National Farmers Union Property & Cas. Co. v. Maca

• Decision Date: 01 February 1965
• Docket Number: PLAINTIFF-RESPONDENT
• Citation: 26 Wis.2d 399,132 N.W.2d 517
• Parties: NATIONAL FARMERS UNION PROPERTY CASUALTY CO./, A FOREIGN CORPORATION,, v. Louis L. MACA, Defendant-Respondent, Robert Maca, Defendant-Appellant.
• Court: Wisconsin Supreme Court

Page 517

132 N.W.2d 517

26 Wis.2d 399

NATIONAL FARMERS UNION PROPERTY CASUALTY CO./, A FOREIGN CORPORATION, PLAINTIFF-RESPONDENT, v. Louis L. MACA, Defendant-Respondent Robert Maca, Defendant-Appellant.

Supreme Court of Wisconsin.

Feb. 1, 1965.

James C. McKenzie, La Crosse, for appellant.

Moen, Sheehan & Meyer, La Crosse, for plaintiff-respondent.

FAIRCHILD, Justice.

1. Does Robert Maca have an interest sufficient to permit him to appeal from the judgment? Plaintiff insurance company aruges that Robert has no interest in the policy, can not maintain an action thereon against plaintiff, and is not a party aggrieved by the judgment.

Under Condition 7 of the policy, Robert would, however, be entitled to recover under the policy after first securing a judgment determining Louis' liability to him. Plaintiff does not claim that the declaration of no coverage in the judgment binds Robert only with respect to his claim for medical payments, nor that he was originally joined as a defendant only on that account. ¹ Should he recover judgment againt his father and then bring action against the company, the judgment now before us would bar his action. The judgment affects his interest to that extent, and he has standing to appeal.

2. The exclusions. Coverage A is designated 'Farm and Personal Liability' and includes liability for bodily injury. The policy does not apply, under Coverage A to bodily injury to 'employees of an insured.' Since Robert has so clearly characterized himself in his complaint in the personal injury action as an employee of Louis with respect to the event out of which he claims liability arose, the provision just quoted would seem to exclude such liability from Coverage A, and focus attention only on Coverage C. Coverage C is designated 'Employer's Liability' and includes liability for bodily injury sustained by an employee of the named insured and arising out of and in the course of employment during the prosecution of farming operations.

Plaintiff apparently has not been satisfied to take the position that Robert was an employee and therefor that any liability was excluded from Coverage A, but has taken the position that one of two other exclusions control.

The policy does not apply under Coverage A to bodily injury to 'any insured within the meaning of parts (a), (b), (c) and (d) of the definition of insured.' Part (b) of the definition of insured includes the spouse of the named insured and 'the relatives of either * * * if such * * * relative * * * is a resident of the household of the named insured * * *.' Plaintiff insurance company claims that Robert is a resident of Louis' household, and, being Louis' son, would therefore have the protection of being an insured under the policy, but that any liability to him for bodily injury is excluded from Coverage A. Robert concedes he was living in Louis' home, but contends he was not 'resident' because he did not intend to remain permanently.

Assuming that Robert was an employee, and his injury arose out of and in the course of his employment during the course of farming operations Coverage C would apply, but for an exclusion. The policy provides that it does not apply under Coverage C 'to the named insured, spouse and members of his or her family related by blood, marriage or adoption * * * unless they are listed in the declarations as employees.' Robert was not so listed. Plaintiff claims he was a member of Louis' family, and thus excluded from Coverage C. Robert says he was not a member of the family.

Expressions similar to the two involved in this case--'resident of the household' and 'member of the family'--commonly appear in insurance polices, although in several different contexts. Courts have frequently decided that they do or do not cover the facts of a particular relationship, but it is difficult to deduce any general rules. Here one of the expressions is used both in a definition of insured and an exclusion from coverage, so that in one case a broad interpretation would be against the insurer and a narrow one in its favor, while in another case, the opposite would be true.

Although it is logical to expect that when one uses different descriptions in one written instrument one intends to describe different things, we fail to find any significant difference between the two expressions, at least as they relate to the facts and issues of the present case. As we stated in Lontkowski v. Ignarski: ²

"Household' is defined by Webster as 'those who dwell under the same roof and constitute a family.' That definition corresponds with the common and approved usage of the term and is supported by judicial authority. 'Persons who dwell together as a family constitute a 'household." Arthur v. Morgan, 1884, 112 U.S. 495, 499, 5 S.Ct. 241, 243, 28 L.Ed. 825.

'On the evidence in the present record the trial court could properly find that the young men, Donald and Joseph, were dwelling with their parents as a family under one roof, and hence were members of the same household. The facts that each brother was a little more than 21 years old, had a job and paid something for room and board, either in money or work, did not require a finding that they were not living in the house as members of the same family. * * *'

The expressions, 'resident of household,' 'member of family,' and the like appear (as in this case) in provisions excluding from coverage liability for injury to persons standing in such relationship to the named insured. ³ The purpose has been explained as 'to exempt insurer from liability to those persons to whom insured, on account of close family ties, would be apt to be partial in case of injury.' ⁴ Such expressions also appear in automobile theft policies exception from coverage theft through acts of a member of insured's household. The exception is provided in view of the fact that persons sustaining such relationship to the insured have liaberal authority to take possession of and operate motor vehicles of the insured, and unlimited opportunity for theft of such vehicles. ⁵ They appear in authomobile liability policies in so-called 'drive-other-car' provisions, excluding liability arising out of the use of other automobiles owned, hired or regularly used by a member of the insured's household. The purpose is to avoid coverage of several vehicles owned by members of the same family, who, by their close intimacy, might be expected to use each other's cars without hindrance and with or without permission. ⁶ Such expressions appear, as in this case, in definitions of additional insureds. ⁷ The purpose is to provide protection for those whom, because of close relationship, a person obtaining a liability insurance policy would ordinarily want it to protect.

Although the purpose differ, these expressions are used in all cases to describe a common-type of close relationship, varying greatly in detail, where people live together as a family in a closely-knit group, usually because of close relationship by blood, marriage or adoption and deal with each other intimately, informally, and not at arm's length. The intention of the members as to the duration of the relationship would seem to be important in only two respects. The intended duration should be sufficient so as not to be inconsistent with the intimacy of the relationship, and also long enough so that it is reasonable to expect the parties to take the relationship into consideration in contracting about such matters as insurance or in their conduct in reliance thereon.

3. Have the evidentiary facts presented by plaintiff conclusively established that Robert was a resident of Louis' household and a member of his family, under the policy provisions? Plaintiff's burden, on motion for summary judgment, is to present such evidentiary facts as shall establish its cause of action sufficiently to entitle it to judgment. ⁸ Plaintiff relied largely on depositions of Robert and Louis, its adversaries, in which they described their relationship. The Macas did not attempt to show other facts. Therefore the test is whether plaintiff sustained its burden, but we must interpret the testimony and draw all reasonable inferences in favor of the Macas. Judge Roraff applied this test in effect when he said that in his opinion a finding of a jury that Robert was not a resident of the household nor a member of the family could not be sustained.

The depositions are lengthy, and we shall endeavor to eliminate immaterial details in summarizing the facts.

Robert was raised on his father's farm in Iowa. In 1949 he married and established a home. He was divorced, but continued to live apart from his partents. They moved to Wisconsin. In December, 1960, he lost his job in Iowa as a postal employee. In the next few months, he looked for work In Wisconsin, and visited his parents. In May, 1961, Robert, brought his belongings to Louis' farm and stayed there until after his accident in...