Grotelueschen Ex Rel. Doherty v. American Family Mutual Insurance

BROWN, J.

(dissenting). I dissent because I disagree with the majority on the issue of whether Ronald Dimmer was engaged in a partnership-related activity at *684the time of the accident. The majority focuses on the lawn tractor and correctly concludes that the lawn tractor is not sufficiently connected to the partnership to make mowing a lawn with the tractor a partnership-related activity. Nor does the proximity in time between mowing the apartment lawn and mowing the "red shed" lot make the latter a partnership-related activity. However, I conclude that the importance of place has been overlooked in the majority's analysis.

Since the property where this accident occurred was partnership related and the person causing the accident was maintaining that property, that person was performing a partnership-related activity. Moreover, that person was a partner who was insured for any liability related to the partnership. Thus, Dimmer's "Businessowners [sic] Package Policy" from American Family Mutual Insurance Company covers this accident.

The reason the property is partnership related is because there was not adequate storage space at the eight-unit apartment building and so equipment and supplies used to maintain the partnership property were stored in the red shed. It is irrelevant whether the lawn tractor was stored in the red shed. Moreover, Dimmer needed to have equipment and supplies to maintain his apartment property not simply to satisfy a personal desire to keep up the property, but because he was required by the safe-place statute, sec. 101.11(1), Stats., to maintain the eight-unit apartment building.

Since Dimmer's "red shed" lot was thus partnership related as the storage location for partnership maintenance equipment and supplies, Dimmer's maintenance of the "red shed" lot was also partnership related. When Dimmer was mowing the lawn on the day of the accident, he was maintaining the lot. Thus, the lawn mowing was partnership related. Therefore, the injury Dimmer *685caused is covered under the liability policy issued to the partnership.

In reaching the conclusion that I do, I am mindful of our appellate standards of review in construing policies. Contracts are construed most strongly against those who write them. Garriguenc v. Love, 67 Wis. 2d 130, 135, 226 N.W.2d 414, 417 (1975). In this instance, it is American Family that wrote the policy. This principle is especially prevalent with respect to exclusions and conditions. See Kaun v. Industrial Fire & Cas. Ins. Co., 148 Wis. 2d 662, 669, 436 N.W.2d 321, 324 (1989). We cannot give clear and unambiguous language a forced construction against the insurer; but neither should we ignore the maxim that where there is uncertainty with respect to coverage, the construction must favor the insured. See Northwestern Nat'l Ins. Co. v. Nemetz, 135 Wis. 2d 245, 254-55, 400 N.W.2d 33, 37 (Ct. App. 1986).

In the policy before us, the language providing coverage is very broad and indefinite. While I recognize that it is not possible for American Family to contemplate all the possible occurrences that might lead to bodily injury and write exclusions or conditions for these occurrences, we must still construe the necessarily vague provisions in their most inclusive sense for the benefit of the insured.

In this policy, there is no language whatsoever limiting liability to location or activities. Nor is there any language defining the scope of business-related activities. The main thrust of the majority opinion is found in its statement that the "linkage" between Dimmer's cutting the grass around the red shed and its being a business-related activity, incidental to keeping up an apartment a few blocks away, is so attenuated as to be absurd. Yet, the majority cannot point to any language in the policy that sets forth, as a prerequisite, that the injury actually occur on the premises described in the policy.

*686To be fair, the policy does not say that any activity incidental to the maintenance of the apartment, no matter how attenuated, is covered by the policy. But the point is, the policy does not address it at all. This leaves persons of ordinary intelligence guessing as to just what is covered. Given that scenario, I must construe the coverage most strongly against the insurer.

For the above reasons, I would affirm the judgment of the trial court.