author: SCHUDSON, J.

text:
    Time Warner, Inc., and Travelers Indemnity Company and Its Subsidiaries, Plaintiffs-Appellants, v. St. Paul Fire and Marine Insurance Company and Cable Cops, Inc., a foreign corporation, Defendants-Respondents.
    Court of Appeals

      No. 00-2108.

      Submitted on briefs May 2, 2001. —
    Decided July 24, 2001.

    2001 WI App 174
    (Also reported in 633 N.W.2d 640.)

      On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Donald H. Carlson and Jon. E. Fredrickson, of Crivello, Carlson, Mentkowski & Sleeves, S.C., of Milwaukee.
    On behalf of the defendants-respondents, the cause was submitted on the brief of Douglas S. Knott, of Leib and Katt, S.C., of Milwaukee.
    Before Wedemeyer, PJ., Fine and Schudson, JJ.
   SCHUDSON, J.

¶ 1. Time Warner, Inc., and its insurer, Travelers Indemnity Company and its Subsidiaries (collectively, "Travelers"), appeal from the circuit court's grant of summary judgment in favor of Cable Cops, Inc., and its insurer, St. Paul Fire & Marine Insurance Company (collectively, "St.- Paul"), and from the circuit court order addressing Travelers' motion for reconsideration and affirming the summary judgment.

¶ 2. Travelers argues that the circuit court "must be reversed because Cable Cops is contractually required to indemnify Time Warner for the liability Time Warner assumed under it's [sic] indemnification agreement," with Wisconsin Electric Power Company (WEPCO), for negligence and safe-place-statute claims an independent contractor working for Cable Cops filed against WEPCO for injuries he suffered while working on a WEPCO utility pole. We affirm.

I. BACKGROUND

¶ 3. In 1993, Time Warner and WEPCO entered into a contract authorizing Time Warner to install cable television attachments on WEPCO's utility poles. Under the contract, Time Warner agreed to indemnify WEPCO for any liability as a result of "injury to . . . persons . . . arising either directly or ... proximately caused by the erection, maintenance, repair, presence, use or removal of [Time Warner]'s attachments or the proximity of the respective cables, wires and appurtenances of the parties hereto, or by any act or omission of [Time Warner] on or in the vicinity of the poles of [WEPCO]." Time Warner also agreed to carry comprehensive general liability insurance to protect WEPCO "from and against any and all claims, demands, actions, judgments, costs, appeal bond premiums, expenses, legal fees and liabilities which may arise or result, directly or indirectly, from or by reason of loss which arises from [Time Warner]'s actions or inactions, accident, death, injury or damage to any person." Pursuant to the contract, Time Warner obtained commercial general liability insurance from Aetna Casualty and Surety Company; WEPCO was listed as a certificate holder for the policy.

¶ 4. The Time Warner/WEPCO contract included certain exceptions to the indemnity obligations. The relevant portion of Article V states:

D. The indemnities hereby furnished [by Time Warner to WEPCO] shall include the payment of any judgment rendered, or civil penalty imposed, against [WEPCO], its agents and employees as a result of:
2. Any other occurrence related either directly or is [sic] proximately caused by the erection, maintenance, repair, presence, use or removal of [Time Warnerjs attachments, except where such occurrence results from the sole negligence or intentional action of [WEPCO], the sole negligence or intentional acts of any other licensees or solely from the joint negligence of [WEPCO] and/or other licensees.

(Emphasis added.)

¶ 5. In 1994, Time Warner (doing business as "Cablevision") contracted with Cable Cops, authorizing Cable Cops to install "cable traps" on WEPCO poles. Cable Cops, in turn, agreed to indemnify Time Warner. As relevant to this appeal, the Time Warner/Cable Cops contract provided:

4. [Cable Cops] agrees to hold harmless [Time Warner] from any liability or claims, demands, suites [sic], costs, and fees in connection with the installations ... which shall include damage to property, real or personal, and also agrees to hold harmless [Time Warner] from any liability or claims, demands, suites [sic], costs and fees to persons owning said property for any injury resulting from the .. . installations. To this end, [Cable Cops] agrees to carry liability insurance. . .. All such coverage will name [Time Warner] as the additional insured.

Accordingly, Cable Cops added Time Warner as an additional insured on the insurance policy it carried with St. Paul Insurance.

¶ 6. On December 15, 1994, Marty B. Wardman, an independent contractor working for Cable Cops, was injured while working on a WEPCO pole. Alleging that he "received an electrical shock from a live power line, causing him to be thrown from the power pole and land on the pavement below, suffering severe injuries," Wardman and his wife and children filed an action— against WEPCO, only. The Wardmans' two claims alleged: (1) negligence, for WEPCO's failure "among other things ... to properly inspect, repair and maintain the power line"; and (2) safe-place-statute violations. The safe-place-statute claim alleged:

The power pole on which [Wardman] was injured was a place of employment within the meaning of [Wis. Stat. §] 101.11... and .. . WEPCO . .. had a duty pursuant to statute to furnish and use safety devices and safeguards; to adopt and use methods and processes reasonably adequate to render the power pole as safe as its nature reasonably permitted; to construct, repair and maintain said power pole, so as to render it safe and to do every other thing reasonably necessary to protect the life, health, safety and welfare of [Wardman].

The safe-place-statute claim also alleged that WEPCO "negligently failed to make said power pole as safe as its nature reasonably permitted as required by [Wis. Stat. §] 101.11.. . and was otherwise negligent."

¶ 7. WEPCO tendered its defense of the Wardman claims to Time Warner and St. Paul Insurance, pursuant to the Time Warner/WEPCO contract. Counsel for Time Warner, in a letter to counsel for WEPCO, "respectfully decline[d] such tender of defense... by virtue of the provisions of [the contract] set forth in Article VD.2." The letter quoted the exceptions to the indemnity obligations and then continued:

The allegations of the complaint against [WEPCO] deal solely with the claim of negligence against [WEPCO]. There is no allegation that any other person or entity had anything to do with this particular incident. Of course, as the underlying claims of the plaintiffs are investigated and discovered, additional facts may become known which would impact upon the application of this exception to the indemnity obligations of that [Time Warner/WEPCO] Agreement. Consequently, Time Warner reserves the right to re-evaluate the tender of defense made by you on behalf of [WEPCO] during the course of the [Wardman] litigation and reassess its denial of your tender of defense from time to time. Time Warner may, at its option, seek to intervene in the lawsuit and seek a judicial determination of its contractual obligations under the subject agreement. However, at this point in time, Time Warner does not believe that it has any contractual duty or obligation to indemnify or save harmless [WEPCO] from the claims asserted against it by the plaintiffs in the [Wardman] action.

(Footnote added.)

¶ 8. WEPCO did not implead Time Warner in the Wardman litigation, and no other developments caused Time Warner to accept WEPCO's tender. Nevertheless, while counsel for Time Warner and St. Paul Insurance maintained that Time Warner's indemnity obligation to WEPCO had not been triggered by the Wardman action, Time Warner's counsel advised WEPCO's counsel that WEPCO was a certificate holder for the Travelers Indemnity policy issued to Time Warner. WEPCO then tendered its defense to Travelers Indemnity. Travelers Indemnity, despite Time Warner's position that its indemnity obligation to WEPCO had not been triggered, agreed to defend WEPCO. Travelers Indemnity then tendered its defense of WEPCO to St. Paul Insurance and Time Warner, pursuant to the Time Warner/Cable Cops installation contract. In response, counsel for Time Warner and St. Paul Insurance, in a letter to counsel for Traveler's Indemnity, acknowledged Cable Cops' indemnity agreement with Time Warner but declined Travelers Indemnity's tender, explaining:

The meaning of this [Cable Cops/Time Warner installation contract] hold harmless provision is quite clear, and Cable Cops stands ready to hold [Time Warner] harmless for any claims lodged against it arising out of [the Wardman] action. However, in reviewing the [Wardman] Complaint, there are no allegations of negligence on the part of [Time Warner]; the only claims are against [WEPCO].
Therefore, since the pleadings are devoid of any claims of negligence or other liability against [Time Warner], Cable Cops' contractual obligation to hold [Time Warner] harmless is not triggered.

¶ 9. Travelers Indemnity proceeded to defend WEPCO in the Wardman action. Ultimately, the Ward-man case reached a settlement under which Travelers Indemnity paid $300,000 on behalf of WEPCO. Travelers Indemnity then sought to recoup the $300,000, as well as all costs incurred in defense of the Wardman action.

¶ 10. Consequently, on October 26, 1998, Travelers brought the action underlying this appeal, alleging that St. Paul breached its duties to defend and indemnify. The circuit court, however, in its decision granting St. Paul's motion for summary judgment, concluded that "[bjecause Wardman's allegations in the complaint raised claims based solely upon WEPCO's negligence and conduct, Time Warner had no duty to defend or indemnify WEPCO for WEPCO's own negligence." The court explained:

[T]he indemnity agreement specifically excluded, from its coverage, claims based upon the sole negligence of WEPCO.... [A] complaint based upon the sole negligence of WEPCO did not give rise to a duty to defend on the part of Time Warner. Therefore, if there was no duty by Time Warner to defend WEPCO, there was no duty by St. Paul to defend Time Warner.

(Footnote added.)

¶ 11. Travelers moved for reconsideration of the summary judgment decision, pointing out that the court had failed to address its alternative argument regarding Cable Cops' duty to indemnify Time Warner under Time Warner/Cable Cops contract, and asking the court to rule upon that issue. Additionally, Travelers asked the court to "reconsider its ruling regarding St. Paul[ Insurance]'s duty to defend in light of the expansive contract language contained in St. Paul[ Insurance]'s insurance policy." The circuit court addressed the issues as requested by Travelers and confirmed its summary judgment decision.

II. DISCUSSION

¶ 12. Reviewing a circuit court's grant of summary judgment, we apply the same methodology as that of the circuit court but review its decision de novo. Capoun Revocable Trust v. Ansari, 2000 WI App 83, ¶ 5, 234 Wis. 2d 335, 610 N.W.2d 129, review denied, 2000 WI 88, 237 Wis. 2d 253, 616 N.W.2d 115. Reviewing the summary judgment in this case, we must consider the circuit court's interpretation of certain contractual indemnity provisions. A circuit court's interpretation of a contract also is subject to our de novo review. Woodward Communications, Inc. v. Shockley Communications Corp., 2001 WI App 30, ¶ 9, 240 Wis. 2d 492, 622 N.W.2d 756.

¶ 13. Travelers argues that it was "only required to show potential liability under its WEPCO indemnification agreement to recover on it's [sic] agreement with Cable Cops." Thus, it asks this court to reverse the circuit court decision and order summary judgment for full reimbursement of the settlement it paid, including the costs and attorney's fees incurred in defending WEPCO, as well as for the additional costs and attorney's fees for pursuing indemnification.

¶ 14. Travelers' argument for indemnification from St. Paul is premised on the "hold harmless" provision of the Time Warner/Cable Cops contract. That provision, however, holds Time Warner harmless "from any liability or claims, demands, suites [sic], costs, and fees in connection with the installations." But obviously, if Time Warner had no liability, and had no claims, demands, or suits filed against it, that provision would never come into play. Such is the circumstance here.

¶ 15. The Article VD.2. exception in the Time Warner / WEPCO contract is clear: Time Warner had no duty to indemnify WEPCO for an "occurrence result-ting] from the sole negligence ... of [WEPCO]." The Wardman claims alleged the negligence of WEPCO, only. Without a claim in the Wardman suit triggering Time Warner's potential liability, Time Warner's obligation to WEPCO, under its indemnification agreement with WEPCO, was not engaged. And absent that, Cable Cops' obligation to Time Warner, under its indemnification agreement with Time Warner, simply was never engaged in this case.

¶ 16. Nevertheless, Travelers offers two arguments that, it contends, trump the circuit court's rationale. First, Travelers argues:

Both the trial court and [St. Paul] are mistaken as to the effect of the Time Warner/WEPCO sole negligence clause. As [St. Paul] ha[s] pointed out, the sole negligence clause is operative once a judgment is rendered. Where both the trial court and [St. Paul] have misread the contract is that the indemnification clause is not operative on the allegations in a complaint. It is operative upon a judgment rendered. This is so because only after a judgment is rendered has the apportionment of negligence been decided by the jury. Without such an apportionment of negligence, it is impossible to determine to what extent, if any, WEPCO would have been negligent.

In support of this argument, Travelers points out that the sentence in Article VD.2. containing the "sole negligence" exclusion is preceded by the introductory words: "The indemnities hereby furnished shall include the payment of any judgment rendered, or civil penalty imposed, against [WEPCO], its agents and employees as a result of:" (Emphasis added.)

¶ 17. Travelers is stretching. A plain reading of the Time Warner/WEPCO contract reveals nothing that would suggest that the clause clarifying what the indemnities "include" somehow sets the limits of Time Warner's duties.

¶ 18. Second, Travelers argues that even if the circuit court correctly granted summary judgment with respect to the Wardmans' common-law-negligence claim, the court's rationale would not apply to the safe-place claim. Citing Barrons v. J.H. Findorff & Sons, Inc., 89 Wis. 2d 444, 278 N.W.2d 827 (1979), Travelers maintains that "allegations in a complaint regarding an indemnitee's safe[-]place negligence cannot be interpreted as the sole negligence of the indem-nitee and operate to bar the application of the indemnity agreement."

¶ 19. We have carefully considered Barrons. It is, in some respects, difficult to decipher. At first glance, its application to the instant case seems clear and, indeed, potentially controlling for Travelers. With a closer look, however, its application is complicated by the not-quite-parallel lines between the set of parties there and WEPCO, Time Warner, and Cable Cops here. Ultimately, we conclude, two distinctions between Barrons and the instant case tip the scales in St. Paul's favor.

¶ 20. In Barrons, J. H. Findorff & Sons, Inc., was the general contractor for the construction of an office building. Id. at 447. Findorff subcontracted the specialty steel work to United States Steel Corporation, which furnished the steel but subcontracted the work to Reinke & Schomann, Inc. Id. Reinke and Schomann, in turn, subcontracted the caulking work to the Merle A. Patnode Co. Id. Patnode employed Thomas E. Bar-rons, who was injured as a result of a fall that occurred when the rope holding the scaffold on which he was working broke. Id. In addition to suing the rope manufacturer, Barrons sued Findorff for common-law negligence and safe-place-statute violations. Id.

¶ 21. Findorff had an indemnification agreement with U.S. Steel and filed a third-party claim against U.S. Steel pursuant to that agreement. Id. U.S. Steel had an indemnification agreement with Reinke & Schomann and, under that agreement, tendered the defense of Findorff s third-party action to Reinke & Schomann. Id. at 447-48. When Reinke & Schomann's insurer refused the tender, however, U.S. Steel defended the action. Id. Eventually, Barrons, Findorff, U.S. Steel, and the rope manufacturer settled. Id. at 448. U.S. Steel then pursued its indemnity claim by impleading Reinke & Schomann. Id.

¶ 22. In the trial court, it was stipulated that U.S. Steel "was not itself negligent and, under the terms of its contract with Findorff, it could not be required to indemnify Findorff for Findorffs own negligence." Id. The trial court concluded, therefore, that U.S. Steel's payment under the settlement was voluntary. Id. On appeal, the dispositive issue was whether, notwithstanding the fact that U.S. Steel was not negligent, and notwithstanding the fact that U.S. Steel was not required to pay anything, Reinke & Schomann was required, under its indemnity agreement with U.S. Steel, to indemnify U.S. Steel for U.S. Steel's payment under the settlement. Id. at 449.

¶ 23. Resolving that issue, the supreme court reiterated certain standards that strongly support St. Paul's argument that it owes Traveler's nothing because Traveler's Indemnity (like U.S. Steel) paid the settlement voluntarily, despite the fact that it need not have paid anything. The supreme court explained:

One party may indemnify another against liability for the indemnitor's acts and those of his employees, agents and subcontractors as well as against liability for the indemnitee's own acts. The agreement will be broadly construed where indemnity is sought for liability based on the indemnitor's negligence but will be strictly construed where the indemnitee is the negligent party. The court will not allow an indemnitee to be indemnified for his own negligent acts absent a clear and unequivocal statement to that effect in the agreement.

Id. at 452 (citation omitted; emphasis added). Further, the supreme court clarified that "in cases involving parties other than a lessor and lessee, where the indem-nitor is not negligent and the indemnitee is the sole actively negligent cause of the injury[,] this court has held to the strict construction rule." Id. at 454 (emphasis added).

¶ 24. In the instant case, therefore, where only WEPCO's negligence was alleged, and where the indemnification agreement not only did not include "a clear and unequivocal statement" indemnifying WEPCO for its negligent acts, but actually provided "a clear and unequivocal statement" to the contrary, strict construction of the indemnification agreement was required. And that agreement, literally and strictly construed, relieved Time Warner of liability for WEPCO's sole negligence.

¶ 25. But Barrons did not stop there. Immediately after clarifying the strict construction standard that would seem to defeat Travelers' argument in this case, the supreme court went on to say, "However, when an action is based upon a safe-place[-]statute duty[,\ the indemnitor will be required to indemnify the indemnitee to the extent of the indemnitor's share of the total liability, creating an effect identical to that of contribution." Id. at 455 (emphasis added). Further, the supreme court explained, "because the liability question under the Findorff-U[]S. Steel indemnification contract was settled rather than tried, United States Steel need only to show potential liability to recover on its indemnity contract with Reinke & Schomann, Inc." Id. (emphasis added).

¶ 26. Moreover, reiterating that "[t]he safe-place duty is nondelegable," id. at 458, the supreme court clarified that contractors and subcontractors share responsibility for providing a safe workplace, notwithstanding their indemnity agreements, id. at 458-59. Thus, the supreme court emphasized, a general contractor "can only be held liable to an injured workman for an affirmative act of negligence or for a failure of duty under the Safe Place Act." Id. at 459 (emphasis added). Specifically rejecting the notion that "the strict construction rule" should be applied "to safe-place liability," id., the court explained that a safe-place claim could require indemnification even when a companion common-law negligence claim would not, id. at 457.

¶ 27. Thus, the supreme court seemed to carve out two qualifications to the general rule strictly construing indemnity agreements against the indemnitee when the indemnitee is solely negligent — one, for a safe-place claim; the other, for a settlement that left liability undetermined. Both qualifications could apply here; a safe-place claim was involved, and a settlement occurred with WEPCO denying liability. Therefore, in the instant case, the circuit court's rationale supporting summary judgment on the negligence claim would not necessarily operate with equal force on the safe-place claim. Still, two important distinctions between Barrons and the instant case lead us to conclude that the circuit court's grant of summary judgment on the safe-place claim was correct.

¶ 28. First, in Barrons, the supreme court clarified that, in a common-law-negligence cause of action, the general contractor's liability for injury to a subcontractor's employee depends upon the general contractor's commission of an "affirmative act of negligence that increases the risk of injury," but under the safe-place statute, the general contractor has a duty to a subcontractor's employee "if the [general] contractor has reserved a right of supervision and control over the employee." Id. at 457 (emphasis added). Thus, in Bar-rons, the supreme court was drawing its distinction between a common-law-negligence claim and a safe-place-statute claim in a case involving the typical relationships among the general contractor and subcontractors where, by virtue of their participation in the construction project, they shared responsibility for providing and monitoring a safe workplace for their employees. The supreme court explained, "From the facts given it can reasonably be inferred that Findorff retained sufficient control over the construction site to require Patnode to correct these violations [regarding the use of splash guards and safety lines] and therefore subject Findorff to potential liability under the safe place cause of action." Id. at 458-59. Thus, despite the fact that Reinke & Schomann, the secondary subcontractor, had "expressly agreed to,assume responsibility for the negligent acts of its subcontractors and to indemnify both United States Steel and Findorff against liability for such acts," id. at 460, Findorffs safe-place liability still was possible.

¶ 29. Here, by contrast,. Time Warner had not subcontracted any work to WEPCO; it merely had contracted with WEPCO for the use of the WEPCO utility poles. Thus, unlike all the contracting parties in Bar-rons, Time Warner was outside the safe-place-statute loop; it was neither an employer nor an owner in connection with the poles. As Barrons explained:

If these indemnity clauses are to be given any effect at all, where, as here, the general contractor has given the subcontractor, in this case United States Steel, complete responsibility for a phase of the construction, the indemnity clause must be construed to require indemnity where the general contractor is hable only because the subcontractor created a potential liability in a safe-place cause of action.

Id. Unlike U.S. Steel in Barrons, Time Warner here did not create the "potential liability" for which indemnity was sought.

¶ 30. Second, in Barrons, the supreme court, in the section of its decision discussing both common-law negligence and safe-place-statute liability, emphasized that "[t]he Findorff-U.[]S. Steel indemnity agreement does not contain language clearly requiring United States Steel to indemnify Findorff for liability occasioned by Findorffs own negligence." Id. at 456. Here, by contrast, the Time Warner/WEPCO indemnity agreement includes a specific exception to Time Warner's indemnity obligations, precluding Time Warner's liability for WEPCO's "sole negligence."

By the Court. — Judgment and order affirmed.

       In this opinion, Time Warner, Inc., individually, will be referred to as "Time Warner." Travelers Indemnity Company and its Subsidiaries, individually, will be referred to as "Travelers Indemnity."

       In this opinion, Cable Cops, Inc., individually, will be referred to as "Cable Cops." St. Paul Fire & Marine Insurance Company, individually, will be referred to as "St. Paul Insurance."

       Because Aetna Casualty and Surety Company later merged with Travelers Indemnity Company, we will use "Travelers Indemnity" to encompass Aetna Casualty and Surety Company.

       In our discussion, we attempt to carefully keep the players straight. The following program, however, should help the reader follow the play-by-play:
      WEPCO - owns the utility poles
      Time Warner - contracts with and indemnifies WEPCO
      Travelers Indemnity: Time Warner's indemnity insurer
      Cable Cops - contracts with and indemnifies Time Warner
      St. Paul Insurance: Cable Cops' indemnity insurer

       Wisconsin Stat. § 101.11(1) (1993-94) provided, in relevant part:
      Every employer... shall furnish and use safety devices and safeguards, and shall adopt and use methods and processes reasonably adequate to render such employment and places of employment safe, and shall do every other thing reasonably necessary to protect the life, health, safety, and welfare of such employe[e]s and frequenters. Every employer and every owner of a place of employment. . . now or hereafter constructed shall so construct, repair or maintain such place of employment... as to render the same safe.

       In addition to rejecting WEPCO's tender of defense of the Wardman claims, Time Warner,‘on April 10,1996, tendered "the [WEPCO] claims asserted in [WEPCO's] tender of defense" to Cable Cops and St. Paul Insurance, pursuant to the installation contract agreement between Time Warner and Cable Cops. On April 15, 1996, St. Paul Insurance, via a commercial claims representative, agreed to defend Time Warner. Subsequently, however, counsel for St. Paul Insurance and Time Warner wrote to counsel for WEPCO, stating: "As I advised previously in my letter [of April 10, 1996], it is our position that Time Warner is not liable for the negligence of [WEPCO] and therefore decline [sic] your tender."

       Time Warner and St. Paul Insurance were represented by the same counsel regarding WEPCO's tender of defense of the Wardman claims; Time Warner, however, also retained additional counsel.

       The court also observed that "some confusion on Time Warner and Travelers' part as to whether WEPCO was an additional insured under the Travelers policy . . . may have lead [sic] Travelers to defend WEPCO and settle the case," despite the fact that, because of the "sole negligence" exclusion, Time Warner was not required to defend or indemnify WEPCO for WEPCO's own negligence.

       Additionally, in recognition of Travelers' assertion that Marty Wardman might have been contributorially negligent, the court observed:
      The possible contributory negligence on the part of the person claiming an injury is not relevant in determining whether Time Warner had a duty under the indemnity contract.
      Moreover, if the court applied [Travelers'] contributory negligence interpretation, the duty to defend would not arise from the factual allegations in the complaint, but rather, from the answer to the complaint[,] which would assert contributory negligence. It would be a rare circumstance when WEPCO would not assert a contributory negligence defense. Such interpretation would render the clause excluding claims based upon the sole conduct of WEPCO virtually meaningless. This would not have been the partiesf] intent.
      Therefore, the court concludes that [WEPCO's] possible [defense of] contributory negligence in the Wardman lawsuit would not convert the Wardman claim[, which is] excluded from the indemnity contract because [it] is based upon the sole negligence of WEPCO, into a claim covered under the agreement.
      We do not embrace this portion of the trial court's analysis. As we have noted, "WEPCO did not implead Time Warner in the Wardman litigation, and no other developments caused Time Warner to accept WEPCO's tender." See ¶ 8, above. Further, no other developments implicated the possible negligence of any other person or party, other than WEPCO. In this opinion, therefore, we do not address whether an allegation of contributory negligence would alter the analysis.

       In the alternative, Travelers seeks summary judgment in its favor and requests: (1) reimbursement for all attorney's fees expended in defending WEPCO; (2) reimbursement of that portion of the $300,000 settlement equal to the percentage of negligence not attributable to WEPCO; (3) remand for trial on liability issues to determine the percentage of negligence not attributable to WEPCO; and (4) remand for a determination of the amount of attorney's fees tied to the pursuit of the indemnification action.

       Further, Travelers asserts that St. Paul has failed to respond to its argument on the Wardmans' safe-place claim. We are puzzled by St. Paul's failure to specifically respond to Travelers' safe-place argument. See Charolais Breeding Ranches, Ltd. v. FPC Sec. Corp., 90 Wis. 2d 97, 109, 279 N.W.2d 493 (Ct. App. 1979) (unrefuted arguments deemed admitted). We do note, however, that Travelers, in its safe-place argument, offered only a brief analysis based on Barrons v. J.H. Findorff & Sons, Inc., 89 Wis. 2d 444, 278 N.W.2d 827 (1979), and that St. Paul, within its general responses, addressed and attempted to distinguish Barrons.

       The supreme court also stated that even when an indemnity agreement lacks "a clear and unequivocal statement" providing for indemnification for an indemnitee's own negligence, "the court will construe the agreement to provide such indemnity if that is the only reasonable construction." Barrons, 89 Wis. 2d at 452-53.


source: Caselaw Access Project

author: FINE, J. SCHUDSON, J.

license: Public Domain

text:
    Karen C. Martin and Allen H. Martin, Plaintiffs-Appellants, City of Franklin, Involuntary-Plaintiff, v. American Family Mutual Insurance Company, a Wisconsin Insurance Corporation, Defendant-Respondent, Eric H. Johnsen, Henry Johnsen d/b/a Johnsen Construction, and ABC Insurance Company, the fictitious name for an unknown insurance company, Defendants.
    Court of Appeals

      No. 00-2344.

      Submitted on briefs June 5, 2001. —
    Decided July 24, 2001.

    2001 WI App 178
    (Also reported in 634 N.W.2d 127.)

      On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of William M. Cannon and Edward E. Robinson of Cannon & Dunphy, S.C., Brook-field.
    On behalf of the defendant-respondent, the cause was submitted on the brief of Timothy J. Pike and Michael J. Wirth oí Peterson, Johnson & Murray, S.C., Milwaukee.
    Before Fine, Schudson and Curley, JJ.

       Petition to review granted 11-27-01.

   FINE, J.

¶ 1. Karen C. Martin and Allen H. Martin appeal from an order dismissing their claims against the America n Family Mutual Insurance Company. We affirm.

I.

¶ 2. Karen Martin was injured in an automobile accident, when a pickup truck driven by Eric H. Johnsen and owned by his father, Henry Johnsen, struck the Martins' car. Eric Johnsen did not live with his father. He was driving the pickup truck with his father's permission. Indeed, Eric Johnsen used the pickup truck regularly, and it was available for his regular use.

¶ 3. Eric Johnsen owned a 1983 van, which was insured by American Family. The only issue presented by this appeal is whether the American Family policy on the van gives Eric Johnsen liability coverage in connection with his accident with the Martins while he was driving his father's pickup truck. The trial court ruled that it did not, and we. agree.

II.

¶ 4. This appeal involves both the interpretation of the insurance contract between American Family and Eric Johnsen, and also the application of a statute. Accordingly, our review is de novo. See West Bend Mut. Ins. Co. v. Playman, 171 Wis. 2d 37, 40, 489 N.W.2d 915, 916 (1992).

¶ 5. The American Family policy covering Eric Johnsen's 1983 van excludes from the scope of its liability-coverage any motor vehicles that are available for his regular use, other than the vehicles insured under that policy. This exclusion provides:

This coverage does not apply to:

Bodily injury or property damage arising out of the use of any vehicle, other than your insured car, which is owned by or furnished or available for regular use by you or any resident of your household.

The Martins concede that if, in the words of their main brief on this appeal, "the 'regular use' exclusion is allowed to be given effect in this case," there is no coverage for Eric Johnsen's accident with the Martins under the American Family policy insuring Eric Johnsen's 1983 van.

¶ 6. The Martins contend that the exclusion is prohibited by Wis. Stat. § 631.43(1), which provides, as material here:

When 2 or more policies promise to indemnify an insured against the same loss, no "other insurance" provisions of the policy may reduce the aggregate protection of the insured below the lesser of the actual insured loss suffered by the insured or the total indemnification promised by the policies if there were no "other insurance" provisions.

They submit that both the 1983-van policy and his father's policy covering the pickup truck each promised to "indemnify Eric Johnsen against the same loss," namely "liability for bodily injuries caused by his negligent operation of his father Henry Johnsen's, Chevy pickup truck." We disagree.

¶ 7. It is true that Eric Johnsen is covered under Henry Johnsen's pickup-truck policy as a permissive user. It is also true that Eric Johnsen's 1983-van policy gives him liability coverage for damages he "is legally liable for because of bodily injury and property damage due to the use of a car or utility trailer." But this does not mean, as the Martins argue, that Eric Johnsen's 1983-van policy promises to insure against the "same loss" as his father's policy on the pickup truck. Eric Johnsen's policy does not promise to insure him against a loss caused by his use of the pickup truck because it is a non-owned vehicle that was made available for his regular use. On the other hand, his father's policy promises to insure Eric Johnsen for losses caused by his driving of his father's pickup truck because he was an authorized user of the truck. Thus, Wis. Stat. § 631.43(1) does not apply.

¶ 8. Our conclusion that Wis. Stat. § 631.43(1) does not apply here is supported by Agnew v. American Family Mutual Insurance Co., 150 Wis. 2d 341, 441 N.W.2d 222 (1989). There, a young man was an insured under each of his father's three automobile policies— one policy for each of the father's three vehicles. Id., 150 Wis. 2d at 343, 441 N.W.2d at 223-224. Paul G. Agnew was injured when his car collided with one of the insured's vehicles, which was then being driven by the son. Id., 150 Wis. 2d at 343, 441 N.W.2d at 223. Agnew attempted to stack the liability coverages of the father's three policies, and thereby recover the combined limits of each of the policies. Id., 150 Wis. 2d at 343-344, 441 N.W.2d at 224.

¶ 9. The insurance polices in Agnew, as does the insurance policy here, excluded from liability coverage "[bjodily injury or property damage arising out of the use of any vehicle, other than your insured car, which is owned by or furnished or available for regular use by you or any resident of your household." Id., 150 Wis. 2d at 344-345, 441 N.W.2d at 224. Although, as here, the Agnew insurance policies promised to "pay damages an insured person is legally liable for because of bodily injury and property damage due to the use of a car," id., 150 Wis. 2d at 347, 441 N.W.2d at 225 (internal quotes omitted), Agnew held that each of the policies did not promise to indemnify for the "same loss"; rather, each policy only promised to indemnify for the loss caused by the vehicle to which the policy was attached. Id., 150 Wis. 2d at 349, 441 N.W.2d at 226. See also Weimer v. Country Mut. Ins. Co., 216 Wis. 2d 705, 717, 575 N.W.2d 466, 471 (1998) ("The three policies at issue in Agnew did not provide 'multiple protections against the same risk' because the three policies each covered separate vehicles and therefore insured against different losses.") (quoting Agnew, 150 Wis. 2d at 349, 441 N.W.2d at 226). Weimer noted that "[separate policies insure against the same loss if 'the risk of injury that [one] policy covers does not increase with the number of policies that have been issued to cover that person or property.'" Id., 216 Wis. 2d at 717, 575 N.W.2d at 471 (emphasis and bracketing by Weimer-, quoted source omitted).

¶ 10. In this case, Eric Johnsen's 1983-van policy promised to indemnify him for liability resulting from his driving the 1983 van and those cars that were not available for his regular use. That risk of loss— excluding, as it did, coverage for his driving his father's pickup truck — was different than the risk of loss covered by his father's policy on the truck, which promised to provide liability coverage for accidents caused by an authorized driver of the pickup truck.

¶ 11. Our and Weimer's reading of Agnew to require that the risk of the loss be the same for which each policy under consideration promises indemnification before Wis. Stat. § 631.43(1) kicks in is supported by both Schult v. Rural Mutual Insurance Co., 195 Wis. 2d 231, 536 N.W.2d 135 (Ct. App. 1995) and State Farm Mutual Auto Insurance Co. v. Continental Casualty Co., 174 Wis. 2d 434, 498 N.W.2d 247 (Ct. App. 1993), upon which the Martins rely. In State Farm, there were seven policies, each of which "promised to indemnify an insured for any liability resulting from the operation of a nonowned vehicle." Id., 174 Wis. 2d at 442, 498 N.W.2d at 250. The insured under the seven policies was the driver of a borrowed car that was not available for his regular use. Id., 174 Wis. 2d at 440, 498 N.W.2d at 249. State Farm distinguished and did not apply Agnew, because in State Farm the loss for which each of the policies promised to indemnify was the same: damages caused by the driving of a non-owned vehicle. Ibid. Stated another way, the risk of loss covered by the policies was the same — the driving of a non-owned vehicle.

¶ 12. Similarly, Schult recognized that where each of three policies promised to indemnify the insured for liability resulting from the insured's driving of a non-owned vehicle, which, as in State Farm, was not also available for the insured's regular use, Wis. Stat. § 631.43(1) permitted stacking because the loss protected against in each of the policies was the same. Schult, 195 Wis. 2d at 238, 536 N.W.2d at 138 ("For the purposes of § 631.43(1), a determination of whether an insured may stack coverage turns not on the number of policies purchased, but on the number of premiums paid for coverage for a particular loss."); Id., 195 Wis. 2d at 243, 536 N.W.2d at 140 ("Rural's duty to provide liability insurance turns on the fact that [the insured] was driving a non[-]owned vehicle, not that he was driving a covered vehicle."). Although the Martins focus on the fact that in both State Farm and Schult the damages were caused by the insured's driving of a non-owned vehicle, in neither case, as we have seen, was the non-owned vehicle available for the insured's regular use. Thus, neither State Farm nor Schultap-plied Wis. Stat. § 631.43(1) to invalidate an insurance-policy exclusion that removed from the liability coverage afforded by that policy a loss caused by an insured driving a non-owned car which was available for his or her regular use. Indeed, the Martins do not point to any reported case where § 631.43(1) has invalidated such an exclusion.

¶ 13. The closest the Martins can come in support of their argument that Wis. Stat. § 631.43(1) invalidates the exclusion upon which this case turns is Welch v. State Farm Mutual Automobile Insurance Co., 122 Wis. 2d 172, 361 N.W.2d 680 (1985), and its progeny, which invalidated attempts by insurance companies to prevent stacking of uninsurance and underinsurance coverages. Both Welch and Tahtinen v. MSI Insurance Co., 122 Wis. 2d 158, 361 N.W.2d 673 (1985), which were released on the same day, applied § 631.43(1) to permit stacking of uninsured-motorist coverages because both decisions recognized that the statute was enacted specifically by the legislature to overturn prior court decisions that did not permit such stacking. Tahtinen, 122 Wis. 2d at 162-164, 361 N.W.2d at 676; Welch, 122 Wis. 2d at 176-178, 361 N.W.2d at 682-683. Moreover, as in State Farm!Continental and Schult, where, as we have seen, the risk of loss for which each of the policies promised indemnification was the same (the insured's driving of a non-owned car; non-owned car not available for insured's regular use), the risk of loss in the uninsured/underinsured cases for which each of the policies promised indemnification was also the same (injury by either an uninsured or underinsured motorist).

¶ 14. The general rule is that a policy exclusion helps set the scope of the coverage. Bortz v. Merrimac Mut. Ins. Co., 92 Wis. 2d 865, 871, 286 N.W.2d 16, 19 (Ct. App. 1979) (" 'In an insurance policy, an exclusion is a provision which eliminates coverage where, were it not for the exclusion, coverage would have existed.'") (quoted source omitted). Neither Welch nor its brood has ever been applied to the situation presented by this appeal to invalidate a perfectly reasonable exclusion on liability coverage, and we decline to so extend them here. As Agnew cogently noted:

The purpose of the drive-other-car provision is to enable the insurer to insure the policyholder (and the relative residing in his or her household) against liability incurred by the occasional or incidental use of cars not specified in the policy and to exclude liability by reason of the potential or actual habitual use of other vehicles owned by the policyholder, which would increase the risk of the insurer without a corresponding increase in the premium. This court has previously recognized that the purpose of the drive-other-car provision is to prevent a policyholder from insuring all the cars in one household by taking out just one policy and paying only one premium.

Id., 150 Wis. 2d at 350, 411 N.W.2d at 226. Here, the Martins seek advantage of insurance coverage for which neither Eric Johnsen nor his father paid. The trial court correctly rejected their arguments.

By the Court. — Order affirmed.

SCHUDSON, J.

¶ 15. (dissenting). All agree that if the "regular use" exclusion in Eric Johnsen's policy applies, then the $100,000 coverage under his American Family policy would not be available to supplement the $150,000 paid under his father's American Family policy for Karen Martin's injuries. All agree that whether the "regular use" exclusion precludes such coverage depends on whether it is trumped by Wis. Stat. § 631.43(1), which provides, in part:

When 2 or more policies promise to indemnify an insured against the same loss, no "other insurance" provisions of the policy may reduce the aggregate protection of the insured below the lesser of the actual insured loss suffered by the insured or the total indemnification promised by the policies if there were no "other insurance" provisions.

All agree that Eric Johnsen is "an insured" under both his and his father's policies. And, on the strength of the interpretation the Martins present in their careful navigation of the case law, it is relatively clear that a "regular use" exclusion is an " 'other insurance' provision[]" encompassed by the statute.

¶ 16. Thus, the majority correctly concentrates on the pivotal issue in this appeal: whether Eric Johnsen's policy and his father's policy "promise[d] to indemnify an insured against the same loss." See Wis. Stat. § 631.43(1). If not, the "regular use" exclusion of Eric Johnsen's policy applies, precluding coverage under his policy. If so, however, the "regular use" exclusion does not apply because it violates the statute by "reduc[ing] the aggregate protection of [Eric Johnsen] below the lesser of. .. the total indemnification promised by the policies if there were no 'other insurance' provi-sionQ."

¶ 17. The parties' briefs bravely wade through the case law and offer arguable interpretations supporting their respective positions. The majority has analyzed much of that law and provided a plausible interpretation. American Family and the 'majority, however, rely heavily on Agnew v. American Family Mutual Ins. Co., 150 Wis. 2d 341, 441 N.W.2d 222 (1989). But Agnew is significantly distinguishable.

¶ 18. In Agnew, the insured's father had purchased three American Family auto insurance policies — one policy for each of three vehicles he owned. Id. at 343. Here, by contrast, the insured and his father each had purchased one American Family auto insurance policy — each policy for his own vehicle. In Agnew, the plaintiff seeking coverage was attempting to aggregate coverage of the insured, who had not purchased any policy, under the insured's father's three policies. Id. at 342-43. Here, by contrast, the plaintiffs seeking coverage (the Martins) are attempting to aggregate coverage of the insured (Eric Johnsen), who had purchased a policy, under the insured's own policy for his own vehicle. These distinctions, I believe should warn us away from any conclusion anchored in Agnew.

¶ 19. Similarly, while the other cases on which the parties rely include passages that may be interpreted to support their arguments, all are factually and, I think, significantly distinguishable. See, e.g., Weimer v. Country Mut. Ins. Co., 216 Wis. 2d 705, 575 N.W.2d 466 (1998). And while the majority's interpretation of the additional case law is plausible, it is, I believe, far from conclusive. Thus, it appears that no case law really resolves this fair debate.

¶ 20. Therefore, I go 'back to basics' — the facts, the insurance policy, and the statute. Doing so, I reduce this case, perhaps all too simply, to this:

(1) Eric Johnsen was an "insured" under both policies.
(2) Both policies insured Eric Johnsen against loss, which in this case was, under Wis. Stat. § 631.32(1), the "same loss" — liability for the injuries suffered by Karen Martin.
(3) The "regular use" exclusion of Eric Johnsen's policy was " 'other insurance'" under the statute, as interpreted by the case law.
(4) Application of the "regular use" exclusion would "reduce the aggregate protection of the insured below... the total indemnification promised by the policies if there were no 'other insurance' provisions."
(5) Therefore, the "regular use" exclusion does not apply to reduce Eric Johnsen's coverage for the injuries the Karen Martin sustained.

¶ 21. This conclusion does not violate any of the public policy concerns so apparent in Agnew and several of the other cases on which American Family relies. This reason is clear: Eric Johnsen bought insurance and would be receiving no more than the coverage for which he paid, under the terms of his policy and by operation of Wis. Stat. § 631.43(1).

¶ 22. The majority, echoing Agnew, warns that " 'the purpose of the drive-other-car provision is to prevent a policyholder from insuring all the cars in one household by taking out just one policy and paying only one premium.'" Majority at ¶ 14 (quoting Agnew, 150 Wis. 2d at 350). But, as I have pointed out in distinguishing this case from Agnew, that simply is not the situation in this case. Moreover, as the Martins explain:.

What American Family fails to recognize is that a ruling in the Martins ['] favor will not result in all "regular use" exclusions being declared invalid. Section 631.43,... as a result of a 1995 amendment, specifically allows insurers to "exclude, limit or reduce coverage under s. 632.32(5)(b), (c) or (f) to (j)." Section 632.32(5)(j),... in turn, specifically authorizes "regular use" exclusions to preclude coverage under a policy for losses resulting from the use of a motor vehicle that:
1. Is owned by the named insured, or is owned by the named insured's spouse or a relative of the named insured if the spouse or relative resides in the same household as the named insured.
2. Is not described in the policy under which the claim is made.
3. Is not covered under the terms of the policy as a newly acquired or replacement motor vehicle.
A ruling in the Martins ['] favor will thus only invalidate "regular use" exclusions in those rare situations, as here, where a person is operating a nonowned vehicle or a vehicle not owned by a resident of the household. Thus, this Court will not be opening any "Pandora's Box" by ruling in the Martins' favor on appeal.

¶ 23. The majority concludes that "the Martins seek advantage of insurance coverage for which neither Eric Johnsen nor his father paid." Majority at ¶ 14. I disagree. The Martins, who have sustained injuries costing more than the $150,000 provided by the American Family policy for which Eric Johnsen's father paid, are seeking coverage for their injuries by aggregating the additional $100,000 provided by the American Family policy for which Eric Johnsen paid. By operation of Wis. Stat. § 631.43(1), they are entitled to gain that additional coverage under Eric Johnsen's policy.

¶ 24. Therefore, while acknowledging that the majority's interpretation of the case law may have merit, I conclude that this case presents an unprecedented circumstance that properly casts us back to the facts, the policies, and the dispositive statute. Analyzing them in a simple, literal and linear manner, and recognizing that the circumstances here clearly are not those against which Agnew warned, I respectfully dissent.

       American Family also provided liability coverage to Henry Johnsen for the pickup truck. American Family has tendered to the Martins the limits of that policy.

       The word "car" is defined to mean: "your insured car, a private passenger car, and a utility car." A "utility car" is defined to mean, as material here, "A car with a rated load capacity of 2,000 pounds or less, of the pickup ... truck type if not used in any business or occupation." American Family does not contend on appeal that Henry Johnsen's pickup truck was not a "car" as defined in Eric Johnsen's policy.


author: SNYDER, J.

text:
    In the Matter of the Estate of Marjorie R. Toutant: John Ellis, Appellant, v. Estate of Marjorie R. Toutant, Respondent.
    Court of Appeals

      No. 00-2535.

      Submitted on briefs May 23, 2001. —
    Decided July 25, 2001.

    2001 WI App 181
    (Also reported in 633 N.W.2d 692.)

      On behalf of the appellant, the cause was submitted on the briefs of John Barry Stutt of Stewart, Peyton, Crawford, Crawford & Stutt of Racine.
    On behalf of the respondent, the cause was submitted on the brief of JoAnne M. Breese-Jaeck of Hostak, Henzl & Bichler, S.C. of Racine.
    Before Nettesheim, Anderson and Snyder, JJ.
   SNYDER, J.

¶ 1. John Ellis appeals from a judgment of the trial court declaring the marriage of Ellis and the late Marjorie R. Toutant null and void. Ellis argues that the trial court did not have the authority to annul the marriage because a marriage cannot be annulled after death. In addition, Ellis argues that the marriage must be upheld because it was valid where it was celebrated and, at most, the marriage was only voidable under Wisconsin law. Ellis further argues that the full faith and credit clause of the United States Constitution prohibits Wisconsin from imposing its statutory requirements upon the marriage of a foreign national in Texas. The trial court's decision is consistent with Wisconsin law, and thus, we affirm the judgment of the trial court.

FACTS

¶ 2. Toutant was a lifelong resident of Racine, Wisconsin, and was married to James Toutant for many years. James passed away on September 20, 1997.

¶ 3. Before James's death, Toutant came in contact with Ellis through one of her daughters. Toutant's daughter had placed an advertisement in a Scottish newspaper asking for some Scottish clothing that was to be a gift for her father. Ellis, then living in Scotland and married to Anne Marie Ellis, responded to the advertisement. Toutant sent Ellis a thank you note for his response to her daughter's request.

¶ 4. Following James's death in September 1997, Toutant became deeply depressed. At some point following James's death, Ellis and Toutant began corresponding on aj regular basis.

¶ 5. In February 1998, Ellis came to Wisconsin to visit Toutant. This first visit lasted for approximately ninety days, the term of Ellis's visa. Ellis continued to frequently return to Racine for lengthy visits, residing with Toutant in her home in Racine, leaving only for renewal of his ninety-day visa. Between his first visit in February 1998 and September 1999, Ellis resided in Racine with Toutant for approximately 360 days.

¶ 6. Shortly before June 1999, Ellis gave the majority of his personal property to his then-wife Anne, and on August 12, 1999, Ellis was granted a divorce from Anne and he then returned to Racine. On September 6, 1999, Toutant was injured in a fall down some stairs, suffering a right shoulder separation and a fracture of her right foot. Despite this injury, Toutant and Ellis traveled to Texas in mid-September 1999, taking only enough luggage for a short trip. On September 13, 1999, Toutant and Ellis were married in Texas, thirty days after his Scottish divorce.

¶ 7. Following the wedding, Toutant and Ellis returned to Racine. Toutant died of a pulmonary embolism two weeks later on September 26,1999. She and Ellis had remained in Racine from the date of their return from Texas until her death.

¶ 8. Toutant died testate on September 26, 1999, and in her will she named her son Kevin as her personal representative. Kevin filed Toutant's will and a petition for administration with the Racine county probate court on October 6,1999. On October 7,1999, Ellis filed a Surviving Spouse's Selection of Personal Property, selecting all of Toutant's clothing, jewelry, household furniture and appliances, and other personal property, including Toutant's car.

¶ 9. On December 1, 1999, the trial court filed an order of administration finding that Toutant's will dated February 26, 1997, was a valid uncontested document, and domiciliary letters were issued to Kevin. On January 21, 2000, Kevin filed a petition for declaratory judgment and supporting brief asking the court to adjudge the September 13, 1999 marriage of Toutant and Ellis null and void. Ellis challenged this petition, moving for its dismissal.

¶ 10. The trial court heard Ellis's motions to dismiss on February 18, 2000. The court took the motions under advisement and asked the parties to discuss the disputed facts of the case. A hearing was held on May 23, 2000, to discuss the status of the case, and a second status hearing was ordered for June 2, 2000. A trial was held on July 21, 2000, in Racine, Wisconsin, with Ellis appearing by telephone from England.

¶ 11. On July 25, 2000, the trial court ruled that the marriage between Ellis and Toutant was void because the marriage violated Wisconsin's six-month waiting period between a divorce and a subsequent marriage. The court signed an order for judgment on August 14, 2000, declaring the marriage null and void; judgment was entered that same day.

DISCUSSION

¶ 12. Kevin, as personal representative of Toutant's estate, filed a petition for declaratory judgment, pursuant to Wis. Stat. § 806.04(1) and (4)(c) (1999-2000), asking the court to declare the marriage between Ellis and Toutant null and void.

¶ 13. In a declaratory judgment action, the granting or denying of relief is a matter within the discretion of the trial court. Hull v. State Farm Mut. Auto. Ins. Co., 222 Wis. 2d 627, 635, 586 N.W.2d 863 (1998). A reviewing court will uphold a discretionary decision as long as the trial court's exercise of discretion was not erroneous. Id. at 635-36.

¶ 14. Using its declaratory judgment powers, the trial court declared the marriage of Ellis and Toutant null and void pursuant to Wis. Stat. §§ 765.03 and 765.04. Interpretation of a statute is subject to de novo review. State v. Hughes, 218 Wis. 2d 538, 543, 582 N.W.2d 49 (Ct. App. 1998). However, the trial court's findings of fact are reviewed under the clearly erroneous standard. Flejter v. Estate of Flejter, 2001 WI App 26, ¶ 34, 240 Wis. 2d 401, 623 N.W.2d 552 (Ct. App. 2000), review denied, 2001 WI 15, 241 Wis. 2d 210, 626 N.W.2d 808 (Wis. Feb. 7, 2001) (No. 99-2863).

¶ 15. Ellis argues that the trial court did not have the authority to annul the marriage because a marriage cannot be annulled after death. We wholeheartedly agree with this assertion. But as Ellis was informed by the. trial court, the estate was "not asking [the marriage] to be annulled." The estate was asking that the marriage be declared null and void.

¶ 16. Wisconsin Stat. § 767.03 states, "No marriage may be annulled or held void except pursuant to judicial proceedings. No marriage may be annulled after the death of either party to the marriage." While the first sentence expressly prohibits both the annulment or voiding of a marriage except pursuant to court proceedings, the second sentence pointedly prohibits only annulment after the death of either spouse. Thus, a marriage can be declared null and void after the death of a spouse. All arguments concerning annulment are therefore immaterial.

¶ 17. The trial court declared the marriage null and void pursuant to Wis. Stat. § 765.03. Section 765.03(2) states:

It is unlawful for any person, who is or has been a party to an action for divorce in any court in this state, or elsewhere, to marry again until 6 months after judgment of divorce is granted, and the marriage of any such person solemnized before the expiration of 6 months from the date of the granting of judgment of divorce shall be void.

Under § 765.03(2), it is irrelevant that Ellis's divorce was granted in Scotland because it is unlawful for anyone who has ever been a party to a divorce in any court, within or without Wisconsin, to remarry within six months of the judgment of divorce.

¶ 18. Ellis argues that the marriage is valid because it was valid in Texas where it was celebrated. This assertion ignores the provisions of Wis. Stat. § 765.04. Section 765.04 expressly proscribes the celebration of marriage outside of Wisconsin to avoid the prohibition of § 765.03(2):

(1) If any person residing and intending to continue to reside in this state who is. disabled or prohibited from contracting marriage under the laws of this state goes into another state or country and there contracts a marriage prohibited or declared void under the laws of this state, such marriage shall be void for all purposes in this state with the same effect as though it had been entered into in this state.
(2) Proof that a person contracting a marriage in another jurisdiction was (a) domiciled in this state within 12 months prior to the marriage, and resumed residence in this state within 18 months after the date of departure therefrom, or (b) at all times after departure from this state, and until returning maintained a place of residence within this state, shall be prima facie evidence that at the time such marriage was contracted the person resided and intended to continue to reside in this state.

Thus, if Ellis resided in Wisconsin within twelve months before the marriage and within eighteen months afterwards and he intended to continue to reside in this state, Wisconsin prohibited his remarriage within six months of his divorce, whether said remarriage occurred in Wisconsin or Texas.

¶ 19. Between February 1998 and Toutant's death in September 1999, Ellis spent 360 days in Racine, residing with Toutant in her residence continuously except for periods when he had to leave the country to renew his visa. In February 1999, Ellis and Toutant obtained a zoning variance to operate a business out of her Racine home. Ellis signed the application for the variance as Toutant's business partner. On the Texas marriage license, Ellis listed Toutant's Racine home as his residence. While Ellis testified that after the wedding he and Toutant intended to relocate to Texas, neither Ellis nor Toutant ever communicated that idea to anyone. No steps were taken to effectuate this move. No attempts were made to sell or rent Toutant's Racine residence, nor were any boxes packed to indicate an impending move. Even after Toutant's death, Ellis took considerable steps to remain in Wisconsin, even traveling to Canada to renew his visa. The trial court found Ellis's testimony that he and Toutant had intended to move to Texas incredible, as do we. There is absolutely no evidence, other than Ellis's self-serving testimony, that the couple intended to live anywhere other than Wisconsin. A person's stated intent to establish residency is not conclusive but is merely evidence of attitude of mind. Eastman v. City of Madison, 117 Wis. 2d 106, 116 n.5, 342 N.W.2d 764 (Ct. App. 1983).

¶ 20. The term "reside" is not ambiguous. Resident does not necessarily mean citizen. Black's Law Dictionary 1311 (7th ed. 1999). A "residence" is defined as "[pjersonal presence at some place of abode with no present intention of definite and early removal... Residence implies something more than mere physical presence." Eastman, 117 Wis. 2d at 116 (citation omitted). With Ellis spending 360 days living in Toutant's home with the majority of his personal belongings from February 1998 through September 1999, it cannot be credibly argued that Ellis's residence was anything other than Toutant's Racine, Wisconsin home.

¶ 21. Whether the marriage would be valid under Texas law is irrelevant. The facts demonstrate that Toutant and Ellis were Wisconsin residents and intended to continue to be Wisconsin residents. Thus, under Wis. Stat. §§ 765.03 and 765.04, the marriage less than six months after Ellis's divorce is void.

¶ 22. The principal cases cited by Ellis, Davidson v. Davidson, 35 Wis. 2d 401, 151 N.W.2d 53 (1967), and Sinai Samaritan Medical Center, Inc. v. McCabe, 197 Wis. 2d 709, 541 N.W.2d 190 (Ct. App. 1995), are inapposite. Sinai Samaritan involved a creditor's action against a surviving husband for medical bills incurred by his deceased spouse. Sinai Samaritan, 197 Wis. 2d at 711. Sinai Samaritan was a marital property case; we have before us an estate case involving a declaratory judgment as to how the assets of the estate should be distributed. The principles set forth in Sinai Samaritan are inapplicable.

¶ 23. Davidson was an annulment case brought by the wife on the grounds that her husband was still married to another woman at the time of the marriage. Davidson, 35 Wis. 2d at 403. However, the wife died while the annulment action was still pending. Id. at 404. The supreme court held that the action abated upon the death of the petitioner. Id. at 411. But again, this is not an annulment case. It is an estate action.

¶ 24. Ellis's argument that the marriage is valid here because it was valid where celebrated in Texas was specifically rejected by the Wisconsin Supreme Court in State v. Grengs, 253 Wis. 248, 33 N.W.2d 248 (1948). The Grengs defendants argued that their Iowa marriage was a valid marriage under Iowa laws, and that pursuant to the full faith and credit clause, a marriage valid in the state where made is valid everywhere, including Wisconsin, notwithstanding statutory provisions to the contrary. Id. at 250-51. The Wisconsin Supreme Court specifically rejected this argument, stating "[n]one of those contentions and claims by defendants can be sustained." Id. at 252.

¶ 25. Ellis argues that at most, the marriage was only voidable under Wisconsin law. Wisconsin has recognized a distinction between a void marriage and voidable marriage. Lyannes v. Lyannes, 171 Wis. 381, 391, 177 N.W 683 (1920). In the void marriage, the relationship of the parties is an absolute nullity from the very beginning and . cannot be ratified. Id. at 390. The void marriage may be questioned at any time during the lifetime of either spouse and after the death of one or both. Id. Void marriages include

those as between whom a judgment of divorce has already been entered, but by ... public policy ... are prohibited from another marriage within a statutory period after such judgment, and as to whom, in effect, the matrimonial knot is not yet completely severed by the sword of divorce.

Id. On the other hand, a voidable marriage

may subsequently ripen into an absolute marriage, and is considered valid and subsisting until annulled by judgment of a court of competent jurisdiction.
Between the absolutely void marriages and the voidable marriages, the distinction is often shadowy and the line hard to place.

Id. at 391. However, a discussion of void versus voidable marriages is unnecessary as Ellis's argument that the marriage is voidable ignores the plain language of the applicable statutes.

¶ 26. Wisconsin Stat. § 765.03(2) specifically states that a "marriage ... solemnized before the expiration of 6 months from the date of the granting of judgment of divorce shall be void." (Emphasis added.) In addition, Wis. Stat. § 765.04(1) states that if anyone goes outside the state and contracts a marriage prohibited in Wisconsin, "such marriage shall be void for all purposes in this state with the same effect as though it had been entered into in this state." (Emphasis added.) Wisconsin Stat. § 765.002(6) specifically states that "[i]n chs. 765 to 768 'void' means null and void and not voidable." Ellis's marriage to Toutant is not voidable, but null and void, an absolute nullity from the very beginning which cannot be ratified. Wisconsin has repeatedly held that marriages out of state by Wisconsin residents to avoid the legal impediments in this state are void. Ginkowski v. Ginkowski, 28 Wis. 2d 530, 533, 137 N.W.2d 403 (1965).

¶ 27. Ellis further argues that the full faith and credit clause of the United States Constitution prohibits Wisconsin from imposing its statutory requirements upon the marriage of a foreign national in Texas. We disagree.

¶ 28. Article iy section 1 of the United States Constitution requires each state to give full faith and credit to the judicial proceedings of every other state. Aside from the full faith and credit clause, no state is bound to enforce the laws of another. Pac. Employers Ins. Co. v. Indus. Accident Comm'n of Cal., 306 U.S. 493, 500 (1939).

¶ 29. While the purpose of the full faith and credit clause is to preserve rights acquired in one state by requiring recognition of their validity in another,

the very nature of the federal union of the states, to which are reserved some of the attributes of sovereignty, precludes resort to the full faith and credit clause as the means for compelling a state to substitute the statutes of other states for its own statutes dealing with a subject matter concerning which it is competent to legislate ... "A rigid and literal enforcement of the full faith and credit clause, without regard to the statute of the forum, would lead to the absurd result that, wherever the conflict arises, the statute of each state must be enforced in the courts of the other, but cannot be in its own."

Id. at 501 (citation omitted).

¶ 30. Without question, each state, including Wisconsin, has the power to declare what marriages between its own citizens shall not be recognized as valid in its courts; each state also has the power to declare that marriages between its own residents contrary to established public policy shall have no validity in its courts, "even though they be celebrated in other states under whose laws they would ordinarily be valid." Lanham v. Lanham, 136 Wis. 360, 365, 117 N.W 787 (1908).

¶ 31. With respect to persons and events in our state, the full faith and credit clause does not require Wisconsin to substitute for its own statutes Texas's conflicting statute, even though the Texas statute would control the same persons and events in Texas. Pac. Employers, 306 U.S. at 502. To hold that the Wisconsin legislature intended the law prohibiting marriage within a certain time period to apply only while the parties are within the boundaries of the state "is to make the act essentially useless and impotent and ascribe practical imbecility to the lawmaking power." Lanham, 136 Wis. at 367. The language of the applicable statutes "seems unquestionably intended to control the conduct of the residents of the state whether they be within or outside of its boundaries." Id.

¶ 32. Ellis argues that his marriage to Toutant would be valid in Texas. "This argument we are in no position to meet, nor is it necessary that we should. The question is whether the courts of our state should recognize it." Hall v. Indus. Comm'n of Wis., 165 Wis. 364, 370, 162 N.W 312 (1917). We need not.

[W]hen persons domiciled in this state and who are subject to the provisions of the law leave the state for the purpose of evading those provisions, and go through the ceremony of marriage in another state and return to their domicile, such pretended marriage is within the provisions of the law and will not be recognized by the courts of this state.

Lanham, 136 Wis. at 367-68.

CONCLUSION

¶ 33. The trial court's decision is consistent with Wisconsin law. Wisconsin Stat. § 765.03 prohibited Ellis and Toutant's marriage, and thus, the Texas marriage is null and void pursuant to Wis. Stat. § 765.04. We affirm the judgment of the trial court.

By the Court. — Judgment affirmed.

       WISCONSIN Stat. § 806.04 (Í999-2000) is Wisconsin's Uniform Declaratory Judgments Act and states, in relevant part:
      (1) Scope. Courts of record within their respective jurisdictions shall have power to declare rights, status, and other legal relations whether or not further relief is or could be claimed. No action or proceeding shall he open to objection on the ground that a declaratory judgment or decree is prayed for. The declaration may be either affirmative or negative in form and effect; and such declarations shall have the force and effect of a final judgment or decree, except that finality for purposes of filing an appeal as of right shall be determined in accordance with s. 808.03(1).
      (4) Representatives, etc. Any person interested as or through a personal representative, executor, administrator, trustee, guardian or other fiduciary, creditor, devisee, legatee, heir, next of kin or cestui que trust, in the administration of a trust, or of the estate of a decedent, an infant, mental incompetent or insolvent, may have a declaration of rights or legal relations in respect thereto:
      (c) To determine any question arising in the administration of the estate or trust, including questions of construction of wills and other writings.

        All statutory references are to the 1999-2000 version of the Wisconsin Statutes unless otherwise noted.


author: DEININGER, J.

text:
    Rural Mutual Insurance Company, Plaintiff-Respondent, v. Tracy Welsh and Wayne Sheffield, Defendants-Appellants, Keith Welsh and Betty Welsh, Defendants-Co-Appellants.
    Court of Appeals

      No. 00-2699.

      Submitted on briefs April 18, 2001. —
    Decided July 26, 2001.

    2001 WI App 183
    (Also reported in 633 N.W.2d 633.)

      On behalf of the defendants-appellants, the cause was submitted on the briefs of Michael Riley ■ and Alexander S. Rammer of Atterbury & Riley, S.C., Madison.
    On behalf of the defendants-co-appellants, the cause was submitted on the briefs of Thomas T. Schrader, Bloomington.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Robert G. Wixson of Winner, Wixson & Pernitz, Madison.
    Before Roggensack, Deininger and Lundsten, JJ.
   DEININGER, J.

¶ 1. Tracy Welsh, Wayne Sheffield, and Keith and Betty Welsh appeal an order granting summary judgment to Rural Mutual Insurance Company. The order declared that insurance policies which Rural had issued to Keith and Betty do not provide liability coverage for their alleged negligence leading to the death of Skylar Sheffield, Tracy's and Wayne's son. On this de novo review, we conclude that the policies do not unambiguously exclude coverage for the occurrence at issue, and that a reasonable insured would expect coverage on the present facts under the terms of the policy. Accordingly, we reverse the appealed order and remand for the entry of judgment in favor of Keith and Betty Welsh, declaring coverage for the claim relating to Skylar's death.

BACKGROUND

¶ 2. The parties filed cross-motions for summary judgment, and the facts relevant to this appeal are undisputed. Eleven-year-old Skylar Sheffield died while operating a forklift on or near a roadway in the vicinity of a farm owned by Keith and Betty Welsh. Keith Welsh owned the forklift and allowed Skylar to operate it without supervision. Rural had issued both a Farmown-ers and a Homeowners insurance policy to the Welshes, and liability coverages under both policies were in effect on the date of Skylar's fatal accident.

¶ 3. Rural filed a declaratory judgment action, naming its insureds and Skylar's parents as defendants. Rural sought a determination that the Homeowners and Farmowners policies it issued to the Welshes did not provide coverage for their alleged negligence related to Skylar's death. Skylar's parents filed a counterclaim against Rural and a cross-claim against the Welshes, who in turn counterclaimed against Rural, seeking a declaration of coverage. Both Rural and the Welshes moved for summary judgment. The court granted Rural's motion and denied the Welshes'. The Welshes and Skylar's parents appeal.

ANALYSIS

¶ 4. We review a circuit court's grant of summary judgment de novo, using the same methodology as the trial court. M&I First Nat'l Bank v. Episcopal Homes Mgt., Inc., 195 Wis. 2d 485, 496, 536 N.W.2d 175 (Ct. App. 1995). Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id. at 496-97; see also Wis. Stat. § 802.08(2) (1999-2000).

¶ 5. The issue is whether Rural's policies provide coverage for an occurrence involving a "motorized vehicle" on the present facts. The interpretation of an insurance contract presents a question of law which we decide de novo. Oaks v. American Family Mut. Ins. Co., 195 Wis. 2d 42, 47, 535 N.W.2d 120 (Ct. App. 1995). Our goal in interpreting the language of the policy is to ascertain and carry out the intention of the parties. Sprangers v. Greatway Ins. Co., 182 Wis. 2d 521, 536, 514 N.W.2d 1 (1994). Policy provisions tending to limit coverage are generally construed against the insurer. Bartel v. Carey, 127 Wis. 2d 310, 314, 379 N.W.2d 864 (Ct. App. 1985). However, "a policy may not be construed to hind the insurer to a risk which it did not contemplate and for which it received no premium." Id. at 314-15.

¶ 6. The supreme court has very recently summarized the proper approach for a court to take when it is called upon to interpret language in an insurance policy:

An insurance policy is construed to give effect to the intent of the parties, expressed in the language of the policy itself, which we interpret as a reasonable person in the position of the insured would understand it.. .. Where the language of the policy is plain and unambiguous, we enforce it as written, without resort to rules of construction or principles in case law.

Danbeck v. American Family Mut. Ins. Co., 2001 WI 91, ¶ 10, 245 Wis. 2d 186, 629 N.W.2d 150 (citations omitted). The court has also provided guidance regarding ambiguities which may arise from the language of a policy:

We construe ambiguities in coverage in favor of the insured and narrowly construe exclusions in coverage against the insurer. .. . The language of an insurance policy is ambiguous when it is "susceptible to more than one reasonable construction."... If the language in an insurance policy is ambiguous, we interpret that language by trying to determine "what a reasonable person in the position of the insured would have understood the words of the policy to mean."... In addition, the interpretation of language in an insurance policy should advance the insured's reasonable expectations of coverage.

Taylor v. Greatway Ins. Co., 2001 WI 93, ¶ 10, 245 Wis. 2d 134, 628 N.W.2d 916 (citations omitted).

¶ 7. We thus begin by examining the policy language relevant to the coverage dispute. The parties agree that the forklift at issue is a "motorized vehicle," which is defined in the policies as "[a]ny self-propelled vehicle (assembled or unassembled, regardless of horsepower, number of wheels or method of surface contact) including parts and equipment." Two subsets of "motorized vehicles" are also defined by the policies: "motor vehicle," and "recreational motor vehicle." There is no dispute that the forklift involved in Skylar's death is neither a "motor vehicle" nor a "recreational motor vehicle," as those terms are defined in the policies.

¶ 8. Both Rural policies begin their liability coverage sections with the following broad grant of liability coverage:

We will pay, up to our limit of liability, all sums for which an insured is legally liable because of bodily injury or property damage caused by an occurrence to which this coverage applies.. . .

In the Farmowners Policy, this grant of liability coverage is set forth under the heading, "PRINCIPAL LIABILITY AND MEDICAL EXPENSE COVERAGES," followed by the designation "Coverage A, Farm Public Liability and Personal Liability." In the Homeowners policy, the same granting language appears as "Coverage E - Personal Liability." It is undisputed that: (1) none of the exclusions specifically applicable to Coverage A or Coverage E relate to the use of "motorized vehicles"; (2) there is no exclusion for "motorized vehicles" under the General Exclusions applicable to all liability coverages in the Farmowners Policy; and (3) the only reference to "motorized vehicles" in the General Exclusions from liability coverage in the Homeowners Policy is a provision precluding payment if the motorized vehicle is being "used for racing," which is not at issue in this case.

¶ 9. Given the foregoing, we conclude that, absent any other provisions in the policies to the contrary, the "principal" liability coverage of each policy plainly encompasses the Welshes' potential liability for the circumstances surrounding Skylar's death. Rural does not contend otherwise, but argues that "the general terms of the policy must give way so as to give meaning to the specific provisions" contained in each policy under the heading "SUPPLEMENTAL LIABILITY AND MEDICAL EXPENSE COVERAGES." In other words, although Rural does not explicitly concede that coverage would exist under the principal liability coverage provisions if the "supplemental coverages" were absent, its argument effectively does so by omission.

¶ 10. We must next examine, therefore, the policy language which Rural argues impliedly excludes coverage in this case. It is the following:

SUPPLEMENTAL LIABILITY AND MEDICAL EXPENSE COVERAGES
This policy provides the following Supplemental Coverages. They are subject to the terms of the Principal Liability and Medical Payments coverages....
4. Incidental Motorized Vehicle Coverage: We will pay for bodily injury or property damage which:
a. occurs on the insured premises and results from the ownership, maintenance, use, loading or unloading of:
1) motorized vehicles not subject to motor vehicle registration because of their type of use; or
3) except we will not pay for bodily injury or property damage which occurs on approaches and access ways immediately adjoining the insured premises.
c. occurs anywhere and results from:
3) motorized vehicles not subject to motor vehicle registration because of their type or use, but only while used in the insured's own farming operations... .

¶ 11. These paragraphs specifically grant liability coverage for bodily injury or property damage resulting from the use of motorized vehicles when injury or damage occurs (1) on the insured's premises, or (2) when the vehicle is used in the insured's own farming operations. The Welshes concede that these "supplemental coverage" provisions do not provide coverage for the accident at issue, but argue that they are, at the very least, inconsistent with the broad grant of "primary" liability coverage, from which the use of "motorized vehicles" is neither generally nor specifically excluded. The question we must decide, then, is whether the "supplemental coverage" of certain occurrences involving motorized vehicles creates an exclusion from principal liability coverage for all other occurrences involving motorized vehicles. We conclude that it does not.

¶ 12. Rural asserts, correctly, that, in construing and interpreting these insurance policies, we must consider the policies as a whole and attempt to give each of its provisions the meaning the parties intended. See Schaefer v. General Cas. Co., 175 Wis. 2d 80, 84, 498 N.W.2d 855 (Ct. App. 1993). Thus, we must attempt to reconcile the terms of these policies which (1) apparently grant coverage under broad language describing primary liability coverage, (2) do not remove primary liability coverage via any express exclusion for motorized vehicles, but (3) provide for supplemental coverage of motorized vehicles under limited circumstances. As is often the case in disputes over the meaning of contracts or statutes, both parties maintain that the language of the policies "plainly" supports their competing interpretations.

¶ 13. We agree with Rural that it would be reasonable to conclude the policy does not cover Skylar's accident because the language of the supplemental coverage, which grants coverage for accidents involving motorized vehicles in certain circumstances, would be unnecessary if accidents involving them in all circumstances were covered under the primary coverage granted by the policy. On the other hand, the Welshes' reading of the policy is also reasonable. The policies distinguish "motor vehicles" as a subset of "motorized vehicles," and both policies expressly exclude from liability coverage "loss . . . [resulting from the ownership, operation, maintenance, use, loading or unloading of.. . any motor vehicle . . . except as provided in the Supplemental Coverages of this form." No similar exclusion referring to the need to examine supplemental coverages to determine the extent of coverage for "motorized vehicles" is to be found in either policy. The one reference to "motorized vehicles" in either policy's express exclusions applies only to motorized vehicles "while used for racing." It would thus be reasonable to read the policies as providing liability coverage for any occurrence involving a motorized vehicle that is not also a motor vehicle, such as a forklift, so long as it was not being "used for racing."

¶ 14. We conclude, therefore, that on the issue in dispute — coverage for the circumstances of Skylar's death — the policies are ambiguous, in that they are "susceptible to more than one reasonable construction." Taylor, 2001 WI 93 at ¶ 10. Under the guidance set forth in Taylor, we are to "construe ambiguities in coverage in favor of the insured," id., which some might read to mean our task is at an end. Taylor also instructs, however, that if policy language is ambiguous, we should try "to determine 'what a reasonable person in the position of the insured would have understood the words of the policy to mean,'" and seek to "advance the insured's reasonable expectations of coverage." Id. (citation omitted).

¶ 15. It is not entirely clear how much additional inquiry is required in order to satisfy this latter standard, given our conclusion that the insurer and the insured have each advanced reasonable interpretations of the policy provisions regarding occurrences involving motorized vehicles that are neither motor vehicles nor used in racing. We conclude, however, that the emphasis on the "reasonable expectations" of an insured in resolving policy ambiguities, as expressed in Taylor and many of the cases which precede it, serves as a reminder that we are not to "bind the insurer to a risk which it did not contemplate and for which it received no premium." Bartel, 127 Wis. 2d at 314. That is, even where we conclude an ambiguity exists in the language of an insurance policy, we will not permit an insured to seize upon it to obtain coverage unless we are also convinced that such a result was within the insured's "reasonable expectations of coverage."

¶ 16. We conclude that a reasonable insured would expect the policies Rural issued to the Welshes to provide coverage for the occurrence at issue. We reach this conclusion based on the structure of the policy as well as its language. The liability coverage sections of each policy begin with a broad general grant of coverage: "We will pay, up to our limit of liability, all sums for which an insured is legally liable because of bodily injury or property damage caused by an occurrence to which this coverage applies." This grant of coverage is followed by specific exclusions from Coverage A (Farmowners policy) and Coverage E (Homeowners policy), as well as a statement that "[i]n addition to the General Exclusions in this form which are applicable to all coverages, specific exclusions apply to each coverage as stated after the explanation of each coverage." As we have noted, however, none of the exclusions specific to Coverages A and E, nor any of the General Exclusions in either policy, mention losses arising from the use of "motorized vehicles," except when "used for racing."

¶ 17. We conclude that it would not be reasonable to expect an insured, after he or she had consulted the foregoing policy provisions and found no exclusion from or limitations on coverage relating to motorized vehicles not used for racing, to then consult the "supplemental coverages" on the chance that an exclusion from general liability coverage might be implied or inferred from these additional, more specific grants of coverage. Rural argues that specific provisions of an insurance contract control over general provisions, a proposition with which, as a general rule of construction, we have no quarrel. However, we cannot agree that, absent an exclusionary reference over to the supplemental coverages (such as exists for "motor vehicles"), a reasonable insured would expect that provisions promising "supplemental coverage" operate to take something away from coverage granted elsewhere in the policy.

¶ 18. In short, the policy as a whole, which Rural acknowledges we must consider, does not support Rural's interpretation. Since we are to "narrowly construe exclusions in coverage against the insurer," Taylor, 2001 WI 93 at ¶ 10, we cannot imply or infer the existence of an exclusion that is not expressed at all in the policy, as Rural would have us do.

CONCLUSION

¶ 19. For the reasons discussed above, we reverse the appealed order and remand for the entry of judgment in favor of Keith and Betty Welsh, declaring coverage for the claim relating to Skylar's death.

By the Court. — Order reversed and cause remanded.

       Under the definitions contained in the insurance policies, an "occurrence" for purposes of the liability coverages provided by the policies "means an accident."

       Except where it is necessary to separately identify them, we will subsequently refer to all defendants-appellants, collectively, as the Welshes.

       All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

       A "motor vehicle" is defined by the policies as a "motorized vehicle, trailer or semi-trailer designed for travel on public roads and subject to licensing," while "recreational motor ve-hide" means "a motorized vehicle (other than a motor vehicle as defined above), trailer or attached apparatus designed or used for recreation, vacation or leisure time activities."

       If Skylar's death had resulted from his use of a "recreational motor vehicle," we might be more inclined to accept Rural's interpretation that its policies provided no coverage. Although the provision in the General Exclusions removing from liability coverage "[a]ny motor vehicle or watercraft, except as provided in the Supplemental Coverages of this form" would not strictly apply to a "recreational motor vehicle" (see footnote 4, above), an argument could be made that a reasonable insured would construe the term motor vehicle to include a recreational motor vehicle as part of the exclusion because recreational motor vehicles are granted only limited coverage in the supplemental coverage portion of the policy. The forklift in this case, however, is neither a "motor vehicle" nor a "recreational motor vehicle," and there is simply no similar exclusionary reference over to the supplemental coverages which could reasonably apply to it.