Jones v. Baecker

• Decision Date: 28 December 2016
• Docket Number: Case No.: 2015AP325
• Parties: Girard JONES and Lindsay Jones, Plaintiffs-Appellants-Cross-Respondents, v. John BAECKER, Defendant-Respondent-Cross-Respondent-Cross-Appellant, West Bend Mutual Insurance Company, Intervenor-Respondent-Cross-Appellant-Cross-Respondent.
• Court: Wisconsin Court of Appeals

373 Wis.2d 235

891 N.W.2d 823

Girard JONES and Lindsay Jones, Plaintiffs-Appellants-Cross-Respondents,

v. John BAECKER, Defendant-Respondent-Cross-Respondent-Cross-Appellant,West Bend Mutual Insurance Company, Intervenor-Respondent-Cross-Appellant-Cross-Respondent.

Case No.: 2015AP325

Court of Appeals of Wisconsin.

Submitted on Briefs: November 17, 2015

Opinion Filed: December 28, 2016

On behalf of the plaintiffs-appellants-cross-respondents, the cause was submitted on the briefs of Ryan J. Steffes of Weld, Riley, Prenn & Ricci, S.C.

On behalf of the defendant-respondent-cross-respondent-cross-appellant, the cause was submitted on the briefs of Steven G. Danielson of Danielson Law Offices, LLC.

On behalf of the defendant-respondent-cross-respondent-cross-appellant, the cause was submitted on the brief of Jeffrey Leavell and Christopher John Koppes of Jeffrey Leavell, S.C., Racine.

On behalf of the intervenor-respondent-cross-appellant-cross-respondent, the cause was submitted on the briefs of Jonathan B. Lundeen of Mudge, Porter, Lundeen & Seguin, S.C., Hudson.

Before Stark, P.J., Hruz and Seidl, JJ.

HRUZ, J.

¶1 Girard and Lindsay Jones appeal a judgment dismissing their state and federal disparate treatment housing discrimination claims against John Baecker. The Joneses' race discrimination claims rest principally on Baecker's explicit identification of Girard as "African American," and the Joneses' family status discrimination claims rest principally on Baecker's stated belief that the Joneses' desired rental unit was too small to accommodate their six-person family. We conclude the circuit court properly granted summary judgment to Baecker because no reasonable fact finder could conclude, on this record, that race or family status was a substantial factor motivating Baecker's refusal to rent to the Joneses. Accordingly, we affirm the circuit court on this issue.

¶2 West Bend Mutual Insurance Company cross-appeals the circuit court's determination that the complaint's allegations triggered its insurance policy obligation to defend Baecker against the Joneses' intentional discrimination claims. We agree with West Bend: the allegations, analyzed in light of the relevant case law, did not trigger West Bend's duty to defend Baecker against the Joneses' claims because Baecker's refusal to rent to the Joneses was not an "occurrence" (i.e., an "accident") under the relevant policy language. We reverse the circuit court on this issue. Given our conclusion that West Bend had no duty to defend, we need not decide the issue raised in Baecker's cross-appeal regarding when West Bend's defense obligations were triggered.

BACKGROUND

¶3 This case arises out of the Joneses' efforts to obtain rental housing in June of 2011. Lindsay is white; Girard is African American. The Joneses are married and have two children together. Additionally, Girard has two children from previous relationships. Three of the children live with the Joneses full time. The remaining child has a visitation schedule during weekends and the summer.

¶4 Between 2008 and September 2011, the Joneses lived in a rental property on State Street in Eau Claire. In March 2011, the Joneses began looking for another rental property. According to Lindsay, they focused their search on three-bedroom rentals in an area that would allow their children to continue attending Putnam Heights Elementary School. The Joneses did not find many locations available that met these criteria, and although they contacted ten to twenty landlords, they did not view any of those properties.

¶5 On June 14, 2011, Lindsay met a woman who rented from Baecker and noticed the woman's address was on Kari Drive in the Putnam Heights area. The woman mentioned a potentially suitable vacant unit next to hers, and she provided Lindsay with Baecker's contact information. Lindsay testified she called Baecker right away from work. The telephone conversation between Lindsay and Baecker is the only contact the Joneses and Baecker had prior to this lawsuit, and it is central to the Joneses' discrimination claims. Lindsay's and Baecker's accounts of that conversation differ somewhat, although not materially.¹

¶6 Lindsay testified at her deposition that at the beginning of the conversation, Baecker inquired about her family size. Lindsay informed him that there were four children and two adults in the family. Lindsay testified:

And I explained to him that some of the children aren't always there all the time, but two, three of them are there permanently.

And he said that it was too many children for his unit, so then I said, Well, I was under the impression that it was a three bedroom, and he said it was. And so I explained my situation, why I was looking because of the situation with the house.

When asked at her deposition to explain exactly what was said during the telephone conversation, Lindsay stated Baecker began asking questions about the Joneses' then-current living situation:

[I told him t]hat we lived in a house that was being foreclosed on. There was a catastrophe in the home with the roof, and so we were actively looking and it was urgent. So I was really interested in trying to find a place, especially within that district. Kari Drive would have been perfect. I specified that we lived on the corner of State and Hamilton, and he said that he knew of that house and that we were complete pigs. I was a little taken aback by that. And he had mentioned that he had seen a dumpster there and garbage all over the place, a complete eyesore.^[2]

And then he made mention to me that, Oh, you're the one with the African American boyfriend. And I said, Well, actually, that's my husband, and we're a family. And then he said that, He must not do anything around there, and laughed, had a chuckle about it, and then went back to the fact that, Well, it was just too many kids, too big of a family for his unit size.

Lindsay explained that after hearing these statements, she was not interested in continuing the conversation, politely said "thank you," and hung up the telephone. The Joneses later moved to a property in the Longfellow Elementary School area.

¶7 Lindsay admitted she did not seek an application from Baecker or ask to view Baecker's rental property on Kari Drive, explaining that she would not have done these things only to have Baecker "continue to laugh at me or continue to call us pigs." She also acknowledged Baecker never told her he would not rent to the Joneses because of Girard's race, but she interpreted Baecker's reference to Girard's race as a "racial comment." Lindsay agreed with the notion that Baecker articulated three specific concerns during the conversation: (1) his inability to accommodate a family the size of the Joneses'; (2) his impression that the Joneses had failed to maintain and keep clean the State Street rental; and (3) his repeated observations of toys strewn throughout the yard at that location.

¶8 At his deposition, Baecker discussed his history as a landlord and his general rental practices. Baecker has been a landlord for thirty-nine years and owns twenty-nine rental properties. He testified the first thing he does with any rental inquiry is ask for the anticipated number of occupants: "how many children do you have and, you know, are you single or are you married?" He then usually asks who was the previous landlord and the prospective tenant's reasons for moving, as well as whether any of the prospective tenants might present safety risks. Typically, an interested party would ask to see the property, and Baecker would provide an application upon request.

¶9 Baecker testified regarding Lindsay's phone call to him in June 2011. He had never spoken with either of the Joneses prior to that call and, though he knew of the Joneses based on observing them as he traveled by their State Street rental, he did not know specifically who they were. Baecker testified that when Lindsay told him her family size, it was clear to him "there's just too many people, it's not going to work." The Kari Drive location Lindsay was inquiring about was a "fourplex," which Baecker described as a single property consisting of four units.

¶10 Baecker believed the units in the Kari Drive property were unsuitable for a six-person family both because of the size of the units and because of his concerns regarding population density on the property as a whole. Baecker averred he has never rented a Kari Drive unit, or a unit with a similar number and size of bedrooms, to more than four people at any one time. Baecker testified:

I made the decision based on protecting the property and the other tenants because ... you would be overrun if you had that many people in there. It's a landlord decision. It's my decision. I'm the owner. ...

So to protect my property, the value of it, and make life good for the tenants that are there, I don't let more than four people in because they're back-to-back fourplexes. Like I said, that would be 48 people,^[3] and they're sharing a common [blacktop] driveway. ... And this unit that they were looking [at] ... doesn't even have a yard. So it is just not going to work.

He was unaware it is unlawful to refuse to show a property based on family status.

¶11 Baecker also discussed his earlier belief that the City of Eau Claire Housing Code (the "housing code") requirements prohibited him from renting to a family the size of the Joneses'. As Baecker now concedes, the relevant housing code provision requires a bedroom occupied by two people have at least 100 square feet, which all bedrooms in the unit at issue apparently satisfied.⁴ At his deposition, Baecker stated that he did not believe the housing code provision (whatever its square-footage requirements) applied to single-family rental units.⁵ As a result, Baecker testified he generally applied a 120-square-foot-per-shared-bedroom rule to protect his properties. It is undisputed that this was Baecker's policy and not a regulatory requirement.

¶12 Baecker...