MADISON, Wis. (CN) — A Wisconsin woman whose estranged husband burned down their house will not receive insurance coverage for the loss, thanks to a narrow decision issued Tuesday by the state’s high court.
The Wisconsin Supreme Court ruled 4-3 in favor of Ismet Islami’s insurer Kemper Independence Insurance Company, finding that her separated spouse was still an insured under her home insurance policy even though he was not a named insured or an owner of the home. It also found that arson the husband committed was not domestic abuse and therefore a state law requiring coverage for such incidents did not apply.
Islami and her husband Ydbi were separated in 1998, but Ydbi put Ismet’s house in the village of Lac La Belle to the torch in 2013 while she was on vacation in her native Macedonia. During Kemper’s investigation of the fire, Ydbi lied under oath about his involvement in the fire, only for Kemper to discover his deception and deny coverage. Ydbi was criminally charged for the arson soon afterward.
Kemper filed suit in December 2013 seeking a declaration of no coverage. A judge in Waukesha County Circuit Court granted summary judgment to the insurance company, leading Ismet to appeal, arguing that the separation meant Ydbi was not her spouse and that his actions were part of a pattern of domestic abuse.
The Wisconsin Court of Appeals reluctantly affirmed, with Judge Jeffrey Davis writing that “although our decision results in a loss of coverage to one who the parties agree — and we have no reason to doubt— is an innocent insured, this court is not authorized to rewrite the terms of the agreed-upon policy.”
That led to arguments before the Wisconsin Supreme Court in February, in which the three justices in the court’s liberal bloc showed skepticism of Kemper’s arguments.
“What would you need to see in order for you to be convinced there was domestic abuse?” Justice Jill Karofsky asked. “I certainly hope that in 2021 we’re not going to require women to show up in court with black eyes.”
Karofsky penned a dissent to the court's decision Wednesday. In the majority opinion, Justice Rebecca Bradley wrote that none of Ydbi’s conduct qualified as domestic abuse.
“While an act of arson may qualify as a ‘physical act’ under the fourth definition of ‘domestic abuse,’” Bradley wrote, the record did not reflect that Ismet feared bodily harm from Ydbi. “In particular, there is no evidence that Ydbi started the fire to harm Ismet; in fact, Ismet was overseas in North Macedonia when the arson occurred.”
Because the statute covers only infliction of pain, injury or illness, impairment of physical condition or a physical act that could reasonably cause fear of those, Bradley said, Ydbi’s arson did not qualify.
Karofsky wrote of a sharply different understanding of that statute and the Islamis’ situation in her dissent.
“First and foremost, this case is about domestic abuse,” she wrote. She added that Ismet did not need to demonstrate that she feared bodily harm for the arson to qualify as an act that “may cause [Ismet] reasonably to 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,” she wrote. “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.”
Ismet’s attorney, Joseph Owens of New Berlin, Wisconsin, said the decision was a disappointing resolution to nearly eight years of work on the case. He said the politics of the right-leaning court had outweighed common sense.
“Clearly there is a division in the Supreme Court between corporate and property interests and individual rights, exemplified by this opinion," Owens said in an interview.
He also warned that the court’s finding that the Islamis were still married at the time of the fire, despite an order of separation, could wreak havoc on separations around the state. Commonly used by people whose religion forbids divorce, including Muslims like the Islamis but also certain denominations of Christianity and Judaism, an order of separation has historically provided a legal alternative, he said.
“This decision stands that on its ear,” Owens said. “What does the judgment of legal separation mean now?"
"If your ex-spouse gets killed in an auto accident, are you the surviving spouse on their life insurance? I guess you are now. You weren’t yesterday,” he quipped.
Peter Carstensen, a professor at the University of Wisconsin’s law school with experience teaching insurance law, said he wasn’t confident about that evaluation, since the Islamis were living together at the time of the arson. He agreed, however, that the case could be a stepping-stone to more cases weakening the power of legal separations.
“If courts wanted to cut back on the use of separations, this would be the kind of case you’d cite,” he said. “What I suspect is that well-counseled couples who are going through a separation….. If they’re well-counseled, they’ll develop a more complex contract defining their relationship. It will be her house, he will be a tenant, or it will be his house, she will be a tenant.”
Carstensen called the ruling “troublesome” in that respect, and said he was still more concerned about the narrow interpretation of the domestic-violence statute.
“It almost certainly was abuse. It was meant to inflict financial harm on her,” he said. “The scholarship in that area, which goes back 15, 20 years now, is that one of the ways an abusive spouse inflicts harm is by destroying marital property, or the property of the targeted spouse, as a way of making him or her even more dependent on the other spouse or just inflicting harm.”
That state lawmakers hadn’t targeted property damage specifically, he said, was their error.
“The big news for this case is just what a lousy job the legislature did to protect abused spouses,” he said. “I would hope that the groups that care about, and are concerned with, spousal abuse would focus in on how the narrow statutory language has denied [Ismet] compensation for an economic loss for which she is, as far as I can tell, completely innocent.”
Attorneys for Kemper did not respond to a request for comment Tuesday afternoon.
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