Insurance — bacteria exclusions

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Wisconsin Court of Appeals

Civil

Insurance — bacteria exclusions

A decorative water fountain is not a good or product intended for consumption within the meaning of a fungi or bacteria exclusion.

“In holding that the Consumption Exception included in the Midwestern and Hawkeye insurance policies does not encompass the observation and enjoyment of art, we reject CBI’s reliance on three cases, which CBI claims broadly define the word ‘consumption’:  Nationwide Mutual Fire Insurance Co. v. Dillard House, Inc., 651 F. Supp. 2d 1367 (N.D. Ga. 2009); Westport Insurance Corp. v. VN Hotel Group, LLC, 761 F. Supp. 2d 1337 (M.D.Fla.2010); and Union Insurance Co. v. Soleil Group, Inc., 2009 WL 8652923 (D.S.C. 2009).  To begin, all of these cases hail from foreign jurisdictions and therefore are not binding on this court.  See State v. Muckerheide, 2007 WI 5, ¶7, 298 Wis. 2d 553, 725 N.W.2d 930.  Furthermore, we do not find any of these cases persuasive as none of them deal with the issue before this court:  Whether a decorative water fountain, constructed in a hospital lobby for the aesthetic enjoyment of hospital patrons, that is, art, is a product a reasonable person would consider to fall within the Consumption Exception to the Fungi or Bacteria Exclusion.  Rather, all of the cases cited by CBI discuss whether hotel amenities, like swimming pools and hot tubs, are products a reasonable person would consider to fall within the exception.  See Dillard, 651 F. Supp. 2d at 1375 (deciding whether bacteria in a hot tub are covered by the Consumption Exception); Westport, 761 F. Supp. 2d at 1347 (deciding whether a spa tub and shower water are covered by the Consumption Exception); and Soleil, 2009 WL 8652923 at *3 (deciding whether a swimming pool and whirlpool tub are covered by the Consumption Exception).  In each case cited by CBI, the insured intended the water in the swimming pool or hot tub to be used by guests and guests were expected to have physical contact with the water, unlike the Fountain here.”

Affirmed.

Recommended for publication in the official reports.

2012AP2469 Heinecke v. Aurora Healthcare, Inc.

Dist. I, Milwaukee County, Carroll, J., Brennan, J.

Attorneys: For Appellant: Weir, Todd M., Milwaukee; Anderson, Ross A., Milwaukee; For Respondent: Schrimpf, Thomas R., Milwaukee