Kappers v. Progressive N. Ins. Co.
| Decision Date | 04 June 2013 |
| Docket Number | No. 2011AP1758.,2011AP1758. |
| Citation | 2013 WI App 94,349 Wis.2d 524,835 N.W.2d 290 |
| Parties | Michael B. KAPPERS, Plaintiff, v. PROGRESSIVE NORTHERN INSURANCE COMPANY, Defendant–Respondent, Theodore P. Benson, Defendant–Third–Party Plaintiff–Respondent–CrossAppellant, Medica Insurance Company, Defendant, v. Country Mutual Insurance Company, Third–Party Defendant–Appellant–Cross–Respondent. |
| Court | Wisconsin Court of Appeals |
OPINION TEXT STARTS HEREAppeal and Cross–Appeal from an order of the circuit court for St. Croix County: Scott R. Needham, Judge. Affirmed.
Before HOOVER, P.J., MANGERSON and STARK, JJ.¶ 1PER CURIAM.
Country Mutual Insurance Company appeals an order, entered on a jury verdict, declaring that a car insurance policy it issued to Theodore Benson covered injuries Michael Kappers sustained in a motor vehicle accident with Benson. Benson was driving a car owned by his son Mark. It is undisputed that the Country policy did not provide coverage for Kappers' injuries if Mark was a resident of Benson's household at the time of the accident. The jury found that Mark was not a resident of Benson's household, and the circuit court therefore ruled the policy provided coverage.
¶ 2 On appeal, Country argues that: (1) the circuit court erred by denying Country's motion for summary judgment; (2) the court's “statement of the case” improperly informed the jury that its special verdict answer on Mark's residence would determine whether Benson had insurance coverage; (3) insufficient evidence supports the jury's answer that Mark was not a resident of Benson's household; and (4) the court should have granted Country's motion for a new trial. Benson's cross-appeal contends the court erred by denying his postverdict motion for attorney fees. We reject both Country's and Benson's arguments, and affirm the circuit court's order in all respects.
¶ 3 The accident between Kappers and Benson occurred on September 10, 2005. Kappers' vehicle was insured by Progressive Northern Insurance Company. Benson's vehicle, which was owned by his son Mark, was not insured. Mark is member of the National Guard, and he was on active duty in Iraq at the time of the accident.
¶ 4 Benson had a car insurance policy through Country. The policy stated that Country would pay “all sums in behalf of an insured which the insured becomes legally obligated to pay as damages because of ... bodily injury ... sustained by any person[.]” (Formatting altered.) However, the policy further provided that the bodily injury “must be caused by an accident resulting from the ownership, maintenance or use of an insured vehicle ... or any nonowned vehicle [.]” The policy defined the term “nonowned vehicle” as “a land motor vehicle you or your relatives do not own and which is not available for regular use by you or a relative.” The policy defined “relative” as “a person related to you by blood, marriage or adoption who is a resident of the same household as you, including a ward or foster child.”
¶ 5 Benson notified Country of the accident with Kappers on September 12, 2005. On the same day, Country sent Benson a letter denying coverage for any damages caused by the accident. Country explained that the vehicle Benson was driving was “not defined as an insured vehicle or nonowned vehicle under the policy[.]”
¶ 6 Benson subsequently retained an attorney to defend him against Kappers' potential claims. In early 2006, Benson began receiving collection notices from Progressive. Benson's attorney wrote to Country on February 3, 2006, stating that he believed the Country policy covered Kappers' injuries because Benson was driving a nonowned vehicle at the time of the accident. Country responded on February 6, reaffirming its denial of coverage.
¶ 7 On September 8, 2008, Kappers filed a summons and complaint against Benson, asserting a personal injury claim. Benson's attorney sent copies of the summons and complaint to Country on September 24. The September 24 letter also informed Country that Progressive had filed a separate lawsuit against Benson. The letter demanded that Country defend Benson against both lawsuits. The two lawsuits were ultimately consolidated.
¶ 8 On October 6, 2008, Benson filed a third-party summons and complaint against Country, asserting bad faith and breach of contract claims and seeking a declaration of coverage under Country's policy. On October 14, Country agreed to defend Benson against Kappers' and Progressive's claims, subject to a reservation of rights. Shortly thereafter, Country retained an attorney to represent Benson on the merits of those claims. Country paid Benson's previous attorney $1,075, which represented “the attorneys' fees incurred by [Benson] in defense of the actions filed against him” before Country assumed his defense.
¶ 9 Country subsequently filed a counterclaim against Benson, seeking a declaratory judgment that it had no duty to defend or indemnify him. It also moved to bifurcate the coverage issue and stay the proceedings on liability and damages. The court granted Country's motion, and the case proceeded with respect to coverage.
¶ 10 Country then moved for summary judgment on the coverage issue. It asserted its policy did not cover Kappers' injuries because Benson was not driving an insured vehicle or a “nonowned vehicle” at the time of the accident. Country argued the vehicle was “not a ‘nonowned vehicle’ because it was owned by Mark Benson, who was a relative of Theodore Benson within the meaning of the policy (including the requirement of Mark Benson being a resident of Theodore Benson's household).” Country also asserted the vehicle did not qualify as a nonowned vehicle because it was available for Benson's regular use. In response, Benson argued the undisputed facts raised competing inferences, which entitled him to a trial. The circuit court agreed with Benson and denied Country's motion.
¶ 11 The case proceeded to a coverage trial. Before trial, Country submitted the following proposed statement of the case to be read to the jury:
This case is a bifurcated action. Only limited issues will be decided in this portion of the trial. The balance of the issues will be decided in one or more subsequent trials. The first issue that you will be asked to decide relates to whether or not a vehicle owned by Mark Benson on September [10], 2005 was regularly available for use by his father, Theodore Benson, or other members of Theodore Benson's household. The second issue that you will be asked to decide is whether or not, as of September [10], 2005, Mark Benson was still a resident of his parents' household. Mark Benson was a member of the United States Army as of September [10], 2005, and was stationed in Iraq.
The court rejected Country's proposed statement of the case and instead drafted its own version, which read:
This action arises out of an automobile accident that occurred on September 10, 2005, involving Michael Kappers and Theodore Benson. At that time, Theodore Benson was driving a car owned by his son, Mark Benson. At the time of the accident, Mark Benson was a member of the United States Army and was stationed in Iraq. On September 10, 2005, Theodore Benson had in force an automobile liability insurance policy issued by Country Mutual Insurance Company on vehicles which Theodore Benson owned. Mr. Kappers was insured by Progressive Northern Insurance Company at the time of the accident.
This lawsuit is a bifurcated action and will be tried in two separate trials. Only limited issues will be decided in this portion of the trial. The balance of the issues will be decided in a second trial. As a result, Mr. Kappers is not appearing and will not be participating.
The limited issues that you will be asked to decide are related to whether Theodore Benson is entitled to liability coverage for this accident under his policy with Country Mutual Insurance Company.
At the conclusion of the trial, you will be submitted a verdict asking you to determine two issues. One, whether or not Mark Benson, on September 10, 2005, was a resident of Theodore Benson's household. Two, whether or not the vehicle owned by Mark Benson on September 10, 2005, was regularly available for use by Theodore Benson or other members of the Theodore Benson household.
¶ 12 Country objected to the court's proposed statement of the case, arguing it improperly advised the jury that its answers to the special verdict questions on residence and regular use would determine whether Benson had insurance coverage. The court overruled Country's objection. It reasoned that the information included in its statement of the case was necessary to prevent juror confusion and speculation. The court explained, “To name parties [in the caption] who have no role and/or function, per se, in this case, without providing some information, I believe, would lead to conjecture, speculation, as well as uncertainty in the jurors' minds as to exactly what was going on or what this case is about.” The court also stated it “firmly believe[d]” the jurors would follow the instructions given to them, which would include instructions advising them “not to be swayed by passion, prejudice, [or] sympathy but, rather, to make their decision based only on the facts and the evidence offered during the trial.” Finally, the court stated that jurors are routinely informed
as to what [the] nature of the contest is. The nature of this contest is insurance coverage, as well as questions associated with coverage. And for any of us to sit at this table and suggest that the jury could, in some way, be insulated against that, I think, is naïve at best and unrealistic on the opposite end of the spectrum.
¶ 13 Following a two-day trial, the jury determined that Mark was not a resident of Benson's household and that Mark's vehicle was not available for Benson's regular use. Country filed a postverdict motion asking the circuit court to change the jury's answer to the residence question. Alternatively, Country sought...
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