Schinner v. Gundrum, 2011AP564.
| Decision Date | 02 February 2012 |
| Docket Number | No. 2011AP564.,2011AP564. |
| Citation | 2012 WI App 31,811 N.W.2d 431,340 Wis.2d 195 |
| Parties | Marshall SCHINNER, Plaintiff–Appellant, v. Michael GUNDRUM, Defendant,West Bend Insurance Company, Defendant–Respondent. |
| Court | Wisconsin Court of Appeals |
OPINION TEXT STARTS HERE
On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Keith R. Stachowiak of Murphy & Prachthauser, S.C., Milwaukee, and Daniel P. Patrykus of Keberle & Patrykus, LLP, West Bend, for Appellant.
On behalf of the defendant-respondent, the cause was submitted on the brief of Jeffrey Leavell and Timothy L. Pagel of Jeffrey Leavell, S.C., Racine, for Respondent.
Before VERGERONT, SHERMAN and BLANCHARD, JJ.
[340 Wis.2d 197] ¶ 1 Marshall Schinner appeals a summary judgment dismissing West Bend Insurance Company from his suit against West Bend and its insured, Michael Gundrum. Schinner alleges that he sustained serious injuries after being assaulted by an underage guest at a party Gundrum hosted on family business property. Schinner argues that the circuit court erred in concluding that there was no “occurrence” under the Gundrums' homeowner's insurance policy and, separately, that an exclusion pertaining to non-insured locations bars coverage. We agree with Schinner on both points. We apply case law addressing when a physical assault qualifies as an “accident” for purposes of insurance coverage and, in doing so, conclude that the assault here was an “occurrence.” We also conclude that the non-insured location exclusion does not apply, because Schinner's injuries did not “arise out of” the family business property. Accordingly, we reverse the judgment and remand for further proceedings.
¶ 2 The dispositive facts are undisputed based on the summary judgment record. Twenty-one-year-old Gundrum was covered under his parents' West Bend homeowner's insurance policy as a resident of their household.1 GUNDRUM HOSTED A Party in a shed on his family's business property. The Gundrums had been using the shed, at least in part, to store personal property, including snowmobiles explicitly listed in the homeowner's policy.
¶ 3 It is alleged that, during the party, Gundrum provided alcohol to Matthew Cecil, who was under the legal drinking age. Cecil became belligerent and assaulted Schinner, who suffered serious injuries as a result. The parties agree that this was an intentional assault, and that the injuries did not result from inadvertent or merely reckless conduct by Cecil. The parties also agree that there is no allegation that Gundrum personally participated in or assisted Cecil in the assault.
¶ 4 Schinner sued Gundrum for negligence, alleging that Gundrum's conduct, which included providing alcohol to Cecil, was a cause of the assault and thus of Schinner's injuries. West Bend was added to the suit and moved for summary judgment, arguing that it should be dismissed from the action because there was no “accident,” and therefore no “occurrence,” under the policy. West Bend also argued that there was no coverage based on a policy exclusion barring coverage for harm arising out of a non-insured location. The circuit court agreed with West Bend on both points and dismissed West Bend from the case. Schinner appealed. We reference additional facts as necessary below.
¶ 5 This case involves the interpretation and application of insurance policy terms to undisputed facts, which is a question of law that we review de novo, while benefitting from legal analysis provided by the circuit court. See American Family Mut. Ins. Co. v. American Girl, Inc., 2004 WI 2, ¶ 23, 268 Wis.2d 16, 673 N.W.2d 65. We construe the terms of an insurance policy as a reasonable insured would understand them. Id.
¶ 6 We first address whether the undisputed facts establish an “occurrence.” Because we conclude that they do, we also address the non-insured location exclusion.
¶ 7 The primary issue is whether, given the undisputed facts here, there is an “occurrence” for purposes of coverage under the Gundrums' homeowner's policy. The policy includes personal liability coverage that applies to a claim or suit against an insured “for damages because of ‘bodily injury’ or ‘property damage’ caused by an ‘occurrence.’ ” “Occurrence” is defined in the policy as follows:
“Occurrence” means an accident, including continuous or repeated exposure to substantially the same general harmful conditions, which results, during the coverage period, in:
a. “Bodily injury”; or b. “Property damage.”
(Emphasis added.)
[340 Wis.2d 200] ¶ 8 Our focus is on the term “accident.” The policy does not define “accident.” In prior cases, when this term is undefined in an insurance policy, courts have looked to the following dictionary definitions:
• “[A]n event or condition occurring by chance or arising from unknown or remote causes.”
•
Id., ¶ 37 (); see also Doyle v. Engelke, 219 Wis.2d 277, 289, 580 N.W.2d 245 (1998) .
¶ 9 Schinner argues, in part, that the act of the insured, Gundrum, in providing alcohol to an underage guest, who then caused injuries, was an act of negligence and, therefore, an “accident.” Schinner also argues that the assault was an occurrence because, although Cecil intentionally assaulted Schinner, the assault was an “accident” from Gundrum's standpoint.
¶ 10 For the reasons that follow, we agree with Schinner that the assault was an “accident” from Gundrum's standpoint, and it was also an “accident” from Schinner's standpoint. We therefore conclude that the assault was an “occurrence,” at least for purposes of determining an initial grant of coverage under the Gundrums' policy. Although it may seem counterintuitive to think of an assault as accidental, we rely on Wisconsin case law that has addressed whether an assault is an “accident” for purposes of insurance coverage.
¶ 11 Our analysis begins with a line of cases in which the supreme court has concluded that, for purposes of determining whether an assault is an “accident” or “accidental” under an insurance policy, the assault and resulting injuries must be viewed from the standpoint of the person injured. See Tomlin v. State Farm Mut. Auto. Liab. Ins. Co., 95 Wis.2d 215, 219, 222, 290 N.W.2d 285 (1980); Fox Wisconsin Corp. v. Century Indem. Co., 219 Wis. 549, 551, 263 N.W. 567 (1935); Button v. American Mut. Accident Ass'n, 92 Wis. 83, 85, 65 N.W. 861 (1896). The court reasons that, when viewed from the standpoint of the injured party, the assault and resulting injuries are an “accident” or “accidental” because the injured party did not intend, expect, or anticipate the assault or resulting injuries. See Tomlin, 95 Wis.2d at 219, 222, 290 N.W.2d 285; Fox, 219 Wis. at 551, 263 N.W. 567; Button, 92 Wis. at 85, 65 N.W. 861.
¶ 12 To illustrate further, we briefly summarize the two most pertinent cases, Fox and Tomlin.
¶ 13 In Fox, an employee of the insured, which was a theater, assaulted a patron. Fox, 219 Wis. at 549–50, 263 N.W. 567. The policy provided coverage for “bodily injuries ... accidentally sustained by any person or persons.” Id. at 551, 263 N.W. 567. The court stated that “[w]hether or not an injury is accidental ... is to be determined from the standpoint of the person injured.” Id. The court explained as follows:
The facts show that the injury to the patron came to him through force not of his own provocation. From his standpoint, then, the injuries were “accidentally sustained.” In the absence of some provision in the policy which excludes liability for such injuries, the meaning of “accidentally sustained” becomes plain and controlling.... The patron, whose injury gave rise to the liability, was assaulted, and, in a sense, the act was unlawful and intentional; still, considered objectively, it occurred without the agency of the patron, and, so far as these particular parties are concerned, the act may be, and legally is to be, termed accidental.
Id. (emphasis added) (citations omitted).
¶ 14 In Tomlin, an individual insured under an automobile insurance policy stabbed a police officer who had stopped his vehicle. Tomlin, 95 Wis.2d at 216–17, 219–22, 290 N.W.2d 285. The policy covered bodily injury “caused by accident.” Id. at 218, 290 N.W.2d 285. The court explained:
In determining whether an injury is “caused by accident” or “accidentally sustained” within the coverage afforded by a liability insurance policy, the courts have been primarily concerned with the question of whether the occurrence is to be viewed from the standpoint of the injured person or the insured. The majority of courts, including this court, when considering the question, have held or recognized that the determination of whether injuries resulting from an assault were caused by “accident” or “accidentally sustained” must be made from the standpoint of the injured party, rather than from that of the person committing the assault.
Id. at 219, 290 N.W.2d 285 (emphasis added). The court concluded that, “[f]rom the standpoint of [the officer], the events giving rise to his injuries were neither expected nor anticipated by him, and his injuries were therefore ‘caused by accident’ within the meaning of the policy.” Id. at 222, 290 N.W.2d 285; see also Button, 92 Wis. 83, at 85, 65 N.W. 861 ...
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