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Paulan v. Sigmund3/23/2005
stat independently and by not testing the system. See id., -10. On appeal, Cease Electric maintained that the negligence action was precluded by the economic loss doctrine. Id., . Concluding that the contract with Cease Electric was one for services, id., , the supreme court held that the economic loss doctrine does not extend to claims for the negligent provision of services. Id., .
. Paulan contracted with Sigmund to provide a service-the installation of the skylights. The economic loss doctrine does not preclude his claim for negligent provision of that service. We reverse the circuit court's order dismissing the negligence claim.
. Paulan argues that he is entitled to recover both the cost of repair and the diminution in value. The circuit court ruled that he is limited to the lesser of one measure of damages citing Wis JI-Civil 1804 as the law on damages. Hellenbrand v. Hilliard, 2004 WI App 151, , 275 Wis. 2d 741, 687 N.W.2d 37, concluded that Wis JI-Civil 1804 "is a useful instruction, but one that does not cover all valid damages theories when an item of personal property is repairable." Looking to Hawes v. Germantown Mutual Insurance Co., 103 Wis. 2d 524, 533-34, 309 N.W.2d 356 (Ct. App. 1981), a case permitting damages for repairs and diminution in value occasioned by the collapse of a basement wall, the Hellenbrand court held, "when a plaintiff proves that repairs to personal property have not restored the property to its pre-injury value, and the plaintiff demonstrates that he or she has been or will be harmed by such loss in value, the plaintiff is entitled to damages for the proven lost value" in addition to the cost of repair. Hellenbrand, 275 Wis. 2d 741, . Paulan offered an appraisal to demonstrate his intent to prove that repairs did not restore his home to its preinjury value. Paulan is entitled to make his proof at trial. We reverse the circuit court's ruling limiting damages. See id., .
. We turn to the coverage issues presented by American Family's motion for summary judgment. At the outset, we reject Paulan's contention that American Family's concession in the circuit court that it had a duty to defend Sigmund ends the inquiry and prevents an examination of anything other than the complaint. American Family moved for summary judgment determining that, as a matter of law, it does not provide coverage for the claims stated in the complaint. "Summary judgment may be used to address insurance policy coverage issues." Auto-Owners Ins. Co. v. Rasmus, 222 Wis. 2d 342, 348, 58 N.W.2d 49 (Ct. App. 1998). We need not address American Family's duty to defend because it did not refuse to provide a defense for Sigmund and its duty was terminated only after the coverage decision was made.
. We observe that the circuit court's coverage determination was a narrow one. It addressed the coverage question as if there is only contractual liability to Paulan. The viability of Paulan's tort claim undermines the basis for the circuit court's decision. Specifically, the circuit court concluded that there was no accidental "occurrence" and that the policy excludes coverage for contractual liability for poor workmanship. We confine our decision to that narrow ruling.
. The circuit court's conclusion that there was no "occurrence" covered by the CGL policy was error. Paulan's complaint alleges negligence. Although it may be undisputed that Sigmund intentionally cut the trusses, the resulting structural impairment of the entire roof was not the intended result. In Doyle v. Engelke, 219 Wis. 2d 277, 289-90, 580 N.W.2d 245 (1998), the court recognized that the definition of both "accident" and "negligence" "center on an unintentional occurrence leadin
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