COURT OF APPEALS DECISION DATED AND RELEASED October 17, 1996 |
NOTICE |
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, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 94-3267
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
OAKFIELD STONE
COMPANY,
Plaintiff-Appellant,
v.
NEIL HOBBS, WISCONSIN
LAWYERS
MUTUAL INSURANCE
COMPANY,
JAMES GRANT,
Defendants-Respondents.
APPEAL from a judgment
and an order of the circuit court for Dane County: RICHARD J. CALLAWAY, Judge.
Affirmed.
Before Eich, C.J.,
Vergeront, J., and Paul C. Gartzke, Reserve Judge.
PER
CURIAM. Oakfield Stone Company appeals from the trial court's
order granting summary judgment in favor of Oakfield Stone's former counsel,
Neil Hobbs and James Grant, and their insurer. Oakfield Stone brought this malpractice action against Hobbs and
Grant contending that they should have tendered to Oakfield's insurer the
defense of an earlier action brought against Oakfield. The trial court ruled that Oakfield's
insurer did not have a duty to defend against the prior action and,
consequently, there was no malpractice on the part of Hobbs and Grant. We affirm.
Summary judgment allows
controversies to be settled without trial where there are no disputed material
facts and only legal issues are presented.
In re Cherokee Park Plat, 113 Wis.2d 112, 115-16, 334
N.W.2d 580, 582-83 (Ct. App. 1983). On
review of a summary judgment order, we employ the same methodology as the trial
court. Green Spring Farms v.
Kersten, 136 Wis.2d 304, 315, 401 N.W.2d 816, 820 (1987). If there is no genuine issue as to any
material fact, and if the moving party is entitled to judgment as a matter of
law, we will affirm the trial court order granting summary judgment. Id.
Whether an insurer has a
duty to defend depends on the allegations of the complaint and the language of
the insurance policy. Professional
Office Bldgs., Inc. v. Royal Indem. Co., 145 Wis.2d 573, 581, 427
N.W.2d 427, 430 (Ct. App. 1988). In
order to prove a claim of legal malpractice, Oakfield had to show that its
former attorneys' failure to tender the defense of the prior action to its
insurers caused damage to Oakfield because it had to provide its defense at its
own cost. See Lewandowski
v. Continental Casualty Co., 88 Wis.2d 271, 277, 276 N.W.2d 284, 287
(1979). Thus to prove legal
malpractice, Oakfield had to show that its insurers had a duty to defend.
In the prior action, the
complaint alleged that Oakfield took boulders from land Eden Stone had
previously leased "knowing it would have to trespass the ... leased ...
land and take holey boulders without permission." The Wausau Insurance contract provided that
it did not apply to "[P]roperty damage expected or intended from the
standpoint of the insured." It
further provided that an "occurrence" under the policy "means an
accident, including continuous or repeated exposure to substantially the same
general harmful conditions."
Because the allegations
of the complaint did not trigger a duty to defend, Hobbs's and Grant's failure
to tender defense of the action to the insurers did not constitute
malpractice. Eden's complaint alleged
that Oakfield acted "knowing it would have to trespass the ... leased ...
land and take holey boulders without permission." The insurance policy excludes coverage for
"property damage expected or intended from the standpoint of the insured." The complaint alleges that Oakfield's
actions were knowingly done. The
complaint does not allege that Oakfield acted negligently, inadvertently or by
mistake. The complaint does not allege
that Oakfield removed the boulders from Eden's leased lands under the mistaken
belief that Oakfield had a right to do so.
Because the complaint alleges that Oakfield's actions were knowingly
done, those actions were expected or intended from Oakfield's standpoint, and
not covered under the policy.[1]
Oakfield contends that
its trespass on the lands was "unintended" under Patrick v.
Head of Lakes Coop. Elec. Ass'n, 98 Wis.2d 66, 295 N.W.2d 205 (Ct. App.
1980). Patrick held that
cutting down trees was not an "intentional" act under an insurance
policy because, although employees of a cooperative intended to trim trees
interfering with transmission lines, "[a]ny unauthorized cutting ... was
unintended." Id. at
70, 295 N.W.2d at 207.
The holding in Patrick
is based on the fact that the damage was unintentional; the employees of the
Cooperative did not intend to cut trees located outside of the Cooperative's
easement. In this case, the complaint
did not allege that Oakfield's conduct was unintentional. The complaint alleged that Oakfield took the
boulders "knowing it would have to trespass ... and take holey boulders
without permission." Because the
complaint did not trigger a duty to defend, the attorneys' failure to notify
Oakfield's insurer about the lawsuit was not a cause of injury to Oakfield.
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[1] Oakfield argues that the portion of Eden's complaint that alleges that Oakfield took the boulders knowing it would have to trespass and take them without permission refers only to the tortious interference claim, not to the trespassing and conversion claims. The complaint is not broken down into separate causes of action. We cannot read the complaint to mean that Oakfield knew it would have to knowingly take the boulders away without permission for purposes of one claim, but did not know for the purposes of the other claims.