Vandenberg v. Continental Insurance

JON P. WILCOX, J.

¶ 61. (dissenting). The holding I glean from the majority's lengthy opinion is that, because some other courts around the country have come to opposite conclusions regarding an insurance contract provision similar to the one at issue here, this contract is ambiguous. See majority op. at ¶ 41. Because the majority strains to find the language ambiguous through extrinsic sources, it rules in favor of finding coverage. See majority op. at ¶¶ 42-43. As a result, the majority contravenes well-established precedent that holds that ambiguity in an insurance contract cannot be found through extrinsic sources. More troubling, however, is the fact that the majority favors unlicensed in-home day care facilities over licensed day care facilities that carry insurance for the risks associated with such businesses. For these reasons, I respectfully dissent.

I

¶ 62. I begin with the language in the renter's insurance contract. The contract language states:

LOSSES WE DO NOT COVER

1. Personal Liability and Medical Expense coverages do not apply to bodily injury or property damage:
*835j. Arising out of business pursuits of you or any covered person. This exclusion does not apply to:
(1) Activities which are usual to non-business pursuits;

Our methodology — before today — was well accepted. We have interpreted insurance contract language generally using the same rules that govern other contracts. Smith v. Atlantic Mut. Ins. Co., 155 Wis. 2d 808, 810, 456 N.W.2d 597 (1990). The purpose is to ascertain and carry out the intent of the parties. Gen. Cas. Co. of Wis. v. Hills, 209 Wis. 2d 167, 175, 561 N.W.2d 718 (1997). Policy language is interpreted according to its plain and ordinary meaning, as understood by a reasonable insured. Kremers-Urban Co. v. American Employers Ins. Co., 119 Wis. 2d 722, 735, 351 N.W.2d 156, 163 (1984). If we determine that the language is ambiguous, it will be narrowly construed against the insurer. Peace v. Northwestern Nat'l Ins. Co., 228 Wis. 2d 106, 140, 596 N.W.2d 429 (1999). However, we do not go beyond the written document, unless we find ambiguity within it. Id.

¶ 63. The majority fails to find any ambiguity within the above insurance policy without resorting to extrinsic sources, such as court of appeals cases1 and *836cases from other jurisdictions. Missing this analytical step of reviewing the policy itself in order to determine whether there is an ambiguity preordains a finding of coverage for the insured here.

¶ 64. However, in following our accepted analytical framework and applying the plain language of the provision to the present fact pattern, a denial of coverage must result. Jamie Vandenberg was sleeping in Stephanie Riehl's home because of her business activity. Her business activity created a heightened duty to supervise her child's interactions with customers of her day care facility, beyond just supervising her own child, an activity which is common to all parents. Her failure to supervise her child's interaction with Jamie Vanden-berg, a customer of her in-home day care center, was not "an activity usual to a non-business pursuit." To find otherwise, as the majority opinion does here, is akin to ruling that driving one's car while on a business pursuit is a non-business activity, because one always must maintain control of one's car. The unambiguous plain language of this policy provision should not be read in so strained a manner, in order to find coverage in this case.

*837h-H 1 — I

¶ 65. More troubling than the analytical misstep in the majority's opinion, however, is its judicial favoritism for in-home day care facilities over licensed day care facilities, which must obtain insurance to cover the risks associated with operating such a business. See Wis. Admin. Code § HFS 45.03 (Apr., 2001). As Continental Insurance indicated in its brief, it would not have written the Riehls' policy if it was aware that they were providing day care to a child under the age of one without sufficient staff. A basic renter's insurance policy or homeowner's policy is not intended to cover the manifold risks in running a day care facility.

¶ 66. But now, under the majority's opinion, unlicensed in-home day care facilities will have a clear economic advantage over licensed day care centers, which are subject to the stringent requirements contained in Chapter 48 of the Children's Code and the Health and Family Services Administrative Code. See Wis. Admin. Code Chapter HFS 45 (Apr., 2001). Unlicensed in-home day care facilities will be able to get by with a cheaper renter’s or homeowner’s insurance policy, rather than a more comprehensive business policy that covers all the risks associated with running a day care center. Such a holding undermines the legislature's intent in Chapter 48 to provide safe insured day care facilities for Wisconsin children, and to prevent tragic accidents such as the one that befell Jamie Van-denberg. See Wis. Stat. § 48.67 (1999-2000).

HH 1 — 4 HH

¶ 67. In summary, I would apply the plain, unambiguous language in the insurance policy at issue to find that there is no coverage in this case. I believe *838that the majority erred by reaching out to use extrinsic sources in order to find ambiguity, thereby not following our well-settled analytical framework in interpreting an insurance contract. Further, I am deeply troubled by the majority's judicial favoritism for unlicensed home day care facilities, which clearly contravenes the intention of our legislature to provide safe insured day care facilities for Wisconsin children.

¶ 68. I am authorized to state that Justices N. PATRICK CROOKS and DAVID T. PROSSER join this opinion.

One court of appeals case that the majority opinion as well as the parties extensively discuss is Rufener v. State Farm Fire & Casualty Co., 221 Wis. 2d 500, 585 N.W.2d 696 (Ct. App. 1998). There, coverage was found based on a substantially similar provision. Id. at 504.1 find the Rufener opinion problematic for two reasons. First, like the majority opinion here, Rufener finds the provision ambiguous by looking to extrinsic materials and other jurisdictions rather than the plain language of the written contract. Id. 507-08. Second, Rufener asserts that the activity in question, installing a hoist that would assist with the *836removal and reattachment of a salter/sander for a snowplowing business was not 'part of the snowplowing business because it occurred at a "separate place and at a separate time from.. .[the] income-producing activity." Id. at 510. The error in this statement is manifest. There is no language in the policy provisions that distinguishes business activity based on its proximity to the income-producing activity. As long as it is a business activity — even if it is done only once — it is excluded by the plain language of the provision. Therefore, I believe Rufener was incorrectly decided, and is inapplicable to the fact situation presented in this case.