2008 WI 99
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Supreme Court of |
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Case No.: |
2006AP818 |
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Complete Title: |
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J. G. and R. G., Plaintiffs-Co-Appellants, v. Deborah S. Wangard, Defendant-Appellant-Petitioner, Great Northern Insurance Company and Pacific Indemnity Insurance Company, Defendants-Respondents, Steven C. Wangard, John Doe and XYZ Corporation, Defendants. |
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REVIEW OF A DECISION OF THE COURT OF APPEALS (no cite) |
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Opinion Filed: |
July 16, 2008 |
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Submitted on Briefs: |
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Oral Argument: |
March 13, 2008
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Source of Appeal: |
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Court: |
Circuit |
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County: |
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Judge: |
Robert G. Mawdsley
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Justices: |
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Concurred: |
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Dissented: |
BRADLEY, J., dissents (opinion filed). ABRAHAMSON, C.J. and ABRAHAMSON, C.J. and BRADLEY, J., join the dissent. |
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Not Participating: |
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Attorneys: |
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For the defendant-appellant-petitioner there were briefs
by Francis H. LoCoco, Tamara Hayes
O’Brien, and Whyte Hirschboeck Dudek
S.C.,
For the defendants-respondents there was a brief by James S. Smith, Wendy G. Gunderson, and Smith,
2008 WI 99
notice
This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports.
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 DAVID T. PROSSER, J. This is a review of an unpublished decision and order of the court of appeals,[1] that summarily affirmed a judgment of the Waukesha County Circuit Court, Robert G. Mawdsley, Judge.
¶2 The case involves an insurance coverage dispute. The question presented is whether homeowner's insurance policies issued by Great Northern Insurance Company (Great Northern) and Pacific Indemnity Insurance Company (Pacific) to Steven and Deborah Wangard[2] provide coverage for the alleged negligence of Deborah in failing to prevent Steven's intentional sexual contact with J.G., a minor. The policies in question cover liability for "damages a covered person is legally obligated to pay for personal injury or property damage," but they contain exclusions that bar coverage for damages arising out of the intentional act of "any covered person."
¶3 The court of appeals affirmed the judgment of the circuit court,
which held that the homeowner's policies in question do not cover Deborah's
alleged negligence. The court of appeals
determined that the instant case is controlled by its prior decisions in Jessica
M.F. v. Liberty Mutual Fire Insurance Co., 209
¶4 We conclude that the result in this case is informed by the court of appeals' decisions in Jessica M.F. and Taryn E.F. The intentional acts exclusions in the Wangards' homeowner's policies bar coverage for Deborah's alleged negligence in failing to prevent Steven's intentional sexual contact with J.G. because the plaintiffs' damages——in the language of the Wangards' homeowner's policies——"[arose] out of an act intended by any covered person to cause personal injury." Furthermore, no insured would reasonably expect liability coverage for damages arising out of an act of sexual assault premised upon intentional sexual contact. Accordingly, we affirm the court of appeals.
I. BACKGROUND
¶5 The relevant facts are not disputed. On February 23, 2005, plaintiffs J.G., a
minor, and R.G., her mother, filed a civil complaint alleging that during a
period from 2000 to 2003 Steven Wangard had sexual contact with J.G. at two
residences owned by him and his wife Deborah, namely 855 Circle Drive and
¶6 On October 7, 2004, Steven pled guilty to second-degree sexual assault of a child for having sexual contact with J.G., a violation of Wis. Stat. § 948.02(2).[3] The plaintiffs' complaint alleges several claims for relief against Steven that are premised upon his intentional sexual assaults of J.G.[4] We assume for purposes of this appeal that Steven's intentional wrongful conduct, which caused the plaintiffs' damages, has been established by his guilty plea as a matter of law.
¶7 The plaintiffs' complaint also alleges that Deborah negligently failed to prevent her husband from sexually abusing J.G. Specifically, the complaint's seventh claim for relief alleges that Deborah was negligent in the following ways:
33. That prior to all or some of Steven C. Wangard's sexual contacts with J.G. . . . Deborah S. Wangard knew or should have known that Steven C. Wangard had intentional sexual contact and/or sexual intercourse with other minors; that she knew or should have known that Steven C. Wangard had a propensity to have intentional sexual contact and/or sexual intercourse with minors; that despite such knowledge, Deborah S. Wangard was negligent in that she, among other things, did not warn J.G. and/or R.G. of such knowledge prior to all or some of Steven C. Wangard's sexual contacts with J.G. as alleged hereinabove; that she did not take any action to prevent Steven C. Wangard from being alone with J.G. prior to all or some of Steven C. Wangard's sexual contacts with J.G. as alleged hereinabove; that at all times material hereto, she negligently supervised J.G. while J.G. was in her care; and was otherwise negligent.
34. That the negligence of Deborah S. Wangard as alleged, was a direct and proximate cause of J.G.'s injuries and damages, as set forth hereinabove, subjecting Deborah S. Wangard to liability for compensatory and punitive damages in an amount to be determined by the trier of fact.
¶8 The complaint alleges that the Wangards' acts and omissions harmed J.G. and R.G., namely, that Steven's intentional sexual assaults of J.G. and Deborah's negligence in failing to prevent the assaults allegedly caused J.G. "severe, extreme, disabling and permanent emotional distress, pain, suffering, embarrassment, loss of self esteem, disgrace, humiliation, loss of enjoyment of life, psychological damages, injuries," and continuing expenses for medical and psychological treatment. The complaint also claims that Steven's intentional tortious conduct and Deborah's negligence have caused R.G. to suffer "the loss of J.G.'s society and companionship, past and future pecuniary losses, past and future medical and/or psychological expenses, severe emotional distress," and other injuries.
¶9 The residences where Steven sexually assaulted J.G. were insured
by Great Northern and Pacific during the relevant time period. Great Northern insured the
¶10 The relevant language of the Great Northern and Pacific homeowner's policies is identical. The coverage provisions of the policies state: "We cover damages a covered person is legally obligated to pay for personal injury or property damage which take place anytime during the policy period and are caused by an occurrence, unless stated otherwise or an exclusion applies." The policies state that an "[o]ccurrence means a loss or accident to which this insurance applies occurring within the policy period." Although the policies name Steven alone as the insured party in the "Coverage Summary," a "covered person" includes "you or a family member." The policies also include language under the heading "Application of coverage" that reads: "Coverage applies separately to each covered person. However, this provision does not increase the amount of coverage for any one occurrence."[5]
¶11 The liability provisions of the Wangards' policies provide coverage for certain enumerated damages and injuries, while other harms caused by the insureds are excluded from coverage. "Personal injury" is covered by the policies and includes "bodily injury . . . shock, mental anguish, or mental injury." "Bodily injury" means "physical bodily harm, including sickness or disease that results from it, and required care, loss of services and resulting death."
¶12 The policies exclude damages caused by the intentional acts of insureds. The policies state:
Intentional acts. We do not cover any damages arising out of an act intended by any covered person to cause personal injury or property damage, even if the injury or damage is of a different degree or type than actually intended or expected. An intentional act is one whose consequences could have been foreseen by a reasonable person. But we do cover such damages if the act was intended to protect people or property unless another exclusion applies.
¶13 On July 20, 2005, Great Northern and Pacific moved for a declaratory ruling and to dismiss the case against them on grounds that the Wangards' homeowner's policies did not cover the losses alleged in the plaintiffs' complaint. The circuit court heard argument on the motion on December 5, 2005, and issued a written decision in favor of Great Northern and Pacific on February 20, 2006.
¶14 The circuit court held that the Wangards' homeowner's policies did not cover any of the claims alleged in the plaintiffs' complaint. With regard to the alleged negligence of Deborah, the court concluded that the intentional acts exclusion in the two policies barred coverage. The court found that "the language contained in the policy is not ambiguous nor is the policy as a whole contextually ambiguous." The court also found that "the language contained in the exclusion bars coverage regardless of the existence of a separation clause." The court cited Hagen v. Gulrud, 151 Wis. 2d 1, 6-7, 442 N.W.2d 570 (Ct. App. 1989), for two propositions: (1) one who purchases a homeowner's policy does not contemplate coverage for sexual misconduct of an insured; and (2) one would not anticipate sharing such a risk with other policyholders. The court also relied upon Jessica M.F. to conclude that Deborah is not covered because she would not contemplate coverage for sexual assaults committed by Steven, despite the fact that she is arguably an "innocent spouse" and that the two policies include a provision that separates coverage as to each insured.
¶15 On March 20, 2006, the circuit court issued an order and judgment dismissing all claims against Great Northern and Pacific because the insurers owed no duty to defend or indemnify the Wangards under their homeowner's policies. Deborah appealed, and J.G. and R.G. cross-appealed.
¶16 The court of appeals summarily affirmed on August 8, 2007, holding that the Wangards' case is controlled by the court of appeals' prior decisions in Jessica M.F. and Taryn E.F. The court of appeals held that there was "no meaningful way to distinguish" these cases and that the intentional acts exclusion in the Wangards' policies precludes coverage for the intentional acts of "any covered person," i.e., any insured. Both Steven and Deborah are insureds under the two policies, and it is undisputed that Steven's sexual contact with J.G. was intentional. Thus, the court of appeals found that, despite the existence of a "severability clause" in the policies, Deborah's alleged negligence is not covered.
¶17 Deborah petitioned this court for review, which we granted on November 5, 2007.
II. ANALYSIS
A. Standard of Review
¶18 In a declaratory judgment action, the granting or denying of relief
is a matter within the discretion of the circuit court and is upheld absent an
erroneous exercise of discretion. See
Jones v. Secura Ins. Co., 2002 WI 11, ¶19, 249
¶19 To resolve this case we must interpret the language of two
insurance policies to determine whether they afford coverage for alleged
negligence. Whether an insurance policy
affords coverage is a question of insurance contract interpretation, which we
review de novo. Am. Family Mut. Ins.
Co. v. Am. Girl, Inc., 2004 WI 2, ¶23, 268
B. Discussion
¶20 This case involves a question of insurance coverage; therefore, we begin with a recitation of general principles, the pertinent language of the policies in question, and the relevant allegations in the plaintiffs' complaint.
¶21 "An insurance policy is a contract." State Farm Mut. Auto. Ins. Co. v. Gillette,
2002 WI 31, ¶25, 251
¶22 Coverage provided in a liability insurance policy is typically
stated in terms of the insurer's duty to defend and/or indemnify the insured
for losses or injury caused by the insured.
See Gross v. Lloyds of
¶23 "The duty to defend is necessarily broader than the duty to
indemnify because the duty to defend is triggered by arguable, as opposed to
actual, coverage." Fireman's
Fund, 261
¶24 The coverage issue in this case turns on a dispute over the
applicability of an intentional acts exclusion in each policy, and, ultimately,
its interaction with a severability clause.
"Exclusions are narrowly or strictly construed against the insurer
if their effect is uncertain." Am.
Girl, 268
¶25 We turn to the pertinent language of the Wangards' homeowner's policies. First, the policies provide coverage for certain enumerated harms caused by an insured, namely, "damages a covered person is legally obligated to pay for personal injury or property damage which take place anytime during the policy period and are caused by an occurrence, unless stated otherwise or an exclusion applies." "Personal injury" is covered by the policies and includes "bodily injury . . . shock, mental anguish, or mental injury." "Bodily injury" means "physical bodily harm, including sickness or disease that results from it, and required care, loss of services and resulting death."
¶26 Presumably, the injuries covered by the policies would encompass the injuries alleged in the complaint. This point is not disputed; therefore, we will assume there would be initial coverage for at least some of the damages alleged.
¶27 Second, the policies name Steven Wangard as the insured party, but the policies define a "covered person" to include "you or a family member"; thus, Deborah, Steven's wife during the two policy periods, was also a covered insured.[6] The policies also include language under the heading "Application of coverage" that reads: "Coverage applies separately to each covered person."
¶28 Finally, the policies exclude damages arising out of the intentional acts of any insured person from coverage. Specifically, the policies state:
Intentional acts. We do not cover any damages arising out of an act intended by any covered person to cause personal injury or property damage, even if the injury or damage is of a different degree or type than actually intended or expected. An intentional act is one whose consequences could have been foreseen by a reasonable person. But we do cover such damages if the act was intended to protect people or property unless another exclusion applies. (Emphasis added.)
¶29 Having examined the policies, we turn to the relevant allegations in the plaintiffs' complaint. The allegations in the complaint stem from the intentional sexual assaults committed by Steven Wangard. The complaint alleges that between 2000 and 2003 Steven had sexual contact with J.G. at two residences owned by the Wangards that were insured by Great Northern and Pacific homeowner's policies. On October 7, 2004, Steven pled guilty to second-degree sexual assault of a child for having sexual contact with J.G. There is no dispute that Steven's wrongful conduct was intentional, that the consequences of his actions were foreseeable (at least to him), and that Steven's sexual contact with J.G. has been established as a matter of law by Steven's guilty plea.[7] Furthermore, there is no dispute that Steven's intentional acts, which allegedly caused harm to J.G. and R.G., are excluded from coverage under the policies by the intentional acts exclusion.
¶30 Moving to Deborah, the complaint alleges that Deborah was negligent in failing to prevent Steven's intentional sexual contact with J.G. Specifically, the complaint alleges that Deborah was negligent because she knew or should have known that: (1) Steven had intentional sexual contact and/or sexual intercourse with other minors; and (2) Steven had a propensity to have intentional sexual contact and/or sexual intercourse with minors. Deborah's alleged negligent acts and omissions are that she: (1) did not warn J.G. and/or R.G. of her knowledge of Steven's past sexual contacts with minors prior to Steven's sexual contacts with J.G.; (2) did not take any action to prevent Steven from being alone with J.G. prior to his sexual contacts with J.G.; and (3) negligently supervised J.G. while J.G. was in her care.
¶31 Keeping the policy language and allegations in the complaint in mind, we examine the disputed issue of coverage for Deborah's alleged negligence.
¶32 The circuit court and the court of appeals held that the intentional acts exclusion in the Wangards' policies controls and excludes Deborah from coverage because J.G. and R.G.'s damages arose out of the intentional acts of "any covered person," namely Steven. The court of appeals relied primarily on the express language of the policies and its prior decisions in Jessica M.F. and Taryn E.F. There is no dispute that if the express language of the intentional acts exclusion applies to Deborah, either directly because of her own negligence or indirectly because of Steven's intentional conduct, Deborah's negligence is not covered.
¶33 Deborah makes several arguments that the intentional acts exclusion is inapplicable to her. Deborah asserts that applying the intentional acts exclusion to bar coverage for her alleged negligence violates her reasonable expectations of coverage. She contends that the severability clause in each policy cannot be reconciled with the intentional acts exclusion and that this inconsistency must be resolved in favor of coverage. She also argues that Jessica M.F. and Taryn E.F. improperly construed or disregarded the severability clauses at issue in those cases and are inconsistent with Doyle v. Engelke, Gulmire v. St. Paul Fire & Marine Insurance Co., 2004 WI App 18, 269 Wis. 2d 501, 674 N.W.2d 629, and Northwestern National Insurance Co. v. Nemetz, 135 Wis. 2d 245, 400 N.W.2d 33 (Ct. App. 1986). Relying on Folkman v. Quamme,[8] Deborah asserts that the interaction of the intentional acts exclusion and severability clause creates contextual ambiguity that must be resolved in favor of coverage. Finally, Deborah takes the position that Jessica M.F. was wrongly decided and that intent to injure cannot be inferred as a matter of law from allegations that an insured "should have known" of a spouse's abusive propensities.
¶34 To address these arguments, we begin with the two decisions relied upon by the court of appeals, Jessica M.F. and Taryn E.F.
¶35 In Jessica M.F. four grandchildren and their parents sought
a declaration of coverage under their grandparents' homeowner's policies for
their grandfather's alleged sexual assaults of the grandchildren. Jessica M.F., 209
¶36 The court of appeals affirmed the circuit court's holding that the
grandmother's negligence was excluded from coverage under the policies.
¶37 The court of appeals reviewed its decision in K.A.G. v. Stanford,
148 Wis. 2d 158, 434 N.W.2d 790 (Ct. App. 1988), which
established that acts of sexual molestation against a minor are so certain to
result in injury that intent to injure can be inferred for purposes of the
application of an intentional acts exclusion.
¶38 Building on K.A.G., the Jessica M.F. court noted that
the court of appeals decision in Hagen, a case involving the question
whether a homeowner's insurance policy provided coverage for sexual
assault committed by the homeowner's son, indicated "that a person
purchasing homeowner's insurance would not expect that he or she was insuring
his or her children against liability for their sexual assaults." Jessica M.F., 209
¶39 The Jessica M.F.
court concluded that these considerations apply with "at least equal force
to a policy-holder's expectations with respect to sexual assaults committed by
his or her spouse." Jessica M.F.,
209
¶40 The Jessica M.F.
court then addressed the "severability of interest" clause in the
policies and distinguished its earlier Nemetz decision, which held that,
despite an intentional acts exclusion, a severability clause in a homeowner's
liability policy preserved coverage for a wife when her husband committed arson
of their tavern and a neighbor's adjoining property.
¶41 In Taryn E.F., parents of a child that had been sexually
molested by her 12-year-old babysitter sought a declaration that her
babysitter's parents were covered by their homeowner's policy for potential
liability stemming from the molestation.
Taryn E.F., 178
¶42 Like the Jessica M.F. court, the Taryn E.F. court
addressed the severability clause in light of its earlier Nemetz
decision, and it distinguished Nemetz.
¶43 Second, the Taryn E.F. court rejected the argument that
there is no logical or grammatical difference between "an" and
"any."
¶44 The Taryn E.F. court concluded that "the term 'any
insured' unambiguously precludes coverage to all persons covered by the policy
if any one of them engages in excludable conduct."
¶45 The logic of the lower courts' application of Jessica M.F.
and Taryn E.F. to Deborah's case is evident. We agree with the analysis in Taryn E.F.
and conclude that Great Northern and Pacific's use of the phrase "any
covered person" in the policies' intentional acts exclusions, like the
phrase "any insured" in the Taryn E.F. policy, unambiguously
precludes coverage for all insureds. Taryn
E.F., 178
¶46 The express language of the two homeowner's policies in question broadly excludes from coverage "any damages arising out of an act intended by any covered person to cause personal injury or property damage." (Emphasis added.) Without considering whether Deborah's negligent conduct was itself "intentional," as Jessica M.F. might imply, it is clear that J.G.'s and R.G.'s alleged damages arose out of Steven's intentional wrongful conduct. For this reason, the exclusion plainly bars coverage as to Steven and to Deborah if, as is undisputed, J.G. and R.G.'s personal injury damages arose out of Steven's intentional sexual contact with J.G.
¶47 We also agree with the reasoning of the Taryn E.F. court
that the existence of a severability clause does not change this analysis.
¶48 Under this construction we therefore reject Deborah's contention
that the policies are contextually ambiguous under the standards set forth in Folkman
v. Quamme, 264
¶49 Because of the unambiguous language in the policies, we also reject Deborah's arguments that the court of appeals' decision in this case is inconsistent with the construction of the policies in Nemetz, Doyle, and Gulmire.
¶50 As indicated by the Taryn E.F. court, Nemetz is
distinguishable from cases like the instant case because the exclusion in Nemetz
referred to "an insured" and "the insured" in the
intentional acts exclusion instead of "any" insured or covered
person. Taryn E.F., 178
¶51 Doyle is also inapposite.
In Doyle, this court reviewed a duty to defend case involving a
claim of negligent supervision against an employer. Doyle, 219
¶52 In the Wangards' case, the severability clause reads:
"Coverage applies separately to each covered person." Unlike Doyle, there is no express or
implied intent in the language of the Wangards' policies that the contracts
apply to Deborah and Steven individually "as if [he or she] was the only
one named."
¶53 Gulmire is similarly distinguishable from the Wangards' case. In Gulmire, plaintiff Mary Gulmire
(Gulmire) was injured when a co-worker, Floyd Klister (Klister), struck her
with a vehicle while both were acting in the course of their employment for Fox
Valley Auto Auction (
¶54 Gulmire successfully argued that the fellow employee exclusion was
inapplicable because the severability clause created separate policies as to
each insured, thereby removing Klister from the "by you" in the
exclusion.
¶55 The Gulmire court focused its decision on the fact that the
words "by you" in the fellow employee exclusion made the exclusion
inapplicable to Klister.
¶56 Deborah also asserts that the court of appeals' interpretation of the intentional acts exclusion in the Wangards' policies violates her reasonable expectations of coverage for her negligence in failing to prevent Steven from having sexual contact with J.G. We disagree for two reasons. As noted above, the policies in question unambiguously state that personal injury damages "arising out of" the intentional acts of "any covered person" are excluded from coverage. Deborah cannot reasonably argue that this policy language should be construed to cover the damages arising out of the intentional sexual contact with J.G. by her husband Steven, a covered person.
¶57 In addition, as the court of appeals recognized in Jessica M.F.,
an insured cannot reasonably expect coverage for harms resulting from sexual
assaults committed by one's spouse. Jessica
M.F., 209
¶58 We need not reach Deborah's argument that Jessica M.F. was
wrongly decided. Deborah argues that
because the Jessica M.F. court conflated the alleged negligence of an
"innocent" insured with intentional conduct, the court wrongly
applied the intentional acts exclusion in question. See Jessica M.F., 209
¶59 In sum, Jessica M.F. and Taryn E.F. inform the outcome in this case. The intentional acts exclusion in the Wangards' homeowner's policies excludes coverage for damages "arising out of an act intended by any covered person to cause personal injury." Steven is a "covered person" under the Wangards' policies, and J.G.'s and R.G.'s injuries allegedly arose out of his intentional acts. Deborah has no reasonable expectation of coverage for damages arising out of Steven's intentional sexual contact with J.G.; therefore, the intentional acts exclusion in the Wangards' homeowner's policies applies and excludes coverage for the alleged negligence of Deborah.
III. CONCLUSION
¶60 We conclude that the result in this case is informed by the court of appeals' decisions in Jessica M.F. and Taryn E.F. The intentional acts exclusions in the Wangards' homeowner's policies bar coverage for Deborah's alleged negligence in failing to prevent Steven's intentional sexual contact with J.G. because the plaintiffs' damages——in the language of the Wangards' homeowner's policies——"[arose] out of an act intended by any covered person to cause personal injury." Furthermore, no insured would reasonably expect liability coverage for damages arising out of an act of sexual assault premised upon intentional sexual contact. Accordingly, we affirm the court of appeals.
By the Court.—The decision of the court of appeals is affirmed.
¶61 ANN WALSH BRADLEY, J. (dissenting). The majority holds here that "no insured
would reasonably expect liability coverage for damages arising out of an act of
sexual assault premised upon intentional sexual contact." Majority op.,
¶4. The cases that the majority cites as informing this holding are also cases
involving intentional acts of sexual assault.
¶62 I write separately to emphasize that the majority holding today is
limited to cases involving the intentional act of sexual assault. As the court
of appeals in Jessica M.F. explained, cases involving sexual assault
differ from cases involving harms from other sorts of intentional acts. 209
¶63 I also write separately because of a problem in the majority's interpretation of the severability clause and the relation of that clause to the intentional acts exclusion.[14] The majority's interpretation of the severability clause contradicts its express language and our precedent, which require that coverage apply "separately to each insured." (Emphasis added.) As a result of its erroneous interpretation, the majority concludes that the intentional acts exclusion trumps the severability clause.
¶64 I conclude instead that the express language of the severability clause applying the policies separately to each insured directly contradicts the intentional acts exclusion. This contradiction renders the Wangards' policy contextually ambiguous. Because we construe ambiguous insurance contracts in favor of the insured, Deborah is entitled to coverage. Accordingly, I respectfully dissent.
¶65 This case centers on two provisions in the Wangards' insurance policies. One is the intentional acts exclusion:
We do not cover any damages arising out of an act intended by any covered person to cause personal injury . . . even if the injury or damages is of a different degree or type than actually intended or expected. An intentional act is one whose consequences could have been foreseen by a reasonable person . . . .
¶66 The majority's analysis focuses on the phrase "any covered person." Because Steven Wangard is a covered person, the intentional acts exclusion applies to his intentional acts. Majority op., ¶32. Looking at the language of the exclusion in isolation, coverage would not extend to damages arising out of Steven's actions here.
¶67 The other provision at issue is the severability clause. It requires that coverage be applied "separately" to each insured:
Coverage applies separately to each covered person. However this provision does not increase the amount of coverage for any one occurrence.
¶68 The majority determines that because Steven Wangard is a named insured on each of the Wangards' policies Deborah cannot receive coverage, despite the promise of the severability clause that "[c]overage applies separately to each covered person." Majority op., ¶52. It maintains that this case is distinguishable from a more recent decision, Gulmire,[15] where the court of appeals determined that a severability clause required coverage despite the presence of an exclusion in the policy. Majority op., ¶¶53-54.
I
¶69 The majority misinterprets the severability clause. To begin, the language of the severability clause is clear on its face: "Coverage applies separately to each covered person." Deborah is a covered person, and coverage must apply to her separately from each other covered person, including Steven. Applying coverage to Deborah separately from Steven would require that Steven's actions not bear upon Deborah's coverage. Otherwise, coverage is linked, not separate.
¶70 The majority seeks to circumvent the express language of the severability clause by arguing that even if the Wangards' policies were applied separately, "as if they were distinct contracts, [they] would include Steven Wangard, either explicitly by name or implicitly by status in their Coverage Summary." Majority op., ¶47. The argument appears to confuse the notion of separate coverage with the existence of separate contracts. Whether there are separate contracts, each with Steven Wangard as a named insured, tells us nothing about what it means for coverage to be separate. Having a "coverage" summary that includes Steven conflicts with the claim that Deborah's coverage is applied separately from Steven.
¶71 More importantly, the majority's argument contradicts the language of the severability clause. How can coverage apply "separately to each insured" when Deborah's coverage is, as the majority requires, inextricably connected to Steven Wangard's coverage?
¶72 The majority's interpretation of the severability clause also
conflicts with our precedent. In Gulmire v. St. Paul Fire & Marine Insurance
Co., the court of appeals examined the relationship between a severability
clause and a fellow employee exclusion. 2004 WI App 18, 269
¶73 The court of appeals focused on the second part of the clause. It
determined that "separately" means applying "independently"
or "individually."
¶74 The majority seeks to distinguish Gulmire from the present case by focusing on the court of appeals' discussion of the fellow employee exclusion. Majority op., ¶55. The problem with the majority's argument is that the court of appeals' discussion of the fellow employee exclusion is independent of its interpretation of the severability clause, and it is the interpretation of the severability clause that is relevant to the present case.
¶75 In other words, in Gulmire the court of appeals interpreted language almost identical to the language in the severability clause here to mean that each covered person must be treated independently, "such that [the insured] is detached from all other protected persons." Gulmire, ¶28. Treating Deborah as detached from Steven would require providing coverage, regardless of Steven's intentional actions. Basing a coverage decision for Deborah on Steven's actions is incompatible with treating Deborah independently and detached from all other protected persons.
II
¶76 The insurance policies in this case have one provision that excludes coverage for Deborah for damages arising out of Steven's intentional acts. The policies also have a different provision requiring that Deborah's coverage must be provided without consideration of Steven. The provisions directly contradict each other.
¶77 Insurance provisions cannot be read in isolation. State Farm
Mut. Auto. Ins. Co. v. Bailey, 2007 WI 90, ¶31, 302
¶78 Reading the two provisions here in conjunction, the Wangards'
policies are susceptible to more than one reasonable interpretation. An
ordinary insured could reasonably interpret the policies here such that (1) the
intentional acts exclusion trumps the express language of the severability
clause or (2) the severability clause trumps the express language of the
intentional acts exclusion. Where provisions in an insurance policy are
reasonably susceptible to more than one interpretation, they are contextually
ambiguous. Folkman v. Quamme, 2003 WI 116, ¶29, 264
¶79 In Folkman, this court determined that in order to avoid
contextual ambiguity, policies "should avoid inconsistent provisions,
provisions that build up false expectations, and provisions that produce
reasonable alternative meanings."
¶80 By misinterpreting the severability clause and failing to apply coverage separately, the majority concludes that the intentional acts exclusion trumps the severability clause. However, when the severability clause is interpreted according to its express language and our precedent, a different conclusion is required.
¶81 It is a longstanding principle that courts will interpret policies
in favor of the insured (that is, in favor of coverage) where the policy is
contextually ambiguous.
¶82 In sum, the express language of the severability clause and
¶83 I am authorized to state that Chief Justice SHIRLEY S. ABRAHAMSON and Justice LOUIS B. BUTLER, JR. join this dissent.
¶84 LOUIS B. BUTLER, JR., J. (dissenting). I join Justice Bradley's dissent. I agree with Justice Bradley's dissent that the intentional acts exclusion and the severability clauses of the Wangards' insurance policies, read in conjunction, at best create ambiguity as to the issue of whether Deborah Wangard's negligent acts may be considered separately from her husband's intentional acts for purposes of insurance coverage. I disagree with the majority that the intentional acts exclusion clauses in the policies bar coverage for "Deborah's alleged negligence in failing to prevent Steven's intentional sexual contact with J.G. because the plaintiffs' damages . . . '[arose] out of an act intended by any covered person to cause personal injury.'" Majority op., ¶4.
¶85 The language of the intentional act exclusion clauses contained in the insurance policies precludes coverage for damages arising out of intentional acts. See majority op., ¶12 ("We do not cover any damages arising out of an act intended by any covered person to cause personal injury or property damage . . . ."). Although it is clear that coverage for damages attributable to Steven's intentional acts is precluded by the intentional acts exclusion clauses, it is not clear that damages attributable to Deborah's negligent acts are also excluded.
¶86 There is nothing in the intentional acts exclusion clauses indicating that negligent acts are excluded from coverage, or that Deborah's alleged negligence should be conflated with her husband's alleged intentional acts. Although the intentional acts exclusion clauses exclude from coverage "any damages arising out of an act intended by any covered person to cause personal injury or property damage," that language does not indicate that any damages arising out of a different person's negligent acts are similarly excluded.
¶87 The complaint against Steven and Deborah Wangard does not allege that all of the damages arose out of Steven's intentional acts. Rather, the complaint alleges that damages also arose out of Deborah's negligence, stating at paragraph 15 of the complaint that "as a result of Steven C. Wangard's intentional tortuous conduct, as herein alleged, and Deborah S. Wangard's causal negligence as herein alleged, J.G. has suffered and continues to suffer" a number of injuries, expenses and other damages. The complaint's seventh claim for relief alleges that Deborah was negligent in that she did not warn J.G. of her actual or constructive knowledge of Steven's propensities, that she did not take any action to prevent him from being alone with J.G., that she negligently supervised J.G. while J.G. was in her care, and was otherwise negligent. The complaint further alleges that Deborah's negligence was a direct and proximate cause of J.G.'s injuries.
¶88 If the majority means to equate Steven's intentional acts with Deborah's negligent acts, such conflation of claims is not in accord with the manner in which different claims are treated by Wisconsin courts in insurance coverage cases. This is the case for two primary reasons.
¶89 First, Doyle v. Engelke, 219 Wis. 2d 277, 580 N.W.2d 245 (1998),[17] clearly establishes that if any alleged claim could be covered by a policy, coverage must be provided even if the complaint also alleges claims that are excluded. Thus, even without consideration of the severability clause in this case, we must determine whether there is coverage for the negligence claims against Deborah independently from our examination of whether there is coverage for Steven's intentional conduct.
¶90 Second, to the extent that the majority appears to view the intentional acts exclusion clause as unambiguously imputing Steven's intentional acts to his wife's negligent acts, such an imposition of vicarious liability violates the rule of law we have generally established against imputing one spouse's conduct to another in an insurance coverage contract:
This court rejects the invitation to invent a doctrine that a spouse should be denied recovery on an insurance contract because of action of the other spouse when those actions cannot be imputed to the insured spouse. The marriage relationship should not be used as a basis for such a law. Married people are still individuals and responsible for their own acts. Vicarious liability is not an attribute of marriage.
Shearer v.
¶91 Consequently, I believe the only reasonable interpretation of the intentional acts exclusion clause is that it bars coverage for damages arising out of Steven's intentional acts, but does not bar coverage for the damages arising out of Deborah's negligent acts which were alleged as a separate claim in the complaint in this case. Her conduct is at issue, and is alleged to have caused damages with respect to the seventh claim for relief. Those damages are alleged to have arisen out of her conduct, and not out of Steven's intentional acts.
¶92 To the extent there is any ambiguity about the meaning of the
intentional acts clause as applied to coverage for Deborah's negligence, such
ambiguity must be construed in favor of coverage. Folkman v. Quamme, 2003 WI 116, ¶20, 264
¶93 For all the above reasons, I respectfully dissent.
¶94 I am authorized to state that Chief Justice SHIRLEY S. ABRAHAMSON and Justice ANN WALSH BRADLEY join this dissenting opinion.
[1] J.G. v. Wangard, No. 2006AP818, unpublished order (Wis. Ct. App. Aug. 8, 2007).
[2] The Wangards were married during the events relevant to the plaintiffs' suit; they are now separated. Deborah and Steven Wangard will be referred to individually by first name and collectively as "the Wangards."
[3] Wisconsin Stat. § 948.02(2) (2003-04) states: "Whoever has sexual contact . . . with a person who has not attained the age of 16 years is guilty of a Class C felony."
Wisconsin Stat. § 948.01(5) (2003-04) defines "sexual contact":
(5) "Sexual contact" means any of the following:
(a) Intentional touching by the complainant or defendant, either directly or through clothing by the use of any body part or object, of the complainant's or defendant's intimate parts if that intentional touching is either for the purpose of sexually degrading or sexually humiliating the complainant or sexually arousing or gratifying the defendant.
(b) Intentional penile ejaculation of ejaculate or intentional emission of urine or feces by the defendant upon any part of the body clothed or unclothed of the complainant if that ejaculation or emission is either for the purpose of sexually degrading or sexually humiliating the complainant or for the purpose of sexually arousing or gratifying the defendant.
All subsequent references to the Wisconsin Statutes are to the 2005-06 version, unless otherwise noted.
[4] None of these claims is directly implicated in the instant appeal because no one has argued that Steven's intentional conduct is covered by the insurance policies in question. However, the allegations regarding Steven's intentional conduct are pertinent to our analysis of whether the intentional acts exclusion in the policies applies to Deborah.
[5] Throughout their briefs the parties have referred to this language as a "separation" or "severability" clause, and we will do so as well.
[6] "You" is also a defined term in the policies. It means "the person named in the Coverage Summary, and a spouse who lives with that person." Steven is the "You" referred to in the Coverage Summary under the heading "Name and address of Insured," and Deborah lived with him and was his spouse during the relevant time period. Deborah would therefore be covered under the policies as an insured by the word "You."
[7] See N.N. v. Moraine Mut. Ins. Co., 153 Wis. 2d 84, 91-93, 450 N.W.2d 445 (1990) (holding that an appellate court may, but is not required to, conclude as a matter of law that intent for purposes of civil liability is satisfied by a guilty plea to a crime involving an element of intentional conduct).
[8] In Folkman v. Quamme,
this court reviewed a case involving the alleged ambiguity of a "split
liability limits" endorsement to an automobile insurance policy. Folkman v. Quamme, 2003 WI 116, ¶1, 264
The Folkman court set forth general principles
to evaluate whether a clause in an insurance contract is contextually ambiguous
when construed in relation to other parts of the contract. This
court noted that "[i]nsurance policy language is ambiguous 'if it is
susceptible to more than one reasonable interpretation.'"
A
clear and unambiguous provision may be found ambiguous in the context of the
entire policy.
[9] We offer no analysis
regarding the validity of the court of appeals' holding that the intentional
acts exclusion in Jessica M.F. applied when the grandmother in that case
"knew or should have known of her husband's alleged sexual abuse of their
grandchildren." Jessica M.F. v.
Liberty Mutual Fire Insurance Co., 209
As noted below, we do not rely on this specific holding to resolve the case at hand. Nor do we offer any comment on whether we believe Deborah Wangard was an "innocent" spouse, in the words of the Jessica M.F. court. See id. at 58-59. These issues are not relevant to our determination today.
[10] One insurance treatise
cites Taryn E.F. v. Joshua M.C., 178
Finally, it has been held that an "any insured" exclusion will be treated like a "the insured" exclusion if the policy contains a severability clause; that is, a provision stating that the "insurance applies separately to each insured." Such a holding is not justifiable. A severability clause provides that each insured will be treated independently under the policy. The fact remains, however, that as applied even independently to each insured, an "any insured" exclusion unambiguously eliminates coverage for each and every insured.
2 Allan D. Windt, Insurance Claims and Disputes § 11.8, at 11-160——11-163 (5th ed. 2007) (emphasis added) (footnotes omitted). See also BP America, Inc. v. State Auto Prop. & Cas. Ins. Co., 148 P.3d 832, 840-41 (Okla. 2005) as corrected on denial of rehearing Oct. 30, 2006 (concluding that to hold that a severability clause affords coverage in contravention of an "any insured" exclusion "ignores the purpose of the severability clause——to afford each insured a full measure of coverage up to the policy limits, rather than to negate bargained-for and plainly-worded exclusions" and that "[t]he separation of insureds clause has no effect on the clear language of the exclusionary clause. Simply, a claim made against any insured is excluded. The purpose of severability is not to negate plainly worded exclusions."); Nw. G.F. Mut. Ins. Co. v. Norgard, 518 N.W.2d 179, 183 (N.D. 1994) ("[t]he purpose of severability clauses is to spread protection, to the limits of coverage, among all of the . . . insureds. The purpose is not to negate bargained-for exclusions which are plainly worded.") (quoting Nat'l Ins. Underwriters v. Lexington Flying Club, Inc., 603 S.W.2d 490, 492 (Ky. App. 1980)).
[11] In Chacon, the
Colorado Supreme Court held that the phrase "any insured" in an
intentional acts exclusion "clearly and unambiguously expresses an
intention to deny coverage to all insureds when damage is intended or expected
as a result of the actions of any insured." Chacon v. Am. Family Mut. Ins. Co., 788
P.2d 748, 752 (
Chacon involved a question of coverage for the
parents of a 10-year-old boy who vandalized a school.
[12] We need not speculate about the purpose of the severability clause in these policies. However, Great Northern and Pacific's brief indicates that there are several exclusions in the policies where "a covered person," as opposed to "any covered person," is the language used. Arguably, "a covered person" might apply differently in some contexts than "any covered person."
In any event, use of "any insured" in the policies does not strip the severability clause of all meaning. See 2 Allan D. Windt, Insurance Claims and Disputes § 11.8, at 11-164 (5th ed. 2007) (rejecting the position of courts that have "held . . . that a severability clause renders an 'any insured' exclusion meaningless . . . on the basis that, otherwise, the severability clause would itself be meaningless" and noting that "[a] severability clause would still have meaning in a variety of contexts.") (footnote omitted).
[13] The court of appeals
distinguished Jessica M.F. from an earlier decision involving arson, Northwestern
National Insurance Co. v. Nemetz, 135 Wis. 2d 245, 400 N.W.2d 33
(Ct. App. 1986). The court stated that because Nemetz dealt with arson it
"did not encounter the special considerations that arise in the context of
child sexual abuse, particularly within a family." Jessica M.F. v.
[14] As the majority notes, there are two different insurance policies involved. The language of the relevant portions of the policies is identical. In order to simplify, I refer to the severability clauses and the intentional acts exclusions in the singular.
[15] Gulmire v. St. Paul
Fire & Marine Ins. Co., 2004 WI App 18, 269
[16] This is the approach
taken in a number of jurisdictions. See Premier Ins. Co. v.
[17] Notably, Doyle v.
Engelke, 219 Wis. 2d 277, 580 N.W.2d 245 (1998), is a supreme court
decision decided after the court of appeals decisions upon which the majority
primarily relies, Jessica M.F. v. Liberty Mutual Fire Insurance Co., 209
Wis. 2d 42, 561 N.W.2d 787 (Ct. App. 1997), and Taryn E.F. v. Joshua M.C.,
178 Wis. 2d 719, 505 N.W.2d 418 (