COURT OF APPEALS DECISION DATED AND RELEASED NOVEMBER 12, 1996 |
NOTICE |
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Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
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Nos. 95-3573, 96-0271
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
No. 95-3573
BETH CALLOW AND WES
CALLOW,
Plaintiffs-Respondents,
v.
DANIEL TORNIO AND PAM
TORNIO,
Defendants-Respondents,
GENERAL CASUALTY
COMPANY OF
WISCONSIN,
Defendant,
REGENT INSURANCE
COMPANY,
Defendant-Appellant,
B. GILLESPIE, LTD., A
LIMITED
PARTNERSHIP,
THRESHERMENS
MUTUAL INSURANCE
COMPANY,
WISCONSIN MUTUAL
INSURANCE
COMPANY AND JEROME
FOODS BENEFIT
PLAN,
Defendants.
_______________________________________________________________________________
No. 96-0271
BETH CALLOW AND WES
CALLOW,
Plaintiff-Appellant,
v.
DANIEL TORNIO AND PAM
TORNIO,
Defendant-Appellant,
GENERAL CASUALTY
COMPANY OF
WISCONSIN, REGENT
INSURANCE
COMPANY, B. GILLESPIE,
LTD.,
LIMITED PARTNERSHIP,
Defendants,
THRESHERMENS MUTUAL
INSURANCE
COMPANY, WISCONSIN
MUTUAL
INSURANCE COMPANY,
JEROME
FOODS BENEFIT PLAN,
Defendants-Respondents.
APPEAL from a judgment
of the circuit court for Barron County:
EDWARD R. BRUNNER, Judge. Reversed
and cause remanded.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER CURIAM. This appeal arises out of a personal injury
action and presents issues of insurance coverage. Beth and Wes Callow sued Daniel and Pam Tornio and their
insurers, claiming that Beth was injured in 1994 as a result of Daniel's 1986
negligent deck construction. The
Callows and the Tornios (collectively "the Callows") appeal a summary
judgment dismissing the Callows' claims against the Tornios' insurer, Wisconsin
Mutual Insurance Company for lack of coverage.
In a consolidated
appeal, we granted leave to Regent Insurance Company to appeal a nonfinal order
denying Regent's motion for a summary judgment of dismissal. The parties raise two issues: (1) does the Tornios' 1985-86 Regent policy
provide coverage for Daniel's 1986 allegedly negligent acts; and (2) does
the Tornios' 1994 Wisconsin Mutual policy cover the Tornios' liability stemming
from the 1986 allegedly negligent acts.
We conclude that the
Tornios' 1985-86 Regent policy does not provide coverage for injuries sustained
in 1994. We conclude that the personal
liability portion of the Tornios' 1994 Wisconsin Mutual policy provides
coverage for liability for bodily injuries that occur within the time frame of
the policy and that the premises exclusion does not apply. We therefore reverse the judgment and remand
for further proceedings.
In 1986, Daniel Tornio
built a wooden deck on his house on Cherry Street in Turtle Lake,
Wisconsin. At that time, he had in
effect a homeowner's insurance policy issued by Regent Insurance Company. The Regent policy was renewed annually until
its eventual cancellation in 1992 when the Tornios sold their Cherry Street
home and purchased a different home. In
June 1994, while cleaning the pool at the Cherry Street home, Beth Callow fell
through the deck. At that time, the
Tornios had a Wisconsin Mutual policy insuring their residence at Highway 63 in
Turtle Lake.
Claiming that her
injuries were caused by Tornio's negligent deck construction, the Callows
commenced this action. Regent and
Wisconsin Mutual brought motions for summary judgment of dismissal on the issue
of coverage. The trial court concluded
that the Regent policy created an ambiguity with regard to coverage and denied
Regent's motion, concluding that the negligent act occurred during the policy
period. It concluded that the policy
language did not eliminate the insured's reasonable expectation of coverage for
liability stemming from acts within the policy period. The trial court granted Wisconsin Mutual's
motion for dismissal, concluding that as an "occurrence" policy it
was not within the contemplation of the parties to cover acts outside the time
frame of the policy.
When reviewing summary judgment, we apply the
standard set forth in § 802.08(2), Stats.,
in the same manner as the circuit court.
Kreinz v. NDII Secs. Corp., 138 Wis.2d 204, 209, 406
N.W.2d 164, 166 (Ct. App. 1987).
Summary judgment is appropriate when material facts are undisputed and
when inferences that may be reasonably drawn from the facts are not doubtful
and lead only to one conclusion. Radlein
v. Industrial Fire & Cas. Ins. Co., 117 Wis.2d 605, 609, 345 N.W.2d
874, 877 (1984).
To determine whether an
insurer is obligated to assume the defense of a third-party suit, we determine
whether the complaint alleges facts that, if proven, would give rise to
liability under the terms and conditions of the policy. Sola Basic Industries v. USF&G,
90 Wis.2d 641, 646, 280 N.W.2d 211, 213 (1979). When the facts are undisputed, the interpretation of a contract
is a question of law that we review de novo.
Schlosser v. Allis-Chalmers, 86 Wis.2d 226, 244, 271
N.W.2d 879, 887 (1978). The
interpretation of an insurance contract is controlled by general principles of
contract construction. Sprangers
v. Greatway Ins. Co., 182 Wis.2d 521, 536, 514 N.W.2d 1, 6 (1994). Absent an ambiguity, its plain language
governs. Garriguenc v. Love, 67
Wis.2d 130, 134-35, 226 N.W.2d 414, 417 (1975). Unambiguous policy language is read to mean what a reasonable
person in the position of the insured would have understood the words to mean. Id. Whether an ambiguity exists is a question of law. Spencer v. Spencer, 140 Wis.2d
447, 450, 410 N.W.2d 629, 630 (Ct. App. 1987).
A document is ambiguous if it is reasonably capable of different
meanings. Id.
1. The
Regent Policy
Regent argues that the
trial court erroneously denied it summary judgment because the Regent policy
does not provide coverage. We
agree. Regent's 1985-86 policy
provides:
Section II—LIABILITY COVERAGES
COVERAGE E
PERSONAL LIABILITY
If a claim is made or a suit is brought
against any insured for damages because of bodily injury or property
damage to which this coverage applies, we will:
a. pay up to our limit of liability
for the damages for which the insured is legally liable; and
b.
provide a defense at our expense by counsel of our choice. ...
Regent's policy defines
bodily injury as "bodily harm, sickness or disease, including required
care, loss of services and death resulting therefrom." The policy further provides:
Section I and Section II—CONDITIONS
POLICY PERIOD
This
policy applies only to loss under Section I or bodily injury or property
damage under Section II, which occurs during the policy period.
Regent contends that
because it is undisputed that Beth's injury did not occur until 1994, it was
not within the policy period and no coverage exists. Based upon the plain language of the policy, we reach the same
conclusion.
According
to the Wisconsin Supreme Court, if the insurer wanted to limit coverage to
accidents that resulted in injury during the policy period, it must say so.
... Lund v. American Motorists
Ins., 797 F.2d 544, 547 (7th Cir. 1986).
Nonetheless, the Callows
argue that interpreting identical language, Lund concluded that
negligence that occurs while the policy is in effect is covered regardless
whether the injuries occurred after the policy expired. We disagree. In Lund, the policy applied to "accidents
which occur during the policy period." Id. at 545. Lund
stated:
We
find that Wisconsin has adopted the 'negligent acts' rule of insurance
coverage. Wisconsin courts have found
that in general, the negligent act (such as the negligent design and
construction of the roof) as opposed to the resulting damage (the collapse of
the roof), triggers coverage under the insurance policy.
Id. at
546. Lund stated further: "The accident must have happened during
the policy period. That is all that is
required. What happens thereafter is a
matter of cause, cause in fact and proximate cause." Id. at 547.
Although Lund
correctly states Wisconsin law, the language it interprets is different
from Regent's policy language. Because
the Regent policy limits coverage to liability for "bodily injuries"
that occurred during the policy period, and Lund refers to
"accidents" during the policy period, Lund does not
control.
An argument could be
made that Regent's policy uses the word "occur" in the phrase
"bodily injury ... which occurs" during the policy
period. Because the policy does not
define "occur," the Callows suggest that it relates to the legal
connotation of "occurrence" found in Lund:
Courts
facing this issue have taken one of two positions: that the terms "accident" and "occurrence"
refer to the cause, or that they refer to the result of the event to which
liability is attributed. The Wisconsin
Supreme Court, in Olsen v. Moore, [56 Wis.2d 340, 351, 202 N.W.2d
236, 241 (1972)] joined the majority of jurisdictions by adopting the
"cause" analysis. That is,
where a single, uninterrupted cause results in all of the injuries and damage,
there is but one "accident" or "occurrence."
Id. at
547 (quoting Welter v. Singer, 126 Wis.2d 242, 376 N.W.2d 84 (Ct.
App. 1985)).
Lund,
together with Welter and Olsen, might lend
support for the Callow's argument that the Regent policy could be construed as
an "occurrence" policy, if not for Kremers-Urban Co. v.
American Employers Ins. Co., 119 Wis.2d 722, 351 N.W.2d 156
(1984). Lund also relied
on Kremers, which examined several different policies and reached
opposing results based upon the language of each policy. "We restrict our interpretation of
coverage of the various policies to the language of the insurance
contracts." Kremers-Urban,
119 Wis.2d at 736, 351 N.W.2d at 164.
In Kremers,
manufacturers of DES were seeking coverage for liability for injuries incurred
years after the policies expired. In
examining policies effective from 1973 to 1976, an "occurrence" was
defined as "an accident ... which results ... in bodily injury
...." Id. at 737,
351 N.W.2d at 164. "Bodily
injury" was defined as "bodily injury, sickness or disease sustained
by any person which occurs during the policy period ...."
Our supreme court
concluded that the word "occurrence," which acts to trigger coverage,
was tied to the bodily injury that results in the policy period. Id.
at 737, 351 N.W.2d at 164. It
concluded, under this language, "[a] reasonable insured would have
understood that, in order for coverage to be invoked [under the policy in
question], an injury, sickness or disease had to result during the policy
period. Id. (emphasis
added).
Also, the supreme court
examined 1966 to 1968 policies that covered "bodily injury, caused by an
occurrence, sustained by any person."
Its definition of "occurrence" included: "an accident, which causes
bodily injury or property damage during the policy period ...." Id. at 739, 351 N.W.2d at 165
(emphasis in original). The insurer
argued that the phrase, "during the policy period" modified the words
"bodily injury." Our supreme
court disagreed, concluding that it modified "causes." "A reasonable insured would understand
that the phrase, 'during the policy period,' modifies when the occurrence
(event or accident) must take place in order that coverage under the policy be
invoked." Id. at
740, 351 N.W.2d at 165. "It should
be noted that the language of the subsequent policy is different and makes it
clear that the bodily injury must occur during the policy period." Id. at 740, 351 N.W.2d at 166.
We conclude that
Regent's policy language is more like that of Kremer's later
1973-76 policies. We conclude that in
order for coverage to be invoked, the bodily injury must have occurred during
the policy period. The Callows'
suggestion that a bodily injury that resulted in 1994 "occurred" in
1986 because that is when the negligence occurred, which started the whole
chain of events allegedly leading to the injury, violates the policy's plain
language. We conclude the Regent policy
affords no coverage for liability for injuries outside the policy period.[1]
2. Wisconsin Mutual Policy
The Callows argue that
the personal liability portion of the Wisconsin Mutual policy provides coverage
for liability incurred during the policy period, regardless when the negligent
act occurred. Based upon the broad
terms of personal liability coverage, we agree. The policy states:
Coverage L-Personal
Liability
We pay,
up to our limit of liability, all sums for which any insured is legally
liable because of bodily injury or property damage caused by an
occurrence to which this coverage applies.
General Policy Provisions
....
10. Occurrence means an
accident, including continuous or repeated exposure to substantially similar
conditions.
....
This
policy, subject to all of its terms, provides ... personal liability insurance
and other described coverage during the policy period. ...
We note that there is no
requirement that the occurrence happen during a policy period. As a result, Fidelity & Deposit
Co. v. Verzal, 121 Wis.2d 517, 361 N.W.2d 290 (Ct. App. 1984), does not
apply. In Verzal, the
policy in question provided coverage for property damage "caused by or
arising out of each occurrence ... during the policy period." Id. at 528, 361 N.W.2d at
295. Verzal interpreted
this language to require both the negligence and damage occur during the policy
period. In contrast, Wisconsin Mutual's
policy provides "personal liability coverage" during the policy
period with no requirement that an "occurrence" take place during the
policy period.
Also, a single cause
plus resulting damages constitutes an occurrence. See American Motorist Ins. Co. v. Trane Co.,
544 F.Supp. 667, 679-81 (W.D. Wis. 1982), aff'd 718 F.2d 842 (7th Cir.
1983). There is no dispute that Beth
suffered a bodily injury, as that term is defined, during the policy
period. Because "occurrence"
means accident, and because it is uncontested that the accident occurred within
the policy period, a reasonable insured would expect coverage.
Next, Wisconsin Mutual
argues that the premise exclusion denies coverage. We disagree. The
exclusion provides:
This policy does not apply to liability:
....
g.
resulting from premises owned, rented or controlled by an insured other than
the insured premises.
The Callows argue that a
reasonable interpretation is that the policy excludes properties owned during
the policy period except the insured premises.
We agree. Because during the
policy period the Tornios no longer owned the house where the accident
occurred, this exclusion does not apply.
Wisconsin Mutual argues
that the tense "owned," permits a reasonable construction that
excludes coverage resulting from premises the Tornios "owned" during
and before the policy period. If so,
more than one reasonable construction is possible resulting in an ambiguity. See Kaun v. Industrial Fire
& Cas., 148 Wis.2d 662, 669, 436 N.W.2d 321, 324 (1989). We reject Wisconsin Mutual's argument that Williams
v. State Farm Fire & Casualty Co., 180 Wis.2d 221, 509 N.W.2d 294
(Ct. App. 1993), controls, because Williams did not require the
interpretation of an ambiguity, but held that a passive investment was a
business within the plain meaning of the policy exclusion. Id. at 232, 509 N.W.2d at
299. We conclude that the premise
exclusion does not eliminate coverage for liability that resulted from 1994
injuries due to Daniel's 1986 negligent act because the liability does not stem
from other premises owned during the policy period.
By the Court.—Judgment
reversed and cause remanded.
This opinion will not be
published. Rule 809.23(1)(b)5, Stats.
[1] The Callows also argue that two other parts of the policy can be construed in favor of coverage, first limits of liability and, second, location of applicable coverage. That there are other conditions of coverage that do not address the policy period does not negate the existence of the plain language that does address the policy period.