SOCIETY INSURANCE v. Linehan
SOCIETY INSURANCE v. Linehan
Opinion of the Court
¶ 1. Phil Linehan, Dakota Litvinoff, Jeffrey Litvinoff, Patricia L. Litvinoff, and
BACKGROUND
¶ 2. Linehan was the sole proprietor of Old Coach Tavern, which was insured under a business insurance policy issued by Society. Linehan owned a dog named Rudd. According to Linehan, Rudd served an important business function as the tavern's mascot. Society conceded that Rudd served a business purpose because "everyone comes in the tavern to see the dog." In addition, Rudd slept at the tavern at night, providing some security against burglary.
¶ 3. Linehan was out of town on the day of the attack and had given the bartender instructions not to let Rudd outside. Rudd, however, was let out of the tavern and injured Dakota, a two-year-old child, on property adjacent to the tavern and owned by someone else.
¶4. Society brought an action requesting that the circuit court declare there was no coverage for Dakota's injuries under the tavern's business policy. The circuit court granted Society's motion and this appeal followed.
¶ 5. We review a summary judgment decision de novo, applying the same standard as the circuit court. See Grams v. Boss, 97 Wis. 2d 332, 338-39, 294 N.W.2d 473 (1980). A motion for summary judgment must be granted when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Wis. Stat. § 802.08(2).
¶ 6. We interpret an insurance policy's terms without deference to the circuit court's decision. See Kaun v. Industrial Fire & Cas. Ins. Co., 148 Wis. 2d 662, 667, 436 N.W.2d 321 (1989). "The construction of words and phrases in insurance policies is generally a matter of law and is controlled by the same rules of construction as are applied to contracts generally." Kremers-Urban Co. v. American Employers Ins. Co., 119 Wis. 2d 722, 735, 351 N.W.2d 156 (1984). "Where no ambiguity exists in the terms of the policy, we will not engage in construction, but will merely apply the policy terms." Id. at 736.
¶ 7. The initial inquiry is whether Linehan is an insured as defined in the policy. The relevant portion of the policy states:
C. WHO IS AN INSURED
1. If you are designated in the Declarations as:
a. An individual, you and your spouse are insureds, but only with respect to the conduct of a business of which you are the sole owner.
¶ 8. The circuit court focused on the dog's activity at the time of the bite. It observed that Rudd was "wandering around aimlessly in a vacant field owned by someone else and allegedly assaulting patrons of another tavern .... The alleged conduct took place off of the business premises, in an area that was not owned by the business owner, in an area where there was no business or commercial activity of any kind that takes place, especially not by the insured."
¶ 9. On appeal, Society similarly focuses on the dog's activity at the time of the bite. Society contends that for Linehan to be covered, Rudd must have been furthering the conduct of the business when it attacked Dakota, that the incident must have been part of the insured's business activities, and that it must have been directly related to a specific business purpose.
¶ 10. Linehan, on the other hand, focuses on the keeping of Rudd. He points out that Rudd was property. Linehan's liability, according to him, arises from his activities and the activities of his employees, not from the activity of his property. Thus, he concludes that keeping the dog was part of the conduct of his business.
¶ 12. Also, in Employers Mut. Cas. Co. v. Kangas, 245 N.W.2d 873 (Minn. 1976), the defendant had a business liability policy containing the phrase "conduct of a business." The insured was a welder and had taken his business to a local racetrack to perform services on race cars. While there, he lit a firecracker and injured the plaintiff. The court concluded that there was no ambiguity in the meaning of the policy. It held there was no coverage because shooting fireworks had no connection with the conduct of the business. See id. at 876.
¶ 13. Second, we conclude that "conduct of a business" must be determined based on the actions of Linehan and his employees, not on the actions of Rudd. Society cites a number of cases,
¶ 14. Third, we note from the cases cited by Society that conduct is either personal or business. Thus, Nix held that the policy provided "coverage for liability arising out of the conduct of the business, or incidental to the business." Id. at 1132. It did not cover activities arising from personal matters.
¶ 15. The question then is whether the conduct of Linehan and his employees, with respect to the dog, was business or personal. In other words, when Society argues that Linehan's conduct was not business, the only alternative is that his conduct was personal. That simply defies the undisputed facts. Society concedes that Rudd served a business purpose. It was a mascot and provided some security. On this particular day
By the Court. — Judgment reversed.
All references to the Wisconsin Statutes are to the 1997-98 version unless otherwise noted.
The circuit court recognized however, that Linehan's policy is a standard form business liability insurance policy which covers bodily injuries caused by accidents anywhere in the "coverage territory," which is defined in the policy to be anywhere within the United States, Puerto Rico, and Canada. The policy does not limit coverage to customers of the tavern, nor does it contain any exclusions pertaining to injuries arising out of the owning or keeping of animals.
Society cites Transcontinental Ins. Co. v. Edwards, 1996 W.L. 814532 (W.D. Ark.) (kidnapping and assault are not
Concurring Opinion
¶ 16. (concurring). The issue is, what does "conduct of a business" mean in the definition of an insured. The majority says that the phrase is unambiguous. I respectfully disagree, but concur in the result the majority reaches for a different reason.
¶ 17. in concluding that "conduct of business" is unambiguous, the majority relies on foreign authority rather than an analysis of the policy's language. I, however, am not persuaded that the cases relied upon by the majority are of assistance, because they ultimately hold merely that an individual engaged in what is clearly personal activity is unambiguously not an insured under a business liability policy.
¶ 18. Linehan says that "conduct of a business" encompasses owning or maintaining business property. A terse statement of Society's position is that a tortfeasor's liability must arise out of a business activity in furtherance of the business. I view both constructions as reasonable,
While not dispositive, I note that Judge Carlson accepted Society's construction while the majority agrees with Linehan's interpretation.
Reference
- Full Case Name
- Society Insurance, a Mutual Company, Plaintiff-Respondent, v. Phil Linehan, D/B/A Linehan's Old Coach Tavern, Defendant-Co-Appellant, Jeffrey Litvinoff, Patricia L. Litvinoff and Wisconsin Department of Health and Family Services, Defendants, Dakota Litvinoff, by His Guardian Ad Litem, Michael E. Sias, Defendant-Appellant
- Cited By
- 4 cases
- Status
- Published