J. G. v. Wangard

LOUIS B. BUTLER, JR., J.

¶ 84. (dissenting). I join Justice Bradley's dissent. I agree with Justice Bradley's dissent that the intentional acts exclusion and the sev-erability clauses of the Wangards' insurance policies, read in conjunction, at best create ambiguity as to the issue of whether Deborah Wangard's negligent acts may be considered separately from her husband's intentional acts for purposes of insurance coverage. I disagree with the majority that the intentional acts exclusion clauses in the policies bar coverage for "Deborah's alleged negligence in failing to prevent Steven's intentional sexual contact with J.G. because the plaintiffs' damages... '[arose] out of an act intended by any covered person to cause personal injury.'" Majority op., ¶ 4.

¶ 85. The language of the intentional act exclusion clauses contained in the insurance policies precludes coverage for damages arising out of intentional acts. See majority op., ¶ 12 ("We do not cover any damages arising out of an act intended by any covered person to cause personal injury or property damage ...."). Although it is *368clear that coverage for damages attributable to Steven's intentional acts is precluded by the intentional acts exclusion clauses, it is not clear that damages attributable to Deborah's negligent acts are also excluded.

¶ 86. There is nothing in the intentional acts exclusion clauses indicating that negligent acts are excluded from coverage, or that Deborah's alleged negligence should be conflated with her husband's alleged intentional acts. Although the intentional acts exclusion clauses exclude from coverage "any damages arising out of an act intended by any covered person to cause personal injury or property damage," that language does not indicate that any damages arising out of a different person's negligent acts are similarly excluded.

¶ 87. The complaint against Steven and Deborah Wangard does not allege that all of the damages arose out of Steven's intentional acts. Rather, the complaint alleges that damages also arose out of Deborah's negligence, stating at paragraph 15 of the complaint that "as a result of Steven C. Wangard's intentional tortuous conduct, as herein alleged, and Deborah S. Wangard's causal negligence as herein alleged, J.G. has suffered and continues to suffer" a number of injuries, expenses and other damages. The complaint's seventh claim for relief alleges that Deborah was negligent in that she did not warn J.G. of her actual or constructive knowledge of Steven's propensities, that she did not take any action to prevent him from being alone with J.G., that she negligently supervised J.G. while J.G. was in her care, and was otherwise negligent. The complaint further alleges that Deborah's negligence was a direct and proximate cause of J.G.'s injuries.

¶ 88. If the majority means to equate Steven's intentional acts with Deborah's negligent acts, such *369conflation of claims is not in accord with the manner in which different claims are treated by Wisconsin courts in insurance coverage cases. This is the case for two primary reasons.

¶ 89. First, Doyle v. Engelke, 219 Wis. 2d 277, 580 N.W.2d 245 (1998),1 clearly establishes that if any alleged claim could be covered by a policy, coverage must be provided even if the complaint also alleges claims that are excluded. Thus, even without consideration of the severability clause in this case, we must determine whether there is coverage for the negligence claims against Deborah independently from our examination of whether there is coverage for Steven's intentional conduct.

¶ 90. Second, to the extent that the majority appears to view the intentional acts exclusion clause as unambiguously imputing Steven's intentional acts to his wife's negligent acts, such an imposition of vicarious liability violates the rule of law we have generally established against imputing one spouse's conduct to another in an insurance coverage contract:

This court rejects the invitation to invent a doctrine that a spouse should be denied recovery on an insurance contract because of action of the other spouse when those actions cannot be imputed to the insured spouse. The marriage relationship should not be used as a basis for such a law. Married people are still individuals and responsible for their own acts. Vicarious liability is not an attribute of marriage.

*370Shearer v. Dunn County Farmers Mut. Ins. Co., 39 Wis. 2d 240, 249, 159 N.W.2d 89 (1968).

¶ 91. Consequently, I believe the only reasonable interpretation of the intentional acts exclusion clause is that it bars coverage for damages arising out of Steven's intentional acts, but does not bar coverage for the damages arising out of Deborah's negligent acts which were alleged as a separate claim in the complaint in this case. Her conduct is at issue, and is alleged to have caused damages with respect to the seventh claim for relief. Those damages are alleged to have arisen out of her conduct, and not out of Steven's intentional acts.

¶ 92. To the extent there is any ambiguity about the meaning of the intentional acts clause as applied to coverage for Deborah's negligence, such ambiguity must be construed in favor of coverage. Folkman v. Quamme, 2003 WI 116, ¶ 20, 264 Wis. 2d 617, 665 N.W.2d 857.

¶ 93. For all the above reasons, I respectfully dissent.

¶ 94. I am authorized to state that Chief Justice SHIRLEY S. ABRAHAMSON and Justice ANN WALSH BRADLEY join this dissenting opinion.

Notably, Doyle v. Engelke, 219 Wis. 2d 277, 580 N.W.2d 245 (1998), is a supreme court decision decided after the court of appeals decisions upon which the majority primarily relies, Jessica M.F. v. Liberty Mutual Fire Insurance Co., 209 Wis. 2d 42, 561 N.W.2d 787 (Ct. App. 1997), and Taryn E.F. v. Joshua M.C., 178 Wis. 2d 719, 505 N.W.2d 418 (Ct. App. 1993).