99-3193 Vandenberg v. Continental Ins. Co., et al.

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Because we find that reasonable persons in the position of the plaintiff in the present case could reasonably believe that they had coverage under this exception for the supervision and control of their own child, the rule of narrow construction against the insurance company applies to resolve the ambiguity in favor or the insured.

Because there remain issues of fact as to whether the insurance agency that obtained the policy negligently failed to obtain liability coverage for the day care business, we reverse the circuit court’s award of summary judgment to the insurance company on the issue of reformation. The circuit court improperly concluded that there could be no reformation absent a showing that the provider had explicitly requested day care business insurance.

DISSENTING OPINION: Wilcox, J., Crooks, J., Prosser, J. “The holding I glean from the majority’s lengthy opinion is that, because some other courts around the country have come to opposite conclusions regarding an insurance contract provision similar to the one at issue here, this contract is ambiguous. Because the majority strains to find the language ambiguous through extrinsic sources, it rules in favor of finding coverage.

I am deeply troubled by the majority’s judicial favoritism for unlicensed home day care facilities, which clearly contravenes the intention of our legislature to provide safe insured day care facilities for Wisconsin children.”

Reversed and remanded.

Appeal from an order of the Circuit Court for Outagamie County, Dyer, J., Abrahamson, C.J.

Attorneys:

For Appellant: Christopher H. Evenson, Keith W. Kostecke, Bruce A. Olson, Appleton

For Respondent: Eric J. Magnuson, Daniel Q. Poretti, Jeanne A. Unger, Minneapolis