Please ensure Javascript is enabled for purposes of website accessibility

Care Case Analysis

By: dmc-admin//November 27, 2002//

Care Case Analysis

By: dmc-admin//November 27, 2002//

Listen to this article

This is a decision that will apply not only when a plaintiff is asserting that a negligent party was in the care of another, but also when a defendant asserts that an injured party was in his or her care.

In this case, the effect of a holding that Jessica was an insured would have been that there was coverage. When it is the person arguably in care of the insured that is injured, however, a holding that the injured party is in the care of the insured, and is thus also an insured, will be to defeat coverage.

It should also be noted that, if experience and case law from other jurisdictions are any guide, the facts in the case at bar will bear little similarity to most cases, which usually involve a minor or young adult who is actually living with the insured.

In Henderson, for example, an 18-year-old woman was living with her boyfriend and her boyfriend’s mother in a home owned and insured by the mother. The living arrangement came about because the woman’s mother was unable to provide a home for her while she was in the process of divorcing the woman’s father.

A guest at the home was stabbed, and sued both the woman and her boyfriend for negligence.

The Michigan court found that the eight factors were split. Primarily weighing in favor a finding that the woman was in the care of her boyfriend’s mother was the financial dependence on her for food and shelter.

Weighing against that conclusion was that she was free to come and go as she pleased, paid for her own personal items, and “agreed” to make contributions toward food.

On this record, the Michigan court held that summary judgment was not appropriate for either party, but that it is a jury question whether the woman was an insured under the policy.

In Wisconsin, however, whether coverage exists under an insurance contract is a question of law, rather than a question for the jury. Therefore, although the court grafted its eight-factor standard from the Michigan case, the persuasive value of the remainder of the case is compromised.

Nevertheless, in addition to the lead opinion, the case also produced a dissent concluding that, as a matter of law, the woman was in the care of her boyfriend’s mother, and thus was an “insured.” The decision thus provides persuasive authority for both sides whenever this issue arises.

In addition, the dissent in that case cited cases from three other jurisdictions that treated the issue as one of law, and can be looked to for guidance. In both State Farm Fire & Casualty Co. v. Odom, 799 F.2d 247 (6th Cir. 1986), and United States Fidelity & Guaranty Co. v. Richardson, 486 So.2d 929 (La.App. 1986), courts found that “in the care of” included a minor daughter of the named insured’s girlfriend.

Going further is Nationwide Mut. Ins. Co. v. Anderson, 453 S.E.2d 542 (1995), in which the North Carolina Supreme Court held that “in the care of” included a son of the named insured’s girlfriend, even though he was 18-years-old.

Unfortunately, when Wisconsin courts find themselves applying the eight-factor test to these more common and more difficult situations, they are going to find themselves burdened by the court of appeals’ applications of factors three (rules and discipline) and six (age).

Applying factor three in this case, the court reasoned that, because it is common for people to prohibit smoking in their homes, the rules and discipline imposed by Kriegel do not indicate that Jessica was in her care.

Links

Wisconsin Court of Appeals

Related Article

Appeals court defines ‘in the care of’

However, there is an enormous difference between a homeowner barring guests from smoking in their homes, and barring children from smoking in their homes. Furthermore, no adult guest is going to be “disciplined” for breaking the rule as a minor resident would be.

Applying
factor six in this case, the court reasoned that, although Jessica was 16, “this is not sufficient to suggest Jessica was in Kriegel’s care.”

However, in the usual fact scenario, someone being 16 should always weigh in favor of finding that the person is “in the care of” the named insured. Should there be an odd case involving a 16-year-old who’s done with school, earning a good living, and paying his own way, then that will be more than adequately considered when examining the other factors.

Rather than stating that Jessica’s age does not even “suggest” that she was in Kriegel’s care, the case law would be cleaner had the court held outright that it is a factor weighing in favor of coverage, and done the same for the rules and discipline factor, but then held that these two factors are insufficient to outweigh the others.

Instead, future applications of factors three and six in typical cases that should be easy calls will be muddled by these two discussions.

– David Ziemer

Click here for Main Story.

David Ziemer can be reached by email.

Polls

Should Steven Avery be granted a new evidentiary hearing?

View Results

Loading ... Loading ...

Legal News

See All Legal News

WLJ People

Sea all WLJ People

Opinion Digests