COURT OF APPEALS DECISION DATED AND FILED April 16, 2009 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
from a judgment of the circuit court for
Before Higginbotham, P.J., Dykman and Bridge, JJ.
¶1 PER CURIAM. Thomas C. Coyle appeals a
circuit court order granting summary judgment to American Family Mutual
Insurance Company. Coyle argues that the
circuit court erred because it applied the four corners rule to determine that
American Family did not have a duty to defend him in this action. Because we conclude that the four corners
rule is the law in
¶2 Michael Ring, by his guardian Debra Ring, brought the underlying
action against Coyle in June 2007, alleging that Coyle punched him, and seeking
damages for his injuries. Coyle tendered
the defense to American Family, and American Family moved for summary judgment,
arguing that Coyle’s policy did not provide coverage for intentional injuries
caused by the insured. Coyle responded
with evidence that he had been criminally charged, and that his defense both in
that case and in the civil case was that he acted in self-defense. The circuit court concluded that the facts
Coyle used to support his argument were not within the four corners of the
complaint, and that under our decision in Sustache v. American Family Mut. Ins. Co., 2007
WI App 144, ¶19, 303
¶3 Coyle raises four issues on this appeal: (1) whether the
insurance policy should be liberally construed in favor of insurance coverage
for Coyle; (2) whether Coyle should have been allowed to introduce
extrinsic evidence to support his claim that coverage exists; (3) whether the
trial court should have waited until the supreme court decided Sustache
v. American Family Mut. Ins. Co., 2008 WI 87, 311
¶4 We review summary judgment de novo applying the same methodology as the circuit court.
¶5 American Family argues that it does not have a duty to defend
because the allegations in the complaint were for intentional conduct, citing Sustache
I. Coyle argues that we should
consider extrinsic evidence that he was acting in self-defense, and therefore,
American Family has a duty to defend him, citing Berg v. Fall, 138
¶6 In Berg, we held that an insurance
company had a duty to defend when the policy did not exclude bodily injuries
cause by “privileged acts of self-defense.”
¶7 Coyle also argues that the Supreme Court’s decision in Sustache
II supports his argument that he is entitled to present extrinsic
evidence to support his claim. We again
disagree. Although the supreme court did
not address the issue directly in Sustache II, it did hold, as we
stated above, that the duty to defend is determined by comparing the
allegations of the complaint to the terms of the insurance policy. Sustache II, 311
¶8 Coyle raises three additional issues, all of which are
intertwined with the issue of whether the four corners rule applies. Because we have concluded that the four
corners rule is still the law in
By the Court.—Judgment affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] The supreme court issued the decision while we were considering this appeal. We ordered the parties to file supplemental briefs on the effect of the supreme court’s decision on this appeal. Both parties filed briefs. American Family argued that Coyle’s brief was not timely, and moved to strike the brief. Because we ordered the supplemental briefing, we considered both parties’ briefs. The motion to strike Coyle’s supplemental brief as untimely is, therefore, denied.