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COURT OF APPEALS DECISION DATED AND RELEASED March 14, 1996 |
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. 95-0397
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
88 CV 581
ZONDRA D. HASLEY,
Plaintiff-Respondent,
v.
NEWARK MUTUAL
INSURANCE COMPANY,
Defendant-Appellant,
FRANKENMUTH MUTUAL
INSURANCE COMPANY,
and DANIEL ROBERTS,
Defendants.
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90 CV 588
ZONDRA D. HASLEY,
Individually,
and as Special
Administrator of the
ESTATE OF CLARK G.
HASLEY,
and the ESTATE OF
MATTHEW C. HASLEY,
and ALLEN J. HASLEY, a
minor,
by His Guardian Ad
Litem,
ARNOLD J. WIGHTMAN,
Plaintiffs-Respondents,
v.
NEWARK MUTUAL
INSURANCE COMPANY,
Defendant-Appellant,
FRANKENMUTH MUTUAL
INSURANCE COMPANY,
DANIEL ROBERTS,
and THE DEAN HEALTH
PLAN, INC.,
Defendants.
APPEAL from a judgment
of the circuit court for Rock County:
JAMES DALEY, Judge. Reversed.
Before Eich, C.J.,
Sundby and Vergeront, JJ.
PER
CURIAM. Newark Mutual Insurance Company appeals from a
judgment awarding money damages to Zondra Hasley and to the estates of Clark,
Matthew, and Allen Hasley. The issue is
whether the jury heard sufficient evidence to find coverage for the respondents
by reformation of Newark's insurance policy.
We conclude that the evidence does not support reformation, and therefore
reverse.
Zondra Hasley lived with
her husband, Clark, and their two sons Matthew and Allen, in one-half of a farm
duplex, while Clark's parents, Margaret and George Hasley, occupied the
other. In 1988, a fire broke out in which
George, Clark and Matthew died and Zondra was injured. George and Margaret were the named insureds
in a homeowner's and liability insurance policy issued by Newark. Clark was listed as an additional insured in
an endorsement to the policy.
The family exclusion
clause in Newark's policy excluded coverage "for bodily injury to you and,
if residents of your household, your relatives ...." On an earlier appeal, Hasley v. Newark
Mut. Ins. Co., No. 89-1712, unpublished slip op. (Wis. Ct. App. Jan.
24, 1991), we held that the clause excluded Clark's family because he was bound
by it as an additional insured.
After a second appeal, Hasley
v. Newark Mut. Ins. Co., No. 91‑2908, unpublished slip op.
(Wis. Ct. App. Jan. 28, 1993), the trial court allowed Zondra to file an
amended complaint alleging that the family exclusion clause applied to Clark
due to the mutual mistake of Margaret Hasley and Newark's agent. At trial, Margaret testified that when she
arranged to have Clark added to the policy, she only wanted him covered for farm
operations because Clark already had homeowner's and liability coverage under a
separate policy. She added that
afterwards Newark never alerted her and she never noticed that the policy also
included homeowner's liability coverage for Clark. The jury subsequently found that the policy should be reformed to
provide coverage for Clark's family.
The trial court refused to set aside that verdict on motions after
verdict, resulting in this appeal.[1]
Where the policy as
drafted does not represent the intention of both parties due to the agent's
neglect, it may be reformed to express the intended contract. Artmar, Inc. v. United Fire &
Casualty Co., 34 Wis.2d 181, 187, 148 N.W.2d 641, 644 (1967). The party seeking reformation must prove the
intended contract, and the mistake in deviating from it, by clear and
satisfactory evidence. Shearer v.
Dunn County Farmers Mut. Ins. Co., 39 Wis.2d 240, 245, 159 N.W.2d 89,
92 (1968). If there is any credible
evidence to support the verdict on this issue, we must affirm it. Fehring v. Republic Ins. Co.,
118 Wis.2d 299, 305-06, 347 N.W.2d 595, 598 (1984).
Zondra failed to provide
any evidence on a crucial element of her case.
Although Margaret testified at length concerning her intentions in
adding Clark to the policy, she was not able to testify that she communicated
those intentions to Newark's agent. The
agent testified that she understood Margaret's primary purpose in adding Clark,
but did not testify that Margaret specifically communicated to her that the
policy should not apply to Clark in all other respects. The party seeking reformation must prove
that the insured made certain statements to the agent concerning the coverage
desired. Sprangers v. Greatway
Ins. Co., 175 Wis.2d 60, 71, 498 N.W.2d 858, 863 (Ct. App. 1993), aff'd,
182 Wis.2d 521, 514 N.W.2d 1 (1994).
Margaret's statement as to her primary purpose was not proof of a
certain statement directing limited coverage, such that the agent performed
negligently.
Our decision makes it
unnecessary to address Newark's contention that reformation is not an
appropriate jury issue. In any event,
Newark waived the issue by failing to raise a timely objection in the trial
court.
By the Court.—Judgment
reversed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.