COURT OF APPEALS DECISION DATED AND FILED November 19, 2008 David R. Schanker 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. |
2007AP2396 |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT II |
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Plaintiff, Allstate Insurance Company, Intervening
Plaintiff-Respondent, v. Paul DeMichele,
Defendant-Appellant, Schmidt Financial Group, John Kosowski, Judith Kosowski, Raymond
Kosowski, Karen Kosowski, Robert Martwick, Gloria Martwick, Kenneth Rapp,
Janet L. Rapp, and Bernadine DeMichele, Defendants. |
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APPEAL
from a judgment of the circuit court for
Before
¶1 PER CURIAM.
¶2 Allstate intervened in the underlying action to seek a
declaration on coverage. The circuit
court concluded that there was no personal injury, no property damage, and no
occurrence as defined in the policies and granted summary judgment in favor of
Allstate. Review of summary judgment
requires we perform the same function as the circuit court, making our review
de novo. Gulmire v. St. Paul Fire & Marine,
2004 WI App 18, ¶9, 269 Wis. 2d 501, 674 N.W.2d 629. Summary judgment is appropriate if there is
no genuine issue as to any material fact and the moving party is entitled to a
judgment as a matter of law. Wis. Stat. § 802.08 (2005-06).[1] Where, as here, the decision to grant
declaratory judgment rests on the interpretation of an insurance contract, a
question of law is presented that we independently review. Gulmire, 269
¶3 It is undisputed that the insuring clause in the personal umbrella policy provides: “Allstate will pay when an insured becomes legally obligated to pay for personal injury or property damage caused by an occurrence.” DeMichele argues that Allstate’s personal umbrella policy not only extends liability limits that exist under his homeowner’s policy, but also extends the type of liability covered and, particularly, that it provides coverage for this suit because it defines personal injury as including “invasion of rights of occupancy.”
¶4 Before considering the umbrella policy, we observe that the circuit court focused on the homeowner’s policy and concluded that there would have to first be coverage under the homeowner’s policy “before any umbrella policy would be triggered or applicable.” Allstate does not assert that position on appeal. Allstate does not identify any provision in the umbrella policy that coverage is only triggered by coverage under the homeowner’s policy.[2]
¶5 DeMichele only argues that
¶6 It is undisputed that
¶7 Here coverage exists only when the insured is “legally
obligated to pay for personal injury.”
The policy requires that money will have to be paid for personal injury
to give rise to liability under the policy.
The complaint only seeks injunctive relief to prevent future injuries and
does not seek the payment of any money to compensate or redress
By the Court.—Judgment affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] All references to the Wisconsin Statutes are to the 2005-06 version unless otherwise noted.
[2] In fact, the umbrella policy provides under “Amounts We Pay” [i]f … no other insurance applies to the occurrence, we will pay only those amounts which exceed the Retained Limit,” and that limit is $250 in Wisconsin.
[3] DeMichele quotes a definition of bodily injury in the homeowner’s policy which includes “invasion of privacy, wrongful eviction or wrongful entry.” That definition is found in optional coverage G pertaining to special assessments against members of a homeowner’s association. There is no suggestion that DeMichele paid for coverage G.
[4] The result is the same under the homeowner’s policy which provides that Allstate “will pay damages which an insured person becomes legally obligated to pay because of bodily injury or property damage.” See Johnson Controls, Inc. v. Employers Ins. of Wausau, 2003 WI 108, ¶69, 264 Wis. 2d 60, 665 N.W.2d 257 (a policy covering “damages” that the insured is legally required to pay precludes coverage for the insured’s prospective conduct).
[5] The umbrella policy’s defense provision provides that Allstate “will defend an Insured if sued as the result of an occurrence covered by this policy even if the suit is groundless, false or fraudulent.”