Shelley v. Moir
| Decision Date | 18 March 1987 |
| Docket Number | No. 86-0984,86-0984 |
| Citation | 138 Wis.2d 218,405 N.W.2d 737 |
| Parties | Evelyn SHELLEY and Department of Health and Social Services, State of Wisconsin, Plaintiffs, v. Berta MOIR and Fire Insurance Exchange, Realty Management Corporation, a Wisconsin corporation, Guy D. Realtors, Inc., a/k/a Realty World, a Wisconsin corporation, and ABC Insurance Company, Defendants, Berta MOIR and Farmers Insurance Exchange, Defendants and Third-Party Plaintiffs-Appellants, v. EVANSTON INSURANCE COMPANY, a foreign insurance corporation, Third-Party Defendant-Respondent, Realty Management Corporation, a Wisconsin corporation, Gabriele Nudo, Admiral Insurance Company, a foreign insurance corporation, the Travelers Indemnity Company, a foreign insurance corporation, and DEF Insurance Company, an insurance corporation, Third-Party Defendants. |
| Court | Wisconsin Court of Appeals |
Douglas J. Carroll of Arnold, Murray, O'Neill & Schimmel, Milwaukee, for defendants and third-party plaintiffs-appellants.
Roger L. Wiedeback and Dorothy H. Dey of Prosser, Wiedabach & Quale, S.C., Milwaukee, for third-party defendant-respondent.
Before SCOTT, C.J., BROWN, P.J., and NETTESHEIM, J.
Berta Moir and Farmers Insurance Exchange (Moir) appeal from the judgment dismissing their third-party complaint as to one of the third-party defendants, Evanston Insurance Company. The trial court held that Moir's claim arose out of a bodily injury and thus fell within an exclusion in the Evanston policy. We affirm, recognizing that Moir's claim is distinguishable from that of her injured tenant but holding that nonetheless it arose out of a bodily injury.
Moir owned an apartment building in Kenosha. On April 10, 1983, Moir's tenant, Evelyn Shelley, was allegedly injured when she fell on a stairway in the building. At the time, the property was managed by Realty Management Corporation pursuant to an agreement with Moir. Shelley sued Moir and Realty Management, claiming that they failed to erect or maintain a proper handrail on the stairway, keep up the stair treads and landing and supply proper lighting on and about the stairway.
Moir, in turn, brought a third-party complaint against Realty Management and its insurers, including Evanston. The Evanston policy was a "Real Estate Agents and Brokers Professional Liability" policy, covering claims made during the period October 1, 1984 to October 1, 1985. 1 Moir claimed that Realty breached its management agreement and was negligent in its professional duties, with respect to maintenance and repair of the premises. The damages sought, according to Moir's complaint, "are measured by the amount of any damages she or her insurance company may be required to pay to the plaintiff [Shelley] for the plaintiff's bodily injuries, plus the costs of defense and interest."
Evanston moved for summary judgment, seeking dismissal of the third-party complaint as to Evanston on the ground, among others, that its policy excluded claims for bodily injury. The trial court granted Evanston's motion. It held that the "triggering event" giving rise to Moir's claim was the bodily injury suffered by Shelley and that "the Evanston policy excludes any claim made against it based upon bodily injury of any person."
Moir contends on appeal that the bodily injury exclusion is not controlling because her claim is not for bodily injury but for breach of contract and negligence in the performance of professional services.
Construction of an insurance policy is a question of law which we review without deference to the trial court's decision. Katze v. Randolph & Scott Mut. Fire Ins. Co., 116 Wis.2d 206, 212, 341 N.W.2d 689, 691 (1984). In interpreting and construing an insurance contract, the object is to ascertain the true intention of the parties; however, objective rather than subjective intent is the test. Bertler v. Employers Ins., 86 Wis.2d 13, 17, 271 N.W.2d 603, 605 (1978).
The intended role of the coverage should be kept in mind when construing policy language; the nature and purpose of the policy as a whole have an obvious bearing on the insured's reasonable expectations as to scope of coverage and on whether the risk involved was, or should have been, contemplated by the insurer in computing its rates. See id. at 18-19, 271 N.W.2d at 606. Ambiguities in an insurance contract are to be resolved against the insurer who drafted it and in favor of the insured, but where no such ambiguity exists the rule of strict construction against insurers does not apply. Id. at 17, 271 N.W.2d at 605. Furthermore, while policy provisions tending to limit liability must be construed against the insurer, a policy may not be construed to bind the insurer to a risk which it did not contemplate and for which it received no premium. Bartel v. Carey, 127 Wis.2d 310, 314-15, 379 N.W.2d 864, 866 (Ct.App.1985).
We conclude that the relevant policy language is not ambiguous. The Evanston policy provides coverage for loss "which the Insured shall become legally obligated to pay ... by reason of any act, error or omission in professional activities as a REAL ESTATE AGENT OR BROKER rendered or that should have been rendered by the Insured." The policy defines real estate agent or broker professional activities as including property management. 2 The policy, however, contains an exclusion stating that the policy shall not apply "to any claim based upon or arising out of bodily injury, sickness, disease or death of any person." 3
The term "arising out of," in the context of an insurance policy, is ordinarily understood to mean originating from, growing out of or flowing from; all that is necessary is some causal relationship. Bartel, 127 Wis.2d at 315, 379 N.W.2d at 867.
We agree with the trial court that the exclusion applies here to defeat Moir's claim against...
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