Loveridge v. Chartier

• Court: Wisconsin Supreme Court
• Writing for the Court: CECI; SHIRLEY S. ABRAHAMSON
• Citation: Loveridge v. Chartier, 161 Wis.2d 150, 468 N.W.2d 146 (Wis. 1991)
• Decision Date: 10 April 1991
• Docket Number: No. 88-2107,88-2107
• Parties: , 59 USLW 2641 Cheryl LOVERIDGE, Plaintiff-Respondent-Cross Petitioner, v. Dale L. CHARTIER, Defendant-Respondent-Co-Appellant, State Farm Fire & Casualty Company, a foreign corporation, Defendant-Appellant-Petitioner.

Page 146

468 N.W.2d 146

161 Wis.2d 150, 59 USLW 2641

Cheryl LOVERIDGE, Plaintiff-Respondent-Cross Petitioner, v. Dale L. CHARTIER, Defendant-Respondent-Co-Appellant State Farm Fire & Casualty Company, a foreign corporation Defendant-Appellant-Petitioner.

No. 88-2107.

Supreme Court of Wisconsin.

Argued Nov. 27, 1990.

Decided April 10, 1991.

William J. Katt, argued, Jonathan M. Ray and Kasdorf, Lewis & Swietlik, S.C., Milwaukee, for defendant-appellant-petitioner.

James J. Winiarski, argued, Milwaukee, for plaintiff-respondent-cross petitioner.

Thomas J. Flanagan, argued, Hope K. Olson and Previant, Goldberg, Uelmen, Gratz, Miller & Brueggeman, S.C., Milwaukee, for defendant-respondent-co-appellant.

CECI, Justice.

This case is before the court on a petition and cross-petition for review of an unpublished decision of the court of appeals, 153 Wis.2d 773, 452 N.W.2d 585, dated December 13, 1989, which affirmed in part and reversed in part a judgment of the circuit court for Milwaukee County, Rudolph T. Randa, Circuit Judge. The circuit court entered judgment pursuant to a jury verdict against Dale L. Chartier (Chartier) and State Farm Fire & Casualty Company (State Farm) in the amount of $75,284.74. The jury awarded Cheryl Loveridge (Loveridge) $67,500.00 in compensatory damages and $20,000.00 in punitive damages. The compensatory damage award was reduced under sec. 895.045, Stats., because the jury found Chartier 75 percent causally negligent, Youthful Shoes, Inc. (a defendant that settled before trial) 5 percent causally negligent, and Loveridge 20 percent contributorily negligent. The court of appeals reversed the award of punitive damages, but affirmed the judgment of the circuit court in all other respects.

Four issues are presented for review. ¹ The first issue is whether a court may infer that an adult intends to harm a 16- or 17-year-old as a matter of law when the adult has consensual sexual contact with the 16- or 17-year-old merely because the adult's conduct constitutes a misdemeanor offense. We hold that a court cannot make such an inference as a matter of law.

The second issue is whether the circuit court's instruction to the jury on the intentional-acts exclusion of the insurance policy was erroneous and prejudicial. We hold that the instruction was not erroneous under the facts of this case.

The third issue is whether public policy prevents insurance coverage for negligent transmission of sexually transmitted diseases. We hold that public policy does not prevent such coverage.

The fourth issue is whether the circuit court properly submitted the issue of punitive damages to the jury. We hold that the circuit court erred in submitting the issue of punitive damages to the jury.

This is a negligence cause of action for personal injuries that arose as a result of a consensual sexual relationship between Loveridge and Chartier. The facts relevant to this appeal are not in dispute. Chartier was Loveridge's supervisor at a Stride Rite shoe store owned by Youthful Shoes, Inc. From April to August of 1984, Chartier and Loveridge engaged in approximately 15 acts of consensual sexual contact including both intercourse and cunnilingus. Loveridge consented to those acts. Chartier never made any threats, promises, or misrepresentations to induce Loveridge to engage in the acts.

Loveridge turned 17 on April 29, 1984. Chartier turned 44 on May 11, 1984. Accordingly, Chartier violated secs. 944.15(2) and 944.17(2)(b), Stats.1983-84 ² by engaging in sexual contact with Loveridge notwithstanding her consent. However, Chartier was never criminally charged for engaging in the acts in question.

In July of 1984, Loveridge was diagnosed as having the herpes simplex virus. Chartier had a history of cold sores and had one on his mouth at least one of the times he performed cunnilingus on Loveridge. The record shows that herpes can be spread from a cold sore on the mouth of one person to the genital area of another person during cunnilingus. Chartier testified at trial that he never received medical care for his cold sores. Chartier further testified that at the time of his sexual contact with Loveridge he thought there was a vague connection between cold sores and the herpes simplex virus but that he did not know that the herpes virus could be transmitted by cold sores.

On July 23, 1986, Loveridge commenced this action against Chartier and State Farm. On May 5, 1988, State Farm brought a motion for summary judgment on the grounds that the intentional-acts exclusion of the homeowners insurance policy that it had issued to Chartier precluded insurance coverage for Loveridge's injuries. The circuit court heard and decided the motion on May 31, 1988. State Farm argued that the court should infer that Chartier intended to injure Loveridge as a matter of law because Chartier's sexual contact violated criminal statutes designed to protect minors. The circuit court denied the motion. The court reasoned that it could not infer intent to injure as a matter of law and concluded that the evidence did not establish that Chartier intended or expected to give Loveridge the herpes simplex virus or harm her in any other manner.

State Farm renewed this motion at the instruction conference on July 22, 1988. The circuit court denied the motion again for the same reasons. On different grounds, State Farm objected to the circuit court's instruction on the intentional-acts exclusion. ³ State Farm and Chartier objected to the circuit court's decision to submit the issue of punitive damages to the jury. The circuit court denied all objections to the jury instructions raised by State Farm and Chartier.

At a hearing on motions after verdict on August 22, 1988, State Farm renewed its argument that the circuit court should deny insurance coverage on the theory that intent could be inferred as a matter of law. In the alternative, State Farm moved for a new trial on the issue of insurance coverage only. This motion was based upon State Farm's objection to the circuit court's instruction on the intentional-acts exclusion. In addition, State Farm and Chartier moved the circuit court to change the jury's answer on punitive damages. They argued that the evidence was insufficient as a matter of law to support an award of punitive damages. The circuit court denied all of the defendants' motions after verdict on September 13, 1988. Judgment was entered on September 26, 1988.

State Farm and Chartier appealed to the court of appeals. The court of appeals addressed all of the issues before this court.

The court of appeals rejected State Farm's argument that the court should infer that Chartier intended to harm Loveridge as a matter of law because his sexual contact with her violated criminal laws intended to protect minors. The court of appeals relied upon Poston v. U.S. Fidelity & Guaranty Co., 107 Wis.2d 215, 219-20, 320 N.W.2d 9 (Ct.App.1982), in which the court of appeals held that a criminal conviction does not establish intent to injure or expectation of injury for insurance purposes if neither intent to injure nor expectation of injury is an element of the crime.

The court of appeals also held that the circuit court's instruction on the intentional-acts exclusion was erroneous but did not prejudice State Farm. The court of appeals reached this conclusion because it felt there was no evidence in the record to support the alternative instruction offered by State Farm.

The court of appeals further held that insurance coverage for sexually transmitted diseases does not violate public policy. In reaching this conclusion, the court of appeals relied upon North Star Mutual Ins. Co. v. R.W., 431 N.W.2d 138 (Minn.Ct.App.1988) (reasoning that the insurer could have specifically excluded coverage).

In addition, the court of appeals held that there was insufficient evidence to submit the issue of punitive damages to the jury. The court of appeals reached this conclusion for two reasons. First, there was no evidence in the record that Chartier intended to inflict Loveridge with the herpes simplex virus. Second, there was no evidence in the record that Chartier knew or had reason to know that there was a strong probability he could inflict the herpes virus on Loveridge when he performed cunnilingus on her.

State Farm petitioned this court for review of the court of appeals decision, and Loveridge filed a cross-petition for review. Both petitions were granted by this court.

INTENT TO INJURE AS A MATTER OF LAW

Loveridge seeks to recover from Chartier's homeowners insurance policy issued by State Farm. On its face, the policy's grant of coverage encompasses Chartier's transmission of the herpes simplex virus to Loveridge. The policy provides that it will pay damages for which the insured is legally liable because of bodily injury or property damage. "Bodily injury" is defined by the policy as "bodily harm, sickness or disease, including required care, loss of services and death resulting therefrom" (Emphasis added). State Farm does not contest that the herpes virus is a disease and, therefore, is encompassed within the policy's grant of coverage.

Instead, State Farm contends that the policy excludes coverage for Loveridge's injuries under an exclusion known in the insurance industry as an intentional-acts exclusion. The intentional-acts exclusion in the policy provides that there is no coverage for "bodily injury or property damage which is expected or intended by the insured."

State Farm requests that this court infer that Chartier intended to injure Loveridge as a matter of law because Chartier's sexual contact with Loveridge, notwithstanding her consent, violated criminal laws intended to protect minors. We construe State Farm's argument as asserting error in the circuit court's failure to grant summary judgment on that basis. In many instances, summary judgment may be used to resolve issues of insurance coverage. Raby v. Moe,...