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1325 North Van Buren5/17/2005
red by T-3 as a result of negligent acts, errors and omissions, and the policy required third-party liability arising out of tortious conduct, "that is, conduct for which there is a duty, breach of the duty and damages to a third-party." As such, Westport argued that 1325's claim against T-3 for breach of contract was not covered by the policy. The trial court agreed, concluding:
Reviewing all the materials that have been provided by both sides and the arguments that have been presented today, I think that the position of Westport is well supported in Wisconsin law and in the eventh circuit, that the - they have no obligation under a tort claim, and that the policy excludes cost to repair and replace faulty workmanship.
And ultimately, that is what we have here. We have a contract claim for a product that was not received in the manner in which it was inspected , pursuant to the contract, and that is not - that is - not what this policy was - was set to recover - was - the coverage this policy can take.
The coverage doesn't extend to business risks, and that an insurance coverage of this sort can't be a performance bond for any claim, no matter how you couch it - whether you say the underlying facts are negligent or not, it can't cover every possible thing that you - manner in which you draft your complaint.
We look at the complaint. As it stands now, it's contract. The insurance policy does not cover contract. I am convinced and persuaded by that argument.
....
And the Court is persuaded that Westport's policy is not - excludes coverage for faulty workmanship and excludes coverage for contract claims, and their request to be dismissed from the action is granted[.]
1325's claims against T-3's professional liability insurer, Westport, were thus dismissed.
As indicated above, the trial court dismissed all of 1325's negligence claims against T-3, in addition to all of its claims against both of T-3's insurers. On appeal, 1325 argues that: (1) the trial court incorrectly applied the economic loss doctrine to dismiss 1325's negligence claims against T-3, and erroneously ruled that T-3 has no insurance coverage arising from such claims; (2) Indiana's CGL policy provides coverage for contract claims asserted against T-3 for property damage and loss of use caused by its subcontractors; and (3) Westport's professional liability policy provides coverage for 1325's breach of contract claims that T-3 inadequately provided professional services.
II. ANALYSIS
In an appeal from the entry of summary judgment, this court reviews the record de novo, applying the same standard and following the same methodology required of the trial court under WIS. STAT. § 802.08. See Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315-17, 401 N.W.2d 816 (1987). That methodology is well known, and need not be repeated here. See § 802.08; Grams v. Boss, 97 Wis. 2d 332, 338-39, 294 N.W.2d 473 (1980).
"A decision to grant or deny declaratory relief falls within the discretion of the circuit court." Milwaukee Dist. Council 48 v. Milwaukee County, 2001 WI 65, , 244 Wis. 2d 333, 627 N.W.2d 866. However, when the exercise of such discretion turns upon a question of law, we review the question de novo, benefiting from the trial court's analysis. Gulmire v. St. Paul Fire & Marine Ins. Co., 2004 WI App 18, , 269 Wis. 2d 501, 674 N.W.2d 629.
Indeed, " nterpreting the nature of a contract presents a question of law subject to independent appellate review." Cease Elec., 276 Wis. 2d 361, . That is, determining whether the transaction at issue was one for goods or services is a questio
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