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LaForte v. Bandoli11/7/2000
APPEAL from judgments of the circuit court for Chippewa County: RODERICK A. CAMERON, Judge.
Reversed and cause remanded.
. Timothy W. Bandoli, d/b/a Tim's Wayside Tavern, appeals a summary judgment declaring that Society Insurance Company is under no duty to defend or indemnify Bandoli, its insured, for claims arising from an incident at Bandoli's bar during which Bandoli allegedly caused bodily injury to patron Pierre A. LaForte by throwing a bar glass. Bandoli also appeals a second judgment that held as a matter of law that Bandoli's actions were intentional, that he committed a battery on LaForte, that the negligence claim should be dismissed and that the only remaining issues would be causation and damages. Because there are disputed issues of material fact and because even the undisputed facts do not fall within the exceptional situations where intent can be inferred as a matter of law, we reverse the judgments and remand for further proceedings.
. LaForte was injured at Bandoli's bar, Tim's Wayside Tavern, when Bandoli threw a bar glass at least seven feet and it struck LaForte in the head. LaForte filed this suit, alleging two alternative causes of action: intentional battery and negligence. Under the intentional battery theory, LaForte alleged that Bandoli threw the bar glass intending to strike and injure LaForte. Under the negligence theory, LaForte alleged that Bandoli negligently threw the bar glass in the vicinity of LaForte intending not to strike LaForte, but to startle him, and accidentally struck LaForte.
. Society Insurance, the commercial general liability insurance carrier for Tim's Wayside Tavern, provided Bandoli coverage for his negligent acts that cause bodily injury to others. However, the insurance policy excluded coverage for bodily injuries that are expected or intended from the standpoint of the insured. Based on this exclusion, Society moved for summary judgment seeking to be dismissed from the case, arguing that the material facts were undisputed and seeking a determination that Bandoli's actions were intentional and therefore excluded under Society's insurance policy. Bandoli opposed the motion, arguing that the "expected or intended" exclusion in Society's policy does not apply because he did not intend to cause injury when he threw a bar glass but, instead, intended to startle LaForte and encourage him to leave the bar.
. The trial court granted Society's summary judgment motion, holding that Bandoli's actions were intentional and that the exclusion in Society's policy therefore applied. The trial court also dismissed the negligence claim on the theory that the intentional battery and negligence allegations were mutually exclusive. Bandoli now appeals, arguing that summary judgment is inappropriate because there is an issue of fact, whether Bandoli intended to injure LaForte, that must be resolved by a jury. We agree.
. The standards this court applies when reviewing a grant of summary judgment are well known and need not be repeated here. See C.L. v. School Dist. of Menomonee Falls, 221 Wis. 2d 692, 697, 585 N.W.2d 826 (Ct. App. 1998). We review the trial court's decision de novo. See Millen v. Thomas, 201 Wis. 2d 675, 682, 550 N.W.2d 134 (Ct. App. 1996). Summary judgment is warranted when there are no genuine issues of material fact and one party is entitled to judgment as a matter of law. See id.
. Both parties acknowledge that Bandoli and LaForte offer conflicting versions of the incident. In his affidavit and deposition, Bandoli stated that LaForte was being rude and that he asked LaForte to leave the bar. Bandoli testified that he threw four items to get LaForte's attention and
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