Kemper Independence Insurance Company v. Ismet Islami ( 2021 )

2021 WI 53SUPREME COURT OF WISCONSIN
CASE NO.: 2019AP488
COMPLETE TITLE: Kemper Independence Insurance Company,
Plaintiff-Respondent,
v.
Ismet Islami,
Defendant-Appellant-Petitioner.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 392 Wis. 2d 866,946 N.W.2d 231PDC No:2020 WI App 38 - Published
OPINION FILED: June 8, 2021
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: February 22, 2021
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Waukesha
JUDGE: William Domina
JUSTICES:
REBECCA GRASSL BRADLEY, J., delivered the majority opinion of
the Court, in which ZIEGLER, C.J., ROGGESNSACK, and HAGEDORN,
JJ., joined. KAROFSKY, J., filed a dissenting opinion in which
ANN WALSH BRADLEY and DALLET, JJ., joined.
NOT PARTICIPATING:
ATTORNEYS:
For the defendant-appellant-petitioner, there were briefs
filed by Joseph F. Owens and Law Offices of Joseph F. Owens, LLC,
New Berlin. There was an oral argument by Joseph F. Owens.
For the plaintiff-respondent, there was a brief filed by James
M. Fredricks, Alison E. Kliner, and Borgelt, Powell, Peterson &
Frauen, S.C., Milwaukee. There was an oral argument by James M.
Fredricks.
An amicus curiae brief was filed on behalf of Wisconsin
Insurance Alliance by James A. Friedman, Daniel C.W. Narvey, and
Godfrey & Kahn, S.C., Madison.
An amicus curiae brief was filed on behalf of Wisconsin
Association for Justice by Michael J. Cerjak and Cannon & Dunphy,
S.C., Brookfield.
2
2021 WI 53NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2019AP488
(L.C. No. 2013CV2875)
STATE OF WISCONSIN : IN SUPREME COURT
Kemper Independence Insurance Company,
Plaintiff-Respondent, FILED
v. JUN 8, 2021
Ismet Islami, Sheila T. Reiff
Clerk of Supreme Court
Defendant-Appellant-Petitioner.
REBECCA GRASSL BRADLEY, J., delivered the majority opinion of the
Court, in which ZIEGLER, C.J., ROGGENSACK, and HAGEDORN, JJ.,
joined. KAROFSKY, J., filed a dissenting opinion in which ANN
WALSH BRADLEY and DALLET, JJ., joined.
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 REBECCA GRASSL BRADLEY, J. Ismet Islami seeks review
of the court of appeals decision1 affirming the Waukesha County
Circuit Court's grant of summary judgment in favor of Kemper
Independence Insurance Company (Kemper) denying coverage to Ismet
1Kemper Indep. Ins. Co. v. Islami, 2020 WI App 38, 392
Wis. 2d 866, 946 N.W.2d 231.
No. 2019AP488
for the loss of her home.2 Ydbi Islami, from whom Ismet is legally
separated, intentionally set fire to the home. All parties
stipulated that Ydbi concealed facts from Kemper about his
involvement in the fire with the intent to deceive, and Kemper
relied upon Ydbi's concealment and fraud to its detriment. The
circuit court ruled the "concealment or fraud" condition in
Kemper's insurance policy covering the home ("the Policy") barred
coverage for Ismet's claims. The court of appeals agreed that the
Policy did not provide coverage as a result of Ydbi's conduct and
affirmed the circuit court's decision.
¶2 Ismet raises three arguments. First, Ismet contends
that, given her legal separation from Ydbi, Ydbi is not her spouse
and therefore not an "insured" for purposes of the Policy. Second,
Ismet argues the Policy's "concealment or fraud" condition is
ambiguous, conflicts with the Policy's "intentional loss"
exclusion, and therefore does not bar coverage. Third, Ismet
asserts she is an innocent insured and the victim of domestic
abuse, thereby requiring Kemper to provide coverage under Wis.
Stat. § 631.95(2)(f)'s domestic abuse exception to a property
insurer's intentional act exclusion.
¶3 We hold: (1) Ydbi is an insured under the terms of the
Policy, both under the plain language of the insurance contract
and because Wisconsin's marriage laws recognize Ydbi as Ismet's
spouse; (2) the Policy's "concealment or fraud" condition
2 The Honorable Judge William J. Domina, Waukesha County
Circuit Court, presided.
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No. 2019AP488
precludes coverage for Ismet——a conclusion unaffected by the
Policy's "intentional loss" exclusion; and (3) Wis. Stat.
§ 631.95(2)(f) does not apply because the record lacks any evidence
showing Ydbi's arson constituted "domestic abuse" against Ismet,
as statutorily defined. Accordingly, we affirm the decision of
the court of appeals.
I. BACKGROUND
¶4 Ismet and Ydbi married in 1978. In 1988, Ydbi was
convicted of a number of crimes, including stalking and sexual
assault of a minor, involving victims other than Ismet. Following
these incidents, Ismet initially sought a divorce from Ydbi but,
for religious reasons, obtained a legal separation instead. As
part of the separation, which occurred in 1998, both parties
entered into a Marital Settlement Agreement, under which Ismet
received sole ownership of their home in Oconomowoc, although Ismet
and Ydbi continued to live in the home together. Neither party
proceeded with a divorce.
¶5 In 2012, Kemper issued a "Package Plus" home and
automobile insurance policy covering Ismet's Oconomowoc home and
listed automobiles. Under the Policy, Ismet is listed as the
"Named Insured." However, the introduction to the Policy reads:
"Throughout the policy, 'you' and 'your' mean the person shown as
the 'Named Insured' in the Declarations. It also means the spouse
if a resident of the same household." The Policy further states
that "insured" means "you and residents of your household who
are . . . [y]our relatives." Additionally, both Ismet and Ydbi
are listed in the vehicle coverage section as "Operator 1" and
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No. 2019AP488
"Operator 2," respectively. Both parties also marked their marital
status as "Married."
¶6 The Policy also contains a "concealment or fraud"
condition. As relevant to this dispute, the provision bars
coverage for "all insureds" if "an insured" concealed or
misrepresented a material fact, with intent to deceive and on which
Kemper relied. In full, the provision reads:
Under Section 1 – Property Coverages, with respect to
all "insureds" covered under this policy, we provide
coverage to no "insureds" for loss under Section 1 –
Property Coverages if, whether before or after a loss,
an "insured" has:
1) Concealed or misrepresented any fact upon which
we rely, and that concealment or
misrepresentation is material and made with
intent to deceive; or
2) Concealed or misrepresented any fact and the fact
misrepresented contributes to the loss.
¶7 Importantly for purposes of Ismet's argument, the Policy
also contains an "intentional loss" exclusion. That provision
bars recovery for "an insured" who "commits or conspires to commit
an act with the intent to cause a loss." As material to Ismet's
argument, the provision provides as follows:
1. We do not insure for loss caused directly or
indirectly by any of the following. Such loss is
excluded regardless of any other cause or event
contributing concurrently or in any sequence to the
loss.
. . . .
1h. Intentional Loss.
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No. 2019AP488
Intentional Loss means any loss arising out of
any act an "insured" commits or conspires to
commit with the intent to cause a loss.
This exclusion only applies to an "insured"
who commits or conspires to commit an act with
the intent to cause a loss.
¶8 In June 2013, a fire occurred at the Oconomowoc home,
damaging the property and its contents and rendering the home a
total loss. Per the Policy, Kemper sent Ismet and Ydbi a "Sworn
Statement in Proof of Loss." In the signed statement, both Ismet
and Ydbi attested that the "the cause and origin" of the fire was
"unknown."3 They also represented to Kemper in the statement that
they were each "insureds" under the Policy. Kemper later conducted
a formal examination of Ismet and Ydbi with both answering
questions under oath (hereinafter "Examination Under Oath"). In
response to questions during that examination, both Ismet and Ydbi
swore they were not aware the house burned down until after
receiving notice of the incident.4
¶9 Despite these attestations, further investigation
revealed that Ydbi had started the fire. The fire occurred while
Ismet was vacationing overseas in North Macedonia——a fact
indisputably known by Ydbi. In a separate criminal proceeding,
3More specifically, Ismet and Ydbi attested: "A Fire Loss
occurred about 10:30 o'clock P.M., on the 10th day of June 2013.
The cause and origin of said loss was unknown."
4According to Ismet, she first learned about the fire during
a phone call from her niece approximately seven hours after the
fire. According to Ydbi, he learned about the fire while at a
Milwaukee casino from a man he could not remember.
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No. 2019AP488
the State eventually charged Ydbi with arson, for which he was
convicted.
¶10 Relying on the Policy's "concealment or fraud" condition
(among other provisions), Kemper denied coverage for the loss of
the home. After its denial of the claim, Kemper commenced a
declaratory judgment action seeking a judicial determination of
its rights and obligations under the Policy. In particular, Kemper
sought, inter alia, a declaration that the "concealment or fraud"
condition barred coverage for both Ismet and Ydbi.
¶11 Both parties eventually filed motions for summary
judgment on stipulated facts. Specifically, all parties
stipulated to the following: (1) Ydbi committed arson to destroy
the Oconomowoc home; (2) if Ydbi is found to be an "insured" under
the Policy, "Ydbi . . . was a resident of
Ismet['s] . . . household"; (3) "Ydbi . . . engaged in
concealment and fraud in his statement[s] to Kemper" about his
involvement in the fire "with the intent to deceive Kemper, and
Kemper relied upon Ydbi's concealment and fraud to its detriment";
(4) "the fire was not a result of Ismet committing or conspiring
to commit any act with the intention of damaging the
property . . . "; and (5) Ismet is an "innocent insured" under the
Policy.
¶12 Ultimately, the circuit court granted Kemper's motion
for summary judgment, finding that Ydbi was an "insured" under the
Policy, and Ismet's and Ydbi's legal separation in 1998 did not
alter Ydbi's status. The circuit court further found that, because
Ydbi was an "insured," the "concealment or fraud" condition barred
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No. 2019AP488
recovery for Ismet. Lastly, the circuit court determined that,
because the record was devoid of any evidence of domestic abuse,
Wis. Stat. § 631.95(2)(f) did not preclude Kemper from denying
coverage. Ismet appealed the decision to the court of appeals,
which affirmed the circuit court's ruling. We granted Ismet's
petition for review.
II. STANDARD OF REVIEW
¶13 This case comes before us as a review of a grant of
summary judgment. "Summary judgment is appropriate when there is
no genuine dispute of material fact and the moving party is
entitled to judgment as a matter of law." Talley v. Mustafa
Mustafa, 2018 WI 47, ¶12, 381 Wis. 2d 393, 911 N.W.2d 55 (citing
Wis. Stat. § 802.08(2)). "We independently review a grant of
summary judgment using the same methodology of the circuit court
and the court of appeals." Id. (citation omitted); see also Romero
v. West Bend Mut. Ins. Co., 2016 WI App 59, ¶17, 371 Wis. 2d 478,
885 N.W.2d 591.
III. DISCUSSION
A. Ydbi is an "insured" under the Policy.
¶14 Ismet contends Ydbi is not her spouse because they are
legally separated; therefore, according to Ismet, Ydbi is not an
"insured" under the Policy. We disagree.
¶15 Whether Ydbi is Ismet's "spouse" for purposes of
insurance coverage is governed by the terms of the insurance
contract. The Policy definitions answer this question:
"Throughout the policy, 'you' and 'your' mean the person shown as
the 'Named Insured' in the Declarations. It also means the spouse
7
No. 2019AP488
if a resident of the same household." (Emphasis added.) The
Policy defines "insured" as "you and residents of your household
who are . . . [y]our relatives." (Emphasis added.) Ydbi may be
an "insured" under the policy if he is either Ismet's spouse or
relative, provided he resides in Ismet's household. There is no
dispute Ismet and Ydbi were residents of the same household.
¶16 We interpret the provisions of an insurance policy using
the same principles applicable to contracts generally.
"[I]nsurance policies are contracts to which courts apply the same
rules of law applicable to other contracts." Talley, 381
Wis. 2d 393, ¶35; see also McPhee v. Am. Motorists Ins. Co., 57
Wis. 2d 669, 673, 205 N.W.2d 152 (1973) ("Contracts of insurance
rest upon and are controlled by the same principles of law that
are applicable to other contracts[.]"). Applying the plain
language of the Policy, we conclude that Ismet and Ydbi are
"spouses" for purposes of the contract. "[T]he language of a
contract must be understood to mean what it clearly expresses, and
the courts may not depart from the plain meaning of a contract
when it is free from ambiguities." Matter of Watertown Tractor &
Equip. Co., Inc., 94 Wis. 2d 622, 637, 289 N.W.2d 288 (1980)
(quoted source omitted). In the Policy's listed vehicle coverage
section, Ismet and Ydbi are listed as "Operator 1" and Operator
2," respectively. The contract then explicitly indicates the
marital status of both Ismet and Ydbi as "Married." Because the
Policy expressly designates Ismet and Ydbi as spouses, Ydbi meets
the definition of "you" under the Policy, which makes Ydbi an
"insured."
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No. 2019AP488
¶17 Additionally, both Ismet and Ydbi represented to Kemper
that they were each "insureds" under the insurance contract. In
determining whether a named insured's spouse is covered under a
policy, courts may look to the "expectations of the parties,"
considering, among other factors, whether a couple "liv[es] under
the same roof," whether they have a "close, intimate, and informal
relationship," and "where the intended duration is likely to be
substantial, where it is consistent with the informality of the
relationship, . . . it is reasonable to conclude that the parties
would consider the relationship . . . in contracting about such
matters as insurance or in their conduct in reliance thereon."
Belling v. Harn, 65 Wis. 2d 108, 113, 221 N.W.2d 888 (1974). All
of these factors are satisfied here. Ismet and Ydbi lived under
the same roof of the Oconomowoc home; they are in a relationship
recognized as marital under Wisconsin law, albeit legally
separated; and they each considered their relationship when
contracting with Kemper, as demonstrated by listing their status
as "Married." Critically, both Ismet and Ydbi also stated in their
"Sworn Statement in Proof of Loss" that they were each "insureds"
under the contract. With this understanding, Kemper conducted an
Examination Under Oath of both Ismet and Ydbi, during which Ismet
repeatedly stated for the record that Ydbi was her "husband."
Giving effect to the expectations of the parties, and applying the
plain language of the contract, Ismet and Ydbi are "spouses" and
therefore insureds under the Policy.
¶18 Although Ismet and Ydbi are also "spouses" under
Wisconsin's marriage laws, Ismet argues that their legal
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No. 2019AP488
separation alters their status as spouses under the law and
therefore under the Policy. We disagree. Wisconsin law plainly
distinguishes between a divorce and a legal separation. Pursuant
to Wis. Stat. § 767.001(1f),5 "divorce" is defined as "the
dissolution of the marriage relationship." Once a judgment of
divorce is entered, parties are free to remarry another individual,
so long as it has been six months since the date of judgment. Wis.
Stat. § 765.03(2). In contrast, a judgment of legal separation
does not terminate a marriage. As this court has previously noted,
"there are . . . rights and obligations remaining in the marriage
after a legal separation." Herbst v. Hansen, 46 Wis. 2d 697, 706,
176 N.W.2d 380 (1970) (emphasis added). For example, legally
separated couples may reconcile after a judgment for legal
separation without having to get remarried. Wis. Stat.
§ 767.35(4). Additionally, because they are still recognized as
"married" under the law, legally separated couples are also
precluded from marrying other individuals until six months after
they obtain a judgment of divorce. See § 765.03(2). Indeed, as
the Wisconsin Court System's own guidance to the public instructs,
"legal separation does not end a marriage"——only divorce
proceedings do.6
5All references to the Wisconsin Statutes are to the 2017-
18 version unless otherwise indicated.
6https://www.wicourts.gov/formdisplay/FA-4100V_instructions
.pdf?formNumber=FA-4100V&formType=Instructions&formatId=2&langua
ge=en.
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No. 2019AP488
¶19 Given that Ismet and Ydbi never initiated divorce
proceedings but instead received a judgment of legal separation,
they remained married under Wisconsin law. Ydbi is Ismet's
"spouse" under the Policy as well. Both parties stipulated that
Ydbi was "a resident of the same household" as Ismet. Because
Ydbi is Ismet's spouse who resided in Ismet's household, Ydbi is
an "insured" under the Policy. These conclusions are consistent
with the expectations of both Ismet and Ydbi, as reflected in their
representations to Kemper regarding their marital status and their
status as "insureds" under the contract.
¶20 Despite the clear language in Wis. Stat. ch. 767, Ismet
argues Wis. Stat. ch. 766, the Marital Property Act, controls
Ismet's and Ydbi's status as "spouses" under Wisconsin law.
Because Chapter 766 contemplates that the "dissolution" of a
marriage may involve a judgment of legal separation, Ismet argues
that once she and Ydbi entered into a judgment of legal separation,
they were no longer spouses. See Wis. Stat. § 766.01(7). This
argument misunderstands the nature and scope of Chapter 766. The
Marital Property Act "provides rules which govern the ownership as
well as management and control of property owned by married persons
during their marriage . . . [and] at death." Kuhlman v. Kuhlman,
146 Wis. 2d 588, 592, 432 N.W.2d 295 (1988) (emphasis added)
(quoted source omitted). Chapter 767, on the other hand, contains
Wisconsin's "divorce rules and policies." Id. at 593. That is,
while Chapter 766 pertains to the control and management of marital
property, Chapter 767 governs the actual legal status of married
persons. The "substantial differences between [Chapter 766 and
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No. 2019AP488
Chapter 767] . . . did not come about by chance; they were
deliberately drawn by the legislature to achieve different goals."
Id. Indeed, Chapter 766 "was not intended to change the law of
divorce or other forms of dissolution." Id. (quoted source
omitted). Chapter 767 controls the dissolution of marriage and
under its provisions, Ismet and Ydbi were still "spouses" by law
as well as under the Policy. As spouses who resided in the same
household, both Ismet and Ydbi were "insureds" under the terms of
the Policy.
B. The "concealment or fraud" condition bars coverage for
Ismet under the Policy.
¶21 Ismet next contends the "concealment or fraud" condition
does not bar coverage for Ismet, because, according to her
argument, its language is ambiguous and conflicts with the Policy's
"intentional loss" exclusion. Ismet relies on Hedtcke v. Sentry
Insurance Co., 109 Wis. 2d 461, 326 N.W.2d 727 (1992), to support
her position. We are not persuaded.
¶22 Principles of contract interpretation control the
resolution of this issue as well. "Contracts of insurance rest
upon and are controlled by the same principles of law that are
applicable to other contracts, and parties to an insurance contract
may provide such provisions as they deem proper so long as the
contract does not contravene law or public policy." McPhee, 57
Wis. 2d at 673. "[U]nambiguous contract language controls
contract interpretation." Tufail v. Midwest Hosp., LLC, 2013 WI
62, ¶25, 348 Wis. 2d 631, 833 N.W.2d 586 (quoted source omitted).
"When the terms of a contract are plain and unambiguous, we will
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No. 2019AP488
construe the contract as it stands." Kernz v. J.L. French Corp.,
2003 WI App 140, ¶9, 266 Wis. 2d 124, 667 N.W.2d 751 (quoted source
omitted); see also Folkmann v. Quamme, 2003 WI 116, ¶13, 264
Wis. 2d 617, 665 N.W.2d 857 ("If there is no ambiguity in the
language of an insurance policy, it is enforced as written[.]")
(citation omitted).
¶23 In this case, the Policy terms are plain and unambiguous,
including the "concealment or fraud" condition. That provision
states, in relevant part: "with respect to all 'insureds' covered
under this policy, [Kemper] provide[s] coverage to no 'insureds'
for loss" due to concealment or misrepresentation of (1) a material
fact with the intent to deceive, which is relied upon by Kemper,
or (2) any fact where the misrepresentation "contribut[ed] to the
loss." (Emphasis added.) This language plainly excludes coverage
for all insureds if any insured conceals or misrepresents a
material fact, with the intent to deceive and on which Kemper
relies.
¶24 Because both Ismet and Ydbi are insureds under the
Policy, if either so concealed or misrepresented a material fact
on which Kemper relied, neither individual can recover. All
parties stipulated that "Ydbi . . . engaged in concealment and
fraud in his statement[s] to Kemper" about his involvement in the
fire "with the intent to deceive Kemper, and Kemper relied upon
Ydbi's concealment and fraud to its detriment." Applying the
unambiguous language of the "concealment or fraud" condition to
these agreed-upon facts, we conclude that Ydbi——an insured——
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No. 2019AP488
satisfied each element of the Policy's "concealment or fraud"
condition, thereby precluding coverage for Ismet.
¶25 Ismet argues that the Policy's "intentional loss"
exclusion conflicts with the "concealment or fraud" condition,
rendering the latter ambiguous. We disagree. As defined under
the Policy, "intentional loss" means "any act 'an insured' commits
or conspires to commit with the intent to cause a loss." Ydbi's
act of arson, which caused the loss of the Oconomowoc home, meets
this definition. Unlike the "concealment or fraud" condition,
"this exclusion only applies to 'an insured' who commits or
conspires to commit an act with the intent to cause a loss."
(Emphasis added.) Accordingly, Ismet does not lose coverage under
the "intentional loss" exclusion. In contrast, the "concealment
or fraud" condition eliminates coverage not only for the insured
who commits the intentional act causing loss, but for all insureds.
¶26 There is nothing conflicting about these provisions of
the Policy. Each provision simply applies in different
circumstances. In the presence of fraud, no insured can recover
by operation of the "concealment or fraud" condition. When there
is only "intentional loss" without any fraud, the Policy allows
"innocent insureds" to recover by operation of the "intentional
loss" exclusion. It is the role of courts to "construe and enforce
such agreements as made and not make new contracts for the
parties." McPhee, 57 Wis. 2d at 673. "A construction that gives
meaning to every provision of a contract is preferable to an
interpretation that leaves part of the policy without meaning."
Romero, 371 Wis. 2d 478, ¶18; see also 1325 N. Van Buren, LLC v.
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No. 2019AP488
T-3 Grp., Ltd., 2006 WI 94, ¶56, 293 Wis. 2d 410, 716 N.W.2d 822.
In order to give effect to every provision of the Policy, both the
"intentional loss" exclusion and the "concealment or fraud"
condition must be read in harmony. Neither Policy provision
renders the other superfluous or ambiguous. The provisions mean
what they say, and it is the job of this court to apply them. See
Folkmann, 264 Wis. 2d 617, ¶17 ("As a general rule, the language
in an insurance contract is given its common, ordinary meaning,
that is, what the reasonable person in the position of the insured
would have understood the words to mean.") (internal quotations
and citations omitted). Ydbi committed arson, lied to Kemper in
his "Sworn Statement in Proof of Loss" and Examination Under Oath,
and induced Kemper to rely upon his lies. Under the "concealment
or fraud" condition, the Policy provides coverage for "no
insureds"——including Ismet.
¶27 Contrary to Ismet's argument, this court's prior
decision in Hedtcke does not alter this conclusion. According to
Hedtcke, when an exclusion is ambiguous and does not state "whether
the obligations of the insured are joint or several," public policy
dictates allowing innocent insureds to recover. Hedtcke, 109
Wis. 2d at 487-88. In other words, when a provision is unclear as
to whether an insured's obligations are "joint" or "several,"
courts should assume they are "several." Id. The Hedtcke court
declared this rule necessary to "effectuate the public policy that
guilty persons must not profit from their own wrongdoing." Id. at
488.
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No. 2019AP488
¶28 Hedtcke's rule applies when a coverage exclusion is
ambiguous. See id. at 487-88. In this case, the "concealment or
fraud" condition, unlike the contractual provision at issue in
Hedtcke, does specify that the obligations of the insureds are
"joint": "with respect to all 'insureds' covered under this
policy, [Kemper] provide[s] coverage to no 'insureds' for loss" in
the event of concealment or fraud. (Emphasis added.)
¶29 We apply the plain language of the "concealment or fraud"
condition consistent with Wisconsin precedent. In Taryn E.F. by
Grunewald v. Joshua M.C., 178 Wis. 2d 719, 505 N.W.2d 418 (Ct.
App. 1993), the court of appeals gave full effect to the plain
language of a "joint" exclusion, which provided:
"insurance . . . shall not apply to any damages . . . attributable
to . . . any outrageous conduct on the part of any 'insured'
consisting of any intentional, wanton, [or] malicious acts[.]"
Id. at 724. The court held that "[t]his language unambiguously
denies coverage for all liability incurred by each and any
insured." Id. Likewise, in State Farm Fire & Cas. Ins. Co. v.
Walker, 157 Wis. 2d 459, 459 N.W.2d 605 (Ct. App. 1990), the court
of appeals applied the plain meaning of a "concealment or fraud"
clause, which provided as follows: "If you or any other insured
under this policy has intentionally concealed or misrepresented
any material facts . . . , then this policy is void as to you and
any other insured." Id. at 466. According to the Walker court,
the policy provision meant what it said: "the concealment clause
unambiguously denies recovery to an innocent insured when another
insured breaches the concealment clause." Id. at 467. The Walker
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No. 2019AP488
court determined Hedtcke had no bearing on the case because a
"court must not modify clear and unambiguous language" when a
provision plainly expresses a "joint" exclusion. Id. at 471.
"When the terms of a policy are plain on their face, the policy
should not be rewritten by construction to bind the insurer to a
risk it was unwilling to cover, and for which it was not paid."
Id. at 471-72 (citations omitted).
¶30 Just like in Taryn E.F. and Walker, Hedtcke has no
bearing on the insurance contract before us. Because the language
of the "concealment or fraud" condition is plain and unambiguous,
this court must enforce it and public policy considerations may
not rewrite the contract. Ismet lost coverage because "no insured"
may recover when any insured engages in concealment or fraud under
the Policy, as Ydbi did in this case.7
7 Ismet also argues that Ydbi's untruthful statements and
omissions to Kemper, including during his Examination Under Oath
and in his "Sworn Statement in Proof of Loss," collectively
constitute a breach of a promissory warranty. "Condition G" of
the Policy reads: "[N]o breach of a promissory warranty affects
[Kemper's] obligations under this policy unless . . . the breach
exists at the time of loss and either: (a) increases the risk at
the time of loss; or (b) contribute[s] to the loss." According to
Ismet, pursuant to "Condition G," Kemper cannot deny her coverage
under the "concealment or fraud" condition because Ydbi's
concealments occurred after the property loss and therefore did
not increase the risk "at the time of loss" or contribute to the
loss. (continued)
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No. 2019AP488
C. Wis. Stat. § 631.95(2)(f) does not support Ismet's claim.
¶31 As a final matter, Ismet asserts that Wis. Stat.
§ 631.95(2)(f), a statute which may allow "innocent insureds" to
retain coverage that might otherwise be excluded due to intentional
loss resulting from acts or patterns of domestic abuse, preserves
coverage for her loss notwithstanding the "concealment or fraud"
condition. Based on the record before us, this statute does not
apply.
¶32 In relevant part, Wisconsin Stat. § 631.95(2)(f) reads:
An insurer may not[,]. . . [u]nder property insurance
coverage that excludes coverage for loss or damage to
property resulting from intentional acts, deny payment
to an insured for a claim based on property loss or
damage resulting from an act, or pattern, of abuse or
domestic abuse if that insured did not cooperate in or
contribute to the creation of the loss or damage and if
the person who committed the act or acts that caused the
loss or damage is criminally prosecuted for the act or
acts.
We disagree. "Condition G" does not apply. Under Wisconsin
law, a promissory warranty is "[a] warranty that facts will
continue to be as stated throughout the policy period[.]" Fox v.
Catholic Knights Ins. Soc., 2003 WI 87, ¶29, 263 Wis. 2d 207, 665
N.W.2d 181 (quoted source omitted). In essence, promissory
warranties are generally commitments by an insured designed to
minimize the risk of loss, such as a promise that an insured will
not store flammables on insured property. See id., ¶27. Such
risk minimization can occur only before the loss. In this case,
the "concealment or fraud" by Ydbi occurred after the loss. Ydbi's
concealment of his act of arson could not constitute a promissory
warranty because it was not a representation designed to minimize
the risk of loss but rather a fraud on Kemper after the arson
caused the loss.
18
No. 2019AP488
¶33 Under this statute, "'[d]omestic abuse' has the meaning
given in [Wis. Stat.] § 968.075(1)(a)." Wis. Stat.
§ 631.95(1)(c). Under § 968.075(1)(a), "domestic abuse" is
defined as any of four separate actions "engaged in by an adult
person against his or her spouse or former spouse." The four
actions are as follows:
1. Intentional infliction of physical pain, physical
injury or illness.
2. Intentional impairment of physical condition.
3. A violation of s. 940.225(1), (2), or (3).8
4. A physical act that may cause the other person
reasonably to fear imminent engagement in the conduct
described under subd. 1., 2., or 3.
§ 968.075(1)(a).
¶34 Ismet does not claim that Ydbi engaged in any acts
meeting the first three definitions of domestic abuse. Instead,
Ismet contends that Ydbi's act of arson, in and of itself,
constitutes "a physical act that may cause [her] reasonably to
fear imminent engagement in the conduct described" in the preceding
three clauses. While an act of arson may qualify as a "physical
act" under the fourth definition of "domestic abuse," Ismet fails
to identify any evidence in the record establishing that she
"reasonably . . . fear[ed] imminent engagement" in the sort of
bodily harm described in this statute. In particular, there is no
evidence that Ydbi started the fire to harm Ismet; in fact, Ismet
8 All three of these subsections of Wis. Stat. § 940.225involve sexual assault.
19
No. 2019AP488
was overseas in North Macedonia when the arson occurred——a fact
indisputably known by Ydbi.
¶35 Ismet does not point to any evidence in the record that
she reasonably feared for her safety. Her affidavit contains no
statements of fact related to any fears regarding Ydbi, or any
past or ongoing instances of physical or sexual abuse by Ydbi.
Instead, Ismet mentions only Ydbi's past criminal actions over 25
years ago against other individuals. Wisconsin Stat.
§ 631.95(2)(f) says the property loss must "result" from an act of
domestic abuse, as it is defined in that statute. (Emphasis
added.) In the absence of evidence sufficient to satisfy that
definition, the statute cannot apply to restore coverage. When
opposing a motion for summary judgment, the party "is obligated to
submit materials . . . to counter the submissions of the moving
party. It is not enough to simply claim that the moving party's
submission should be disbelieved or discounted." Dawson v.
Goldammer, 2006 WI App 158, ¶31, 295 Wis. 2d 728, 722 N.W.2d 106(internal quotations omitted). Pursuant to § 631.95(2)(f) and our
well-settled standard for summary judgment, Ismet was required to
present at least some evidence connecting the arson and resulting
property loss to her fear of imminent bodily harm. See Bd. of
Regents of Univ. of Wisconsin Sys. v. Mussallem, 94 Wis. 2d 657,
673, 289 N.W.2d 801 (1980) ("[T]he party in opposition to the
motion [of summary judgment] may not rest upon the mere
allegations or denials of the pleadings, but must, by affidavits
or other statutory means, set forth specific facts showing that
there exists a genuine issue[.]"). Her failure to do so defeats
20
No. 2019AP488
the application of § 631.95(2)(f), and the "concealment or fraud"
condition precludes coverage.
IV. CONCLUSION
¶36 We conclude the circuit court properly granted Kemper's
motion for summary judgment. Ydbi is an insured under the terms
of the Policy and because he "concealed or misrepresented" a
material fact, "with intent to deceive" and upon which Kemper
relied, the Policy's "concealment or fraud" condition precludes
coverage for Ismet. Wisconsin Stat. § 631.95(2)(f) does not
override the operation of that condition because the record lacks
any evidence to establish that Ydbi's arson constituted "domestic
abuse" against Ismet, as statutorily defined. Accordingly, we
affirm the decision of the court of appeals.
By the Court.—The decision of the court of appeals is
affirmed.
21
No. 2019AP488.jjk
¶37 JILL J. KAROFSKY, J. (dissenting). "If we are to fight
discrimination and injustice against women we must start from the
home for if a woman cannot be safe in her own house then she cannot
be expected to feel safe anywhere."1 First and foremost, this case
is about domestic abuse. The majority errs in concluding the
record in this case "lacks any evidence showing Ydbi's arson
constituted 'domestic abuse' against Ismet, as statutorily
defined." Majority op., ¶3. This erroneous determination——that
there is no genuine issue of material fact regarding whether Ydbi's
actions constitute domestic abuse——is based on a misreading of the
plain statutory language of Wis. Stat. § 968.075(1)(a)4.
¶38 In misconstruing Wis. Stat. § 968.075(1)(a)4., the
majority creates four new hurdles for domestic violence victims
seeking recovery under their insurance policies, pursuant to Wis.
Stat. § 631.95, for property destroyed by their abusers. According
to the majority's analysis, in order to establish domestic abuse,
a victim must: (1) show her fear; (2) disclose past or ongoing
instances of physical or sexual abuse; (3) prove her abuser's
motive; and (4) be physically present at the crime scene when the
crime occurs. These requirements have no basis in the statutory
language of § 968.075(1)(a)4., and by failing to follow the
statutory text, the majority denies Ismet——an "innocent insured"—
—the very insurance coverage § 631.95 was created to protect.
1 Aysha Taryam, http://raptreveries.blogspot.com/2015/10/
its-time-for-law-against-domestic.html (last visited June 2,
2021).
1
No. 2019AP488.jjk
Because the majority misreads the statute and creates new
requirements in order for victims to receive insurance coverage,
I must dissent.2
¶39 I begin this dissent with a succinct discussion of the
relevant facts. Next, I analyze the plain and unambiguous language
of Wis. Stat. § 631.95(2)(f), which prohibits insurance companies
from discriminating against victims of domestic abuse, and Wis.
Stat. § 968.075(1)(a), which defines domestic abuse. I also
summarize the context in which the legislature drafted these
statutes. I conclude by addressing the majority's failed analysis.
I. FACTUAL BACKGROUND
¶40 Ismet and Ydbi Islami were married in 1978.
Approximately ten years later, Ydbi was convicted of stalking and
second-degree sexual assault of a child, for which a judge
sentenced him to three years in prison and ordered him to register
as a sex offender. Ismet's distress over Ydbi's criminal conduct
led her to file for a legal separation in 1998.
¶41 Under the terms of the legal separation, Ismet became
the sole title owner of the Islamis' Oconomowoc home and the sole
named insured in a homeowner's policy issued by Kemper Insurance.
The homeowner's policy contained exclusions if an insured
intentionally engaged in "fraud or concealment" by conspiring or
committing the act that caused the loss, or by concealing or
misrepresenting any fact upon which Kemper could rely to address
a claim.
2This dissent only reaches the domestic abuse issue raised
by Ismet since that issue is dispositive.
2
No. 2019AP488.jjk
¶42 On June 10, 2013, while Ismet was in North Macedonia,
Ydbi burned her house to the ground, destroying all that was
inside. Ydbi then lied to Kemper, denying any knowledge about the
arson. Ultimately, an investigation revealed that Ydbi was solely
responsible. Ydbi was charged and convicted of arson, and
sentenced to prison.
¶43 Kemper denied coverage to Ismet for her house and
belongings damaged in the fire because Ydbi violated the
"concealment or fraud" provision of the insurance policy when he
lied about the arson. The circuit court granted summary judgment
to Kemper, concluding there was no genuine issue of material fact
regarding the applicability of Wis. Stat. § 631.95(2)(f), and the
court of appeals affirmed.
II. WISCONSIN STAT. §§ 631.95(2)(f) AND 968.075(1)(a)
¶44 Ismet's situation is not unique. In 1982, this court
recognized how the suffering of domestic abuse victims is
compounded when their property is destroyed through arson and yet
insurance companies deny their claims. See Hedtcke v. Sentry Ins.
Co., 109 Wis. 2d 461, 488, 326 N.W.2d 727 (1982) ("An absolute bar
to recovery by an innocent insured is particularly harsh in a case
in which the arson appears to be retribution against the innocent
insured. Having lost the property, the innocent insured is
3
No. 2019AP488.jjk
victimized once again by the denial of the proceeds forthcoming
under the fire insurance policy.").3
¶45 Insurance companies were engaging in these types of
practices in increasing numbers by the mid-to-late 1990s. As a
result, domestic violence victims were left without homes or any
means to be financially compensated for their losses. "The
immediate impact of this discrimination is to deny battered women
and their families the life necessities that only insurance can
provide." Terry L. Fromson & Nancy Durborow, Insurance
Discrimination Against Victims of Domestic Violence 4, 5 (National
Health Resource Center on Domestic Violence, 2019). To combat
this discrimination, state legislatures, including Wisconsin's,
passed laws to protect domestic violence victims.
3 Strikingly, it is not uncommon for perpetrators of domestic
violence to commit arson. See, e.g., Garrison v. State, 409 P.3d
1209 (Wyo. 2018) (jury convicted defendant on a charge of first-
degree arson for setting fire to his estranged wife's trailer
home); Icenhour v. Cont'l Ins. Co., 365 F.Supp.2d 743 (S.D. W. Va.
2004) (woman, who was victim of long-term domestic abuse by her
husband, was told her by husband that if she took a trip he would
violate a protection order and burn the family home down——when she
left town on the trip, he did just that); State v. Goodman,
30 P.3d 516 (Wash. Ct. App. 2001) (husband, released on bail,
returned to his wife's home and burned it down, killing her dog);
Calhoun v. State, 820 P.2d 819 (Okla. Crim. App. 1991) (husband,
who was prohibited by a restraining order from coming near his
estranged wife, set fire to her dwelling); Moore v. Oklahoma, 736
P.2d 996 (Okla. Crim. App. 1987) (man convicted for the arson of
his estranged wife's residence). There are also a significant
number of legal writings discussing this issue. See, e.g., Brent
R. Lindahl, Insurance Coverage for an Innocent Co-Insured Spouse,
23 Wm. Mitchell L. Rev. 433, 455-56 (1997) ("When a spouse burns
down the marital home, it is often an act of domestic violence or
part of an ongoing pattern of domestic violence, where the arson
is simply the abuser's current weapon of choice. Domestic violence
largely is motivated by the abusive spouse's desire to control and
dominate the other spouse.").
4
No. 2019AP488.jjk
¶46 Wisconsin's response to the discriminatory practices of
insurance companies against victims of domestic abuse was 1999
Wis. Act 95. Codified as Wis. Stat. § 631.95(2)(f), the statute
restricts insurers from denying coverage for property damage
committed as an act of domestic abuse, and is the cornerstone of
this case. Specifically, the statute says:
[A]n insurer may not[,]. . . [u]nder property insurance
coverage that excludes coverage for loss or damage to
property resulting from intentional acts, deny payment
to an insured for a claim based on property loss or
damage resulting from an act, or pattern, of abuse or
domestic abuse if that insured did not cooperate in or
contribute to the creation of the loss or damage and if
the person who committed the act or acts that caused the
loss or damage is criminally prosecuted for the act or
acts.
§ 631.95(2)(f).
¶47 Pursuant to Wis. Stat. § 631.95(2)(f), insurers must
grant coverage when:
 the claim is for property loss or damage;
 the property loss or damage resulted from an act, or
pattern, of abuse or domestic abuse;
 the insured did not cooperate or contribute to creation
of the loss or damage; and
 the person who committed the act that caused loss or
damage is criminally prosecuted.
Relevant to this case is the second prong——whether the "property
loss or damage resulted from an act, or pattern, of abuse or
domestic abuse." The statute allows recovery for a loss or damage
resulting from a single act of domestic abuse, such as an arson,
5
No. 2019AP488.jjk
or from a pattern of domestic abuse. For the definition of
domestic abuse we look to Wis. Stat. § 968.075(1)(a).
¶48 Wisconsin Stat. § 968.075, Wisconsin's mandatory-arrest
statute, was enacted in 1987 in response to the "public perception
of the serious consequences of domestic violence to society and to
individual victims. . . ." 1987 Wis. Act 346, § 1. The legislature
passed this law to ensure that "[t]he official response to cases
of domestic violence stress the enforcement of the laws, protect
the victim and communicate the attitude that violent behavior is
neither excused nor tolerated." Id. The stated purpose of this
law was "to recognize domestic violence as involving serious
criminal offenses and to provide increased protection for the
victims of domestic violence." Id.
¶49 Wisconsin Stat. § 968.075(1)(a) states that "'[d]omestic
abuse' means any of the following engaged in by an adult person
against his or her spouse or former spouse[:]"
1. Intentional infliction of physical pain, physical
injury or illness.
2. Intentional impairment of physical condition.
3. A violation of s. 940.225 (1), (2) or (3).
4. A physical act that may cause the other person
reasonably to fear imminent engagement in the conduct
described under subd. 1., 2. or 3.
The first three definitions of domestic abuse are not at issue in
this case. We are concerned solely with whether Ydbi's arson
constituted domestic abuse under subd. 4.
¶50 There is no dispute that the arson was "a physical act."
This case is focused on whether, at summary judgment, there was a
6
No. 2019AP488.jjk
genuine issue of material fact as to whether Ydbi's arson was an
act that may have caused Ismet to reasonably fear imminent
engagement of bodily harm.
¶51 Of import to our analysis, the legislature used the words
"may" and "reasonably" in Wis. Stat. § 968.075(1)(a)4. to
establish an objective standard. "The word 'reasonable' has a
well-established meaning when used in a legal context. It
generally connotes a 'reasonable-person standard,' a standard that
'has been relied upon in all branches of the law for generations.'"
State v. Nelson, 2006 WI App 124, ¶20, 294 Wis. 2d 578, 718 N.W.2d
168 (quoting City of Madison v. Baumann, 162 Wis. 2d 660, 677-78,
470 N.W.2d 296 (1991)); see Id. (quoting State v. Ruesch, 214
Wis. 2d 548, 563, 571 N.W.2d 898 (Ct. App. 1997))("Significantly,
'reasonable,' or the 'reasonable person standard,' establishes an
objective standard for evaluating conduct.").
¶52 Further establishing an objective standard is the word
"may" in Wis. Stat. § 968.075(1)(a)4., which is an expression of
possibility. "May" is synonymous with "might." See Black's Law
Dictionary 1172 (11th ed. 2019) (defining "may" as "[t]o be
permitted to" and "[t]o be a possibility").4
¶53 In addition to establishing an objective standard, the
legislature used the word "imminent" to qualify "engagement of
4This objective standard is also an important component of
domestic abuse statutes because "[i]t can be difficult for someone
to admit that they've been or are being abused. They may feel
that they've done something wrong, that they deserve the abuse, or
that experiencing abuse is a sign of weakness."
https://www.thehotline.org/support-others/why-people-stay/. In
other words, it can be re-traumatizing for victims to explicitly
say, "I am afraid."
7
No. 2019AP488.jjk
bodily harm." Imminent means "impending" or "threatening." See
Black's Law Dictionary 898 (defining "imminent" as "threatening to
occur immediately; dangerously impending"). Importantly, the word
"imminent" does not means "immediate." Black's Law Dictionary
defines "immediate" as "[o]ccurring without delay; instant." Id.
at 897.
¶54 Reviewing Wis. Stat. § 968.075(1)(a)4. in context
further proves that the two terms are not synonymous. In the same
statute, the legislature used the words "immediate" and
"immediately." See Wis. Stat. § 968.075(2m), (4), (5)(a)1., and
(6). See State ex rel. Kalal v. Circuit Court for Dane Cnty.,
2004 WI 58, ¶46, 271 Wis. 2d 633, 681 N.W.2d 110 ("[S]tatutory
language is interpreted in the context in which it is used; not in
isolation but as part of a whole; in relation to the language of
surrounding or closely-related statutes . . . ."). This context
shows us that the legislature knew how to use the word "immediate."
"When the legislature uses different terms in a statute——
particularly in the same section——we presume it intended the terms
to have distinct meanings." Johnson v. City of Edgerton, 207
Wis. 2d 343, 351, 558 N.W.2d 653 (Ct. App. 1996).
III. THE MAJORITY'S FAILED ANALYSIS
¶55 With these statutes, and their purpose of ensuring
financial recovery for innocent domestic abuse victims, in mind,
I turn to the majority's analysis. The majority incorrectly
concludes that "the record lacks any evidence showing Ydbi's arson
constituted 'domestic abuse' against Ismet, as statutorily
defined." Majority op., ¶3. In reaching this conclusion, the
8
No. 2019AP488.jjk
majority creates four new hurdles for Ismet and other domestic
violence victims seeking recovery under their insurance policies
for property destroyed by their abusers. According to the
majority's analysis, in order to establish domestic abuse, a victim
must:
1. Show actual fear for his or her safety. Majority op.,
¶¶34-35;
2. Disclose past or ongoing instances of physical or
sexual abuse. Id., ¶35;
3. Prove the motive of his or her abuser. Id., ¶34;
4. Be present at the scene of the crime when the crime
occurs. Id.
I address each new requirement in turn.
¶56 The majority creates its first hurdle for victims by
determining that a domestic violence victim must show actual fear
in order to establish domestic abuse. According to the majority,
Ismet fails to "identify any evidence in the record establishing
that she 'reasonably . . . fear[ed] imminent engagement' in the
sort of bodily harm described in [Wis. Stat. § 968.075]." Majority
op., ¶34. The majority asserts that a domestic violence victim
must present evidence to demonstrate that she actually feared
imminent engagement of bodily harm. Section 968.075(1)(a)4.
plainly does not require a victim to so prove. It is important to
repeat, and dispositive here, that in using the language "may cause
the other person reasonably to fear," the legislature wrote the
statute with an objective standard. The use of the word "may"
indicates that the act must be of a kind that the result of
reasonable fear is possible; it does not require that fear to be
9
No. 2019AP488.jjk
realized, much less proven. In addition, "imminent" means
forthcoming or threatening. So the question is, "Might [or may]
arson cause a person in Ismet's position to reasonably fear harm
was forthcoming?"
¶57 What matters here is whether the arson was an act that
could have caused Ismet to reasonably experience fear. The focus
of this statutory text is the nature of the abuser's arson, not
the victim's actual response subsequent to that act. To hold
otherwise is to create two classes of innocent insured domestic-
abuse victims: those whose abusers were, in fact, successful at
terrorizing their victims, who may recover; and those whose
abusers' violent or destructive acts may not have yielded some
factual indicia of their victims' fear, who are denied recovery.
Had the legislature wanted to limit recovery solely to innocent
insureds whose abusers actually caused fear, it certainly could
have done so. State v. Shirley E., 2006 WI 129, ¶44, 298 Wis. 2d
1, 724 N.W.2d 623; see also United America, LLC v. Wisconsin Dept.
of Transp., 2021 WI 44, ¶31, ___Wis. 2d ___, ___N.W.2d ___(Rebecca
Grassl Bradley, J., dissenting) ("Had the legislature wanted to
limit the meaning of "damages" solely to 'structural
damages,' . . . it certainly could have.").
¶58 When we apply the correct objective standard to this
case, it is clear that there is enough in the record for the
question of whether the arson may have caused a person in Ismet's
position to reasonably fear imminent harm to go before a jury.
The record shows that in 1989, Ydbi was convicted of sexual assault
and stalking. As a result of these convictions, a judge sentenced
10
No. 2019AP488.jjk
him to prison and ordered him to register as a sex offender. These
facts alone "may cause a person to reasonably fear imminent harm."
Certainly the State was concerned about Ydbi's conduct; the judge
sentenced him to prison and ordered him to comply with the sex-
offender registry. And the record indicates that because of Ydbi's
violent criminal history, Ismet sought a divorce——but for
religious reasons, she obtained a legal separation instead——in an
attempt to begin extricating her life from Ydbi's. The record
further establishes that Ydbi continued engaging in criminal
conduct when he burned down Ismet's house, destroying not only her
home but all the belongings, keepsakes, and memories inside. In
summary, the arson combined with Ydbi's past criminal record is
more than enough evidence for the question of whether a reasonable
person in Ismet's position would reasonably fear imminent harm to
go to a jury.
¶59 The majority places a second hurdle in front of domestic
violence victims by requiring an averment about "any past or
ongoing instances of physical or sexual abuse by [an abuser]."
Majority op., ¶35. As noted above, Wis. Stat. § 968.075(1)(a)4.
does not require a subjective assessment. In this instance, Ismet
does not have to aver instances of physical or sexual abuse because
the statute is satisfied once she establishes that Ydbi's actions
may cause a person in her position to reasonably fear imminent
harm.
¶60 Additionally, forcing victims to disclose violence only
perpetuates the isolation, shame, and fear many domestic violence
victims experience. Often, victims are reluctant to share their
11
No. 2019AP488.jjk
experiences of abuse even with those closest to them. See Sarah
M. Buel, Fifty Obstacles to Leaving, A.K.A., Why Abuse Victims
Stay, 28 Colo. Law. 19 (1999) ("Shame and embarrassment about the
abuse may prevent the victim from disclosing it or may cause her
to deny that any problem exists when questioned by well-intentioned
friends, family, co-workers, or professionals.").
¶61 The majority's third hurdle for domestic violence
victims is the new requirement that they must prove the motive of
their abusers. The majority asserts that Ismet did not establish
that she was the victim of domestic abuse because she failed to
show that there was "evidence that Ydbi started the fire to harm
Ismet." Majority op., ¶34. This is an inexplicable requirement
for two reasons. First, the majority fails to cite any legal basis
for the proposition that a victim must prove the motive of her
abuser. Second, the majority sets for Ismet the impossible task
of proving by direct evidence what was in Ydbi's mind.
¶62 The final hurdle which the majority sets for domestic
violence victims is the requirement that a domestic violence victim
must be physically present at the scene of the crime when it occurs
in order to establish domestic abuse. The majority concludes that
Ismet was not a domestic violence victim because she was in North
Macedonia, rather than Oconomowoc, when Ydbi committed the arson.
Id. According to the majority's flawed reasoning, victims cannot
reasonably fear imminent harm if they are not in close proximity
to the crime scene at the time the crime occurs.
¶63 As explained above, Wis. Stat. § 968.075(1)(a)4. does
not require actual bodily harm or that the victim actually be
12
No. 2019AP488.jjk
physically present at the crime scene. Additionally, the majority
conflates the words "imminent" and "immediate" despite the terms
having different meanings. As discussed above, the word "imminent"
means "threatening to occur immediately; dangerously impending."
This meaning is consistent with the legislature's use of the word
"may" in the statute; the requisite act is one that carries with
it the possibility of future abuse. The majority fails to explain
how geographical distance means someone might not reasonably fear
imminent harm.5
¶64 In conclusion, the majority creates new hurdles for
domestic violence victims. It requires that a victim must: show
her fear; disclose past or ongoing instances of physical or sexual
abuse; prove her abuser's motive; and be physically present when
the crime against her is committed. The majority places
formalistic requirements on the actions and behavior of domestic
abuse victims in the wake of their abuse that have no basis in the
language of Wis. Stat. § 968.075(1)(a). And in doing so, it
concludes that because Ismet: (1) did not say, "I am afraid;" (2)
did not state, "I am the victim of physical or sexual abuse;" (3)
5At what point Ismet learned that Ydbi committed the arson,
and whether it may have been reasonable for her to fear Ydbi at
that time, are determinations for a fact-finder.
13
No. 2019AP488.jjk
did not prove Ydbi's motive; and (4) was not home when Ydbi set
fire to her home, she must not be a victim at all.6
¶65 In erroneously and inexplicably concluding that the
record lacks any evidence showing Ydbi's act constituted domestic
abuse, and affirming the circuit court's grant of summary judgment
to Kemper, the majority "implicitly imputes the guilt of the
arsonist to the innocent insured." Hedtcke, 109 Wis. 2d at 488.
¶66 For the foregoing reasons, I must dissent.
¶67 I am authorized to state that Justices ANN WALSH BRADLEY
and REBECCA FRANK DALLET join this dissent.
6 What if, instead of viewing people who've been abused as
weak, we began to celebrate the strength it takes to persevere
while overcoming the harm that was placed on them by someone who
was supposed to love and care for them? What if, instead of
accepting the myth that there's something wrong with people who
were abused, we place full responsibility and accountability for
the abuse on the people who perpetrate it?
Christine E. Murray, Triumph over Abuse: Healing, Recovery,
and Purpose after an Abusive Relationship (2020).
14
No. 2019AP488.jjk
1