2005 WI App 186
court of appeals of wisconsin
published opinion
Case No.: |
2004AP2177 |
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Complete Title of Case: |
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Edward Baumann and Elite
Protection Specialists, LLC, Plaintiffs, v. Matthew F. Elliott and Security
Arts Corporation, Defendants-Appellants, Cincinnati Insurance Company, Intervenor-Respondent. |
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Opinion Filed: |
July 20, 2005 |
Submitted on Briefs: |
May 16, 2005 |
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JUDGES: |
Anderson, P.J., Brown and Nettesheim, JJ. |
Concurred: |
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Dissented: |
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Appellant |
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ATTORNEYS: |
On behalf of the defendants-appellant, the cause was submitted on the briefs of Joseph J. Voelkner of Olsen, Kloet, Gunderson & Conway of Sheboygan. |
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Respondent |
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ATTORNEYS: |
On behalf of the intervenor-respondent, the cause was submitted on the brief of Stephanie L. Dykeman of Litchfield Cavo of Brookfield. |
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2005 WI
App 186
COURT OF APPEALS DECISION DATED AND FILED July 20, 2005 Cornelia G. Clark Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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Appeal No. |
Cir. Ct. No.
2003CV3122 |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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Edward Baumann and Elite
Protection Specialists, LLC, Plaintiffs, v. Matthew F. Elliott and Security
Arts Corporation, Defendants-Appellants, Cincinnati Insurance Company, Intervenor-Respondent. |
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APPEAL from an order of the circuit court for Waukesha County: Jacqueline r. erwin, Judge. Affirmed.
Before Anderson, P.J., Brown and Nettesheim, JJ.
¶1 BROWN, J. This case comes to us on summary judgment. The court found that an insurer had no duty to indemnify its insured or to provide him with a defense in an action for defamation of character because the policy required an “occurrence” to trigger coverage for “personal injury.” The defendant claims the court should have limited its duty-to-defend analysis to the “four corners” of the plaintiff’s complaint and that even if the policy does not cover the allegations in the complaint, we should read coverage into his policy because coverage limited to “accidental” defamation is illusory. We hold that a court need not confine itself to the “four corners” of a plaintiff’s complaint when deciding whether an insurance policy requires an insurer to defend the policyholder where it has already determined that the insurer has no duty to indemnify. The duty to defend exists only where coverage remains fairly debatable, and no debate remains once the court has resolved the coverage issue. We further hold that the “four corners” analysis may look to the ad damnum clause for clarification of the factual allegations where the allegations are otherwise sufficient to state a claim. Finally, we conclude that “negligent defamation” is not a contradiction in terms and Wisconsin law recognizes the possibility of recovery by a plaintiff even where the defendant does not deliberately and intentionally defame the plaintiff. For these reasons, we affirm.
¶2 Edward Baumann, the Chief of Police of the Village of Pewaukee,[1] and his security firm, Elite Protection Specialists, LLC (EPS), filed a complaint on December 23, 2003, against Matthew F. Elliott and Security Arts Corporation (SAC), Elliott’s competing business. The complaint also named Elliott’s insurer, later identified as Cincinnati Insurance Company (Cincinnati). The complaint stated three causes of action against the defendants: (1) tortious interference with contracts and prospective contracts, (2) defamation, and (3) threats to injure or accuse of a crime.
¶3 The pertinent allegations in the complaint read:
JURISDICTION
AND VENUE
….
10. [T]he acts committed by Defendant, Elliott and SAC were published in new[s] media primarily circulated in Waukesha County….
FIRST CAUSE OF ACTION:
TORTIOUS INTERFERENCE
11. Paragraphs 1 th[r]ough 10 are hereby incorporated by reference as if set forth at length.
….
14. That EPS entered into contracts and had prospective contracts with various entities to provide security services for special events, including, but not limited to events such as, Summerfest and the Harley-Davidson 100th Anniversary Celebration.
15. The Defendant, Elliott interfered with the said contracts and prospective contracts, by intentionally interfering with the relationship between EPS and their prospective clients. Further, Defendant, Elliott acting as an agent for SAC intentionally interfered with the relationship between EPS and their prospective clients.
16. That the intentional interference by Elliott and SAC resulted in EPS suffering damages for unrealized revenues and profits, along with damages to its reputation and marketability in the marketplace.
….
SECOND CAUSE OF ACTION:
DEFAMATION
19. Paragraphs 1 th[r]ough 18 are hereby incorporated by reference as if set forth at length[.]
20. That Defendants, Elliott and SAC made false, defamatory statements to persons other than the Plaintiff, Baumann, that were not privileged, that directly and proximately harmed Baumann’s reputation, thereby deterring third parties for [sic] associating and conducting business with Baumann and EPS.
21. That Defendants, Elliott and SAC made false, defamatory statements to persons other than the Plaintiff, EPS, that were not privileged, that directly and proximately harmed EPS’s reputation, thereby deterring third parties for [sic] associating and conducting business with Baumann and EPS.
22. That the Defendants[’] false defamatory comments include, but are not limited to, allegations that Plaintiff Baumann abused his public office, as police chief of Pewaukee. That EPS and Baumann personally, were taking cash payments for rendering security services. And that, EPS and Baumann was [sic] having its employees perform their EPS duties in police issued uniforms.
….
THIRD CAUSE OF ACTION[:]
THREATS TO INJURE OR ACCUSE OF CRIME
25. Paragraphs 1 th[r]ough 24 are hereby incorporated by reference as if set forth at length.
26. That Defendant, Elliott, maliciously threatened and accused Plaintiff, Baumann of a crime and threatened injury to Baumann’s profession, intentionally and specifically for his own pecuniary advantage, contrary to Wis. Stat. § 943.30.
….
28. That Defendant, SAC, through its agent,
Elliott, maliciously threatened and accused Plaintiff, Baumann of a crime and
threatened injury to Baumann’s profession, intentionally and specifically for
his own pecuniary advantage, contrary to Wis. Stat. § 943.30.
¶4 Elliott
tendered the defense of the matter to Cincinnati. Cincinnati assigned counsel to defend Elliott but did so under a
reservation of rights. Cincinnati’s
answer to the complaint denied that its policy provided coverage, and
Cincinnati subsequently moved for summary judgment.
¶5 The
motion sought a declaration that Cincinnati had no duty to defend or indemnify
Elliott. Cincinnati relied on language
in its policy. Coverage E provides for
coverage and a duty to defend “[i]f a claim is made or a suit is brought
against any ‘insured’ for damages because of … ‘personal injury’ … arising out
of an occurrence to which this coverage applies.” The policy defines “personal injury” in relevant part as “injury
to others arising out of libel, slander, defamation of character.” It defines “occurrence” as “an accident,
including continuous or repeated exposure to substantially the same general
harmful conditions, which results, during the policy period, in … ‘personal
injury.’” Cincinnati explained that although the complaint alleges defamation,
a “personal injury” which the policy covers, it did not allege an “occurrence,”
which is required in order to trigger personal injury coverage. Occurrences, it asserted, do not include
knowing, intentional defamation, as alleged in the complaint.
¶6 Elliott
did not contest that the complaint failed to allege an occurrence. Instead, he asserted that the coverage was
illusory if an occurrence was required to trigger indemnity for personal
injury. The circuit court rejected this
argument. Accordingly, it granted
summary judgment on behalf of Cincinnati, declaring that Cincinnati had no duty
to defend the suit or to indemnify Elliott should he incur liability.
¶7 Elliott
appeals. He first contends that the
circuit court improperly relied on evidence outside of the “four corners” of
the complaint when it determined that the complaint did not give rise to
Cincinnati’s duty to defend. He relies
on Elliott v. Donahue, 169 Wis. 2d 310, 485 N.W.2d 403
(1992). The supreme court in Elliott
stated that the duty to defend is “predicated on allegations in a
complaint which, if proved, would give rise to recovery under the terms and
conditions of the insurance policy.” Id.
at 320-21. This duty exists
independent of the merits of the claim, so it makes no difference whether the
plaintiff ultimately recovers. See id.
at 321. It is the nature of the
claim that controls. Kenefick v.
Hitchcock, 187 Wis. 2d 218, 232, 522 N.W.2d 261 (Ct. App. 1994). Any
doubts about coverage must be resolved in favor of the insured. Elliott, 169 Wis. 2d at
321. Because our focus is on the
complaint, courts refer to this rule as the “four corners” analysis.
¶8 We
review de novo whether an insurance company has a duty to defend its
insured. Grube v. Daun,
173 Wis. 2d 30, 72, 496 N.W.2d 106 (Ct. App. 1992). We hold that Elliott does not control this
case. The insurer in Elliott
refused to provide a defense on the merits pending the outcome of the circuit
court’s coverage decision, despite the fact that coverage was “fairly
debatable,” because it unilaterally decided its policy afforded no
coverage. See Elliott,
169 Wis. 2d at 317-18. Grube made
clear that an insurer should not make an independent determination of this sort
but rather should first submit the issue to the court. Grube, 173 Wis. 2d at 75. An insurer may raise the coverage issue in a
variety of ways: (1) It may seek a
declaratory judgment; (2) it may enter into an agreement with the insured to
defend while retaining the right to challenge coverage; (3) similarly, it may
afford a defense under a reservation of rights, as Cincinnati did in this
action; (4) finally, it may seek a bifurcated trial, in which the court decides
the coverage issue in a separate action from the action on the merits of the
complaint. See id. at 75.
¶9 The
insurer breaches its duty to defend if it refuses to provide a defense before
the court decides the issue of coverage, Elliott, 169 Wis. 2d at
318, but the duty to defend ends once the court resolves the coverage issue in
favor of the insurer. See Kenefick,
187 Wis. 2d at 235 (“[W]here the insurer disputes coverage, its duty to defend continues
only ‘until the issue of coverage is resolved.’”). Although we recognized that the insurer in Kenefick initially
had a duty to defend, based on the “four corners” analysis, see id. at
232, we emphasized that the duty did not continue past the point when the
circuit court decided coverage, id. at 235 (“[A]n insurer may be
required to furnish a free defense to its insured prior to the determination
of coverage” (citation omitted.)).
In Kenefick, the insurer sought a bifurcated trial so that
the court could adjudicate coverage prior to the trial on liability and
damages. See Kenefick,
187 Wis. 2d at 233-35. The circuit
court resolved the coverage issue in favor of the insurer on summary
judgment. Id. at
221-22. We held that the plaintiffs
could seek recovery of the expenses they incurred in litigating the liability
and damage claims “up to the time those proceedings were stayed pending
resolution of the coverage issues.” Id.
at 222.[2]
¶10 This
result should not come as a surprise, given the purpose of the “four corners”
analysis. We employ that test to ensure
that insurers do not frustrate the expectations of their insureds by resolving
the coverage issue in their own favor while coverage remains fairly debatable. See Elliott, 169 Wis. 2d at
322-23. Once the circuit court resolves
the question of indemnity in the insurer’s favor, however, coverage is no
longer open to debate. An insurer need
not defend a suit in which it has no economic interest. School Dist. of Shorewood v. Wausau
Ins. Cos., 170 Wis. 2d 347, 364, 488 N.W.2d 82 (1992).
¶11 Here,
the circuit court resolved the indemnity question in Cincinnati’s favor. Based on that ruling, Cincinnati no longer
had any economic interest in Baumann’s suit against Elliott. The absence of a duty to defend follows from
that finding.
¶12 Even
if we assume that the circuit court should have limited its duty-to-defend
analysis to the “four corners” of the complaint, it reached the correct
result. Elliott concedes that the
“occurrence” prerequisite to personal injury coverage purports to afford
coverage only for negligent defamation.
No fair reading of this complaint reveals such a claim. Rather, the allegations assert intentional,
willful, malicious defamation. In
setting forth its second cause of action, defamation, para. 19 of the complaint
specifically incorporates the allegations related to its first cause of action,
which alleges intentional interference with EPS’ business relationships. Paragraph 19 is fatal to Elliott’s position
that the complaint does not allege intent to defame because it makes clear that
the first and second causes of action arise from the same set of facts.
¶13 Similarly,
the third cause of action reincorporates in para. 25 all of the factual
allegations relating to the first two claims.
This third cause of action alleges that Elliott threatened the
plaintiffs’ professional reputations and accused them of criminal activity
“intentionally and specifically for his own pecuniary advantage.” Taken together, the averments in the
complaint accuse Elliott of defaming the plaintiffs, by accusing them of
illegal behavior, for the specific purpose of realizing a pecuniary
advantage. Indeed, we cannot see how
one could interpret them to assert anything other than calculated, willful
defamation of the plaintiffs.
¶14 The
prayer for relief further bolsters our conclusion that the complaint
specifically alleges wanton and willful, malicious conduct by Elliott. Paragraph D of that section prays “[f]or a
judgment for this Court against Defendants … awarding Plaintiffs … punitive
damages, for the Defendants[’] malicious, wanton and willful, defamation of
Baumann and EPS.”
¶15 Elliott
protests that we may not consider the prayer for relief because it does not
constitute a substantive part of the complaint. He cites our decision in Midway Motor Lodge of Brookfield
v. Hartford Insurance Group, 226 Wis. 2d 23, 593 N.W.2d 852 (Ct. App.
1999), in support of that proposition.
In Midway, we reaffirmed that “the ad damnum clause is not
a substantive part of the complaint” and “is nothing more than an ‘asking
price.’” Id. at
35-36. In Midway, the ad
damnum clause demanded “incidental and consequential damages suffered as a
result of [the defendant’s] negligence.”
Id. at 35. We held
that Midway had failed to plead what actual loss or damages it suffered as a
result of the defendant’s negligence. Id.
¶16 We
reject Elliott’s argument. We
acknowledge that the purpose of an ad damnum clause is merely to state the
plaintiff’s “asking price.” See id.
at 35-36; State Bar of Wisconsin, Wisconsin Civil Litigation Forms
Manual, 2-9 (1999) (“A complaint must contain a prayer for relief, which is
a demand for judgment for the relief the plaintiff seeks.”). However, we know of no authority in this
state that prohibits a court from considering language in the prayer for relief
that clarifies allegations stated elsewhere in the complaint.
¶17 Midway
does not definitively resolve that issue.
Although the ad damnum clause in that case arguably alleged that the
plaintiff had suffered incidental and consequential damages, these allegations
by themselves would not have satisfied notice-pleading requirements. Compare Midway, 226 Wis. 2d at
35 (purpose of “notice pleading” to give defendant a fair idea of what the
complaint is about and that some basis for recovery exists and liberal
construction not a tool to supply missing and forgotten elements), with id.
at 37 (“Midway failed [within the four corners of its complaint] to
plead with sufficient specificity a ‘loss of use of tangible property.’”). They were merely conclusory, and the rest of
the complaint contained no allegations that would support the conclusion that
the plaintiff had suffered incidental and consequential damages.
¶18 We
note that our “asking price” language in Midway comports with 61A
Am. Jur. 2d Pleading § 152
(2004). Section 152 explains that
although (1) “[a] prayer for relief is not an allegation in a complaint which
requires an answer, and is not part of the plaintiffs’ cause of action,” and
(2) the prayer for relief does not cure an otherwise insufficient pleading, it
is nonetheless a relevant portion of the pleading that “can be of value to
clarify and support the pleading’s allegations.” Midway involved an “otherwise insufficient
pleading” within the meaning of § 152.
Here, by contrast, the ad damnum clause’s characterization of Elliott’s
defamation of EPS and Baumann as “malicious, wanton and willful” is supported
by factual allegations in the body of the complaint. Although the section of the complaint specifically discussing
defamation did not use magic words like “wanton and willful,” “malicious,”
“purposeful,” or “intentional,” we have already explained why a fair reading of
the complaint as a whole warrants the conclusion that the plaintiffs accuse
Elliott of intentional defamation. We
hold that we may rely on the ad damnum clause to clarify the allegations set
forth in the remainder of the complaint.[3]
¶19 Elliott
argues that even if the complaint does allege only intentional defamation, we
should read the policy to cover intentional acts because otherwise the
“occurrence” prerequisite to “personal injury” coverage renders coverage for
defamation illusory. He contends that
defamatory statements can never be accidental because “[d]efamatory statements,
in and of themselves, must have an element of malice in order to be
actionable.” He cites to Polzin
v. Helmbrecht, 54 Wis. 2d 578, 196 N.W.2d 685 (1972), presumably,
relying on the following language:
[A] finding of malice by the jury obviates any conditional privilege. The finding of malice by the jury “takes the question of conditional privilege out of the case.” Inasmuch as malice, either [express][4] or implied, is an essential element of actionable libel in Wisconsin, the instruction on a conditional privilege would never be appropriate because if there is no malice there is no cause of action, and if there is malice the privilege does not apply. Thus the question to be determined when there is a conditional privilege is really malice, and that determination was made by the jury.
Polzin,
54 Wis. 2d at 584-85 (footnotes omitted).
¶20 Coverage
is illusory only when we cannot foresee liability in any imaginable set of
circumstances. See Link v.
General Cas. Co. of Wis., 185 Wis. 2d 394, 400, 518 N.W.2d 261 (Ct.
App. 1994). Whether an insurance policy
affords illusory coverage presents a question of law for our independent
review. See Hinrichs v.
American Family Mut. Ins. Co., 2001 WI App 114, ¶14, 244 Wis. 2d 191,
629 N.W.2d 44. Likewise, construing the
policy alleged to be illusory presents a legal question that we review de
novo. See Link, 185 Wis.
2d at 398 (standard of review for interpreting an insurance contract).
¶21 Elliott
apparently reads Polzin’s assertion that “if there is no malice
there is no cause of action,” Polzin, 54 Wis. 2d at 585, to mean
(1) where there is a cause of action, there is malice and (2) where there is
malice, the defendant specifically and deliberately intends to injure the
plaintiff. We cannot accept the latter
proposition because it ignores the relevant definitions of malice. Two types of malice exist in the context of
common-law defamation actions: express
(malice in fact) and implied (constructive, imputed as a matter of law). Express malice exists when a defendant
publishes libelous statements “from motives of ill will, envy, spite, revenge,
or any other bad or corrupt motives against the person.” Id. at 587-88 & n.16. Constructive or implied malice, on the other
hand, does not mean the defendant acted with ill will but rather that he
or she published a defamatory statement without any lawful excuse. Williams v. Hicks Printing Co.,
159 Wis. 90, 101, 150 N.W. 183 (1914). Williams
states:
[I]n general, malice is an essential element of libel, but not, necessarily, malice in the sense of actual ill will and intent to injure, constructive malice, so called,—perpetration of the act without lawful excuse—is sufficient. One need not go further on the subject of malice in proving a charge of libel than to prove the publication, unless the situation is such as to fall within the field of conditional privilege, and then malice in law is circumstantially rebutted and malice in fact, or express malice, as it is otherwise called, is required.
Id. (emphasis
added).
¶22 Williams
makes clear that neither concept of malice is categorically
inconsistent with the concept of an “occurrence,” as defined in the Cincinnati
policy. Williams states
that accident and inadvertence do not afford a defense to the publisher of a
defamatory statement because they “are not inconsistent with malice in law
arising, as a legal result, from the perpetuation of the act of
publishing.” Id. Negligence is therefore consistent
with the concept of implied malice.
Further, Williams makes clear that in some special
situations, negligence also coincides with the definition of express
malice. Where the defendant asserts a
conditional privilege, for example, the law expands the normal “bad or corrupt
motives” definition of express malice to include negligence:
If a published article naturally tends [to have a defamatory effect], as suggested, the right to recover general damages follows as [a] matter of course, in the absence of truth as a justification or circumstances of legal excuse, this, as indicated, not including mere negligence, accident, good faith, good motives, or sense of duty, except as said, in the field of conditional privilege where something more than implied malice is required. General damages, which so follow, may be added to by exemplary damages, upon proof of that [express] malice which overcomes the protection of conditional privilege.
Id. at
101-02 (emphases added); see also Calero v. Del Chem. Corp., 68
Wis. 2d 487, 499, 228 N.W.2d 737 (1975) (“When the defendant has established a prima
facie case of privilege, it ordinarily devolves upon the plaintiff to rebut
this showing by proof of actual malice, want of good faith, or due care,
etc. ….” (Citations omitted; second emphasis added.)); Denny v. Mertz,
106 Wis. 2d 636, 674, 318 N.W.2d 141 (1982) (Abrahamson, J., dissenting)
(noting that although defamation is in general a strict liability tort, “the
application of the doctrines of ‘conditional privilege’ and ‘abuse of
privilege’ means that the law of defamation in operation is not a strict
liability tort but is a tort based on negligence.” (Emphasis added.)).
¶23 The
foregoing discussion demonstrates that a plaintiff may sometimes recover from a
defendant even when the defendant publishes a defamatory statement by failing
to exercise due care, i.e., negligently.
Mere negligence usually will only justify compensatory damages (because
only implied malice exists), whereas punitive damages require a showing of
various types of ill will or corrupt motives that demonstrate malice in
fact. Simple negligence, without more,
may also satisfy the “malice in fact” requirement of express malice in special
situations, e.g., where the defendant asserts a conditional privilege.
¶24 Because
the parties agree that the Cincinnati policy purports to offer coverage for
negligent defamation, we conclude that the “occurrence” requirement in the
policy precludes coverage only for defamation in the following
circumstances: (1) ordinary cases where
the plaintiff proves express malice or (2) conditional privilege situations
where the plaintiff proves express malice upon a showing of fault exceeding
negligence. It does not deny coverage
where a plaintiff proves that Elliott abused a qualified privilege by failing
to exercise due care, nor does it deny coverage where a plaintiff can recover
without showing express malice, i.e., where Elliott does not put conditional
privilege at issue. Thus, we deem the
policy nonillusory.
¶25 We
affirm the circuit court’s decision.
Because the Wisconsin law of defamation would allow a plaintiff to
recover against Elliott without proving wanton and willful, deliberate
defamation, we can conceive of some circumstances in which his insurance
agreement would require Cincinnati to indemnify him. The policy is therefore not illusory, and we will not read it to
cover intentional acts of defamation.
We determine that the plaintiff’s complaint alleges only purposeful and
malicious defamation, based on the allegations in the body of the complaint,
alone and as clarified by the prayer for relief. Further, the court’s determination that Cincinnati had no duty to
indemnify Elliott provided an independent ground for its conclusion that
Cincinnati has no duty to defend Baumann’s action against Elliott.
By
the Court.—Order affirmed.
[1] Although the briefs and the record represent that Baumann is the Chief of Police of the City of Pewaukee, we judicially notice that he is in fact the Chief of Police of the Village of Pewaukee. We therefore refer to him as the latter.
[2] Kenefick v. Hitchcock, 187 Wis. 2d 218, 232, 522 N.W.2d 261 (Ct. App. 1994), decisively refutes Elliott’s argument that indemnity determinations necessarily must follow a trial on the merits. Kenefick specifically mentions a bifurcated trial in which the court resolves the issue of coverage prior to a trial on the merits. See id. at 233-35; cf. Grube v. Daun, 173 Wis. 2d 30, 75, 496 N.W.2d 106 (Ct. App. 1992) (insurer may seek a bifurcated trial on the issue of coverage).
[3] Although we need not decide the issue here, we note that some jurisdictions do look to the prayer for relief as a source of substantive allegations, even where the complaint is otherwise insufficient, when the prayer contains substantive allegations that would have been sufficient had they been properly placed elsewhere in the complaint. See Treat v. Los Angeles Gas & Elec. Corp., 213 P. 263 (Cal. Ct. App. 1923) (relying solely on ad damnum clause as source of substantive allegation that deceased son contributed to his parents’ support); cf. Hudson Ave. Drive-In Inc. v. M & L Amusement Corp., 223 N.Y.S.2d 344, 346-47 (N.Y. Sup. Ct. 1962) (ordering plaintiff to make more definite an allegation appearing for first time in ad damnum clause but noting that, “While the location of this allegation is not appealing artistically, misplacement is not an unduly grave defect.”).
[4] “Express malice” used to be referred to as “actual malice,” but when the United States Supreme Court decided New York Times Co. v. Sullivan, 376 U.S. 254 (1964), it introduced a new concept known as “actual malice.” See id. at 279-80. This constitutional concept differs from “express malice,” see Polzin v. Helmbrecht, 54 Wis. 2d 578, 588, 196 N.W.2d 685 (1972) (explaining the difference), although older Wisconsin cases such as Polzin sometimes use the term “actual malice” to refer to both “express malice” and the separate constitutional “actual malice” standard. For the sake of clarity, we have changed references to “actual malice” to “express malice” where the court refers to the common-law concept.