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COURT OF
APPEALS DECISION DATED AND
RELEASED March
20, 1997 |
NOTICE |
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A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals.
See § 808.10 and Rule
809.62, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 96-2739-FT
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
KAYLA
BOEBEL, by her parents and natural
guardians
Patricia Boebel and Thomas Boebel,
and
PATRICIA BOEBEL and THOMAS BOEBEL,
Plaintiff-Appellants,
GROUP HEALTH COOPERATIVE OF
SOUTH CENTRAL WISCONSIN,
Involuntary-Plaintiff,
v.
KELLY
McKINNEY,
Defendant,
AMERICAN FAMILY MUTUAL
INSURANCE COMPANY,
Defendant-Respondent.
APPEAL
from a judgment of the circuit court for Dane County: MARK A. FRANKEL, Judge. Affirmed.
Before
Eich, C.J., Dykman, P.J., and Deininger, J.
PER
CURIAM. Kayla Boebel and her parents, Patricia and Thomas
Boebel, appeal from a judgment dismissing their complaint against American Family
Mutual Insurance Company.[1] The issue concerns application of a
homeowners' insurance child care services coverage option to the facts of this
case. We affirm.
Kayla
Boebel, a minor, was injured by an intentional act of Donald McKinney while she
was being cared for in the McKinney home.
The Boebels brought this action against Donald's wife, Kelly, and
American Family, their insurer, alleging that Kelly was negligent in failing to
properly supervise Kayla and by allowing Donald to have unsupervised contact
with Kayla.
The
McKinneys had purchased an additional coverage option for their homeowners'
policy which covers "child care service regularly provided by an insured
on the insured premises for which an insured receives monetary or
other compensation." The policy
excludes bodily injury which is expected or intended by any insured. American Family first moved for summary
judgment on the ground that Donald's intentional act barred payment on behalf
of either Donald or Kelly. However, the
circuit court ruled that the exclusion for intentional acts could not be
broader than the coverage itself, and therefore, if Donald was not covered
under the child care option, the intentional act exclusion would not apply to
his conduct.
The
parties then conducted discovery and submitted depositions and affidavits to
the circuit court for a ruling on whether Donald is covered. The court concluded that Donald was
regularly providing child care services for compensation, and therefore was
covered. Accordingly, the intentional
act exclusion barred the Boebels' claim.
The Boebels appeal.
It
is not disputed that Kelly McKinney was regularly providing child care service
for compensation. Nor is it disputed
that Donald's act was intentional. The
parties agree that the only questions are whether Donald was (1) regularly
providing child care services and (2) personally receiving compensation for
such services. If both questions are
answered affirmatively, American Family prevails. Therefore, the case is in a peculiar posture because the
claimants, who might ordinarily be arguing for an expansive application of a
coverage provision, are instead arguing for a narrow application, which the insurance
company opposes.
The
Boebels cite various cases for the notion that ambiguities in an insurance
policy must be construed against the drafter.
However, we see no ambiguity in the child care coverage policy before
us. Rather, the difficulty is in
applying that provision to the specific facts.
The facts relating to Donald's involvement in child care are not
disputed. The application of an
insurance policy to undisputed facts is a question of law we decide without
deference to the circuit court. Schaefer
v. General Casualty Co. of Wis., 175 Wis.2d 80, 84, 498 N.W.2d 855, 856
(Ct. App. 1993).
We
first consider whether Donald was regularly providing child care services. The record shows that Kelly provided the
bulk of child care services and dealt with the logistical aspects of the
business such as scheduling and collection of fees. However, there is no dispute that Donald would occasionally watch
Kayla, along with his own children, when Kelly would run errands. This would usually occur once or twice a
week for an hour or less. We conclude
that being the only adult in the house with small children is sufficient to be
described as "providing child care services." It is not necessary that Donald have
performed other tasks such as washing, diapering or feeding. Donald's performance of this service, while
not of extended duration, was regular.
We
turn to whether Donald received compensation for his service. The record shows that Kelly handled the fee
arrangements and that the checks were made out to her. However, the checks were then deposited in
the McKinneys' joint checking account, from which household expenses for both
of them were paid. The Boebels argue
that the checks to Kelly did not become compensation to him anymore than checks
from his full-time employment became compensation to Kelly when deposited in
that account. However, the difference
is that Donald was participating, albeit minimally, in the child care services
for which compensation was being paid.
It is not necessary that Kelly have paid a specific amount directly to
Donald for us to say that Donald derived some compensation, however minimal,
from his participation.
Therefore,
we conclude that Donald was covered under the child care provision and, as a
result, American Family is properly dismissed from this action by application
of the intentional acts exclusion.
By
the Court.—Judgment affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)5, Stats.