Elizabeth HAGEN, Plaintiff-Respondent, † v. Gregory GULRUD, Defendant-Respondent, IMPLEMENT DEALERS MUTUAL INSURANCE COMPANY, Defendant-Appellant.
No. 88-1020
Court of Appeals of Wisconsin
Submitted on briefs March 8, 1989. — Decided May 18, 1989.
442 N.W.2d 570
† Petition to review pending. This petition was not decided at the time the volume went to press. Its disposition will be reported in a later volume.
For the plaintiff-respondent the cause was submitted on the brief of Stephen J. Eisenberg, and Eisenberg Law Offices, S.C., of Madison.
For the defendant-respondent the causе was submitted on the brief of W. Dan Bell, Jr., and Wm. Andrew Sharp, and Bell Law Offices, S.C., of Madison.
Before Gartzke, P.J., Dykman and Eich, JJ.
Gregory Gulrud was convicted of the second-degree sexual assault of Elizabeth Hagen, contrary to
The interpretation of an insurance policy presents a question of law which we resolve de novo. Cunningham v. Metropolitan Life Ins. Co., 121 Wis. 2d 437, 450, 360 N.W.2d 33, 39 (1985). We should construe an insurance
Implement Dealers argues that the fortuity principle provides an exception to their insurance contract for any non-fortuitous loss, and refers us to Keeton, Insurance Law, sec. 5.3 (1971), which discusses certain principles and policies underlying exceptions to insurance coverage which are “implicit in the nature of the agreement and the circumstances to which it applies.” Id. at 278. The Wisconsin Supreme Court has discussed the fortuity principle, and has adopted some of the specific public policy objectives Keeton discusses.
[T]he “principle of fortuitousness” . . . is, that insurance covers fortuitous losses and that losses are not fortuitous if the damage is intentionally caused by the insured. Even where the insurance policy contains no language expressly stating the principlе of fortuitousness, courts read this principle into the insurance policy to further specific public policy objectives including . . . (4) maintaining coverage of a scope consistent with the reasonable expectations of the contrаcting parties on matters as to which no intention or expectation was expressed. Keeton, Insurance Law, sec. 5.3(a), p. 279 (1971).
Hedtcke, 109 Wis. 2d at 483-84, 326 N.W.2d at 738.
Implement Dealers cites language from State Farm Fire and Cas. Co. v. Williams, 355 N.W.2d 421, 424 (Minn. 1984), a civil case involving the question of insurance coverage for sexual assault injuries, where the court noted that “[n]either the insured nor the insurer in entеring into the insurance contract contemplated coverage against claims arising out of nonconsensual sexual assaults.”
The issue is whether allowing coverage in this case conflicts with the principle of law adopted by Hedtcke,2 that is, whether allowing coverage in this case is consistent with the contracting parties’ reasonable expectations on matters as to which no intention or expectation was expressed. Hedtcke, 109 Wis. 2d at 484, 326 N.W.2d at 738. Although Hedtcke denominates this concern as a “specific public policy objective,” it is also a rule of insurance contract construction:
For example, even though the contractual lаnguage was ambiguous, there might be no expectation at all, or the expectation might be unreasonable, thus defeating a claimed expansion of coverage beyond the
letter of the contract. It seems likely, however, that, even thоugh not often expressed, there has always been an implicit understanding that ambiguities, which in most cases might be resolved in more than just one or the other of two ways, would be resolved favorably to the insured‘s claim only if a reasonable person in his position would have expected coverage.
Keeton, sec. 6.3(a), p. 352 (footnote omitted).
While no Wisconsin courts have dealt with the issue we address in this case, Altena is especially helpful.3
[W]e think that neither Senard, in purchasing his homeowner‘s policy, nor UFC, in issuing it, contemplated coverage against claims arising out of nonconsensual sex acts. As one court noted, “[t]he average person purchasing homeowner‘s insurance would
cringe at the very suggestion that [the person] was paying for such coverage. And certainly [the person] would not want to share that type of risk with other homeowner‘s policyholders.” Rodriguez, 42 Wash. App. at 636, 713 P.2d at 137-38.
We conclude, as did the court in Altena, that a person purchasing homeowner‘s insurance would not expect that he or she was insuring his or her children against liability for their sexual assaults. We also conclude that this person would not want to remove аny deterrence that the threat of a money judgment provides. We deem it good public policy to deter sexual assaults. Because Implement Dealers’ policy did not express an intention as to sexual assault coverage, we look tо the reasonable expectations of Implement Dealers and Gulrud‘s mother. Hedtcke, 109 Wis. 2d at 484, 326 N.W.2d at 738. Contrary to the position of the dissent, and consistent with Altena, we conclude that Implement Dealers and Gulrud‘s mother would cringe at the very suggestion that they were buying and selling sexual assault insurance.
Because there is no coverage in this case as a matter of law, the jury‘s finding is irrelevant. We conclude the trial court erred by not granting Implement Dealers’ motion for judgment notwithstanding the verdict.4
Implement Dealers’ attorney sent us a letter dated May 12, 1989, bringing additional authority to our attention: Brandt et al. v. Threshermen‘s Mutual Insurance
We note that the petitioner‘s attorneys . . . cite and quote from an unpublished opinion of the court of appeals in violation of
Rule 809.23(3) . The rule provides:“An unpublished opinion is of no рrecedential value and for this reason may not be cited in any court of this state as precedent or authority, except to support a claim of res judicata, collateral estoppel, or law of the case.”
As the Judicial Cоuncil‘s comments to the rule reveal, the noncitation rule is essential to the reduction of the overwhelming number of published opinions and is a necessary adjunct to economical appellate court administration. Accordingly, violations оf the noncitation rule will not be tolerated. Under
Rule 809.83(2) , we deem the imposition of a penalty of $50 upon the attorneys for the petitioners to be appropriate and direct that such sum be paid by them to the clerk of this court within twenty (20) days of the datе of this opinion.
Tamminen was decided in 1982. We deem the imposition of a $100 penalty upon Implement Dealers’ attorney is appropriate and direct that he pay that sum to the clerk of this court within twenty days of the date of this opinion.
By the Court.—Judgment reversed.
EICH, J. (dissenting). The jury found that Gulrud did not intend оr expect to cause injury to the plaintiff when he sexually assaulted her. This finding, of course, opened the door to coverage under the insurance policy because it defeated the claim that the “intentional acts”
That issue, however, is not addressed by the majority. Instead, the appeal is decided on grounds that, despite the jury‘s verdict, and despite the language of the policy which, given that verdict, would dictаte coverage, none should be available in this case because the majority, relying on Hedtcke v. Sentry Ins. Co., 109 Wis. 2d 461, 484, 326 N.W.2d 727, 738 (1982), has concluded that such a result is not consistent with the “reasonable expectations” of the insurance company and Gulrud at the time the policy wаs taken out.
First, I have been unable to find any such argument in the parties’ briefs, nor any citation to Hedtcke. As the majority notes, Implement Dealers refers to Professor Keeton‘s text and to Altena v. United Fire and Cas. Co., 422 N.W.2d 485 (Iowa 1988). But neither reference has anything to do with the “reasonable expectations” principle on which the majority has seen fit to decide this case.
Second, the relevant language of the insurance policy provides that no coverage will be extended for any “bodily injury . . . which is expected or intended by the insured.” There is no magic in those words. Courts and
The majority opinion concludes by stating its agreement with the principle that sexual assaults should be deterred. I could not agree more. But this appeal is not governed by noble phrases. It is governed by the language of the insurance contract as applied to the facts found by the jury, and I have explained why I believe that language, and those facts, compel coverage in this case.
I would uphold the trial court‘s denial of the motion for judgment notwithstаnding the verdict. And, seeing no error in the other challenged rulings, I would affirm the judgment as entered, and I join in the decision to impose sanction on appellant‘s counsel for violating
Notes
Whoever does any of the following is guilty of a Class C felony:
(a) Has sexual contact or sexual intercourse with another person without consent of that person by use or threat of force or violence.
In Moraine, we reviewed a trial court‘s grant of summary judgment in favor of Moraine Mutual Insurance Company. The issues in Moraine were whether the plaintiff was collaterally estopped because of her testimony in a criminal proceeding, and whether the insurance policy covered felonious acts. Moraine did not decide the issue whether, under Hedtcke, the reasonable expectations of the contracting parties would have been to provide coverage for sexual assaults.
In Raby v. Moe, 149 Wis. 2d 370, 384, 441 N.W.2d 263, 268 (Ct. App. 1989), we concluded that the fortuity doctrine did not bar a claim for insurance coveragе for damages suffered in a shooting during a liquor store robbery. However, in Raby, we focused on the public policy of prohibiting people from profiting from their wrongdoing. Raby did not address the Hedtcke principle we address here.