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Baumann v. Elliott7/20/2005
Before Anderson, P.J., Brown and Nettesheim, JJ.
This case comes to us on summary judgment. The court found that an insurer had no duty to indemnify its insured or to provide him with a defense in an action for defamation of character because the policy required an "occurrence" to trigger coverage for "personal injury." The defendant claims the court should have limited its duty-to-defend analysis to the "four corners" of the plaintiff's complaint and that even if the policy does not cover the allegations in the complaint, we should read coverage into his policy because coverage limited to "accidental" defamation is illusory. We hold that a court need not confine itself to the "four corners" of a plaintiff's complaint when deciding whether an insurance policy requires an insurer to defend the policyholder where it has already determined that the insurer has no duty to indemnify. The duty to defend exists only where coverage remains fairly debatable, and no debate remains once the court has resolved the coverage issue. We further hold that the "four corners" analysis may look to the ad damnum clause for clarification of the factual allegations where the allegations are otherwise sufficient to state a claim. Finally, we conclude that "negligent defamation" is not a contradiction in terms and Wisconsin law recognizes the possibility of recovery by a plaintiff even where the defendant does not deliberately and intentionally defame the plaintiff. For these reasons, we affirm.
Edward Baumann, the Chief of Police of the Village of Pewaukee, and his security firm, Elite Protection Specialists, LLC (EPS), filed a complaint on December 23, 2003, against Matthew F. Elliott and Security Arts Corporation (SAC), Elliott's competing business. The complaint also named Elliott's insurer, later identified as Cincinnati Insurance Company (Cincinnati). The complaint stated three causes of action against the defendants: (1) tortious interference with contracts and prospective contracts, (2) defamation, and (3) threats to injure or accuse of a crime.
The pertinent allegations in the complaint read:
JURISDICTION AND VENUE
....
10. he acts committed by Defendant, Elliott and SAC were published in new media primarily circulated in Waukesha County....
FIRST CAUSE OF ACTION:
TORTIOUS INTERFERENCE
11. Paragraphs 1 th ough 10 are hereby incorporated by reference as if set forth at length.
....
14. That EPS entered into contracts and had prospective contracts with various entities to provide security services for special events, including, but not limited to events such as, Summerfest and the Harley-Davidson 100th Anniversary Celebration.
15. The Defendant, Elliott interfered with the said contracts and prospective contracts, by intentionally interfering with the relationship between EPS and their prospective clients. Further, Defendant, Elliott acting as an agent for SAC intentionally interfered with the relationship between EPS and their prospective clients.
16. That the intentional interference by Elliott and SAC resulted in EPS suffering damages for unrealized revenues and profits, along with damages to its reputation and marketability in the marketplace.
....
SECOND CAUSE OF ACTION:
DEFAMATION
19. Paragraphs 1 th ough 18 are hereby incorporated by reference as if set forth at length[.]
20. That Defendants, Elliott and SAC made false, defamatory statements to persons other than the Plaintiff, Baumann, that were not privileged, that directly and proximately harmed Baumann's reputa
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