Appeals court defines 'in the care of'

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Hon. Michael W. Hoover

The Wisconsin Court of Appeals on Nov. 19 adopted an eight-factor test for determining when a person is "in the care of" an insured, under a homeowner’s policy.

No Smoking

Virginia Kriegel owned a home insured by Pella Mutual Insurance Co. The policy defined "insured" in relevant part as follows: "a. you; b. your relatives if residents of your household; c. persons under the age of 21 in your care or in the care of your resident relatives."

Because she was elderly, ill, and blinded by diabetes, her grandchildren visited daily to assist her, and took turns spending the night.

Jessica Kriegel, who was 16 and lived with her parents, would spend the night only if one of her brothers could not, and this was infrequent.

Kriegel had rules for the grandchildren when they were in her home, including a rule prohibiting smoking. Kriegel also gave the grandchildren instructions regarding what they could or could not do in her home and disciplined them accordingly.

On Aug. 2, 1998, Kriegel spent the night out of town with her daughter (the daughter was not Jessica’s mother).

Jessica, who had blanket permission to go to her grandmother’s home, and a 14-year-old friend, Margaret Cierzan, spent the evening at the home, and Cierzan fell asleep.

Through careless use of smoking materials, Jessica caused a fire that severely injured Cierzan. Cierzan brought suit against several defendants, including Jessica, asserting that she was an "insured" under Kriegel’s policy as a person "in the care of" Kriegel.

Pella did not deny coverage for Kriegel, but denied that Jessica was an insured. Shawano County Circuit Court Judge Thomas G. Grover granted summary judgment for Pella on this issue.

After a trial finding Jessica 100 percent negligent, Cierzan appealed the summary judgment, but the court of appeals affirmed in a decision by Judge Michael W. Hoover.

Eight-Factor Test

Noting that the definitions of "in your care" and "in the care of" is an issue of first impression in Wisconsin, the court looked to the Michigan Supreme Court for guidance.

The court found it in the case of Henderson v. State Farm Fire & Cas. Co., 596 N.W.2d 190 (Mich. 1999). In that case, the court adopted what it called eight "nonexclusive common-sense" factors to examine: (1) whether the insured has a legal responsibility to care for the person; (2) whether the person has some form of dependency on the insured; (3) whether the insured has a supervisory or disciplinary responsibility for the person; (4) whether the insured is providing substantial and essential financial support for the person; (5) if the person is living with the insured, then whether the arrangement is temporary or permanent, the length of time the arrangement has existed, and whether and how long the arrangement is expected to continue; (6) the age of the person allegedly in the insured’s care (because the younger the person is, the more likely it is he or she is in the insured’s care); (7) the person’s physical or mental health status (because a person with health problems is more likely to be in the insured’s care); and (8) whether the person allegedly in the insured’s care is gainfully employed (because someone so employed is less likely to be dependant on t
he insured). Henderson, 596 N.W.2d at 195-6.

Application

Applying the factors, the court found five to indisputably weigh against a finding that Jessica was in Kriegel’s care: Kriegel was not Jessica’s legal guardian (factor one); Jessica was not a dependent of Kriegel (factor two); Kriegel did not provide financial support for Jessica (factor four); Jessica lived with her parents, rather than Kriegel, only occasionally spending the night at Kriegel’s (factor five); and Jessica had no mental or physical health problems (factor seven).

Turning to factor three, the court acknowledged that Kriegel had rules that Jessica was expected to follow. However, the court found it not uncommon for people to have rules such as no smoking for their guests. The court concluded, "Rules and discipline, absent more, are insufficient to make a guest a person in the insured’s care."

Turning to factor six, the court acknowledged that Jessica was a minor. Nevertheless, it found this status insufficient to suggest that she was in Kriegel’s care. The court reasoned, "A child who is sixteen typically has greater independence than a younger child.

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For example, it is not unusual for 16-year-olds to be left home alone when their guardians go away for a period of time. Many have a driver’s license and thus potentially greater mobility. It is not unusual for a 16-year-old to have part-time employment. In contrast, a ten-year-old child, for example, cannot usually stay alone, certainly cannot drive, and generally cannot work beyond household chores. Jessica’s age and status as a minor are insufficient to demonstrate she was in Kriegel’s care."

Turning to the final factor, the court noted the record was silent as to whether Jessica was gainfully employed. In any event, however, the court concluded this factor weighs against a finding she was in Kriegel’s care, because it was undisputed that Kriegel did not support her.

In conclusion, the court added that the sole purpose of Jessica being at the home was recreation, and that, rather than being in Kriegel’s care, when Jessica did go to the home, it was usually to care for Kriegel. Accordingly, the court affirmed that the insurance policy did not extend to cover Jessica’s negligence.

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David Ziemer can be reached by email.