COURT OF
APPEALS DECISION DATED AND
RELEASED April
11, 1996 |
NOTICE |
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. 95-2953-FT
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
RACHEL
JENSEN,
Plaintiff-Appellant,
v.
J.C.
PENNEY LIFE INSURANCE COMPANY,
Defendant-Respondent.
APPEAL
from an order of the circuit court for Monroe County: STEVEN L. ABBOTT, Judge. Affirmed.
Before
Eich, C.J., Gartzke, P.J., and Dykman, J.
PER
CURIAM. Rachel Jensen appeals from a summary judgment in favor
of J.C. Penney Life Insurance Company.
The issue is whether a provision in an accidental death insurance policy
issued by J.C. Penney excluding coverage for loss that occurs while the covered
person's blood alcohol content is .10 percent or greater is contrary to public
policy. We conclude that the policy
exclusion is not contrary to public policy.
Accordingly, we affirm.[1]
The
facts are not disputed. Gunnar Jensen,
the insured, went to a tavern, consumed alcohol, and left near midnight. On his drive home along a dike road located
near a marsh, Jensen lost control of his vehicle and proceeded down the bank
into a cranberry marsh where the vehicle turned over. Jensen was found dead the next day. He had drowned in the marsh.
Jensen's blood alcohol content at the time of the accident was .234
percent.
At
the time of his death, Jensen was covered by an insurance policy issued by J.C.
Penney providing an accidental death benefit of $100,000. J.C. Penney refused to pay the death benefit
on the basis of an exclusion in its policy which provided: "No benefit shall be paid for [l]oss
that ... occurs while the [c]overed [p]erson's blood alcohol is .10 percent
weight per volume or higher; a causal connection between the injury and the
loss is not required." The trial
court granted summary judgment in favor of J.C. Penney based on this exclusion.
Summary
judgment allows disputes to be settled without trial where there are no
disputed material facts and only legal issues are presented. In re Cherokee Park Plat, 113
Wis.2d 112, 115, 334 N.W.2d 580, 582-83 (Ct. App. 1983). On review of an order for summary judgment,
we employ the same methodology as the trial court. Green Spring Farms v. Kersten, 136 Wis.2d 304, 315,
401 N.W.2d 816, 820 (1987). We first
examine the pleadings and affidavits to determine whether a claim for relief
has been stated. Id. If a claim for relief has been stated, we
then determine whether any factual issues exist. Id. If
there is no genuine issue as to any material fact, and if the moving party is
entitled to judgment as a matter of law, we will affirm the trial court's order
granting summary judgment. Id.
"Contracts
of insurance are controlled by the same principles of law that are applicable
to other contracts." Garriguenc
v. Love, 67 Wis.2d 130, 134, 226 N.W.2d 414, 417 (1975). To determine whether a contract is
unenforceable as a matter of public policy, we balance "the interest in
the enforcement of the particular promise against the policy against
enforcement of such terms." Blossom
Farm Prods. Co. v. Kasson Cheese Co., 133 Wis.2d 386, 394-95, 395
N.W.2d 619, 623 (Ct. App. 1986).
"In weighing a public policy against enforcement of a term, account
is taken of: (1) the strength of that policy as manifested by legislation or
judicial decisions; [and] (2) the likelihood that a refusal to enforce the
term will further that policy ...."
Id.
Jensen
argues that public policy precludes exclusionary clauses based on intoxication
in accidental death insurance contracts.
In support, she points to §§ 632.32(1) and 632.32(6)(b)4, Stats., which provide:
632.32(1)
Provisions of motor vehicle insurance policies. (1) Scope. Except as otherwise provided, this section applies to every
policy of insurance issued or delivered in this state against the insured's
liability for loss or damage resulting from accident caused by any motor
vehicle, whether the loss or damage is to property or to a person.
632.32(6)(b)4.
No policy may exclude from the coverage afforded or benefits provided:
... [a]ny use of the motor vehicle for unlawful purposes, or for transportation
of liquor in violation of law, or while the driver is under the influence of an
intoxicant or a controlled substance under ch. 161 or a combination thereof,
under the influence of any other drug to a degree which renders him or her
incapable of safely driving ... or any use of the motor vehicle in a reckless
manner.
While
acknowledging that § 632.32, Stats.,
deals exclusively with motor vehicle insurance, Jensen contends that it should
apply to this case because her husband suffered "loss [of life] ...
resulting from [an] accident caused by [a] motor vehicle." Jensen bolsters her argument by citing a
case in which the supreme court stated that § 632.32 should be broadly
interpreted to protect innocent third parties. See Estate of Logan v. Northwestern Nat'l Casualty Co.,
144 Wis.2d 318, 348, 424 N.W.2d 179, 190 (1988).
Although the Logan
court stated that § 632.32, Stats.,
was designed to protect innocent third parties, Logan
specifically said that § 632.32 applied only to automobile liability
insurance. Id. at 349,
424 N.W.2d at 190. The court stated
that automobile liability policies were unique "in part because of the
existence of legislation which in certain circumstances requires insurance for
the benefit of innocent third parties."
Id. We agree with
J.C. Penney that "[w]hile Mr. Jensen happened to be in his vehicle at the
time of his death, the claim here is for benefits from an accidental death
policy which has nothing whatsoever to do with his automobile
insurance."
The
legislature has not enacted a statutory prohibition against intoxication
exclusions in accidental death insurance policies as it did with
§ 632.32(6)(b)4 for automobile insurance policies. Because the legislature has prohibited these
exclusions in one type of insurance contract but not in another, we do not
agree with Jensen that § 632.32, Stats.,
is an expression of a general legislative policy against intoxication
exclusions in all insurance contracts.
The policy considerations applicable to automobile liability insurance
and accidental death insurance are very different. Automobile liability insurance protects both the insured and
innocent third parties who might be physically harmed by the actions of the
insured. Accidental death insurance
provides no similar benefit to the society at large. We conclude that the terms of the J.C Penney policy are
enforceable. The exclusion is not void
as a matter of public policy.
By
the Court.—Order affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)5, Stats.