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COURT OF APPEALS DECISION DATED AND RELEASED AUGUST 27, 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. 95-3256
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
FRANK F. ULLMAN and
GAIL ULLMAN,
Plaintiffs-Respondents,
v.
NORRIN CORNELIUS,
AUTO-OWNERS INSURANCE
COMPANY, a foreign
corporation, CHARLES KING
and WENDY J. KING, his
wife,
Defendants-Respondents,
LAKELAND MUTUAL
INSURANCE COMPANY,
Defendant-Appellant.
APPEAL from an order of
the circuit court for Langlade County:
JAMES P. JANSEN, Judge. Reversed
and cause remanded.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER
CURIAM. Lakeland Mutual Insurance Company appeals a trial
court order that denied its motion for a declaratory judgment. Lakeland Mutual provided Charles and Wendy
King liability coverage. Gail Ullman
suffered injuries as a passenger in a bus when it collided with two of the
Kings' horses that had strayed onto a public highway. Lakeland Mutual sought a declaratory judgment that its policy's
"horse exclusion" denied liability coverage for any damage caused by
the Kings' horses. The trial court
ruled that the horse exclusion did not apply to damage caused by a collision
between horses and a motor vehicle, but only to damage caused by what may be
called horses' active conduct, such as horse bites or kicks.
On appeal, Lakeland
Mutual argues that the trial court disregarded
the plain language of the exclusion. In
response, the Kings, the Ullmans, and another liability insurer—hereinafter
collectively called "respondents"—argue that the trial court
correctly limited the horse exclusion, citing the fact that the policy contains
no equivalent exclusion for the passive conduct of other animals that might
stray onto a highway, such as cows, sheep, and pigs. They also argue that the policy's definition section made the
horse exclusion ambiguous. They cite
this ambiguity as an additional basis to uphold the trial court. We agree with Lakeland Mutual. We therefore reverse the declaratory
judgment and remand the matter for further proceedings.
Respondents essentially
argue that the horse exclusion does not deny coverage for damage caused by a
horse's "passive conduct."
Here, the horse exclusion denied liability coverage for horse caused
damage, without qualification: "We
do not cover claim(s) made or suit(s) brought against any insured for damages
because of Bodily Injury or Property Damage caused by any horse owned by or in
the care of any insured." By
virtue of such terms, the policy denies coverage not only for damage caused by
a horse kick or bite, but also when the horse wanders onto a road.
We also see no significance
in the fact that the policy contained no exclusions for other animals, such as
cows, sheep, and pigs. According to
respondents, this showed that the horse exclusion did not apply when the horses
wandered onto the highway. In
respondents' view, if Lakeland Mutual had wanted the exclusion to apply to such
conduct, it would have extended the exclusion to all animals whose similar
conduct could bring about collisions with motor vehicles. Respondents apparently base this argument on
the premise that cows, sheep, and pigs pose an equivalent risk of motor vehicle
collision as horses. We need not
inquire whether the risk of wandering is greater when horses are
concerned. The language of the policy
is unambiguous.
Last, we reject
respondents' argument that the policy's definition section made the policy
ambiguous. It defined
"insureds" to include "[p]ersons using or caring for . . .
animals owned by an insured and to which this insurance applies." Respondents theorize that this operated to
provide full liability coverage to horse caretakers for damage caused by any
horse to which the policy applied.
Under their theory, the "insurance applied" to the Kings'
horses by indemnifying the Kings for damage to their horses. Inasmuch as the "insurance applied"
to the horses, the theory continues, and inasmuch as the definition of
"insured" did not include the word "liability" between the
words "this" and "insurance," the definition operated to
award horse caretakers full liability coverage, including coverage for horse
caused damage undiminished by the horse exclusion. This result, respondents maintain, made the policy internally
contradictory and thereby ambiguous, by paradoxically granting additional
insureds more liability coverage than named insureds.
We see no such ambiguity
or contradiction. Insurance policies
are ambiguous whenever they permit more than one construction. Smith v. Atlantic Mut. Ins. Co.,
155 Wis.2d 808, 811, 456 N.W.2d 597, 598-99 (1990). Respondents have misread the definition of
"insured." It described what
class of persons had insurance coverage, not what kind of coverage they
had. It extended whatever coverage the
named insureds had under the policy to caretakers of the named insureds'
animals, without changing the character of the coverage. The policy's other provisions, including the
horse exclusion, applied to horse caretakers.
The presence or absence of the word "liability" would not
suggest anything regarding the coverage's character. Thus, the definition did not except the horse exclusion as to
additional insureds. In sum, the policy
was not contradictory or ambiguous.
By the Court.—Order
reversed and cause remanded for further proceedings consistent with this
opinion.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.