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BENCH BLOG: Appeals decision should obviate further litigation

By: Jean DiMotto//January 3, 2014

BENCH BLOG: Appeals decision should obviate further litigation

By: Jean DiMotto//January 3, 2014

Jean DiMotto is a retired Milwaukee County Circuit Court judge. She served for 16 years, and was on the criminal bench for 12 of those years.
Judge Jean DiMotto retired in 2013 after 16 years on the Milwaukee County Circuit bench and now serves as a reserve judge.

In December the Court of Appeals decided a novel insurance exclusion case involving a grade-school boy’s gun death.

The case involved an 11-year-old boy, A.B., who was the son of Robert Barrows and Bonnie LaValla. He lived with LaValla and Jason Renfrow in Osceola.

Renfrow had a loaded .45-caliber handgun in his nightstand which was not secured with a safety lock. One day in October 2011, A.B. found the loaded weapon and shot himself in the head. He died later that day.

The death was ruled a suicide by the Polk County Sheriff’s Department.

Barrows subsequently sued Renfrow, LaValla and their homeowner’s insurer, American Family Insurance Co. In his wrongful death action, Barrows alleged that Renfrow was negligent in storing the gun.

American Family moved for summary judgment based on intentional acts and intra-insured exclusions. Polk County Circuit Judge Jeffery Anderson granted summary judgment on both grounds.

Defining the issue on appeal

On appeal, American Family argued that was there was no initial grant of coverage, but if there was, both exclusions applied. Barrows countered that the initial grant of coverage issue should be barred on appeal since it was not first raised in the trial court.

In a decision authored by District 3 Judge Lisa Stark, the Court of Appeals sidestepped this issue and proceeded directly to the exclusions. Rather than deciding the case based on the better known intentional acts exclusion, the court instead shouldered the intra-insured exclusion, a matter of first impression in Wisconsin.

The intra-insured exclusion in the homeowner’s policy stated, “We will not cover bodily injury to an insured.” “Bodily injury” was defined as “bodily harm, sickness or disease. It includes resulting loss of services, required care and death.”

There was no dispute that A.B. was an insured under the policy and that Barrows was not. It was further undisputed that A.B. suffered bodily harm.

The issue in dispute was whether Barrows’ claim for damages caused by A.B.’s alleged wrongful death was a claim for bodily injury to an insured thus triggering the exclusion.

American Family argued that the wrongful death claim was a derivative claim of A.B.’s bodily injury. Since the exclusion applies to A.B. it necessarily applies to Barrows despite the fact that he is not an insured.

Barrows argued that he was not seeking damages for A.B.’s bodily injury but rather for the injury he himself sustained because of A.B.’s death. Therefore the exclusion should not apply to him as a non-insured for his own separate injuries.

Out-of jurisdiction search

The court conducted an out-of-jurisdiction case search to find persuasive authority. This is an appropriate methodology for novel legal issues.

It found only one state, Louisiana, supported Barrow’s argument. The majority of jurisdictions deciding this issue supported the arguments made by American Family.

In particular, an Ohio father had similarly brought a wrongful death claim because he “suffered his own injury.” The Ohio Supreme Court found his focus misplaced. “[T]he plain language of the policy … excludes liability coverage for bodily injury to an insured, including claims resulting from his death.”

Likewise, the Missouri Court of Appeals wrote, “Because the policy excluded coverage for bodily harm, sickness or disease to any insured, it follows that damages derived from the insured[’s] harm, whether or not [the damages] are considered separate injuries, are also excluded.”

And Couch on Insurance, a well-regarded insurance law treatise, states that “the exclusion applies to preclude coverage for an insured in a wrongful death lawsuit brought by a noninsured person based on the death of an insured.”


These cases and the treatise, as well as cases from California, Florida, Illinois, Maryland, Minnesota and South Dakota, are on point.

Barrows conceded that his wrongful death claim was a claim for loss of services derived solely from his son’s death. Under the plain language of the exclusion, Barrows’ wrongful death claim is therefore excluded from coverage.

While the court bypassed two issues, and took up a persuasive-authority search before doing a plain-language analysis, the decision will well and easily guide insurers and the bar in this set of factual circumstances, thus obviating further litigation of the issue.


Should Justice Protasiewicz recuse herself on gerrymandering cases that go before the Wisconsin Supreme Court?

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