COURT OF APPEALS DECISION DATED AND RELEASED December 27, 1996 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-1430-FT
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
JEROME G. MUELLER,
Plaintiff-Respondent,
v.
ROGER M. JAMES,
RICHARD MAURICE
and JUNE MAURICE,
d/b/a GEE O'S GOOD
TIME SALOON,
Defendants-Respondents,
STETTIN MUTUAL
INSURANCE COMPANY,
Intervenor-Defendant-Appellant.
APPEAL from an order of
the circuit court for Vilas County:
JAMES B. MOHR, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER
CURIAM. Stettin Mutual Insurance Company appeals an order
concluding that it has a duty to defend Roger James in a battery action filed
by Jerome Mueller.[1] The trial court ruled that James's answer
and affidavit create a prima facie case of self-defense and that Stettin must
defend James if James was acting in self-defense. Stettin argues that its duty to defend depends solely on the
allegations contained within the four corners of Mueller's complaint and
without reference to extrinsic evidence.
Stettin also argues that it should not be required to defend when its
insured alleges self-defense because there is no circumstances in which Stettin
would be required to pay money damages.
Because these arguments were rejected in Berg v. Fall, 138
Wis.2d 115, 405 N.W.2d 701 (Ct. App. 1987), and there is no basis for modifying
or distinguishing Berg, we affirm the order requiring Stettin to
defend James.
James and Mueller were
both patrons of a tavern in which a fight took place. Mueller's complaint states that James intentionally and violently
kicked and punched his face and body.
James's answer and affidavit state that he struck Mueller in
self-defense after Mueller swung at him.
In Berg,
the court rejected both of the arguments Stettin raises in this appeal. There, the insurance company claimed that
its decision to defend should be based solely on the allegations contained in
the complaint. This court rejected that
argument, concluding that when an examination of the complaint discloses no
duty to defend, an insurer possessed of other knowledge that would give rise to
a duty to defend cannot ignore that information. Because a complaint would never allege that the defendant acted
in self-defense, it is only reasonable to look beyond the complaint to
determine the question of insurance coverage.
In Berg,
the insurance company also argued that it had no duty to defend because the
policy did not cover bodily injury expected or intended by the insured (battery),
and could not result in judgment against the insurance company because there
would be no liability if the insured acted in self-defense. The court rejected that argument. When the validity of a defendant's acts
cannot be determined until trial has been completed, an insurance company
cannot use the expected result of the trial as justification for its failure to
defend its insured. Unless the
privileged act of self-defense is specifically excluded from coverage by the
language of the insurance policy, the policy is ambiguous with respect to
providing a defense for an insured acting in self-defense and the ambiguity
must be construed against the insurer. Id.
at 121, 405 N.W.2d at 704.
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.