Rabas v. Claim Management Services, Inc.
Rabas v. Claim Management Services, Inc.
Dissenting Opinion
(dissenting). I disagree with the majority's interpretation of Whirlpool Corp. v. Ziebert, 197 Wis. 2d 144, 539 N.W.2d 883 (1995). The majority effectively reads Whirlpool to say that whenever a homeowner's liability policy contains a family exclusion clause, that exclusion automatically operates to bar coverage for direct and indirect suits. If a liability policy excludes coverage for one family member when another family member is the victim of the tort, the majority believes that the contribution action arising out of the injured family member's claim
In my view, Whirlpool does not go that far. Even a cursory reading of the case shows that the supreme court did only two things. First, it decided that family exclusion clauses which apply to contribution claims do not violate public policy. See id. at 151-52, 539 N.W.2d at 886. Second, the court determined that the exclusion clause in that case properly encompassed contribution actions. Id. at 155-56, 539 N.W.2d at 887.
The court started the analysis of this secdnd issue with the maxim that ambiguities in coverage are to be construed in favor of coverage, while exclusions are narrowly construed against the insurer. Id. at 152, 539 N.W.2d at 886. It then stated that this rule of strict construction is not applicable if the policy is unambiguous. Id.
Then, turning directly to the language within the exclusion, the court accented the portion which stated: "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." Id. at 153, 539 N.W.2d at 886. The court then used four pages to explain why this particular language was unambiguous and hence, valid.
The court specifically pointed out and italicized the phrase "directly or indirectly." Id. The court took the time to review the dictionary definitions of the two terms. Id. The court also favorably cited a California case construing a statute that authorized automobile insurers to write exclusions governing contribution claims. Our supreme court noted how adding the phrase "directly or indirectly" to the statute "clarified" the statute. Id. at 154, 539 N.W.2d at 887.
With regard to the exclusion in this case, I believe it is ambiguous, while the one in the Whirlpool case was not. The Whirlpool exclusion clearly told the reasonable insured that the insurer would not cover any bodily injury claim if the person benefiting from the insurance was relying on it to defend either a direct or an indirect suit. Id. at 153, 539 N.W.2d at 886. The exclusion in this case, however, does not do that. Indeed, nothing in this policy tells the reasonable insured that the family exclusion applies not only to suits directly brought by family members, but that the exclusion also applies when a third party brings an action. While, under Whirlpool, the family exclusion in this case could validly apply to third-party contribution actions, the exclusion is nontheless flawed because it does not clearly convey what the insurer claims it is designed to do.
Although an exclusion properly aimed at contribution claims does not have to contain the word "indirect" to be viable, the exclusion must contain some language which tells the reasonable insured that contribution claims are not covered. Mindful of the supreme court's long-standing rule that we must narrowly construe exclusions against the insurer, I
Opinion of the Court
The Aetna Casualty & Surety Company (Aetna), Manitowoc Clinic, Inc. and Manitowoc Clinic, S.C. appeal from a summary judgment in favor of Kossuth Mutual Insurance Company (Kossuth), the third party defendant-respondent. Aetna maintains that the family exclusion clause in the Rabases' insurance policy only applies to direct action claims and therefore does not apply to this indirect claim for contribution. Because we conclude that the family exclusion clause applies to direct and indirect actions against insured family members, we affirm the trial court's order for summary judgment.
On June 20,1991, Dorothy Rabas, accompanied by her daughter, Diane Rabas, went to the Manitowoc Clinic, Inc. and Manitowoc Clinic, S.C. (collectively the Clinic) for treatment. While on the premises, Dorothy tripped and fell over a hose which resulted in severe and disabling injuries. The following day, Dorothy passed away allegedly as a result of the injuries.
Otmar Rabas, Dorothy's surviving spouse and the sole beneficiary of her estate, filed an action against the Clinic; Aetna, the Clinic's insurer and Claim Management Services, Inc., the third-party administrator of the Fisher-Hamilton Scientific, Inc. Health and Welfare Plan which paid certain medical bills for Dorothy, to recover damages for Dorothy's death. This appeal arises from a separate contribution action filed by Aetna against Diane, who lived with her parents, and their homeowner's liability insurer,
Kossuth moved for summary judgment in the contribution action, arguing that the family exclusion clause precluded coverage for her alleged conduct in any claim Otmar, her father, may have. The circuit court granted the motion ordering that the complaint against Kossuth be dismissed and assessing costs against Aetna. Aetna appeals.
The issue on appeal turns on the family exclusion clause in Kossuth's policy. There are no disputed issues of fact. We conduct a de novo review of a motion for summary judgment using the same methodology as the trial court. M & I First Nat'l Bank v. Episcopal Homes, 195 Wis. 2d 485, 496, 536 N.W.2d 175, 182 (Ct. App. 1995). In addition, the construction of an insurance policy is a question of law which we also decide de novo. Whirlpool Corp. v. Ziebert, 197 Wis. 2d 144, 152, 539 N.W.2d 883, 886 (1995).
The family exclusion clause states: "[Personal liability coverage] does not apply to liability: 1. for bodily injury to you, and if residents of your household, your relatives, and persons under the age of 21 in your care or in the care of your resident relatives . .. ."
Family exclusion clauses are valid in Wisconsin involving both a direct suit against an insured family member or an indirect action, such as a contribution claim by a third party. See Shannon v. Shannon, 150 Wis. 2d 434, 455-56, 442 N.W.2d 25, 35 (1989); see also Whirlpool, 197 Wis. 2d at 151-52, 539 N.W.2d at 886. "The potential for collusion is virtually the same in either situation [direct suits against family members or third-party contribution claims against family members] — at least in the sense that. . . the parents would have no incentive to defeat or reduce the claim." Id. at 151, 539 N.W.2d at 885 (quoting Groff v. State Farm Fire & Casualty Co., 646 F. Supp. 973, 975 (E.D. Pa. 1986)). Thus, the family exclusion clause furthers the legitimate public policy of protecting insurers from situations, both direct and indirect actions, where an insured may not completely cooperate and assist the insurance company's administration of the case. See Whirlpool, 197 Wis. 2d at 149-50, 539 N.W.2d at 885.
The supreme court further explained the family exclusion clause as follows:
The liability being asserted in Whirlpool's contribution claim against Sharon Ziebert is based on the claim for damages suffered by Jaclyn Ziebert. That liability is identical whether there is a direct*488 claim against Sharon Ziebert by her daughter or whether the claim is indirectly asserted through a contribution claim by Whirlpool. To say that Jaclyn Ziebert is not receiving a benefit because her recovery comes from a contribution claim rather than a direct claim for personal injuries is the ultimate tribute to form over substance. Such a conclusion defies logic and common sense.
Id, at 155, 539 N.W.2d at 887.
This reasoning also applies here.
Aetna attempts to distinguish the reasoning and holding in Whirlpool based upon the direct/indirect language in that policy which is not contained in the Kossuth policy. Aetna argues that Whirlpool only barred "coverage for contribution claims which expressly applied to both direct and indirect claims."
We do not read Whirlpool as mandating the magic words "direct and indirect;" to do so would place form over substance. The court agreed with the California appellate court that the additional language clarifies the scope of the standard clause which excludes coverage liability for bodily injury to the insured so
This argument also ignores the important public policy reasons for applying family exclusion clauses to indirect claims, such as contribution actions. On this point, the court stated:
[T]here are times when we must look beyond the immediate facts to principles of public policy and the broader ramifications that our decisions have on the people of this state as a whole. We are persuaded that the possibility of collusion is great enough to warrant allowing family exclusion clauses to cover contribution actions. Therefore, we hold that such clauses are not contrary to public policy....
Id. at 151-52, 539 N.W.2d at 886 (emphasis added). Because the liability is identical in this case, we conclude that the family exclusion clause precludes coverage for Aetna's contribution claim.
Moreover, "[contribution is the 'process by which one person obtains reimbursement from another for a proportionate share of an obligation paid by the first
In sum, Aetna's claim for contribution stems from its liability for Dorothy's injuries; if Diane's negligence contributed to her mother's injuries, Aetna could have a potential claim for contribution against her. However, Aetna does not have a claim against Diane's insurer because Kossuth's policy does not insure her liability to a family member.
By the Court. — Judgment affirmed.
Aetna moved this court for an order staying further appellate proceedings in this appeal pending resolution of Whirlpool Corp. v. Ziebert, No. 93-3307, by the supreme court. The stay was granted on May 25, 1995. Once the decision was issued in Whirlpool, this court lifted the stay in this appeal in an order dated January 29,1996.
It is undisputed that Otmar, Dorothy and Diane Rabas are all "insureds" under the Kossuth policy. The policy defines an "insured" as: "a. you; b. your relatives if residents of your household." Otmar and Dorothy are the named insureds on the
Although Aetna contends that Whirlpool Corp. v. Ziebert, 197 Wis. 2d 144, 539 N.W.2d 883 (1995), "demonstrates the correctness of [its] arguments," it fails to address why the basic reasoning of Whirlpool does not apply to this case. We do not interpret Whirlpool as supporting Aetna's position.
Reference
- Full Case Name
- Otmar Rabas, Surviving Spouse of Dorothy Rabas and Sole Beneficiary of the Estate of Dorothy Rabas, Plaintiffs, v. Claim Management Services, Inc., Defendant, the Aetna Casualty & Surety Company, Manitowoc Clinic, Inc., and Manitowoc Clinic, S.C., Defendants-Third Party Plaintiffs-Appellants, v. Diane Rabas, Third Party Defendant, Kossuth Mutual Insurance Company, Third Party Defendant-Respondent
- Cited By
- 4 cases
- Status
- Published