Frost Ex Rel. Anderson v. Whitbeck

Brittany her Guardian ad Litem, Frost, Anderson, Michael S. and Tina Frost, Plaintiffs-

Appellants, v.

Doreen Defendant, Whitbeck, Mutual Insurance Company, Defendant-Respondent-Petitioner.

Supreme Court argument No. 01-0327. Oral October 2002. Decided December 2002 WI 129 (Also 225.) reported in 654 N.W.2d defendant-respondent-petitioner there were For Patryk by Virginia Graves, Newcomb, Paul F. briefs L. gelt, Frauen, S.C., Powell, Silver, Peterson & and Bor argument Virginia oral L. Newcomb. Madison, and plaintiffs-appellants For there was brief Axley Brynelson, LLP, Michael S. Anderson and Madi- argument by son, and oral Michael S. Anderson. ABRAHAMSON, 1. SHIRLEY S. CHIEF JUS- published TICE. This is a review of a decision of the appeals, App Whitbeck, 289, court of Frost v. 2001 WI reversing judg- 249 Wis. 2d 638 N.W.2d County, ment and order of the Circuit Court for Dane Callaway, Judge. Richard J. granted summary judgment

¶ 2. The circuit court Family concluding to American Mutual Insurance Brittany that Tina Frost and Frost were from excluded coverage bodily injury for under Doreen Whitbeck's homeowner's because Tina Frost is a relative of residing Ms. Whitbeck was Doreen Whitbeck's daughter, Brittany household at times her Frost, bodily injuries. suffered - appeals judgment court of reversed the concluding court, and order of the circuit that the word ambiguous "relative" in the exclusion was against was to be construed in favor of coverage. appeals. affirmWe the decision of the court of summary judgment granted

¶ 4. A if there is no genuine any moving issue as to material fact and the party judgment is entitled to a as a matter of An law.1 appellate summary judgment applying court reviews the same standards and methods used the circuit court.2 802.08(2) (1999-2000). § Wis. Stat. All subsequent refer to the

ences Wisconsin Statutes are to the 1999-2000 version unless otherwise indicated. Boss, 332, 338-39, v. Grams 97 Wis. 2d 294 N.W.2d 473 (1980). the of a At issue in this case is interpretation The of an interpretation insurance policy. homeowner's of law when no extrinsic is a question insurance of the interpret wording evidence is introduced to of law questions indepen- This court decides policy.3 the circuit court and court of benefit- appeals, dently courts.4 from the of those ing analyses The of law this specific question presented claimants, Frost, Tina one of the case is whether Whitbeck, within policyholder, relative of Doreen so that the claims of Tina the definition of "insured" for Brittany seeking damages and her daughter Frost coverage from under bodily injury barred exclusion, sometimes referred to intra-insured policy's the resident-relative exclusion.5 herein as 2d of Wis., v. Cas. Co. 161 Wis. Employers Health Ins. Gen. (1991). 945-46, 469 N.W.2d 172 at 946. Id. judg Family argued summary in its motion for Brittany Frost were resident relatives ment that both Tina that, result, as a their claims were of Doreen Whitbeck coverage. excluded from It also asserted properly only even if Tina Frost were a Frosts' claims would be excluded relative, any by Brittany Frost would because claims resident age be a under the then be excluded as she would Because both the circuit court in the care of a resident relative. Tina Frost parties relationship focused on the between and the WTiitbeck, so also. Our conclusions and Doreen we shall do apply equal with force to the relation about the word "relative" Brittany and Doreen Whitbeck. ship between Frost also be a coverage from a relative must To be excluded injury. at the time of policyholder's household "resident" we residency, but because parties dispute the issue of relatives of Brittany Tina and Frost are not conclude that Applying oft-repeated, well-accepted ¶ 7. construing policies rules for insurance leads us conclude that Tina Frost is not a Doreen relative of purpose Whitbeck for the of the resident-relative exclu- policy. sion in Ms. 'Whitbeck's homeowner's insurance intrinsically The an indefinite, elastic, word "relative" is imprecise word the context of the exclusion and accordingly against should be construed American Family coverage. and in favor of A reasonable insured Frost, would not have understood that Tina a who has great-great-grandfather as a common the ancestor with policyholder, is a relative within exclusion. Constru- ing the Frost, word "relative" not to include Tina a third separated by eight degrees kinship, cousin does not meaningless render the resident-relative exclusion and purpose does not undermine the of this exclusion. simply purposes ¶ 8. The facts can be stated for this review. Tina Frost and Doreen Whitbeck first met teenagers. point, as At some Doreen Whitbeck's mother told the two women that were "shirttail relatives."6 Apparently, Tina Frost and Doreen Whitbeck share the great-great-grandfather.7 great- same Tina Frost's policy's "insured,"- Doreen Whitbeck within the definition of we need not address the issue of whether either or both were residents of Doreen Whitbeck's household. Family At times American subjective stresses that the

awareness relatedness is relevant to the interpretation of the policy. subjective insurance At other it times asserts that the knowledge of a policyholder is irrelevant. We conclude proper question in present case is whether reasonable policyholder consider a third would cousin to be a relative under the resident-relative exclusion in a homeowner's insurance policy. argue The Frosts that the relationship between the Frosts

and Ms. Whitbeck was not conclusively established admis- Barney grandfather, Ert, and Doreen Whitbeck's Van great-grandfather, brothers. Thus Ert, John Van were contrast, Family urges that American evidence. In sible undisputed. Because competent of relatedness evidence Family American relationship upon which that the we conclude exclusion, we need to activate the not sufficient relies is issue, we do not evidentiary and do not address fact exists concern- genuine issue of material address whether relationship. ing the and Tina Doreen Whitbeck

American documents third relationship as family to establish their histories Frost's trees, family respective By tracking their cousins. Tina Frost that Doreen Whitbeck Family intends to show exact name is whose great-great-grandfather share a common sons, Bar- had great-great-grandfathér This common unknown. Barney Ert, Van were brothers. ney Ert and John Van who Van relationship between great-grandfather. Ert was Tina's son, Barney Van Ert's Ert follows: Barney Van is as Tina and (maiden name), Ert, Marie Ert daughter, had a Van George Van great- Doreen's John Ert was Tina's mother. Van who was John Van Doreen and relationship between grandfather. Ert, Sr., son, Van had Ert's Harold Ert as follows: John Van (maiden name), Doreen's Ert who was Theresa Van daughter, a great-grandfathers Thus, Tina and Doreen's because mother. great-great-grandfather brothers, they share a common were kinship. genealogical This by eight degrees of are related for Tina single point of relatedness simply exercise establishes third cousins. and Doreen as Family judgment, American summary

In motion for its and fourth cousins. Doreen are both third Tina and claims that cousins because are third Family claims American They are also great-great-grandfather. a common they share See third cousins. their mothers were because fourth cousins Summary Judgment Family's Motion for Record not "relatives" cousins are conclude that third at 3. Because we not address whether policy, we need is used in as the word cousins. are also fourth Doreen Whitbeck Tina Frost and Tina Frost and Doreen are Whitbeck third cousins separated eight degrees kinship.8 Tina Frost's daughter, Brittany Frost, and Doreen Whitbeck separated by third cousins once removed and nine degrees kinship. 6) Brittany (age

¶ 9. Tina Frost and came from Kentucky stay in Doreen Whitbeck's home Wisconsin May During stay, Brittany the course of their allegedly dog, was bitten twice Doreen Whitbeck's 4,1996, once on June and the second time on November Brittany injuries 20, 1996. suffered on both occasions. Shortly dog bite, after the second both Tina Frost and Brittany left Ms. Whitbeck's home and returned to Kentucky. years later, Three on 10, 1999, November Brittany Tina Frost and filed in Wisconsin, suit nam- ing, defendants, as the Doreen Whitbeck and American Family, company. her homeowner's insurance summary judg-

¶ 10. American moved for arguing ment, that Doreen Whitbeck's homeowner's express insurance an contains exclusion cov- erage bodily injury for of a resident relative. This coverage, review therefore relates to insurance not to liability injuries. for the policy provides types

¶ 11. The several of cover- age. policy provides coverage I Section of the for first- party property claims for loss with some exclusions. policy provides coverage third-party Section II of the for claims with some exclusions. This case involves Sec- bodily injury. tion II exclusion for a claim for 8 According 990.001(16), § to Wis. Stat. separated by eight degrees kinship. of The circuit court concluded that Tina Frost and Doreen separated by degrees Whitbeck were ten kinship. Specifically, II of Ms. Whitbeck's Section 12. personal policy provides liabil- insurance homeowner's injury damages bodily coverage compensatory ity for for provides: legally liable. It an insured is for which limit, compensatory damages our pay, up will We legally liable because any insured is for which by an damage caused bodily injury property policy. this covered occurrence coverage policy explicitly excludes This section bodily injury damages in- compensatory to an for for policy The states: sured. bodily not cover Suits. We will

11. Intra-insured any insured. injury to policy a relative who to include defines an insured

The policyholder's The household. in the resides reads: Insured and, you Insured if residents means

a.

your household:

(1) relatives; your (2) any person under other your care or in

age of 21 in your resident the care of relatives. presented question is whether of law of Doreen claimants, is a relative one of the Frost,

Tina policyholder, of an the definition within Whitbeck, Tina Frost claims of that the so insured bodily damages Brittany seeking daughter for and her policy's coverage injury under from are barred exclusion. resident-relative

¶ 14. The court forth, has set cases, numerous overlapping interpreting policy. for rules an insurance interpretation These rules of are as follows: phrases ¶ 15. Words and in insurance contracts subject are apply to the same rules of construction that generally.9 to contracts primary objective

¶ interpreting 16. The construing carry a contract is to ascertain and out the parties.10 true intent of the language ¶ policy If the of an insurance unambiguous, policy by a court will not rewrite the interpret policy according construction11 and will to plain ordinary meaning imposing its to avoid con- obligations parties tract that the did not undertake.12 language 18. On the other hand, of an policy may ambiguous. phrases insurance be Words and ambiguous in an insurance when are so imprecise any interpreta- and elastic as to lack certain 9 Co., Peace v. N.W. Nat'l 106, 120, Ins. 228 2dWis. 596 (1999); N.W.2d 429 Ins., Kremers-Urban Co. v. Employers Am. (1984). 722, 735, 119 Wis. 2d 351 N.W.2d 156 commentary

For on construction, these various rules of see 2 Lee R. Russ & Segalla, Thomas S. Couch on Insurance ch. 22 (3d 2002). ed. 1999 & Supp. 10 Fund, Maw v. N.D. Ins. 134, 13, Reserve 2001 WI 1031, 45; Peace, Wis. 2d 637 N.W.2d 120; 228 Wis. 2d at Co., Kremers-Urban 119 Wis. 2d at 735. Co., Smith v. Atl. 808, Mut. Ins. 811, 155 Wis. 2d (1990). N.W.2d 597 Danbeck v. Am. Family Mut. 10, Ins. 2001 WI 245 Wis. 2d 629 N.W.2d 150. susceptible more than one reasonable tion13 or are may an insurance be Terms of construction.14 ambiguous may inherently ambiguous when con- be policy as a of the insurance sidered context. ambiguity exists in an insurance whole.15 Whether question policy is a law.16 ambigu- policy are

¶ in an 19. If terms insurance against insurance ous, should be construed ambiguous policy. company Thus, drafted the that coverage,17 and in favor of are to be construed terms against narrowly an construed exclusions are to be insurer.18 Language con-

¶ insurance is in an 20. person by in the a reasonable as understood strued position than as intended of an insured rather coverage expectations insurer.19 of an The reasonable interpretation be furthered insured should given.20 13 Peace, "an (ambiguity 121 described as 228 2d at Wis. (citation omitted)). term"

'intrinsically imprecise or uncertain'

14 Danbeck, 186, 10. 245 Wis. 2d ¶ 15 Schmitz, 98, 61, 255 v. Badger Mut. Ins. Co. ¶ 2002 WI 61, N.W.2d 223. Wis. 2d

16Mau, 13. 248 Wis. 2d ¶ 17 Danbeck, 10. 245 Wis. 2d ¶ Ziebert, 121, 132; Whirlpool v. Peace, 2d at 228 Wis. (1995). 144, 152, 539 N.W.2d 883 2dWis. 2d at 735. Kremers-Urban 119 Wis.

20 Id. A of an insurance construction meaning every gives provision of the reasonable leaving language policy preferable part of the to one meaningless.21 or useless construing Furthermore, an insurance

policy as it is understood reasonable may position insured, of the a court consider the subject purpose insurance, matter of the the situa- parties, surrounding and the tion circumstances making of the contract.22 mind, 23. With these rules we examine the meaning of the word "relative" in the intra-insured policy exclusion to determine whether Tina Frost is a relative of that claims are Ms. Whitbeck so the Frosts' coverage. excluded from Family urges begin

¶ 24. American this court to inquiry and end its with the of that rule construction language policy unambigu- when the of an insurance is interpret policy according ous, a court will to its plain ordinary meaning imposing and to avoid contract obligations parties that the did not undertake. Ameri- Family argued appeals can in the court of in its present brief court that the word "relative" is unambiguous plain ordinary meaning and that the

21 823, 848-49, Stanhope County, v. Brown 90 Wis. 2d 280 Co., (1979); N.W.2d 711 Inter-Ins. Ex. v. Westchester Fire Ins. 25 (1964). 100, 106, Wis. 2d 130 185 N.W.2d 22 Wis., Employers Health Ins. v. Gen. Cas. Co. 161 Wis. of (1991). 937, 946, 2d 469 172 N.W.2d 92 person related to another minimum, at "a is, of the word remote the no matter how distant or blood... connection."23 Family position American contends that its relying supported by In law, case on re Wisconsin

is (1977), 54 Haese, 285, 2d 259 N.W.2d Estate 80 Wis. of Peabody Family Insurance American Mutual v. 1998). (Ct. App. 753 340, 2d 582 N.W.2d Wis. Family's po- supports however, American case, Neither sition. a non- in decided whether 26. The court Haese nephew was a the testator's deceased husband of

blood phrase appeared in the as that "relative of the testator" anti-lapse court concluded that The Haese statute.24 general agreement a relative is one that "there is affinity,"25 "the term but that connected blood examining ambiguous."26 [relative] in- After various legislative intent, the Haese court concluded dices anti-lapse in statute was "relative" that the word persons bound blood.27 restricted at 25-26. At Defendant-Respondent-Petitioner Brief of that the word Family recognized argument American oral necessarily very include remote did not "relative" limit. fact, there must be some In it conceded blood kin. degree not, however, what Family did describe "relative," although American fell outside the word kinship by asking determined that a limit could be also stated position of the insured person in the a reasonable whether to the or she was related know that he would question. Haese, 2d N.W.2d Estate 80 Wis. In re (1977). at 291. Id.

26Id. at 298. Id. support

¶ 27. The Haese decision can be read to Family's argument American that the word "relative" interpreted anti-lapse can be in the context of the persons by statute to mean connected blood. The Haese support Family's case not, however, does American position plainly unambigu- that the word "relative" ously any persons by includes and all connected blood. nephew question The in in the Haese decision was not testator, connected blood to the and the court did not presented namely, have to decide the issue in case, this meaning how close must blood kin to fall be within the purposes policy. of "relative" for of this insurance Peabody injured party In case, at- tempted get coverage to underinsured motorist as a policy. relative under her father's insurance "person living your defined "relative" as household, you by marriage adoption. blood, related to This any includes a ward or foster child. It does not include spouse who or whose owns a motor vehicle."28As Peabody Haese, the court in did not have to decide plainly unambiguously whether "relative" includes persons Peabody all connected blood. The court merely daughter concluded that because the owned her own vehicle she was not a relative as defined her father's and was therefore not covered under his policy.Peabody inapposite and is not relevant to the issue raised in this case. Family ju-

¶ 29. American cites cases from other attempt support interpretation risdictions in an its the word "relative." None of the cases cited stands for proposition urged by Family, the broad namely, persons that the word "relative" refers to all 28 Peabody v. Am. Mut. Ins. 220 Wis. 2d (Ct. 1998). 346, 582 App. N.W.2d 753 by no matter how distant or remote the related blood generally connection. The courts concluded that "rela- marriage, person blood, tive" means a connected They adoption. then determined whether the at language depending relative, issue is or is not a on the purpose policy, relation, nature of the and the of the the policy provision.29 Family American con- 30. Four cases cited unambiguous. "relative" is One of cluded that word simply defined these cases concluded that "relative" as policy clearly unambiguously include did not partners.30 cases, In each of the other three domestic the court addressed the issue of whether word relationships by affinity, clearly not "relative" includes Furthermore, in each of in our case. these issue 29 (4th Co., See, Ins. 362 F.2d 403 e.g., Vernatter v. Allstate Jackson, 1966)(uncle-in-law); Fid. & Cas. Co. v. 297 Cir. of N.Y. (4th 1961)(mother-in-law); Farm Mut. F.2d 230 Cir. Ala. Bureau (Ala. 1981)(unborn child); 2d Pigott, Cas. Co. v. 393 So. 1379 (Ariz. Co., v. Farm & Cas. 829 P.2d 1237 Ct. Groves State Life 1992)(former Co., son-in-law); Aji v. Allstate Ins. 416 So. App. (Fla. 1982)(brother-in-law); App. Young v. 2d 1225 Dist. Ct. (Haw. 1985)(son Co., Farm Mut. Auto Ins. 697 P.2d 40 State Co., Comco Ins. 357 policyholder's paramour); Hernandez v. (La. 1978)(son-in-law); App. Liprie v. Mich. So. 2d 1368 Ct. (La. Co., App. Millers Mut. Ins. 143 So. 2d 597 Ct. 1962) Co., (daughter-in-law); Family Mickelson v. Am. Mut. Ins. 1983)(domestic (Minn. partner); Pruitt v. Farm 329 N.W.2d 814 (Mo. Co., Hayes App. 1997)(nephew); Ct. ers Ins. S.W.2d (Mo. 1993) Co., App. 847 S.W.2d 150 Ct. v. Am. Standard Ins. Sjogren v. (daughter policyholder's paramour); deceased (R.I. Co., 608, 612 Prop. & Cas. Ins. 703 A.2d Metro. 1997)(former step-son). v. Am. Mut. Ins. 329 N.W.2d Mickelson (Minn. 1983). three cases the involved much relationship appears than the closer one in the case.31 present 31. Contrary to the arguments Family we conclude that the word "relative" in the exclusion is policy ambiguous. Our rules of construction state that words in an insurance ambiguous when are so imprecise and elastic as to lack any certain Courts have interpretation.32 described the word "relative" as one of "flexible meaning"33 and as a word with "inherent ambiguities."34 word has also been described as to more susceptible than one mean- Courts ing.35 have stated that because there is no 31 Co., (4th Vernatter v. Allstate Ins. 403, 362 F.2d 404 Cir. Jackson, Fid. & Cas. Co. 1966)(uncle-in-law); v. F.2d 297 of N.Y. (4th 230, 1961)(mother-in-law); 231-32 Cir. Liprie v. Mich. Co., Millers Mut. (La. Ins. 143 2d So. 597 App. Ct. 1962) (daughter-in-law). 32 Peace, According 228 Wis. 2d at 121. dissent, to the unambiguous. Nevertheless, word "relative" is the dissent de by adding fines "relative" following poli words to the at cy: Relative least those who are "includes by related blood Dissent, and consider themselves to be relatives." 59. None of the rules of policies, however, construction of insurance support a rewriting policy (ambiguous court's a unambiguous) in this way.

33 (8th Cooney v. Cooper, 143 F.2d 1944). 312, 314 Cir. 34 Sjogren, 703 A.2d at 612. See also Ind. Lumbermens Mut. Ins. Co. v. Passalacqua, 62, 211 (Sup. N.Y.S.2d 65-66 Eq. Ct. 1961).

35 See, e.g., McGuiness v. Motor Vehicle Accident Indemni Corp., Ind. (Sup. 1962); N.Y.S.2d Ct. fication Lumbermens Mut. Ins. Sjogren, 65; 211 N.Y.S.2d at Butler, (S.C. 612; Forner v. A.2d at 460 S.E.2d App. Ct. 1995). single, precise "relative," must be the word definition employed.36 interpreted in which it is in the context agree that "rela- with American 32. We person a related to another means, minimum, at a tive" by also cases so state. We and that numerous blood accept "relative" dictionaries define word person But neither a dictio- related blood. include nary the word's elastic- law resolves definition nor case dictionary ity A definition alone case before us. precise, definite, and mean that the word is does not Moreover, before us is whether inelastic. the issue to another blood related "relative" means American Fam- means, "relative" as rather whether but every person ily blood, no to another asserts, related connection, in the or remote the matter how distant policy. context of this Bradley at oral Ann asked 33. Justice Walsh require

argument: us to trace far does the How are? If we our relatives to determine who our ancestors accept all continued, aren't we Eve, Adam and she Family's definition? Counsel under American relatives certainly Family replied, to draw "one has for American clearly exchange the illustrates that line." This the to limits need be is elastic and that some word "relative" meaning.37 give Ameri- in the word established order ("relative" interpreted be Cooney, F.2d at 314 must regard to the employed it is and with the context which within Mut. Ins. appears); Ind. Lumbermens which it contract within (same). Forner, (same); at 427 460 S.E.2d at 65 N.Y.S.2d scope unlimited nature of discussing potential In defined exclusion as "relative" and the intra-insured of the word segment refer to an ABC News Family, the Frosts by American Europeans are 21, 2000, reported that all which April from mater groups. Each of these matriarchal descended from seven Eve, Daughters has clans, the Seven referred to as nal Family can could have defined the "relative" in word policy but it did not. agrees

¶ 34. The dissent that the term "relative" may ambiguous be because it not include all does by persons related blood no matter how distant or simply argues remote the connection. It that we need consanguinity not find the outer limits of in this case because Tina Frost and Doreen Whitbeck "knew of and acknowledge their Dissent, blood connection." 48. According dissent, to the "the definition of the term policy 'relative' as used in this includes at least those who related blood and consider themselves to be Dissent, relatives." None rules of construc- policies, permit ambiguity however, tion for insurance policy to be written out of an insurance the addition qualifying of a term such as "known." plain meaning

¶ 35. The rule of construction does apply present case because the word "rela- policy impre- tive" the context of the exclusion is so interpretation. cise and elastic as to lack a certain open degree consanguin- insurance leaves ity required to be included as a relative, and therefore the word must be construed a court. Adhering

¶ to the rules of construction for interpreting language in a leads to the conclusion imprecise, elastic, indefinite word "relative" against should be construed and in sprouted addition, millions individuals. In all seven of the genetic groups appear clan, to be descended from the "Lara" one of three clans that still exist in today. Africa This research tends support to the claim that all humans share common African 37, Opposition ancestor. See R. Brief in to Defendant American Family's Summary Motion for Judgment at 16-17.

98 policyholder coverage.38 favor of the This conclu- sion about the word "relative" is consistent with case jurisdictions. law in other The word "relative" has been ambiguous narrowly viewed as and has been construed policy when the excludes a relative and has been broadly policy coverage construed when the extends to a relative.39 interpret-

¶ 37. Another rule of construction for ing language policy policy in a is that a is to be construed as understood a reasonable position policyholder.40 As noted the court of appeals, "degree consanguinity affinity must be policyholder such a reasonable would understand coverage that co-habitation would reduce the available bodily injury if to her she were held for liable to that relative."41 policyholder

¶ 38. A reasonable would not under- stand the word "relative" this exclusion to any person include related blood no matter how relationship. per- remote the If "relative" embodies all having relationship sons the insured, blood to enlarge effect is to the exclusion in this to extend persons only barely remotely touching poli- cyholder. Family's Moreover, combined use your

of "resident of household" and "relative" to exclude persons coverage from increases likelihood that a

38Danbeck, Peace, 193; 245 Wis. 2d at 2d at 132. Wis. 39See, McGuiness, e.g., 797; 231 N.Y.S.2d at Ind. Lumber Co., Forner, 66; mens Mut. Ins. 211 N.Y.S.2d at at S.E.2d 19, supra. 427. See also Kremers-Urban 119 Wis. 2d at 735. Whitbeck, App Frost v. 2001 WI 249 Wis. 2d 206, 638 N.W.2d 325. interpret "relative" the word would

reasonable insured family only of members, in terms to close to refer kinship. degrees that a reasonable conclude of We position not would of Doreen Whitbeck in the sepa- persons "relative" to include the word understand holding degrees kinship. by eight that Thus, a of rated policy exclusion not a relative within Tina Frost is understanding a reasonable of with the is consistent person comports policyholder position of a in the policyholder. expectation of the the reasonable with application Arguing of a different ¶ for the 40. Family that a American contends construction, rule holding give not not a relative does that Tina Frost is every policy meaning provision reasonable language mean- of the exclusion useless leaves the ingless. agree to the extent with We argues of insur- rules of construction it that our that adopt policies require a construc- that a court ance entirely provision policy if neutralizes one of a tion susceptible construction that to another the contract is provisions gives consistent with its and is effect to all of parties.42 general intent of construing "relative" so not, however, 41. areWe meaning- exclusion to render the resident-relative as delineating boundary simply to the some less. We are meaning of "relative." otherwise limitless present in the case what need not define We consanguinity required degree the word "rela- need in the intra-insured exclusion. We tive" as used only "relative" whether word determine persons extends as far as of this exclusion context having great-great-grandfather a common ances- as tor. Stanhope, 90 Wis. 2d at 849. encompasses word "relative" a con- possible interpretations,

tinuum of a continuum of degrees consanguinity. To hold that "relative," within the context of an insurance exclusion, does not strip include third cousins does not the resident- meaning. simply relative exclusion of all It limits the scope of the exclusion. Family urges

¶ 44. American further that in con- struing the word "relative" should, we as the rules of purpose teach, construction consider the of the exclu- Family purpose sion. American contends that the of an helps interpretation exclusion inform our of a as position it is a understood reasonable purpose of an insured and that the of the exclusion in present policy holding the leads to that Tina Frost ais policy. relative of Doreen Whitbeck under the agree Family ¶ 45. We with American that the purpose interpreting of an exclusion a assists court policy. agree Family the We further with American purpose exempt of the exclusion in issue here is to company liability persons an insurance from to those to policyholder, family whom a on ties, account of close likely partiality injury.43 would be to show in case of Construing to "relative" exclude blood relations who are separated by eight degrees kinship of not, however, does purpose. defeat this Indeed, such a of construction goal excluding word "relative" is consistent with the 43The designed resident-relative exclusion is and intended protect to an insurance company exposure liability from to "to persons insured, those to whom the on account family of close ties, apt Shannon v. partial injury." would be to be in case of Shannon, 434, 456, 150 Wis. 2d (1989)(quoting N.W.2d 25 A.G. v. Travelers Ins. 18, 20-21, 2dWis. 331 N.W.2d 643 (Ct. 1983)). App. presumptively family

only would members who those claims. to collude on inclined be oft-repeated, applying well- sum, In policies construing accepted leads us insurance rules for of Doreen is not a relative Tina Frost conclude that purpose exclu- of the resident-relative for the Whitbeck policy. insurance homeowner's in Ms. Whitbeck's sion intrinsically elastic, indefinite, an "relative" is The word imprecise the exclusion in the context of word against accordingly construed should be coverage. A insured reasonable and in favor Frost, who has that Tina have understood would not great-great-grandfather ancestor with as a common policyholder, exclusion. Constru- relative within the is a ing third Frost, Tina not to include the word "relative" by eight degrees kinship, separated does not cousin meaningless and exclusion resident-relative render the purpose of this exclusion. not undermine does Accordingly, of the court of the decision appeals to the remand the cause affirmed, and we is proceedings. for further circuit court appeals By of is of the court the Court. decision affirmed. agree (dissenting). I

¶ WILCOX, E J. 48. JON methodology majority's to be statement of the the with language interpreting of an insurance the used in majority op., ¶¶ policy. However, I do not 14-22. See majority's application agree the rules the with agree interpretation here, nor do I with to the facts affirm the court of of the court to ultimate decision appeals. that the well-established I would find under policy interpretation, "rela- the term rules of insurance unambiguous Frost and case, in this where tive" is acknowledged con- their blood knew of and Whitbeck person I nection. would further hold that a reasonable position policyholder of would understand policy the word "relative" in the exclusion to cover such Finally, a blood relation. I would hold that the record in supports this case that, conclusion as a matter of law, the Frosts were residents of Whitbeck's household. Thus, I would reverse the decision of the court of appeals grant summary judgment and in favor Family. respectfully For these I reasons, dis- sent. majority

¶ 49. The holds that the word "relative" ambiguous, concluding is that it "an indefinite, elas- intrinsically imprecise tic, word the context of the Majority op., disagree. exclusion . . .." 7. I The ma- jority phrases states: "Words and in an insurance policy ambiguous they imprecise when are so any interpretation elastic toas lack certain or are susceptible to more than one reasonable construction." (citations omitted). Majority op., ¶ 18 IWhile concede that there are circumstances where the inclusion of a might under the term "relative" be unreason- able, this is not such a case. The term "relative" has a interpretation apply certain that should in this case. interpreting policy, 50. When an insurance we give plain ordinary are to terms their meaning imposing obligations in order to avoid contract upon parties did not undertake. Danbeck v.Am. Mut. Ins. 10, 2001 WI 245 Wis. (internal omitted). 2d 629 N.W.2d150 citations We may plain ordinary meaning discern the of an by "seek[ing] guidance insurance term from a recognized dictionary." Katz, Smith v. 2d 442, Wis. (1998). n.4, 578 N.W.2d202 "Relative" is defined Heritage Dictionary by the American as, "One related kinship, origin, marriage." common or American Heri- (3d 1992). Similarly, "kinship" Dictionary

tage ed. marriage, by "[c]onnection or blood, a is defined as "[r]elationship by family relationship" adoption; or a affinity." Id. at 993. character; or nature Family dictionary supports definition this asserts that unambiguous, argument because that "relative" agreement minimum, "con- means, at that it there is majority accepts by definition, this nected blood." definition is whether the the real issue finds that but "no matter how distant all relatives extends to blood Majority op., ¶ 32. the connection." remote majority agree rela- that blood I with interpreted to trace back not be tions cannot should beginning way race, the human but this all the interpretation. Here, we an not call for such case does by people blood, cousins, related that are third have two they acknowledge are related.1 that know and who recognize people each blood and are related When they by definition, relatives. are, "cousin," as a other majority, Contrary I do not believe to the " the term 'relative' has to find that that this court persons no matter how related blood to all refers majority op., ¶ 29, connection," or remote the distant are relatives find that Frost Whitbeck order to point, policy. the blood connection At some under this they parties to even be aware too tenuous for becomes point, a to find it is unreasonable are related. At such relationship. do However, those circumstances relative were Here, Frost and Whitbeck exist in this case. of the knew it. The existence related and blood those circumstances where connection under blood evidence to competent there is no argued Frost has However, I find that finding of relative status. support testimony and Frost Whitbeck hospital records relationship. and admissible evidence sufficient involved are aware of the and refer to each connection other as "cousins" is sufficient to make them relatives plain language policy, par- under the of this insurance ticularly light of the additional "resident" limitation on the exclusion. majority acknowledges

¶ The 53. that Tina Frost by repeatedly blood, and Doreen Whitbeck are related they stating by separated eight that are third cousins degrees kinship. majority op., ¶¶ 8, See 7, 39. Whit- they great-great- beck and Frost knew shared a grandfather great-grandfathers and that their were hospital Brittany's Indeed, brothers. records from June emergency Brittany room indicate visit that was "living" having "recently her cousin," with "mother's Kentucky." They . moved . . from the held out to world ' that were relatives. major- by ¶ 54. One Wisconsin the case examined ity In Haese, is re Estate 80 Wis. 2d 259 N.W.2d (1977).2 held in We Haese that the term "relative" ambiguous anti-lapse was in the context of the statute pertains majority as it to a The non-blood relative. analysis asserts that Haese is rendered useless to our " plainly it because did hold that the word 'relative' any unambiguously persons includes and all con- by Majority op., nected blood." 27. we held While that required interpretation the statute a narrow limited to general agree- relatives, blood we noted that "there is ment a relative that is one connected blood or affinity." Haese, Further, at Wis. 2d 291. we found majority Peabody The other Wisconsin case cited is v. Am. Mut. Ins. 220 Wis. 2d 582 N.W.2d 753 (Ct. 1998). asserts, App. majority agree, The and I that the case inapposite in the specifically because case excluded persons majority those owned their own op., who vehicle. See although ambiguous in the context the term was that unambiguous cases case, term in other was ordinary "susceptible interpretation common and meaning." Id. at 296. majority suggests cases also jurisdictions no are of little or use

from other present among "rela- because, the cases that hold case clearly unambiguous, to one held that "relative" tive" be partners, dealt did not include and others domestic affinity relationships. Majority op., ¶¶ 29-30. with majority ¶ that of these 56. The is correct none relationship like the in this cases involve a blood one disagree, I however, that these cases are of no use case. analysis. our cases that the word relative These show broadly common and, can be construed under the unambiguously variety to a of non- definition, extend Liprie, example, In for a relatives. Louisiana blood customary generally "usual, court found that the accepted interpretation of the word 'relative'" included affinity, daughter-in-law by and a those related blood or policy. an an insured was insured under relevant Liprie Co., 597, Mich. Mut. 143 v. Millers App. Ins. So.2d (La. 1962). Ct. 600-01 Supreme ¶ Mickelson, In Minne- 57. Court of "term[] a sota found that the word "relative" was usage generally accepted meaning" common marriage." by means "one connected blood or Mickelson (Minn. Am. Mut. v. Ins. N.W.2d 1983). partner a That court concluded domestic was rela- a under the because there was no relative tionship by marriage. or Id. blood A all the cited common thread binds cases by majority.3 a Even where court has found the term cases, majority op. For n.29. a full list these see ambiguous within the case, context of a the court has acknowledged that the definition a of "relative" includes by majority single those related blood. fails a to cite case which a court a has found that related portion blood to another is not That relative.4 unambiguous. definition of "relative" is clear and may ¶ 59. There where, be case inas the Haese ambiguity, case, this court must find but not such this is a case. The definition of term "relative" as used this includes at least who those are related Any blood and consider themselves to be relatives. ambiguity with the term "relative" would arise when people do not know are related blood where relationship, there is a non-blood not under facts such presented by as those this case. Maca, In this court called an "resident" Prop.

"elastic" term. See Nat'l Farmers Union & Cas. Maca, Co. v. 2d 399, 407-08, Wis. 132 N.W.2d 517 (1965). though, case, In another this court found unambiguous "resident" was as used in automobile liability policies insurance and in should be "construed light plain meaning." Pamperin [its] of and common v. 27, Milwaukee Mut. Ins. 2d Wis. 197 N.W.2d (1972). opinion I am of the that the term "relative" interpreted should be in the same manner. I now turn to the issue of whether reason- a person position policyholder

able of the would a understand third to included cousin be use policy. term majority "relative" a homeowner's insurance The person that holds a reasonable would have disagree. understanding. such I an Frost and Whitbeck just good They were than more blood friends. were Again, majority Peabody, (citing Shannon, 456, 434, 2d 45 Shannon v. 150 Wis. (1989)). Frost 442 25 Given that and Whitbeck N.W.2d

108 "good were blood, friends" third cousins there is no reason to believe the of risk here collusion is less family than other with situations. This court has noted probability particular that the of collusion case high language apply. need not be for exclusion to See Corp. Whirlpool Ziebert, v. 197 Wis. 2d 144, (1995) (finding although possibility N.W.2d that the "quite of collusion in case if low, seemed nil" the applied). Although still Frost and Whitbeck are separated by degrees eight they kinship, are con enough nected blood. If Whitbeck felt close to Frost to her to home, allow be resident of her there is no why reason Whitbeck would not consider third her dealing cousin like other with relatives insurance issues. Fidelity Casualty In 64. Co. New v. York (4th 1961),

Jackson, 297 F.2d Cir. one of the parties argued interpreting that "relative" to include by marriage an those related to insured so would "enlarge exemption only as to include car owners barely remotely touching through the insured affinity." majority suggests problem a similar arises majority op., ¶ here. However, See Fourth stipulation Circuit found that "the latitude of the severely requirement straitened the further that the 'relative' be a 'resident of the same household' as suggested, Jackson, insured." 297 F.2d at 232. As I have category people that will be both relatives and very residents is I here, narrow. as assert occurred If, together, knowing third cousins choose reside why related, there is no reason that relation- ship purposes. for should not be considered insurance In Vernatter v. Allstate Insurance (4th 1966), although F.2d 403 Cir. the court found that closely an uncle-in-law is not as as the related mother- liability purposes Jackson, in for of automobile in-law degree relationship not of did matter. insurance, the purpose blood or The to exclude all relatives was readily marriage, the car be available to "whose would common residence and their reason their insured reasoning relationship." at familial Id. 406. same applies policy exclusion, to the homeowner's insurance liability purpose avoid of the exclusion where likely. argues Frost that close friends where collusion is argument risks; however, same create the require not that the could be broader does exclusion apply. written, as should limits, I hold that and Whitbeck 66. Since would Frost portion relatives, are I turn to the "resident" I find that the resident-relative exclusion. would household. Since Frosts were residents Whitbeck's majority only issue, some decided the relative necessary. additional facts given divorced, Tina she was sole 67. When Brittany. May custody six-year-old daughter of her In stay Brittany at Tina and Frost came to Doreen Horeb, home in Mt. Tina rented Whitbeck's Wisconsin. trip. toys, clothes, and a trailer for the In addition to brought Brittany's large Tina bike, several items with including dryer, her, bed, a a clothes and a television. Shortly moving home, into after Whitbeck's employment nursing as a assis- Tina obtained full-time Ingleside Nursing July In Tina tant at Home. Kentucky turned in her license and obtained Wiscon- She also sold her truck leased sin driver's license. registered car Tina received mail that she Wisconsin. at residence. used the Mt. Horeb the Whitbeck She employ- insurance, license, for car address her driver's application, and medical records. Before ment moving various savings Kentucky, her

from Tina closed out Kentucky. opened account in She a bank account and her for her used paid Wisconsin address checkbook. Tina taxes

Wisconsin paid ¶ 69. Whitbeck all of the rent while the stayed paid her, Frosts with Tina other bills, but including Brittany Tina had water utilities. full placed upon use of the home and no limitations were length stay. the of their usually p.m.

¶ Tina worked from 11:00 until 7:00 a.m. worked from Whitbeck 8:00 a.m. until 5:00 p.m. Brittany stayed at home with Whitbeck while her babysitters mother was at work. No were used. Tina Brittany Whitbeck; rather, did not often eat with they typically ate fast food. kept Brittany's Tina in contact with father family Kentucky. in other members She told them

she wanted to return and would return when she had money. the also told wanted to She Whitbeck that she Kentucky. return to stay dog Brittany bite, 72. After the first went to Kentucky approximately in

with her father for one begin in month. She returned to Mt. Horeb time to August. dog in After the second bite in Novem- school Brittany Kentucky permanently. ber, returned to Tina Kentucky in moved back to December 1996. Pamperin, 33-34, 2d at 73. Under 55 Wis.

36-37, held three factors should be this court has determining considered in if one is a resident 1) living the household: whether individuals were 2) in infor- roof; close, under the same intimate and 3) length; relationship mal and not at arm's and where substantial, with the intended duration is consistent " enough informality relationship, 'long of the expect parties it is to take the so that reasonable contracting relationship in about into consideration or in their conduct in reli- such matters as insurance Pamperin in ance thereon.'" Id. at 34. court went stay on to note that the intended duration of the need permanency legal domicile, of a have but sojourn." stay temporary must be more than a "mere Id. controlling; "all rather, at 35. No one factor is greater degree elements must combine to a or lesser relationship." order to establish the Id. at 37. argues ¶ 74. Tina that there are material issues regarding Brittany fact that remain whether she thereby household, were residents Whitbeck's ing summary judgment inappropriate. mak- agree However, I finding only dispute with the circuit court's that the Brittany slept relates to the location where Tina and household, and that this issue is immaterial to the question. Determining residency resident is, its analysis. specific nature, Martini, a fact See Ross v. (Ct. 1996). App. 354, 358, Wis. 2d 555 N.W.2d 381 residency However, courts have held that Wisconsin can Pamperin, be determined as a matter of law.See 55 Wis. 38-39; Maca, Ross, 408; 2d at 26 Wis. 2d at 2dWis. 360; at v. Travelers Ins. 2d 18, 24-25, A.G. Wis. (Ct. 1983). App. N.W.2d Pamperin, ¶ 75. In a this court reversed circuit ruling, finding appro- court that a directed verdict was priate residency. There, on the issue of 2d at 39. Wis. a niece of insured was involved in an accident. Id. at 32, 37. This court held that a of her she was not resident kept only home, uncle's because she a few there clothes possessions, and transferred none of her she did not continuously early home, reside at the and termination arrangement likely. was Id. at 37-38. Maca, hand, In on the other this court held parents' an son a that adult was resident of his home. Maca, case, 26 Wis. 2d at 406-08. In that the son brought possessions parents' only- home, his to his lived pay months, on their farm for five did not rent but was paid family farm, car, for work done on the used the and though ate at the home. he sometimes Even both and stay temporary, his father considered tively sought and hé ac- require move, work that would him to this a court found that he was resident. Id. at 408. undisputed present facts case support finding Brittany a that both and Tina were Although Brittany household, residents of Whitbeck's stayed during summer, with her father both Tina Brittany stayed and at Whitbeck's home for substan- period might people tial of time. Courts held have See, be residents of more than one household at a time. e.g., Ross, Ross, Also, 204 Wis. 2d at 360. in court appeals "Generally, residency custody noted: inexorably custody linked." Id. at 359. Tina had sole Brittany. Brittany may have been a resident of both her households, father's Whitbeck's but she was at least Brittany a resident of Whitbeck's. lived there for several her in months with mother and attended school Mt. stayed Horeb. She at the home with Whitbeck while her toys, clothes, mother at work. Her and bike came was along to Wisconsin. 78. Tina lived Whitbeck's household continu-

ously May from to December. She obtained full-time employment, residence, received mail at the Mt. Horeb banking and did her She obtained a Wisconsin. driver's license and a car in Wisconsin. Wisconsin leased brought large television, bed, Tina such as a items dryer a clothes with her to residence. Whit- Whitbeck's paid paid rent, Tina other beck all the while some Brittany Although apparently did bills. and Whitbeck get along, year watched the six old while Whitbeck together Tina was at work. ate is of little Whether considering consequence, worked a schedule Whitbeck clearly length opposite not an arm's to Tina's. This was stay arrangement, a "mere involved more than and sojourn." temporary Brittany may Although Tina have de- 79. Kentucky, wholly their intent is not to return to

sired Maca, In father and of this matter. both determinative temporary arrangement and the son son considered sought found that leave, but this court nonetheless Ross, In a resident. 26 Wis. 2d at 407-08. son. was citing appeals Pamperin, found, that a the court of residency regarding consider, a factor to intent child's controlling. Ross, See 204 Wis. 2d at 358-59. but is not away home to live There, the child ran from his father's injunction preventing gained his mother and an with year. having him for a Id. his father from contact with his at The child said he intended to live with custody although permanently, his father had mother Despite facts, these the court of him. Id. at 356-57. [the child] appeals "Because could not choose his held: as to he would live is residence, his intention where weight." present given facts, little Id. at 359. Under the Brittany I find that and Tina Frost were would both clearly household when the residents Whitbeck's alleged dog bites occurred. I Tina is a 80. Because conclude that Frost Tina under this and that both

relative Whitbeck Brittany household, I residents of Whitbeck's were appeals of the court of would reverse the decision Family. grant summary judgment in favor of American I that Justices N. am authorized to state join this PATRICK CROOKS and DIANE S. SYKES opinion. notes Wis. 2d but inapposite. finds the case recognized they such, fact. As it that relatives and to consider Tina and be reasonable for Whitbeck would majority Brittany dealing The with insurance issues. only person close would consider finds that a reasonable why policy I no a see reason kin under the person exclusion. only a relative to be consider "close" would Also, I find the in the exclusion. additional included requirement exception, a makes this narrow "resident" only poli- applies to with whom the one that relatives cyholder enough If a home. feels to share blood close enough home, a to share relatives are close enough implications of that ar- to consider the close purposes. rangement for insurance may in the situation to have a 62. While few be relationship cousin, a with third Frost Whit- close may person for a have beck were. It be more common to living daughter, parent sibling home, in one's a or son recognize that use of the but a reasonable would expands beyond is those term "relative" broader specific limiting categories people in absence language. very The "relative" in the use of the term understanding. majority policy a defies narrow excluding that third cousins does not defeat finds Again disagree. By finding purpose I of the exclusion. acknowledged fit the that cousins do not exclu- arbitrary regarding majority sion, the draws an line might might not collude in the face of who who unambiguously blood relatives. definition includes purpose to 63. The this exclusion is prevent designed "exempt an insur- collusion; it to company liability persons from to whom ance those family policyholder, ties, be on account of close would partiality injury." Majority op., likely in case of to show

Case Details

Case Name: Frost Ex Rel. Anderson v. Whitbeck

Court Name: Wisconsin Supreme Court

Date Published: Dec 17, 2002

Citation: 654 N.W.2d 225

Docket Number: 01-0327

Court Abbreviation: Wis.