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COURT OF APPEALS DECISION DATED AND RELEASED March 28, 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. 95-0535
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
TERINA P., a minor by
her guardian ad litem,
MARK L. KRUEGER, and
her father,
DAVID P.,
Plaintiffs-Appellants,
v.
RONALD ZIMMERMAN,
CONTINENTAL CASUALTY
COMPANY (CNA),
ALIAS INSURANCE
COMPANY NO. 2,
ALIAS INSURANCE
COMPANY NO. 3,
Defendants,
STATE OF WISCONSIN
DEPARTMENT OF JUSTICE/
CRIME VICTIM
COMPENSATION PROGRAM,
Nominal-Defendant,
CINCINNATI INSURANCE
COMPANY,
Intervenor-Defendant-Respondent.
APPEAL from an order of
the circuit court for Sauk County:
JAMES EVENSON, Judge. Affirmed.
Before Eich, C.J.,
Gartzke, P.J., and Vergeront, J.
PER
CURIAM. Terina P.,[1]
by her guardian ad litem, and David P., her father, appeal from an order
dismissing Cincinnati Insurance Company as a defendant. The dispositive issue is whether insurance
coverage is barred by a family exclusion clause. We conclude it is. We
affirm.
The plaintiffs brought
this action against Peggy Zimmerman, who is Terina's mother, and Ronald
Zimmerman, Peggy's husband. They alleged
Ronald Zimmerman sexually assaulted Terina, a minor, in the Zimmerman home
over a two-year period. They sought
damages from him for that conduct, and also from Peggy Zimmerman for
negligently failing to protect Terina.
Cincinnati Insurance provided liability coverage to the Zimmermans for
part of the relevant time, and it intervened as a defendant. By motion for summary judgment, Cincinnati
sought dismissal from the case on the ground the plaintiffs' claims were not
covered under its policy. The trial
court granted the motion. The
plaintiffs appeal.
The facts relating to
the coverage issue are not disputed.
Cincinnati's policy does not cover bodily injury to "an insured
within the meaning of part a. or b. of `insured' as defined." The policy defines "insured" as
"you and the following residents of your household:
a. your spouse;
b. your relatives;
c. any person in the
care of you or an insured spouse or relative."
The plaintiffs concede
Terina is within part b. of the definition because she was a relative of the
Zimmermans and a resident in their household.
However, they argue Terina also is within part c. of the definition
because she was a person in the care of the insureds, and therefore the family
exclusion does not apply to her because it does not exclude part c.
Interpretation of an
insurance contract is a question of law we review independently. Tara N. v. Economy Fire & Casualty
Ins. Co., 197 Wis.2d 77, 84, 540 N.W.2d 26, 29 (Ct. App. 1995). An exclusionary clause in an insurance
contract is strictly construed against the insurer, but must also be
interpreted to mean what a reasonable person in the position of the insured would
have understood the words of the contract to mean. Id. at 90-91, 540 N.W.2d at 32.
We conclude reasonable
insureds would understand the policy to exclude injuries to all relatives who
are residents of their household, regardless of whether they might also be
"in the care" of the insured. The policy unambiguously excludes persons described in parts a.
and b. of the definition of "insured," that is, a spouse and
relatives. It is immaterial that such persons
might also be "in the care" of the insured, as described in part
c. The result of the plaintiffs'
argument would be that only relatives who are not in the care of the insured
would be excluded. If this was the
intent, the policy could have said so in much plainer terms.
Therefore, we conclude
Terina's claims against the Zimmermans are not covered by Cincinnati's
policy. In a letter filed after
briefing, the plaintiffs concede that if Terina's claims are not covered,
neither are her father's derivative claims.
See id. at 89, 540 N.W.2d at 31 (a derivative
claim, although separate, depends on whether the party actually injured
sustained a compensable injury).
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.