Barrows v. American Family: Coverage for Wrongful Death Claim Brought by Non-Insured Parent Barred by Intra-Insured Suit Exclusion
The Wisconsin Court of Appeals recently issued a published decision in Barrows v. American Family Insurance Company1 holding that the intra- insured suit exclusion found in American Family’s homeowners policy barred coverage for a wrongful death claim brought by a non-insured parent. This coverage dispute marked the first instance in which a Wisconsin appellate court applied an intra-insured suit exclusion precluding coverage for “bodily injury to any insured” to deny coverage to a non- insured for a claim arising from an insured’s bodily injury.
Background Facts of Barrows
Barrows involved a wrongful death claim arising out of the tragic death of an eleven-year-old boy, A.B. A.B. sustained a self-inflicted gunshot wound at the home of his mother, Bonnie LaValla, and her fiancé, Jason Renfrow, on October 18, 2011. A.B. passed away later that day. The Polk County Sheriff’s Department classified his death as a suicide. The evidence suggested that the eleven- year-old fired more than one round, resulting in both property damage and his fatal bodily injury. The sheriff’s department also concluded that A.B. used a .45 caliber handgun owned by Renfrow to commit the act.
Robert Barrows, the father of A.B., brought a wrongful death claim against LaValla, Renfrow, and their homeowner’s insurer, American Family Insurance Company. Barrows and LaValla were never married, and A.B. resided exclusively with LaValla and Renfrow at the time of his death. Barrows alleged that he suffered damages as a result of A.B.’s death and would continue to suffer future damages. Barrows also alleged that Renfrow negligently stored the handgun implicated in A.B.’s death and that Renfrow’s negligence directly contributed to A.B.’s death.2
American Family moved for summary judgment on the grounds that both the policy’s intra-insured suit exclusion and intentional acts exclusion barred coverage for Barrows’ claim.3 The policy’s intra- insured suit exclusion stated: “We will not cover bodily injury to any insured.”4 “Bodily injury” was defined as “bodily harm, sickness or disease,” including “resulting loss of services, required care and death.”5
It was undisputed that A.B. was an “insured” under the American Family policy and that Barrows was not an “insured.” It was also not disputed that Barrows’ wrongful death claim was a claim for loss of services as a result of his son’s death. The only injury Barrows alleged to have sustained arose from the bodily injury sustained by A.B. Judge Jeffery Anderson of the Polk County Circuit Court granted summary judgment to American Family on both exclusions.
Prior Wisconsin Cases
Prior to Barrows, whether the type of intra-insured suit exclusion in that case applies to bar coverage for a non-insured’s wrongful death claim arising from the death of an insured had not been addressed by Wisconsin courts. The Wisconsin Supreme Court applied a differently-worded “family exclusion” to a similar fact pattern in its 2011 decision in Day v. Allstate, though the court specifically declined to address whether a non-insured’s bodily injury constituted a claim for bodily injury to an insured.6
Previous Wisconsin cases had addressed the derivative nature of wrongful death claims under Wis. Stat. § 895.03. Notably, the Wisconsin Supreme Court held in Ruppa v. American States Ins. Co. that section 895.03 allows for recovery only in cases where the injured party, if he or she had survived, would be entitled to recover against the person who committed the wrongful act.7
Ruppa and the cases that followed it addressed coverage limitations for recovery in wrongful death claims in terms of exculpatory clauses and releases of liability.8 None of these cases addressed the specific question of whether the claimant was entitled to insurance coverage despite the derivative nature of the wrongful death suit. Accordingly, the court’s ruling in Barrows was guided by cases from foreign jurisdictions.
The majority of jurisdictions that had addressed the issue of a non-insured’s wrongful death claim resulting from bodily injury to an insured had concluded that intra-insured suit exclusions similar to American Family’s exclude coverage.
In Cincinnati Indemnity Co. v. Martin, the Ohio Supreme Court upheld an intra-insured exclusion containing language identical to American Family’s language in Barrows in a case where a non-insured, divorced father brought a wrongful death action against his former wife after their six-year-old waskilled9while playing with a rifle in his mother’s home. The key factor in the Ohio court’s reasoning was that the non-insured father did not suffer his own bodily injury, but rather sought coverage for a claim arising solely from bodily injuries sustained by his insured son.10 Like Barrows, the non-insured father in Martin argued that he suffered a distinct injury as a result of his son’s death. The court rejected that argument, reasoning that even though the non-insured claimant may pursue an independent wrongful death claim, that independent claim does not allow the claimant to create liability coverage where the clear language of the policy specifically excludes it.11
The same policy language was addressed by the Missouri Court of Appeals in Wintlend v. Baertschi, which found that a non-insured’s wrongful death claim was derived solely from bodily harm suffered by insureds.12 Because the policy specifically excluded coverage for bodily harm to any insured, damages derived from the insureds’ bodily injury, whether considered separate injuries or not, were also excluded.13 Regardless of who pursues the wrongful death claim, the key inquiry is whether the person who suffered bodily harm was defined by the policy as an insured.14 If the bodily harm was sustained by an insured, then the intra-insured suit exclusion barred liability coverage for the non- insured’s wrongful death claim.15
Courts in at least nine other jurisdictions have applied the Wintlend rule to uphold intra-insured suit exclusions in similar situations.16 Only a decision from Louisiana, Walker v. State Farm Mut. Auto. Ins. Co., deviated from this majority rule.17 However, the Walker decision was based on the fact that Louisiana law holds that a wrongful death action is not a derivative claim.18 That proposition is inconsistent with long-held precedent in Wisconsin that recognizes a wrongful death claim as a derivative claim.19
The Wisconsin Court of Appeals in Barrows adopted the majority rule. It concluded that American Family’s intra-insured suit exclusion unambiguously excluded coverage for bodily injury to an insured because a claim for loss of services will always derive from an injury to another person and, as a result, the language unambiguously excluded coverage for the non-insured’s claims derived from the insured’s bodily injury.
As family dynamics in Wisconsin change, and families continue to include an ever-increasing number of divorced, never-married, or non- custodial parents, the prospect of similar claims being brought by non-insured family members against insured parties and their liability insurers will rise. The Barrows decision provides solid precedent for applying simply-worded intra- insured suit exclusions to bar coverage for such claims. However, the unaddressed issue of whether the policy makes an initial grant of coverage remains—namely, whether the non-insured seeking a recovery has suffered “bodily injury” as defined in the policy and whether a self-inflicted gunshot wound constitutes an “occurrence.” Barrows did not resolve these questions. They will now have to be addressed in a future case because Barrows’ Petition for Review of the court of appeals decision was dismissed as untimely by the Wisconsin Supreme Court.
1 2014 WI App 11, 352 Wis. 2d 436, 842 N.W.2d 508.
2 No further discovery was conducted and no further facts were pleaded regarding Renfrow’s storage of the weapon as the case was decided on the issue of coverage and Renfrow’s alleged negligence did not alter the application of either the intra-insured suit exclusion or the intentional injury exclusion.
3 The policy’s intentional injury exclusion stated: “We will not cover bodily injury or property damage caused intentionally by or at the direction of any insured even if the actual bodily injury or property damage is different than that which was expected or intended from the standpoint of the insured.” Though the circuit court granted summary judgment under both the intentional injury exclusion and the intra-insured suit exclusion, the court of appeals addressed only the intra-insured suit exclusion.
4 352 Wis. 2d 436, ¶ 10.
6 Day v. Allstate, 2011 WI 24, ¶¶ 38-39 n.9, 532 Wis. 2d 571,798 N.W.2d 199.
7 91 Wis. 2d 628, 646-47, 284 N.W.2d 318 (1979); see also Haase v. Employers Mut. Liability Ins. Co., 250 Wis. 422, 433-34, 27 N.W.2d 468 (1947).
8 Dobratz v. Thomson, 155 Wis. 2d 307, 320-21, 455 N.W.2d 639 (Ct. App. 1990), reversed on other grounds at 161 Wis. 2d 502, 468 N.W.2d 654 (1991); Atkins v. Swimwest Family Fitness Center, 2005 WI 4, ¶ 29, 277 Wis. 2d 303, 691 N.W.2d 334.
9 710 N.E.2d 677, 677 (Ohio 1999).
10 Id. at 680.
11 Id. at 679-80.
12 963 S.W.2d 387, 388-90 (Mo. Ct. App. 1998).
13 Id. at 390.
14 American Motorists Ins. Co. v. Moore, 970 S.W.2d 876, 879 (Mo. Ct. App. 1998).
16 See St. Paul Fire & Marine Ins. Co. v. Warren, 87 F. Supp. 2d 904, 911 (E.D. Mo. 1999); Benner v. Nationwide Mut. Ins. Co., 93 F.2d 1228, 1240-41 (4th Cir. 1996); Costello v. Nationwide Mut. Ins. Co., 795 A.2d 151, 156-59 (Md. Ct. Spec. App. 2002); Nationwide Mut. Fire Ins. v. Mazzarino, 766 So. 2d 446, 448 (Fla. Ct. App. 2000); State Farm Fire & Cas. Co. v. Lewis, 236 Cal. Rptr. 807, 809 (Cal. Ct. App. 1987); American Family Mut. Ins. Co. v. Coleman, No. 09-cv-523-JPG, 2010 WL 1654457, at *3 (S.D. Ill. Apr. 22, 2010) (unpublished decision); Grise v. State Farm Fire & Cas. Co., No. C3-95-448, 1995 WL 479665, at **1-2 (Minn. Ct. App. Aug. 15, 1995) (unpublished decision); Estate of Courtney v. Dryden Mut. Ins. Co., 971 N.Y.S.2d 695, 697 (N.Y. Supp. 2013).
17 850 So.2d 882, 884 (La. Ct. App. 2003).
18 Id. at 890.
19 See Ruppa, 91 Wis. 2d at 646.