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COURT OF APPEALS DECISION DATED AND RELEASED NOVEMBER 12, 1996 |
NOTICE |
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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(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-1497
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
GENERAL CASUALTY
COMPANY
OF WISCONSIN,
Plaintiff-Respondent,
v.
SHERRY L. ANDERSON,
Defendant,
JEFFREY M. ANDERSON,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Douglas County:
MICHAEL T. LUCCI, Judge. Reversed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
CANE, P.J. Jeffrey M. Anderson appeals a summary
declaratory judgment determining that General Casualty Company of Wisconsin,
his insurer, was not obliged to indemnify or defend his personal injury claim
because of the doctrine of fortuity and public policy considerations. The claim at issue is a personal injury
claim alleged by Jeffrey's estranged wife, Sherry, in her amended petition for
divorce.[1]
The incident out of
which the personal injury claim arose occurred on December 22, 1994. Sherry claims that Jeffrey struck her, threw
her to the ground, and dragged her across the floor by the ankles, resulting in
injuries to her. Jeffrey argues that
because he acted in self-defense, General Casualty's policy provision excluding
liability coverage for bodily injury "expected or intended by the insured"
does not apply to his conduct.
Jeffrey sought defense
and indemnification from General Casualty for the personal injury claim. On June 22, 1995, General Casualty filed a
declaratory judgment action against Jeffrey and Sherry, seeking a declaration
of the rights and responsibilities of Jeffrey and General Casualty under the
terms of its homeowners insurance policy with Jeffrey.
The trial court granted
General Casualty's motion for summary judgment, holding that General Casualty
had no duty to indemnify or defend Jeffrey based on the doctrine of fortuity
and public policy considerations.
Jeffrey now appeals the judgment.
He argues that General Casualty had the duty to defend, that the
question of his intent was inappropriately decided by summary judgment, and
that indemnification was not precluded by the principle of fortuity. We agree.
We review summary
judgments de novo, without deference to the trial court. Universal Die & Stampings, Inc. v.
Justus, 174 Wis.2d 556, 560, 497 N.W.2d 797, 799 (Ct. App. 1993). Summary judgment is appropriate only when
"the pleadings, depositions, answers to interrogatories, and admissions on
file, together with the affidavits ... show that there is no genuine issue as
to any material fact and that the moving party is entitled to a judgment as a
matter of law." Section 802.08(2),
Stats. A complaint should be dismissed as legally insufficient only if
it is clear that under no circumstances can the plaintiff recover. Green Spring Farms v. Kersten,
136 Wis.2d 304, 317, 401 N.W.2d 816, 821 (1987). Because there is a genuine issue of material fact as to whether
Jeffrey acted in self-defense, we reverse the judgment.
We first consider
whether there is a disputed issue of material fact. It is undisputed that as Sherry was on her way to Jeffrey's
residence on December 22, she saw his truck parked in a tavern's parking
lot. She went to his residence and
waited until he arrived at approximately 1 a.m. with another woman. The record contains two entirely different
versions of what transpired next.
Jeffrey asserts that
Sherry ran from the house to his truck, verbally confronted the other woman,
and ran back into the house in a rage.
He followed. She knocked over
his Christmas tree and stepped on the ornaments. She then threw herself to the ground, screaming and yelling. He asked her to leave but she refused.
Jeffrey opened his front
door and pulled Sherry from the house by her ankles. She tried to kick him as he pulled her a total distance of five
feet. After she broke a pole lamp in
half over his head and neck, he picked her up from the ground and handed her to
Sherry's sister at the front door.
Sherry slammed the door and broke its glass.
Jeffrey opened the door
and Sherry started to come back into the house, swinging at him. As he put his hands out to stop her,
Sherry's sister pulled her away from the house from behind. Suddenly, Sherry and her sister slipped and
fell outside the door. Sherry was
intoxicated.
Sherry recalls a
different sequence of events. According
to her, when Jeffrey arrived, she and he spoke briefly outside, and then went
inside to talk. Almost immediately,
Jeffrey began to throw her around, causing her head to hit a coffee table and
knocking over the Christmas tree.
As Jeffrey began to drag
her from the house by her ankles, she reached back for the keys she dropped
during the commotion. Jeffrey pushed
her down. As she reached for the keys,
her hand touched the pole lamp. The
lamp hit Jeffrey and his coffee table.
Jeffrey threw Sherry out
the front door. She somehow got her keys
back (she believes her sister retrieved them) and was driven to the
hospital. She was treated for bruises
on her back and hands, and lacerations to her back. The hospital staff photographed the injuries and contacted the
police.
After reviewing the depositions
of Jeffrey and Sherry, the trial court rejected Jeffrey's version. On summary judgment we review the same
proofs as the trial court. It is
evident from the record that the facts of this case are disputed. Jeffrey denies that he threw Sherry on the
floor or out the door. In his
deposition, he denies striking Sherry, and testified that he did not intend to
cause any injury to her, acting only in self-defense. We determine that the facts are disputed and the record supports
competing inferences as to whether Jeffrey acted in self-defense.
The issue is whether
General Casualty's policy provision excluding liability coverage for bodily
injury "expected or intended by the insured" applies to an insured's
act of self-defense. He asserts that he
acted in defense of his property and in person. Jeffrey held a homeowners insurance policy, in his own name and
including liability coverage, with General Casualty at the time of the
incident. Coverage E of the policy's
Section II Liability Coverages provides in part as follows:
If a claim is made or a suit is brought
against an "insured" for damages because of "bodily injury"[2]
or "property damage" caused by an "occurrence"[3]
to which this coverage applies, we will:
1. Pay up to our limit of liability
for the damages for which the "insured" is legally liable. ...
2. Provide
a defense at our expense by counsel of our choice, even if the suit is
groundless, false or fraudulent.
Subsection (2)(f) of
Section II Exclusions provides that personal liability does not apply to bodily
injury to "you" or to an "insured" as defined in the
policy. The policy defines
"you" or "your" as referring to the "named
insured" shown in the Declarations[4]
and the spouse "if a resident of the same household." "Insured" means "you" or
"residents of your household" who are relatives, or certain other
persons under the age of twenty-one.
We review the provisions
of an insurance contract independently of the trial court. American States Ins. Co. v. Skrobis
Painting & Decor., Inc., 182 Wis.2d 445, 450, 513 N.W.2d 695, 697
(Ct. App. 1994). Whether the insured
has a duty to defend is a question of law, which we review de novo. Kenefick
v. Hitchcock, 187 Wis.2d 218, 231, 522 N.W.2d 261, 266 (Ct. App.
1994). The court must construe the
words of the policy as would a reasonable person in the position of the
insured. School District of
Shorewood v. Wausau Ins. Cos., 170 Wis.2d 347, 367, 488 N.W.2d 82,
88-89 (1992). The court must construe
policy exclusions narrowly, and resolve any ambiguities in the policy in favor
of coverage. Smith v. Atlantic
Mut. Ins. Co., 155 Wis.2d 808, 811, 456 N.W.2d 597, 598 (1990).
We conclude that the
allegations of negligence, if proven, give rise to liability coverage for
Jeffrey. General Casualty agreed to
defend a claim "brought against an insured"[5]
for "bodily injury" sustained during an "occurrence"
covered by the policy, even if the claim is "groundless, false, or
fraudulent." Regardless of the
merits of Sherry's allegations, General Casualty has a duty to defend Jeffrey's
claim because the requirements of the provision are met.
We recognize that
General Casualty's policy contained a provision excluding insurance coverage
for bodily injury or property damage which is "expected or intended"
by the insured. However, the exclusion
is inapplicable to acts of self-defense.
See Berg v. Fall, 138 Wis.2d 115, 117, 405 N.W.2d
701, 702 (Ct. App. 1987). "[A]n
insurance policy excluding liability coverage for intentionally caused bodily
injury nonetheless covers privileged acts of self-defense." Id.
We will not interpret an
insurance policy to penalize an insured who has not committed any
wrongdoing. Id. at 121,
405 N.W.2d at 704. "Moreover,
Wisconsin law has long recognized that reasonable acts of self-defense are legally
privileged, not wrongful." Id. The reasonable insured would not expect to
be denied coverage for his or her reasonable acts of self-defense. Id. However, we recognize that the privilege of
self-defense does not permit an actor to use more force than is reasonably
necessary to prevent the harm. "An
unprivileged infliction of bodily harm constitutes the intentional torts of
assault and battery and as such is clearly excluded by the policy
language." Id. at
121-22, 405 N.W.2d at 704.
Because General
Casualty's policy does not expressly exclude bodily injury caused by an act of
self-defense, we conclude that General Casualty has a duty to defend Jeffrey
against Sherry's personal injury claim.
A duty to defend arises when a complaint against the insured alleges
facts, which if proven, would give rise to liability coverage under the terms
of the policy. Grieb v. Citizens
Cas. Co., 33 Wis.2d 552, 557-58, 148 N.W.2d 103, 106 (1967). Although Sherry's amended divorce petition
does not allege that Jeffrey acted in self-defense, the depositions support
such an inference. Therefore, summary
judgment is inappropriate and General Casualty has a duty to defend.
Finally, we consider
whether the doctrine of fortuity applies and precludes General Casualty's duty
to indemnify Jeffrey for the claim. The
trial court decided that the fortuity doctrine applied, and stated, "The
court agrees that to allow coverage by enforcing the homeowners policy in this
case would be contrary to public policy in Wisconsin of deterring and punishing
those who engage in domestic disputes or assaults."
The application of
fortuity to the facts of this case presents a question of law that we review de
novo. See Prosser v. Leuck,
196 Wis.2d 780, 784, 539 N.W.2d 466, 468 (Ct. App. 1995).
[T]he
"principle of fortuitousness" ... is, that insurance covers
fortuitous losses and that losses are not fortuitous if the damage is
intentionally caused by the insured.
Even where the insurance policy contains no language expressly stating
the principle of fortuitousness, courts read this principle into the insurance
policy to further specific public policy objectives including ... (4) maintaining coverage of a scope consistent
with the reasonable expectations of the contracting parties on matters as to
which no intention or expectation was expressed.
Id. at
784, 539 N.W.2d at 467-68 (citation omitted).
Jeffrey asserts that
fortuity does not apply. First, he
states that he has never been found guilty of any charge of domestic abuse or
battery. Second, he argues that the
application of the doctrine of fortuity requires a factual finding that he
acted intentionally, and not in self-defense, and that this is a question of
fact for a jury to determine.
Our supreme court
applied the principle of fortuity in Hedtcke v. Sentry Ins. Co.,
109 Wis.2d 461, 326 N.W.2d 727 (1982), and decided that the intentional act of
an insured joint owner of property is not, as a matter of law, an absolute bar
to recovery under a fire insurance policy by an innocent insured. Id. at 487-88, 326 N.W.2d at
740. Instead, equity demands that the
rights of innocent insureds should be viewed in light of the circumstances of
the case and existing public policy concerns.
Id.
Subsequent cases have
carved out exceptions to the rule established in Hedtcke. In K.A.G. v. Stanford, 148
Wis.2d 158, 434 N.W.2d 790 (Ct. App. 1988), we decided that the intentional act
exclusion applied because the intent to harm could be inferred as a matter of
law from the insured's intentional act of sexual assault. Id. at 164, 434 N.W.2d at 793. In Hagen v. Gulrud, 151 Wis.2d
1, 442 N.W.2d 570 (Ct. App. 1989), we decided as a matter of law that coverage
for injures sustained by the victim of the insured's act of sexual assault did
not exist because such coverage was not within the reasonable expectations of
the insured and the insurer. Id.
at 7, 442 N.W.2d at 573.[6] Additionally, we stated, "We deem it good public policy to deter
sexual assaults ... [The insurer and the insured] would cringe at the very
suggestion that they were buying and selling sexual assault insurance." Id.
The issue in Prosser
was whether fortuity barred insurance coverage for the negligent acts of a
juvenile. As Leuck and two other minors
played with fire in a warehouse they had broken into, their gasoline can
ignited. Id. at 783, 539
N.W.2d at 467. Leuck kicked it through
a hole in the floor to the first floor of the warehouse, resulting in extensive
fire damage. Id.
We held that fortuity
did not preclude coverage because the damage was within the reasonable
expectations of the insurer and the insured, and, based on the jury's findings,
the damage was not intentional. Id.
at 786, 539 N.W.2d at 468. We described
Leuck's conduct as "far removed from the intentional criminal acts of
sexual assault and murder." Id.
The difference between
this case and K.A.G and Hagen is that in those
cases, the perpetrators had already been convicted of the intentional criminal
acts of sexual assault. In Prosser,
a jury had already found Leuck's conduct to be negligent, rather than
intentional.
Here, there has been an
inference by the court, but no factual determination, that Jeffrey acted
negligently or intentionally and with the intent to harm Sherry. Summary judgment procedure precludes the
resolution of factual issues. State
Bank of La Crosse v. Elsen, 128 Wis.2d 508, 515-16, 383 N.W.2d 916,
917-18 (1986). In the instant case,
there has been no determination as to whether Jeffrey acted in
self-defense. In contrast to
intentionally abusive and assaultive conduct, causing damage in a self-defense
situation may be within the reasonable expectations of the contracting parties. See Hagen, 151 Wis.2d
at 7, 442 N.W.2d at 573.
Until a trier of fact
hears and resolves the issue of whether Jeffrey acted in self-defense, a
determination that the doctrine of fortuity applies is premature. We therefore conclude that the court erred
when it applied the doctrine of fortuity to the disputed facts of this case.
By the Court.—Judgment
reversed.
Not recommended for
publication in the official reports.
[1]
The "complaint" in this case is Sherry's amended divorce
petition, in which she asserted injuries from the following claim of battery:
[O]n or about December 23, 1994,
the respondent intentionally and with malice struck the petitioner, threw
petitioner to the ground, dragged her by the ankles for some distance and
repeatedly, after that, picked her up and threw her to the ground, all with
intent to cause petitioner bodily harm and without petitioner's consent.
In the alternative, Sherry asserted a cause of action in negligence, alleging that Jeffrey "negligently caused petitioner to fall to the floor and negligently dragged her out of the house," resulting in injuries to her. We recognize that it is extremely unusual for a personal injury claim to arise within a divorce petition. However, because neither party raised the issue of whether this is procedurally appropriate, we do not address this potential issue.
[2] The policy defines "bodily injury" as "bodily harm, sickness or disease, including required care, loss of services and death that results."
[3] The policy defined "occurrence" as "an accident, including continuous or repeated exposure to substantially the same general harmful conditions, which results, during the policy period, in: a. 'Bodily injury;' or b. 'Property damage.'"
[5] Although Sherry is Jeffrey's spouse, she is not "an insured" because she neither resides in the same household as Jeffrey, nor is she named on the policy. At the time of the incident, Anderson and Sherry had been living apart for approximately two years. He lived at their residence in Brule, and she lived in their residence in Superior.
[6] In Ramharter v. Secura Ins., 159 Wis.2d 352, 463 N.W.2d 877 (Ct. App. 1990), the insured killed his wife and then took his own life. The plaintiff who asserted damages had witnessed the murder-suicide. As in K.A.G. v. Stanford, 148 Wis.2d 158, 434 N.W.2d 790 (Ct. App. 1988), and Hagen v. Gulrud, 151 Wis.2d 1, 442 N.W.2d 570 (Ct. App. 1989), the court concluded that coverage for such conduct was not within the reasonable expectations of the contracting parties. Ramharter, 159 Wis.2d at 356, 463 N.W.2d at 879.