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COURT OF APPEALS DECISION DATED AND RELEASED APRIL 9, 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(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-2610
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
LEE J. PETRINA and
KATHLEEN J. PETRINA,
Husband and Wife,
Plaintiffs-Appellants,
v.
JAMES BARNARD and
CRYSTAL BARNARD,
Husband and Wife, and
RURAL MUTUAL INSURANCE
COMPANY,
Defendants-Respondents.
APPEAL from a judgment
of the circuit court for Door County:
JOHN D. KOEHN, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER CURIAM. Lee and Kathleen Petrina appeal a summary
judgment[1]
dismissing their complaint against Rural Mutual Insurance Company alleging
wrongful eviction and invasion of their rights to private occupancy. They argue that the trial court erroneously
interpreted the Rural Mutual Insurance Company policy. Because the trial court correctly
interpreted and applied the policy, we affirm.
The underlying facts are
not disputed. In 1991, the Barnards
accepted from Diane and Robert Shartner an offer to purchase real estate. The real estate was farmland being used as a
cherry orchard. After the Barnards
accepted the Shartners' offer, they accepted a second offer from the
Petrinas. The Shartners paid the
purchase price to the Barnards' real estate agent and recorded with the
register of deeds an affidavit of interest in the property. The Barnards, however, conveyed the property
by warranty deed to the Petrinas, who took delivery of the deed and possession
of the property knowing of the Shartners' prior interest.
The Shartners initiated
a lawsuit against the Barnards and the Petrinas for declaration of rights. The Petrinas were also insured by Rural,
which accepted tender of defense.[2] The lawsuit resulted in a judgment in favor
of the Shartners. The judgment decreed
that the Shartners were the equitable owners of the property and that the
Petrinas, having accepted the conveyance with constructive and actual knowledge
of the Shartners' interest, were not purchasers in good faith. The judgment voided the conveyance to the
Petrinas, ordered the Barnards to refund the purchase price of $25,000, and
ordered that the Petrinas were to receive their expenses for cultivating the
cherry crop, determined by an arbitrator to be $17,545.46.
The Petrinas then
commenced this action against the Barnards and Rural Mutual, which also insured
the Barnards with a commercial liability policy, alleging that as a result of
the Barnards' negligence and breach of warranty deed, the Petrinas were
wrongfully evicted from the property and suffered an invasion of their right of
private occupancy. They seek lost
profits from the cherry crop, costs in the
transaction conveying the property to the Shartners, and other alleged
damages.
Rural's policy with the
Barnards provides:
[W]e agree to extend Section II —
Coverage A, Personal Liability, to cover personal injury.
Personal injury means damages for which
an insured is legally liable.
The damages must be caused by:
....
4.
wrongful entry or eviction, or other invasion of the right of private
occupancy.
Summary judgment is
reviewed de novo. Park
Bancorporation, Inc. v. Sletteland, 182 Wis.2d 131, 140, 513 N.W.2d
609, 613 (Ct. App. 1994). We apply the
standard set forth in § 802.08(2), Stats.,
in the same manner as the trial court. City
of Edgerton v. General Cas. Co., 184 Wis.2d 750, 764, 517 N.W.2d 463,
470 (1994). Summary judgment is
rendered when there is no genuine issue of any material fact and the moving
party is entitled to judgment as a matter of law. Id. at 763, 517 N.W.2d at 764.
In this case, the only
question requires the interpretation of the insurance policy and its
application to an undisputed set of facts.
The primary goal in interpreting insurance policies is to ascertain and
carry out the true intentions of the parties.
Id. at 779-80, 517
N.W.2d at 476. The words of the policy
are to be given their plain and ordinary meaning. Id. at 780, 517 N.W.2d at 476.
The Petrinas argue that
the Barnards' policy insures against liability due to the invasion of another's
rights of occupancy of insured premises.
They claim that because their right of occupancy was invaded, the policy
provides coverage for their resulting damages.
We disagree. First, the Petrinas
fail to demonstrate that they had any rights to occupy the premises in
question. To the contrary, because the
Shartners were the equitable owners, the judgment established that the Petrinas
had no right to occupy the premises.
Second, the Petrinas'
claims arise not from their eviction from the property, which was by court
order, but from the Barnards' breach of the warranty of title contained in
their deed of conveyance. The meaning
of an insurance policy is assessed by the standard of a reasonable person in
the position of the insured. Id.
at 780, 517 N.W.2d at 476-77. An
insured's expectation of coverage may not be satisfied in contradiction to the
policy language that clearly identifies the scope of coverage. Id. at 780, 517 N.W.2d at
477. Here, a reasonable interpretation
of the plain policy language would not lead a reasonable insured to expect
title insurance. Because the undisputed
facts fail to support a claim for damages for wrongful entry, eviction, or
other invasion of right of occupancy, the trial court properly determined that
the policy did not afford coverage.[3]
The Petrinas also argue
that the trial court erroneously concluded that the claims presented here are
the same claims that were resolved in the earlier lawsuit. The Petrinas argue that the trial court
failed to consider that the issues in this lawsuit arise out of the Barnards'
insurance policy and that in the earlier lawsuit the Barnards' policy was not
an issue. Because the Barnards' policy
with Rural does not afford coverage under the undisputed facts, no further
analysis is required. See Sweet
v. Berge, 113 Wis.2d 61, 67, 334 N.W.2d 559, 562 (Ct. App. 1983) (we
address only dispositive issue).
By the Court.—Judgment
affirmed.
This opinion will not be
published. Rule 809.23(1)(b)5, Stats.
[1] The document appealed from is denominated an order, but for purposes of this appeal we interpret it as a summary judgment.