2010 WI App 72
court of appeals of
published opinion
Case No.: |
2008AP2929 |
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Complete Title of Case: |
†Petition for Review filed |
Opinion Filed: |
April 13, 2010 |
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Oral Argument: |
October 6, 2009 |
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JUDGES: |
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Appellant |
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ATTORNEYS: |
On behalf of the defendant-third party plaintiff-appellant,
the cause was submitted on the briefs of John J. Swietlik, Jr. and Michael D. Aiken of Kasdorf,
Lewis and |
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Respondent |
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ATTORNEYS: |
On behalf of the plaintiff-respondent, the cause was
submitted on the brief of C.M. Bye and Brian F. Laule of Bye, Goff & Rohde, Ltd. of |
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2010 WI App 72
COURT OF APPEALS DECISION DATED AND FILED April 13, 2010 David
R. Schanker Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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Appeal No. |
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STATE OF |
IN COURT OF APPEALS |
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Wendy M. Day , individually and as Personal Representative of the deceased, Emma Day,
Plaintiff-Respondent, v. Allstate Indemnity Company,
Defendant-Third-Party
Plaintiff-Appellant, v. Third-Party
Defendant. |
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APPEAL
from an order of the circuit court for
Before
¶1 BRUNNER, J. Allstate Indemnity Company
appeals a nonfinal order granting Wendy Day’s motion for summary judgment and
denying Allstate’s motion for summary judgment in this insurance coverage
dispute. Allstate argues the family
member exclusion clause in
BACKGROUND
¶2 This case stems from the tragic death of eight-year-old Emma
Day, who frequently experienced severe epileptic seizures. On
November 27, 2006, Emma suffered two seizures at school and was sent home. Her parents, Wendy and Clinton Day, were
divorced, and Emma was staying with her father and her step-mother, Holly Day,
that night. Holly prepared a bath for
Emma in the evening. The complaint
alleges that while temporarily unattended in the bath, Emma suffered a severe
seizure and drowned.
¶3 At the time of Emma’s death, Clinton and Holly carried a
homeowners’ insurance policy with Allstate.
Like most homeowners’ policies, theirs insured against liability for
injury to third persons.[1] See Shannon v. Shannon, 150
¶4 Wendy
brought wrongful death and survivorship claims against Holly, alleging Holly’s
negligent supervision caused Emma’s death.
Holly tendered her defense to Allstate.
By stipulation, Holly was dismissed from the action and Wendy was left
to pursue her claims against Allstate.
The court bifurcated the insurance coverage and liability issues.
¶5 On cross-motions for summary judgment, the circuit court construed the policy to require coverage. It rejected Allstate’s reliance on the family exclusion clause, reasoning no insured person would benefit from coverage. We granted Allstate’s petition for leave to appeal a nonfinal order.[3]
DISCUSSION
¶6 We review a grant of summary judgment de novo, applying the
same standard as the circuit court. See Green
Spring Farms v. Kersten, 136
¶7 Although Wendy does not contend the family exclusion clause
is contrary to public policy, we briefly review the exclusion’s purpose to
provide context for our analysis. Family
exclusion clauses are valid in
¶8 The issue in this case is whether the family exclusion
encompasses wrongful death and survivorship claims brought by someone other
than an insured person. Construction of
an insurance policy is a question of law which this court reviews de novo. Whirlpool Corp. v. Ziebert, 197
¶9 In Whirlpool, our supreme court
concluded an identical exclusion was unambiguous and contemplated contribution
claims.
¶10 Wrongful death is a statutory cause of action allowing recovery
whenever death is caused by a wrongful act, neglect or default and the deceased
party could have maintained an action against the tortfeasor had he or she
survived. Wis. Stat. § 895.03;
Johnson
v. ABC Ins. Co., 193
¶11
The family exclusion clause unambiguously precludes coverage under these
circumstances. Emma’s parents are her
heirs. See Wis. Stat. § 852.01(1)(c). Consequently, any amount recovered “shall
belong and be paid to” Clinton and Wendy.
See Wis. Stat. § 895.04(2); Bruflat v. Prudential Prop. &
Cas. Ins. Co., 2000 WI App 69, ¶18, 233
¶12 Wendy also seeks survivorship damages on Emma’s behalf. The survivorship statute, Wis. Stat. § 877.01, allows the
personal representative of a decedent to recover against a tortfeasor where the
decedent could have maintained the action had the injured party survived. A
survivorship claim is brought by the personal representative on behalf of the
decedent’s estate. See Wis. Stat. §§ 857.03(1),
877.06(1); Wangen v. Ford Motor Co., 97
¶13 The family exclusion clause also bars coverage for Wendy’s
survivorship claims. Emma, as a minor,
could not execute a valid will. See Wis.
Stat. § 853.01. Under the
laws governing intestate succession, Clinton and Wendy share her estate
equally. See Wis. Stat. § 852.01(1)(c). Consequently, one-half of any survivorship
damages Wendy recovers will pass through Emma’s estate to
¶14 The family exclusion precludes coverage even though
¶15 Wendy
argues we must affirm because Allstate was required, but failed, to prove
collusion. While Wendy acknowledges
proof of collusion is generally not required, she contends that presumption
applies only in the context of intra-family lawsuits. This argument confuses the public policy
justifying the exclusion’s enforceability for a substantive requirement the
insurer must prove. Family exclusions
serve the legitimate purpose of protecting the insurer from collusion among
family members. Rabas, 205
¶16 Wendy emphasizes that she is not an insured person under the homeowners’ policy, but fails to explain the relevance of this observation. As we have stated, the question critical to the operation of the family exclusion clause is whether an insured person will benefit from coverage. “The identity of the person pursuing the claim against the insured is irrelevant to the determination of whether an exclusion precluding coverage for injuries to relatives or other household members applies in particular circumstances.” 9A Plitt et al., supra, § 128:5. Thus, Wendy’s status under the policy is inconsequential. We have concluded that Clinton—who is an insured person—would benefit from the coverage by virtue of his entitlement to half of any recovery on either of Wendy’s claims. Accordingly, we reverse the circuit court’s grant of summary judgment and remand with directions to grant summary judgment in favor of Allstate.
By the Court.—Order reversed and cause remanded with directions.
[1] The policy language provided Allstate
would cover “damages which an insured person becomes legally obligated to pay
because of bodily injury ….”
[2] The circuit court assumed, without
deciding, that Emma was a resident of
[3] We granted Allstate’s petition on December 9, 2008, having concluded that granting interlocutory appeal would clarify further proceedings in the litigation.
[4] All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.
[5]