COURT OF APPEALS DECISION DATED AND FILED August 18, 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
¶1 PER CURIAM. Robert Toonen and SSAPTS,
LLC (collectively Toonen) appeal a summary judgment dismissing West Bend Mutual
Insurance Company from an action brought against Toonen by his neighbor,
Russell Obermeier. Toonen contends the
circuit court misinterpreted his insurance contract with
BACKGROUND
¶2 Toonen and Obermeier are real estate developers who own
neighboring pieces of property in the Town of
¶3 Sometime in 1998 or 1999, as Toonen was developing his property, Obermeier informed Toonen that Toonen’s construction was causing water to back up on Obermeier’s property. Obermeier also informed Toonen that water from Obermeier’s property historically drained through a swale on Toonen’s property. Toonen was aware of the dangers of accumulating water, having previously warned Obermeier about cattails growing on Obermeier’s property and suggesting he fill in his property.
¶4 In response to Obermeier’s concern about Toonen’s construction causing water to pool on Obermeier’s property, Toonen dug a ditch designed to permit water to drain off Obermeier’s property. According to Obermeier, the ditch failed to remedy the problem.
¶5
DISCUSSION
¶6 We review grants of summary judgment de novo, applying the
same methodology as the circuit court. Park
Bancorp., Inc. v. Sletteland, 182
¶7 When interpreting an insurance policy, a court first looks to
the plain language of the policy to determine its meaning. Budget Rent-A-Car Sys., Inc. v. Shelby Ins.
Group, 197
¶8 Toonen claims he did not know he caused damage to Obermeier’s property. He also claims there is a genuine issue of material fact regarding when any property damage occurred.
¶9 An endorsement to the
This insurance applies to “bodily injury” and “property damage” only if:
(1) The “bodily injury” or property damage” is caused by an “occurrence” that takes place in the “coverage territory”;
(2) The “bodily injury” or “property damage” occurs during the policy period; and
(3) Prior to the policy period, no insured … and no “employee” authorized … to give or receive notice of an “occurrence” or claim, knew that the “bodily injury” or “property damage” had occurred, in whole or in part. If such a listed insured or authorized “employee” knew, prior to the policy period, that the “bodily injury” or “property damage” occurred, then any continuation, change or resumption of such “bodily injury” or “property damage” during or after the policy period will be deemed to have been known prior to the policy period.
¶10 The record establishes Toonen knew he caused damage to
Obermeier’s property before the
¶11 It is undisputed that Obermeier informed Toonen that water from
Obermeier’s property historically drained through Toonen’s property and that
Toonen’s construction had caused, and continued to cause, water to pool on
Obermeier’s property. Toonen’s knowledge
of this damage is confirmed by the fact that he attempted to remedy it by
digging a ditch. These events occurred
in 1998 and 1999, before the
¶12 Toonen’s claim that when property damage occurred is a genuine issue of material fact also fails. Toonen asserts the property damage was the DNR wetlands delineation in 2003 or 2004, not the construction causing the build up of water on Obermeier’s property in 1998 and 1999. However, any damage resulting from the wetlands delineation was a “continuation, change or resumption” of the pooling water allegedly caused by Toonen’s construction, and brought to Toonen’s attention by Obermeier, before the policy period. While the wetlands delineation damaged Obermeier, it did not negate the damage occurring beforehand and allegedly culminating in the wetlands delineation.
By the Court.—Judgment affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.