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[T] Amrhein v. Acuity2/18/2004
between Raymond and Hoeft, (2) Raymond's solicitation of the assault was barred by the Intentional Acts Exclusion, and (3) the statutory claims were not covered due to the lack of an "occurrence" under the policy.
. At the hearing on Acuity's motion for summary judgment, Schaal conceded that the Acuity policy did not provide coverage for his claim that Julie aided and abetted Hoeft in his battery of Schaal. As to Acuity's remaining challenges, Schaal argued that evidence allowed for the reasonable inference that Raymond's conduct was negligent and qualified as an "occurrence" under the policy.
. The trial court granted Acuity's motion for summary judgment. The court stated, " verything that's been described here would ... indicate that the conduct of Mr. Caminata can't be described as anything other than intentional conduct on his part." In so finding, the trial court compared Raymond's involvement in the assault to that of a party to the crime under Wis. Stat. § 939.05. Based on Raymond's intentional conduct, the trial court found that Acuity was not responsible for coverage. Likewise, the trial court found that Wis. Stat. § 895.035 did not create an "occurrence" under Acuity's policy because the attack on Schaal was intentional, not accidental. Therefore, the trial court granted Acuity's motion for summary judgment. Schaal appeals.
DISCUSSION
. When reviewing a summary judgment, we perform the same function as the trial court and our review is de novo. See Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816 (1987). On summary judgment, a court must view the facts in the light most favorable to the nonmoving party. State Bank of La Crosse v. Elsen, 128 Wis. 2d 508, 512, 383 N.W.2d 916 (Ct. App. 1986). In other words, the inferences to be drawn from the underlying facts contained in the moving party's material should be viewed in the light most favorable to the party opposing the motion. Grams v. Boss, 97 Wis. 2d 332, 338-39, 294 N.W.2d 473 (1980). "If the material presented on the motion is subject to conflicting interpretations or reasonable people might differ as to its significance, it would be improper to grant summary judgment." Id. at 339.
. Interpretation and application of an insurance policy provision to undisputed facts is a question of law we determine de novo. Steven G. v. Herget, 178 Wis. 2d 674, 684, 505 N.W.2d 422 (Ct. App. 1993). When construing or applying an insurance policy, the policy must be "interpreted from the standpoint of what a reasonable person in the position of the insured would have understood" the policy provision to mean. Id.
. Although Acuity's policy provides personal liability coverage, such coverage does not apply to bodily injury " hich is expected or intended by the insured." An intentional acts exclusion precludes coverage if the following elements are shown: (1) the allegations plead an intentional act, and (2) the insured intended or expected some injury or harm to follow from that act. Bruner v. Heritage Cos., 225 Wis. 2d 728, 738, 593 N.W.2d 814 (Ct. App. 1999) (citing Raby v. Moe, 153 Wis. 2d 101, 110, 450 N.W.2d 452 (1990); Pachucki v. Republic Ins. Co., 89 Wis. 2d 703, 710, 278 N.W.2d 898 (1979)).
. Schaal concedes that Raymond intentionally told Hoeft that Schaal wanted to fight him and that Raymond offered to pay Hoeft for fighting or killing Schaal. However, Schaal contends that "making inappropriate and false statements that may or may not lead one person to assault another is insufficient to allow the court to infer an intent to injure as a matter of law." As such, Schaal reasons that a material issue of fact exists as to whether Raymond was "substantio
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