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Ruff v. Graziano6/10/1998
Lori and Kevin G. Ruff appeal from a summary judgment dismissing their negligence and wrongful death claims against Rural Mutual Insurance Company. Their son, Dustyn, drowned at a beach while under the care of Rural Mutual's insured, Evelyn Graziano. At issue in this case is whether Rural Mutual's business exclusion clause in its homeowners policy issued to Graziano precludes coverage because Graziano was being compensated for day care services at the time of Dustyn's death. We conclude that coverage is precluded by the business exclusion. We further conclude that the trip to the beach is not excepted from the exclusion as an activity "ordinarily considered non-business in nature." Accordingly, we affirm.
FACTS
On August 18, 1995, Graziano took several children, including Dustyn and her son, to Harrington Beach in Belgium, Wisconsin. Dustyn disappeared while swimming and was later discovered drowned. At the time of the accident, Graziano was a licensed day care provider. She had operated a day care business out of her home since 1984. The Ruffs had engaged her services and Dustyn was under her care and supervision at the time of his death.
The Ruffs sued Graziano and Rural Mutual. The Ruffs alleged that Graziano had acted carelessly and negligently in supervising Dustyn and that Rural Mutual had issued a policy of liability insurance to Graziano which would provide coverage for their claims. The Ruffs' complaint asserted claims of negligence and wrongful death and additionally requested declaratory relief against Graziano and Rural Mutual based on the terms of the homeowners policy. The Ruffs requested the circuit court to enter an order providing that Rural Mutual had a duty to defend and indemnify Graziano. Rural Mutual's response denied coverage and requested that the Ruffs' complaint be dismissed.
On February 2, 1997, Rural Mutual moved for summary judgment claiming that coverage under its policy was precluded by the "business pursuits" exclusion. That exclusion provides that coverage for personal liability will not apply to "personal injury ... resulting from business activities of an insured." The Ruffs opposed summary judgment based on the exception language to the exclusion which states: "This exclusion does not apply to activities in conjunction with business pursuits which are ordinarily considered non-business in nature." The Ruffs argued that a trip to the beach is an activity which is "ordinarily considered non-business in nature."
The circuit court held a hearing on the issue of coverage on May 13, 1997. The court granted summary judgment in favor of Rural Mutual based on its finding that the outing to the beach was a "business activity." The court stated:
Graziano was charged with the care and maintenance and control of these children. She on a regular basis often had children participate in field trip activities.
... It's an activity that she performed in the operation of her day care service, and the court finds that therefore the activity of taking the children to the Harrington Park [beach] was not nonbusiness in nature.
The Ruffs appeal.
Discussion
We review a motion for summary judgment using the same methodology as the trial court. See M & I First Nat'l Bank v. Episcopal Homes Management, Inc., 195 Wis.2d 485, 496, 536 N.W.2d 175, 182 (Ct. App. 1995). That methodology is well known, and we will not repeat it here except to observe that summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See id. at 496-97, 536 N.W.2d at 182; see also Section 802.08(2), Stats.
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