Insurance Company." Meridian's answer contained: general denials, a counterclaim, a cross-claim for declaratory judgment that Gillund's claims were not covered by its policy due to intentional acts exclusions, and a request for dismissal of the claims against Meridian. Meridian later amended its answer, counterclaim, and cross-claim for declaratory judgment, alleging that the true identity of "XYZ Insurance Company" was Meridian, for a policy of insurance in effect from August 15, 2000 through August 15, 2001, and State Automobile for a policy of insurance in effect from August 15, 2001 through June 28, 2002. Meridian again requested a declaratory judgment that neither insurance policy provided coverage to Gillund on her claims, due to exclusions, and requested a dismissal of Gillund's claims against both Meridian and State Automobile. Gillund filed no responsive pleading. Meridian also filed a motion to bifurcate the coverage issue and to stay proceedings on the merits until such time that coverage was resolved.

¶ 9 In May 2006, Harleysville filed a motion to intervene, to bifurcate the coverage from liability, and to stay the liability proceedings. Harleysville did not file any pleading with the motion to intervene. Harleysville stated in the motion that it had provided a policy of homeowner's coverage to the Pfeiffers under its former name, Lake States Insurance Company, from March 1, 1999 to March 1, 2000.

¶ 10 In May 2006, the circuit court granted Harleysville's motion to intervene and ordered liability issues bifurcated from coverage issues, staying discovery on all liability issues. The parties stipulated to, and the circuit court ordered, the inclusion of Harleysville as a defendant in the caption in September 2007.

¶ 11 Meridian and State Automobile filed a motion for summary judgment and declaratory judgment, accompanied by a supporting brief and affidavit in February 2008. Gillund filed a brief but offered no evidence or affidavit in opposition to this motion. At a summary judgment hearing before the circuit court, Meridian and State Automobile argued that Gillund's claims were not covered because both policies: (1) only provide liability coverage for damage caused by an "occurrence," which the policies defined as "an accident"; (2) excluded coverage for intentional acts; and (3) excluded coverage for violations of the penal law. Gillund argued that Meridian and State Automobile's reliance on the intentional acts exclusion was eliminated by an endorsement that explicitly lists invasion of privacy as a covered personal injury, and she further argued that the penal law violation exclusion did not apply because the State had dismissed all of the criminal charges against Pfeiffer. The circuit court agreed with Meridian and State Automobile and granted their motion for summary judgment and declaratory judgment, finding that the penal law violation exclusion prohibited coverage for Gillund's claims. The court then dismissed all claims against Meridian and State Automobile.

¶ 12 Harleysville moved for summary judgment in January 2008. Attached to the motion were a supporting brief, an affidavit from Harleysville's attorney, and a document entitled "Memorandum of Fact." The affidavit, which was notarized, consisted of four paragraphs simply stating that: (1) a certified copy of the Harleysville policy was attached; and (2) copies of the certified transcripts of the entire depositions of the Pfeiffers and Gillund, totaling approximately 200 pages, were attached. The "Memorandum of Fact" contained factual averments that were signed by Harleysville's attorney but that were not notarized.

¶ 13 At a hearing on Harleysville's motion for summary judgment, Harleysville argued that its policy did not cover Gillund's claims because the facts showed that Gillund was a resident-insured at the Pfeiffers' residence during their coverage period of 1999-2000 and under the clear exclusions of the Harleysville policy, the policy does not provide personal injury coverage to an insured. Pfeiffer argued that a material factual dispute existed on the issue of Gillund's residency during the policy period. The circuit court granted Harleysville's motion for summary judgment, making a factual finding that Gillund was a resident-insured at the Pfeiffers' residence during the policy period, and that, therefore, the Harleysville policy did not...

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