Swart v. Rural Mut. Ins. Co.

Decision Date26 January 1984
Docket NumberNo. 83-223,83-223
Citation117 Wis.2d 478,344 N.W.2d 719
PartiesJeffrey A. SWART, Plaintiff-Appellant, v. RURAL MUTUAL INSURANCE COMPANY, Defendant-Respondent, Robert W. Swart and Betty Swart, Defendants.
CourtWisconsin Court of Appeals

George S. Curry and Kopp, McKichan, Geyer, McKichan, Curry & Geyer, Platteville, for plaintiff-appellant.

Robert G. Wixson and Winner, McCallum, Hendee & Wixson, Madison, for defendant-respondent.

Before GARTZKE, P.J., DYKMAN, J. and GORDON MYSE, Reserve Judge.

DYKMAN, Judge.

Appellant Jeffrey Swart appeals from a summary judgment dismissing his complaint. The issue is whether appellant was a "dependent relative" of his parents when he was injured, thereby precluding coverage under their farm liability insurance policy. We affirm the judgment.

Appellant graduated from high school in the spring of 1979. That summer, he lived with his parents and worked twenty to twenty-five hours per week at a restaurant, earning approximately $900. He also worked on his parents' farm forty to forty-five hours each month and was paid $3.00 per hour. He became 18 on August 13. On September 25, he started a full-time job at Advanced Transformer Company, receiving $3.43 per hour. On September 28 appellant was helping his father fix a silo unloader when he was injured.

Appellant sued his parents and their liability insurer, Rural Mutual Insurance Company, claiming negligence. Rural Mutual moved for summary judgment, alleging that because the policy did not cover bodily injury to "persons insured" under the policy, appellant could not recover. The trial court granted the motion.

The policy provides in part:

This company agrees under this form:

I. Coverage and Exclusions

Coverage L --Personal Liability (Public and Employer's): To pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages (but excluding any punitive or exemplary damages) because of bodily injury or property to which this insurance applies, caused by an occurrence ....

Exclusions. This coverage does not apply:

....

(f) to bodily injury to any Insured under parts (a), (b) and (d) of "Persons Insured"; ....

....

V. Persons Insured. Each of the following is an Insured under this form to the extent set forth below:

(a) the Named Insured;

(b) if residents of the Named Insured's household, his spouse, the dependent relatives of either, and any other person under the age of 18 in the care of any Insured;

....

The issues are the meaning of "dependent relative" and whether summary judgment was properly granted.

Construction of Policy

" '[A]n insurance policy should be construed as it would be understood by a reasonable person in the position of the insured. The language of the policy is to be given the common and ordinary meaning it would have in the mind of a lay person.' " Reserve Life Ins. Co. v. La Follette, 108 Wis.2d 637, 645, 323 N.W.2d 173, 177 (Ct.App.1982) (citations omitted). We may look to a recognized dictionary to determine the common and ordinary meaning of words. Lawver v. Boling, 71 Wis.2d 408, 414, 238 N.W.2d 514, 517 (1976).

Webster's Third New International Dictionary (1976) defines a "dependent" as "one that depends or is dependent; esp. one relying on another for support." Id. at 604. Webster's defines the adjective "dependent" as "lacking the necessary means of support and receiving aid from others." Id. Black's Law Dictionary (5th ed. 1979) defines "dependent" as "deriving existence, support, or direction from another...." Id. at 393. Black's defines a "dependent" as: "One who derives his or her main support from another. Means relying on, or subject to, someone else for support; not able to exist or sustain oneself, or to perform anything without the will, power, or aid of someone else." Id.

The word "dependent" is ambiguous because it could refer either to one who must be supported by another or to one who simply is supported by another, regardless of need. Because neither party offered extrinsic facts to aid in construction of the policy provisions, a question of law is presented which we may determine independently. Reserve Life Ins. Co., 108 Wis.2d at 646, 323 N.W.2d at 177.

Generally, we construe ambiguous language in insurance contracts against the insurance company, the drafter of the contract. Wisconsin Builders, Inc. v. General Ins. Co., 65 Wis.2d 91, 103, 221 N.W.2d 832, 838 (1974). Applying that rule of construction to this policy is difficult, however, because the phrase "dependent relative" is used in the coverage clause to identify individuals whose liability to third parties is covered and in the exclusions clause to identify those whose bodily injuries are not covered. If we interpret "dependent relative" narrowly, to mean one who must be supported by another, appellant's injury will be covered under the policy but his liability to third parties will not.

Where an insurance contract is uncertain and the intention of the parties is not clearly ascertainable from the policy itself, the courts will take into consideration the apparent object or purpose of the insurance and, in the context of the policy, the subject matter of the insurance, the situation of the parties, and the circumstances surrounding the making of the contract.

Chemtec Midwest Services, Inc. v. Ins. Co. of No. Amer., 290 F.Supp. 106, 109 (W.D.Wis.1968). The purpose of this policy is to protect the named insureds, appellant's parents, from liability to persons who have suffered physical injury or property damage due to the negligence of the insureds, their family members, or their employees. It is not meant to protect family members from negligent acts of other family members. In light of that purpose, we will construe the policy to provide a broader coverage clause, rather than a narrower exclusion clause. We therefore construe "dependent relative" to mean one who receives support from the named insureds, regardless of need.

Summary Judgment

Section 802.08(2), Stats., provides that summary judgment "shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." When reviewing a trial court's grant of summary judgment, we apply the same analysis as the trial court. Heinz Plastic Mold v. Continental Tool, 114 Wis.2d 54, 57, 337 N.W.2d 189, 191 (Ct.App.1983).

[T]he court ... first examines the pleadings to determine whether claims have been stated and a material factual issue is presented. If the complaint ... states a claim and the pleadings show the existence of factual issues, the court examines the moving party's affidavits for evidentiary facts admissible in evidence or other proof to determine whether that party has made a prima facie case for summary judgment. To make a prima facie case for summary judgment, a moving defendant must show a defense which would defeat the claim. If the moving party has made a prima facie case for summary judgment, the court examines the affidavits submitted by the opposing party for evidentiary facts and other proof to determine whether a genuine issue exists as to any material fact, or reasonable conflicting inferences may be drawn from the undisputed facts, and therefore a trial is necessary.

In re Cherokee Park Plat, 113 Wis.2d 112, 116, 334 N.W.2d 580, 582-83 (Ct.App.1983).

In support of its motion, Rural Mutual submitted excerpts from appellant's deposition. When deposed, appellant testified that at the time of the accident he was living with his parents and working full-time, hoping to save enough money to move from the farm and begin attending classes in Madison. He had never paid his parents for food and lodging. He took a one-credit piano course at the University of Wisconsin-Platteville during the fall semester of 1979, for which his parents paid tuition. He drove his parents' car to school and to work and he paid them no rental for it. He saved most of his...

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