COURT OF
APPEALS DECISION DATED AND
RELEASED March
28, 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. 93-2420
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
AMY
WEISMAN, A MINOR, BY HER GUARDIAN
AD
LITEM, JAMES R. JANSEN,
SCOTT
WEISMAN AND
KATHY
WEISMAN,
Plaintiffs,
v.
FIREMAN'S
FUND INSURANCE COMPANIES,
MENARD,
INC.,
SCHWEISS
CHICKEN PLUCKERS, INC.,
AND
MADISON-KIPP CORPORATION,
Defendants,
MENARD,
INC., AND
FIREMAN'S
FUND INSURANCE COMPANIES,
Counter Claimants-Third Party
Plaintiffs-Appellants,
SCOTT
WEISMAN,
Counter Claimant-Defendant,
AMERICAN FAMILY MUTUAL INSURANCE COMPANY,
Third
Party Defendant-Respondent.
APPEAL
from a judgment of the circuit court for Dane County: P. CHARLES JONES, Judge. Affirmed.
Before
Gartzke, P.J., Dykman and Sundby, JJ.
SUNDBY,
J. We conclude that the result in this contribution case is
controlled by Whirlpool Corp. v. Ziebert, 197 Wis.2d 144, 539
N.W.2d 883 (1995). We therefore affirm
the judgment.
Amy
Weisman, who was then five years' old, lost four fingers when her left hand was
caught in the cables which operated a by-fold door manufactured by Schweiss
Chicken Pluckers, Inc. The door was
contained in a building Amy's father, Scott, purchased from Menard, Inc. Menards appeals from a summary judgment
dismissing its third-party complaint and cross-claim against Scott Weisman's
liability insurer, American Family Mutual Insurance Company, for
contribution. Menards contends that
Scott's failure to properly supervise his daughter was the cause of her
injuries.
The
trial court granted American Family's motion for summary judgment on the ground
that its policy excluded coverage of Scott's liability for Amy's injuries. Section II of American Family's farm-ranch
liability policy included the following liability and exclusion provisions:
1. Insuring Agreement.
We will pay, up to our applicable limit, compensatory damages which any
insured becomes legally obligated to pay as damages because of bodily injury or
property damage to which this insurance applies.... We have the right and duty to defend any suit seeking those
damages....
Insurance provided under Section II does not apply
to:
12. Intra-Insured Suits. We do not cover bodily injury to you or to any insured.
The policy defined "insured" as follows:
4.a.
You, and if you are shown in the Declarations as:
(1) an
individual, insured also means your spouse and relatives if residents of your
household....
....
Scott
Weisman is shown in the Declarations as an individual and his daughter Amy was
a resident of his household.
Menards
argues that the exclusion clause is ambiguous because its
title--"Intra-Insured Suits"--may be interpreted to be limited to
suits "between" or "among" insureds. It notes that Black's Law Dictionary 822 (6th ed. 1990), defines
"intra" as "within" and that "inter" has taken
the place of "intra" in many modern Latin phrases. It also notes that Black's defines "inter" as
"between." Id.
at 811. Thus, following this route of
construction, Menards arrives at the conclusion that the exclusion clause does
not exclude its action against Amy's father for contribution because its action
is not "between" insureds. A
title of a statute is not a substantive component of the provision or clause. See
Jungbluth v. Hometown, Inc., 192 Wis.2d 450, 458, 531 N.W.2d 412,
415 (Ct. App. 1995) (citing § 990.001(b), Stats.). We apply the same rule to contracts. If the exclusion clause were ambiguous, we
could resort to its title to resolve the ambiguity. See Pulsfus Poultry Farms, Inc. v. Town of Leeds,
149 Wis.2d 797, 805-06, 440 N.W.2d 329, 333 (1989). However, the exclusion clause unambiguously excludes bodily
injury to "any insured," and it is undisputed that Amy was an insured
within the meaning of the policy.
Therefore, we reject Menards's argument.
Menards
contends that, in any event, the "bodily injury" exclusion does not
apply because its claim for contribution is "completely and legally
separate from the underlying claim between the party who is physically injured
and the party that seeks contribution."
A claim for contribution does not exist in the abstract. "Contribution is the `process by which
one person obtains reimbursement from another for a proportionate share of an
obligation paid by the first person but for which they are both liable.' This process is based upon principles of
equity and natural justice, not express contract." Kafka v. Pope, 186 Wis.2d 472,
475, 521 N.W.2d 174, 176 (Ct. App. 1994) (quoted source omitted), aff'd,
194 Wis.2d 234, 533 N.W.2d 491 (1995)).
"When no express agreement confers a right of contribution, a
party's right to seek contribution against another is premised on two
conditions: (1) the parties must be
liable for the same obligation; and (2) the party seeking contribution must
have paid more than a fair share of the obligation." Kafka v. Pope, 194 Wis.2d 243,
242-43, 533 N.W.2d 491, 494 (1995).
Menards's argument fails because American Family has no liability for
Amy Weisman's injuries.
Whirlpool
Corp. v. Ziebert confirms our conclusion. The family exclusion clause construed in
that case read: "We do not cover
bodily injury to an insured person ... whenever any benefit of this coverage
would accrue directly or indirectly to an insured person." 197 Wis.2d at 153, 539 N.W.2d at 886. This clause is identical in effect to the
family exclusion clause we construe in this case. The court rejected Whirlpool's argument that a claim for
contribution was not a claim for bodily injury and therefore not covered by the
exclusion clause. The court said that
while a claim for contribution is distinct from the underlying cause of action,
"contribution claims are dependent and stem from the original action;
without it they would not exist at all."
Id. at 155, 539 N.W.2d at 887. Menards's claim for contribution stems from its liability for Amy
Weisman's injuries; if Scott Weisman's negligence contributed to his daughter's
injuries, Menards could have a potential claim for contribution against
him. However, it does not have a claim
against Scott Weisman's insurer because American Family's policy does not
insure his liability to a family member.
By
the Court.—Judgment affirmed.
Not
recommended for publication in the official reports.