Varda v. Acuity, 2004AP2853.

• Decision Date: 01 June 2005
• Docket Number: No. 2004AP2853.,2004AP2853.
• Citation: 2005 WI App 167,284 Wis.2d 552,702 N.W.2d 65
• Parties: Amy N. VARDA, Plaintiff-Respondent-Cross-Appellant, OSF HEALTHPLANS, Involuntary-Plaintiff, v. ACUITY, A Mutual Insurance Company, Defendant-Third-Party Plaintiff-Cross-Respondent, Brent ROBERTS, Jennifer L. Stoeger and ABC Insurance Company, Defendants-Cross-Respondents, ELLINGTON MUTUAL INSURANCE COMPANY, Defendant-Appellant, v. Luane QUELLA and Christopher Quella, Third-Party Defendants-Cross-Respondents.
• Court: Wisconsin Court of Appeals

284 Wis.2d 552

2005 WI App 167

702 N.W.2d 65

Amy N. VARDA, Plaintiff-Respondent-Cross-Appellant, OSF HEALTHPLANS, Involuntary-Plaintiff, v. ACUITY, A Mutual Insurance Company, Defendant-Third-Party Plaintiff-Cross-Respondent, Brent ROBERTS, Jennifer L. Stoeger and ABC Insurance Company, Defendants-Cross-Respondents, ELLINGTON MUTUAL INSURANCE COMPANY, Defendant-Appellant,¹ v. Luane QUELLA and Christopher Quella, Third-Party Defendants-Cross-Respondents.

No. 2004AP2853.

Court of Appeals of Wisconsin.

Submitted on briefs May 2, 2005.

Decided June 1, 2005.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Arnold P. Anderson of Mohr & Anderson, LLC, of Madison.

On behalf of the defendant-third-party plaintiff-cross-respondent, Acuity, a Mutual Insurance Company, the cause was submitted on the brief of Vincent R. Biskupic of Hinshaw & Culbertson, LLP of Appleton. On behalf of the plaintiff-respondent-cross-appellant, Amy N. Varda, the cause was submitted on the combined brief of James P. Pitz of Sigman, Janssen, Stack, Sewall & Pitz of Appleton.

Before Cane, C.J., Hoover, P.J., and Peterson, J.

¶ 1. CANE, C.J.

Ellington Mutual Insurance Company appeals a nonfinal order² denying its motion for summary judgment in this personal injury case. Ellington argues that its homeowner's policy with Henry Stezenski does not provide coverage for an accident that occurred while Christopher Quella was mowing the lawn of Stezenski's rental property because Quella was not performing "domestic duties" for its insured at the time.

¶ 2. Amy Varda, who was injured in the accident, cross-appeals the judgment and order granting Acuity's motion for summary judgment. Varda argues that the trial court erred when it concluded the Quellas' policy with Acuity unambiguously denied liability for injuries arising out of the use of a motorized land conveyance. Varda contends that the phrase "motorized land conveyances" is ambiguous and should be construed against Acuity and in favor of coverage. If we conclude the exclusion is unambiguous, Varda argues alternatively that (1) an exception to the exclusion for vehicles designed for off-road recreational use applies to riding lawn mowers and (2) that the mower's cutting deck was an independent concurrent cause of the accident and her injuries.

¶ 3. We conclude that Quella was an insured for the purposes of Ellington's policy with Stezenski and that the Acuity exclusion for motorized land conveyances unambiguously applies to riding mowers. We agree with the trial court that the recreational use exception to the exclusion does not apply and that the cutting deck was not an independent concurrent cause of Varda's injuries. The judgment and orders are therefore affirmed.

FACTS

¶ 4. The material facts in this case are simple and undisputed.³ Stezenski owned two houses in Appleton. He lived in one and rented the other, on South Lawe Street, to Brent Roberts and Jennifer Stoeger. On August 31, 2002, Christopher Quella, who was fifteen at the time, was cutting the lawn of the Lawe Street house for Roberts and Stoeger. Quella was using a riding mower. Varda was also outside at the time, walking through a neighbor's yard adjacent to the yard being mowed. A rock thrown up by the mower hit Varda in the eye, injuring her.

¶ 5. Varda sued Quella; his mother, Luane; the Quellas' insurer, Acuity; Stezenski; Stezenski's insurer, Ellington Mutual; and Roberts and Stroeger. In response to Varda's suit, Ellington and Acuity filed motions for summary judgment on coverage issues. The trial court granted Acuity's motion and denied Ellington's. Ellington now appeals the nonfinal order and Varda cross-appeals the summary judgment for Acuity.

DISCUSSION

Standards of Review

¶ 6. We review summary judgments de novo, using the same standards and methodology as the trial court. See Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816 (1987). Summary judgment is appropriate if the material facts are undisputed or if no reasonable alternative inference can be drawn from undisputed facts, and the moving party is entitled to judgment as a matter of law. See WIS. STAT. § 802.08(2).

¶ 7. The interpretation of an insurance contract is also a question of law this court reviews de novo, applying the same rules of construction we apply to contracts generally. Wisconsin Label Corp. v. Northbrook Prop. & Cas. Ins. Co., 2000 WI 26, ¶¶ 23-24, 233 Wis. 2d 314, 607 N.W.2d 276. When we construe an insurance policy, we look first to the language of the agreement. Stubbe v. Guidant Mut. Ins. Co., 2002 WI App 203, ¶ 8, 257 Wis. 2d 401, 651 N.W.2d 318. If that language is clear on its face, we simply apply the policy terms. See Wisconsin Label Corp., 233 Wis. 2d 314, ¶ 24.

¶ 8. If the policy language is reasonably susceptible of more than one construction, it is ambiguous. See Sprangers v. Greatway Ins. Co., 182 Wis. 2d 521, 536-37, 514 N.W.2d 1 (1994). We resolve ambiguities in an insurance policy against the insurer and in favor of the insured. See Garriguenc v. Love, 67 Wis. 2d 130, 135, 226 N.W.2d 414 (1975). Whether ambiguities exist is, however, a question of law. See Western Cas. & Surety Co. v. Budrus, 112 Wis. 2d 348, 351, 332 N.W.2d 837 (Ct. App. 1983). ¶ 9. To determine whether coverage exists under a particular policy, we examine the facts of the insured's claim to ascertain whether the insuring agreement makes an initial grant of coverage. American Fam. Mut. Ins. Co. v. American Girl, Inc., 2004 WI 2, ¶ 23, 268 Wis. 2d 16, 673 N.W.2d 65. If an initial grant is triggered, we then look to see if any exclusions apply; exclusions are narrowly or strictly construed against the insurer and any ambiguities are resolved in favor of coverage. Smith v. Atlantic Mut. Ins. Co., 155 Wis. 2d 808, 811, 456 N.W.2d 597 (1990).

Domestic Duties Related to the Insured Premises

¶ 10. Ellington argues that the trial court erred when it concluded that Quella was an insured under the terms of its policy with Stezenski because he was performing "domestic duties" that related to "the insured premises." It claims that maintaining the Lawe Street property's lawn was Roberts's job as tenant and that the phrase "domestic duties" refers only to actions undertaken for the care, comfort, and convenience of the Stezenski family.⁴ Any other result would, Ellington contends, produce the absurd result of providing more coverage for tenants and their agents than for the policyholder. Based on the policy's plain language, we disagree.

¶ 11. We first note that Stezenski purchased insurance from Ellington covering the rental property. The liability portion of that policy promises to pay "all sums for which an insured is liable by law because of bodily injury or property damage caused by an occurrence." There is no question in this case that Varda suffered bodily injury or that her injury was caused by an occurrence under the terms of the policy. The only question, as Ellington recognizes, is whether Quella qualifies as an insured.

¶ 12. We agree with the trial court that he does. Under 8f, Section II, "Definitions," of the Ellington policy, the definition of an insured includes "persons in the course of performing domestic duties that relate to the insured premises." The policy defines insured premises as both the family dwelling shown on the declarations page and all other premises shown on that page. The declarations page of Stezenski's policy lists two addresses in Appleton as insured premises: one is the family's residential address; the other is the Lawe Street rental property. Finally, the policy states that liability and medical coverage is extended to "cover the additional family dwelling(s) described in the declarations." Despite Ellington's arguments, therefore, the policy's plain language requires no connection between domestic duties and the Stezenski family or its convenience. The policy simply requires that the duty be related to the insured premises and, in this case, the insured premises include the Lawe Street house where the accident occurred.

¶ 13. Ellington's claim that a reasonable person in Stezenski's position would understand domestic duties as being owed to people, not to real estate, is beside the point. Ellington never denies that mowing lawns is a domestic duty.⁵ Thus, even if Ellington is correct and people ordinarily associate that duty with individuals rather than premises, the unambiguous language of the policy expresses something different and must govern. See, e.g., Kremers-Urban Co. v. American Employers Ins. Co., 119 Wis. 2d 722, 736, 351 N.W.2d 156 (1984).

Riding Lawn Mowers and Motorized Land Conveyances

¶ 14. On cross-appeal, Varda argues the trial court erred when it determined that the Quellas' Acuity policy provided no coverage for her injuries because Acuity exclusion for motor vehicles and motorized land conveyances unambiguously applied to the riding mower in this case.⁶ She claims the phrase "motorized land conveyance" is ambiguous and should therefore be construed as a reasonable person would expect it to be construed. Varda concludes that, in the absence of any definition within the policy, an ordinary person in her position would not expect to have to buy separate lawn mower insurance to protect her family.⁷ She argues alternatively that a riding mower is not a conveyance and that the exclusion therefore does not apply. We are not persuaded.

¶ 15. In determining whether that exclusion applies to a riding lawn mower, we begin, as did the trial court, with the common or ordinary meaning of the policy's words. A "motor vehicle" is defined as "an automotive vehicle not operated on rails; esp : one with rubber tires for use on highways." WEBSTER'S THIRD NEW INT'L DICTIONARY 1476 (unabr. 1991). To "motorize" means to equip with a "motor," which is defined in turn as "a source of mechanical power ... [a] gasoline engine ... [a] rotating machine that...