Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Water Well Solutions Service Group Inc. v. Consolidated Insurance Co.

Supreme Court of Wisconsin

June 30, 2016

Water Well Solutions Service Group Inc., Plaintiff-Appellant-Petitioner
v.
Consolidated Insurance Company, Defendant-Respondent.

         REVIEW OF A DECISION OF THE COURT OF APPEALS (Reported at 365 Wis.2d 223, 871 N.W.2d 276) (Ct. App. 2015 – Published) PDC No: 2015 WI App. 78

         CIRCUIT COURT WAUKESHA COUNTY L.C. 2014CV254, JAMES R. KIEFFER JUDGE.

          For the plaintiff-appellant-petitioner, there were briefs by Timothy M. Hansen, Charles J. Crueger, James B. Barton, and Hansen Reynolds Dickinson Crueger LL, and oral argument by Timothy M. Hansen.

          For the defendant-respondent, there was a brief by William J. Katt, Christina A. Katt, Corey J. Wright and Wilson Elser Moskowitz Edelman & Dicker, LLP, and oral argument by William J. Katt.

          REBECCA G. BRADLEY, J.

         ¶1 In this duty to defend case, Water Well Solutions Service Group Inc. (Water Well) asks us to reverse the court of appeals' decision[1] affirming the Waukesha County Circuit Court's[2] summary judgment decision in favor of Consolidated Insurance Company, Water Well's insurer. Applying the longstanding four-corners rule used to determine whether a complaint triggers the duty to defend, see Doyle v. Engelke, 219 Wis.2d 277, 284, 580 N.W.2d 245 (1998), both the circuit court and the court of appeals concluded that Consolidated did not breach its duty to defend Water Well. In response, Water Well argues this court should craft an exception to the four-corners rule allowing courts to consider extrinsic evidence when an insurer has unilaterally decided that no duty to defend exists based on exclusions in the insurance policy.

         ¶2 Specifically, we are asked to decide whether this court should allow admission of extrinsic evidence under a limited exception to the four-corners rule in cases where (1) the policy provides an initial grant of coverage based on facts alleged in the complaint, (2) the insurer denies a duty to defend its insured based on the application of specific policy exclusions but without seeking a coverage determination from a court, and (3) the insured asserts that the underlying complaint is factually incomplete or ambiguous. We are further asked to determine, absent an exception to the four-corners rule, whether a court should compare the four corners of the complaint to the entire insurance policy, including exclusions and exceptions, or if the court's review is limited to comparing the complaint to the terms of the policy governing the initial grant of coverage. We confirmed in Marks v. Houston Cas. Co., 2016 WI 53, ¶¶61-76, __ Wis.2d __, __ N.W.2d __, that under the four-corners rule the entire policy must be examined, including the coverage-granting clauses, exclusions, and exceptions to any applicable exclusions.[3] Thus, we also decide whether any exclusions in Consolidated's policy apply.

         ¶3 We affirm the court of appeals and hold that Consolidated did not breach its duty to defend Water Well. First, we reject Water Well's request to craft a limited exception to the four-corners rule, which has long endured to the benefit of Wisconsin insureds. We are not persuaded that an exception to this rule is necessary. Second, as we explain in Marks, __ Wis.2d __, ¶¶61-76, released today in conjunction with this decision, the four-corners rule requires a court to compare the complaint to the terms of the entire insurance policy in determining whether the duty to defend is triggered. Thus, we reject Water Well's argument that the court's comparison is limited to reviewing the insurance policy's granting clause. The longstanding four-corners comparison rule applies in all duty to defend cases, including cases such as this one where the policy provides an initial grant of coverage, the insurer made a unilateral decision to refuse to defend based on specific policy exclusions, and the insured asserts the underlying complaint is factually incomplete or ambiguous. Finally, after comparing the four corners of the underlying complaint to the terms of the insurance policy at issue, we conclude that the "Your Product" exclusion applies to preclude coverage. As a result, Consolidated did not breach its duty to defend Water Well and is entitled to summary judgment as a matter of law; therefore, we affirm.

         I. BACKGROUND

         ¶4 In 2009, Waukesha Water Utility (Waukesha) contracted with Water Well to perform work on Well #10, an existing well located in the City of Waukesha. Waukesha hired Water Well to remove an existing pump, install a new pump, and complete reinstallations of the pump. In February 2011, the well pump unthreaded from a pipe column and fell to the bottom of the well.

         ¶5 Argonaut Insurance Company, [4] Waukesha's insurer, filed suit against Water Well in federal district court. Argonaut's complaint alleged that "Water Well, its agents, employees and representatives" were negligent in the installation and reinstallations of the well pump and that "Water Well, its agents, employees and/or representatives" breached their contractual obligations. Specifically, Argonaut's complaint alleged that the well pump "unthreaded and separated from the pipe column, " which "caused the Well Pump, including the motor, to fall to the bottom of the approximately 1910-foot-deep well." Argonaut asserted that Water Well failed to install two setscrews, "which allowed operating torques and vibrations to cause the Well Pump to rotate and unthread from the pipe column and caused the Well Pump to fall to the bottom of the well." Argonaut sought $300, 465.48 in subrogated damages. We set forth pertinent paragraphs of Argonaut's complaint in our analysis.

         ¶6 Water Well was insured under a Commercial General Liability Primary Policy (CGL policy) with Consolidated at the time the alleged damages occurred.[5] Water Well tendered its defense to its insurer, Consolidated, in the action initiated by Argonaut. The parties do not dispute that the CGL policy provides an initial grant of coverage.[6] However, Consolidated denied Water Well's defense tender stating it had no duty to defend or indemnify Water Well under the CGL policy because the "Your Work" and the "Your Product" exclusions applied and removed coverage for the damages alleged in Argonaut's complaint.

         ¶7 After Consolidated refused to defend Water Well in the Argonaut action, Water Well obtained counsel, incurred attorney's fees and costs, and eventually settled with Argonaut for $87, 500. Water Well then filed suit against Consolidated, alleging that Consolidated breached its duty to defend Water Well in the underlying action initiated by Argonaut. Water Well also alleged that Consolidated acted in bad faith when it refused to provide a defense.[7]

         ¶8 The Waukesha County Circuit Court granted Consolidated's motion for summary judgment after considering cross-motions for summary judgment. It determined that under applicable Wisconsin case law, a court must compare the four corners of the complaint to the terms of the entire insurance policy when deciding whether an insurer breached its duty to defend its insured. The circuit court concluded that this comparison encompassed the policy's coverage provisions and exclusions, but not extrinsic evidence Water Well offered in support of its assertion that its subcontractor's work on preexisting pipes triggered coverage under the policy.[8] Based on a comparison of the four corners of the complaint and the terms of the entire policy, the circuit court determined that the allegations in the Argonaut complaint fell under both the "Your Product" and the "Your Work" exclusions. Therefore, it concluded that "there is no covered claim and therefore there was no duty to defend."[9]

         ¶9 The court of appeals affirmed in a published decision. Water Well Sols. Serv. Grp. Inc. v. Consol. Ins. Co., 2015 WI App. 78, ¶1, 365 Wis.2d 223, 871 N.W.2d 276. The majority's reasoning mirrored the circuit court's: it reviewed the four corners of Argonaut's complaint, compared the complaint to the terms of the entire insurance policy, and concluded that both the "Your Work" and the "Your Product" exclusions eliminated coverage. Id., ¶¶6-7, 10, 13, 16-18.

         ¶10 We granted Water Well's petition for review.

         II. STANDARD OF REVIEW

         ¶11 We independently review a grant of summary judgment using the same methodology of the circuit court and the court of appeals. Blasing v. Zurich Am. Ins. Co., 2014 WI 73, ¶21, 356 Wis.2d 63, 850 N.W.2d 138. Summary judgment is appropriate when there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Wis.Stat. § 802.08(2) (2013-14);[10] Blasing, 356 Wis.2d 63, ¶21.

         ¶12 This case requires the court to interpret an insurance policy to determine whether an insurer breached its duty to defend its insured. Interpretation of an insurance contract presents a question of law that we review de novo. Estate of Sustache v. Am. Family Mut. Ins. Co., 2008 WI 87, ¶18, 311 Wis.2d 548, 751 N.W.2d 845.

         III. ANALYSIS

         A. Typical Process used in Duty to Defend Determinations

         ¶13 Before reaching the dispositive issue in this case, we first set forth general principles governing interpretation of insurance policies as well as the process typically used by courts in duty to defend cases.

         1. General principles: Insurance contracts

         ¶14 Insurance policies are contracts that generally establish an insurer's "duty to indemnify the insured against damages or losses, and the duty to defend against claims for damages." Olson v. Farrar, 2012 WI 3, ¶27, 338 Wis.2d 215, 809 N.W.2d 1. We interpret insurance policies in the same manner as other contracts--to give effect to the intent of the contracting parties. Am. Family Mut. Ins. Co. v. Am. Girl, Inc., 2004 WI 2, ¶23, 268 Wis.2d 16, 673 N.W.2d 65. We construe policy language as a reasonable person in the position of the insured would understand such language. Estate of Sustache, 311 Wis.2d 548, ¶19.

         ¶15 Longstanding case law requires a court considering an insurer's duty to defend its insured to compare the four corners of the underlying complaint to the terms of the entire insurance policy. See, e.g., id., ¶20; Doyle, 219 Wis.2d at 284 & n.3; Grieb v. Citizens Cas. Co. of New York, 33 Wis.2d 552, 558, 148 N.W.2d 103 (1967). The four-corners rule prohibits a court from considering extrinsic evidence when determining whether an insurer breached its duty to defend. Estate of Sustache, 311 Wis.2d 548, ¶27; Fireman's Fund Ins. Co. of Wis. v. Bradley Corp., 2003 WI 33, ¶19, 261 Wis.2d 4, 660 N.W.2d 666. We have, however, consistently explained that a court must liberally construe the allegations contained in the underlying complaint, assume all reasonable inferences from the allegations made in the complaint, and resolve any ambiguity in the policy terms in favor of the insured. Estate of Sustache, 311 Wis.2d 548, ¶21.

         ¶16 We use a three-step process when comparing the underlying complaint to the terms of the policy in duty to defend cases.[11] Id., ¶¶22-23. First, a reviewing court determines whether the policy language grants initial coverage for the allegations set forth in the complaint. Id., ¶22. If the allegations set forth in the complaint do not fall within an initial grant of coverage, the inquiry ends. Id. However, if the allegations fall within an initial grant of coverage, the court next considers whether any coverage exclusions in the policy apply. Id., ¶23. If any exclusion applies, the court next considers whether an exception to the exclusion applies to restore coverage. Id. If coverage is not restored by an exception to an exclusion, then there is no duty to defend. See Am. Girl, Inc., 268 Wis.2d 16, ¶24. If the policy, considered in its entirety, provides coverage for at least one of the claims in the underlying suit, the insurer has a duty to defend its insured on all the claims alleged in the entire suit. Fireman's Fund Ins. Co., 261 Wis.2d 4, ¶21.

         ¶17 It is also well-established that an insurer's duty to defend its insured is broader than its duty to indemnify. Olson, 338 Wis.2d 215, ¶29. This is because the four-corners rule dictates that the duty to defend is determined by "the nature of the claim alleged against the insured . . . even though the suit may be groundless, false or fraudulent." Grieb, 33 Wis.2d at 558. "'[T]he insurer is under an obligation to defend only if it could be held bound to indemnify the insured, assuming that the injured person proved the allegations of the complaint, regardless of the actual outcome of the case.'" Id. (quoting 29A Am. Jur., Insurance § 1452, at 565 (1960)(emphasis added).

         2. The four-corners rule

         ¶18 Water Well urges this court to establish a limited exception to the four-corners rule that would allow it to submit extrinsic evidence to dispute Consolidated's unilateral decision to refuse to defend Water Well in the Argonaut suit based on Consolidated's position that exclusions in the policy precluded coverage. Ultimately, Water Well asks this court to create an exception to the four-corners rule in duty to defend cases when (1) the policy provides an initial grant of coverage based on facts alleged in the complaint, (2) the insurer declines to defend its insured based on the application of specific policy exclusions but without seeking a coverage determination from the circuit court, and (3) the insured asserts that the underlying complaint is factually incomplete or ambiguous. We reject Water Well's request to create an exception to the four-corners rule.

         ¶19 In 1967, in Grieb, this court set forth the general rule that courts use to determine whether an insurer breached its duty to defend its insured. Grieb, 33 Wis.2d at 558-59. Essentially, we rejected Grieb's argument that when an implied duty to defend arises from a policy's indemnity clause, the four-corners rule does not apply. Id. We held that an insurer's duty to defend, regardless of its origin, depends on a comparison of the four corners of the underlying complaint to the terms of the policy, reasoning:

Whether a third-party suit comes within the coverage of this clause [the defense-coverage clause] or an implied duty to defend under an indemnity clause depends upon its allegations which are referred to as a general rule as the measure in the first instance. These allegations must state or claim a cause of action for the liability insured against or for which indemnity is paid in order for the suit to come within any defense coverage of the policy unless the express defense coverage is broader.

Id. at 557-58. After setting forth the four-corners rule, we stated "[t]here are at least four exceptions to the general rule determining the extent of the insurer's duty to defend and generally the insurer who declines to defend does so at his peril. These and allied problems are extensively covered in Anno., Liability Insurer--Duty to Defend, 50 A.L.R.2d 458." Grieb, 33 Wis.2d at 558. These two sentences are the only discussion in Grieb regarding exceptions to the four-corners rule; we did not actually adopt or apply any of the exceptions to the four-corners rule by this reference.[12] Instead, we held that Grieb's insurer had no duty to defend Grieb because the allegations in the complaint "could not be considered as stating a cause of action for liability for negligence, omissions, mistakes or errors." Id. at 559. In other words, we limited our determination of whether Grieb's insurer breached its duty to defend Grieb to the allegations in the four corners of the complaint: "It is not sufficient under [the insurance] policy that the facts alleged might under other circumstances be characterized as acts of unintentional negligence, error, mistake or omission." Id.

         ¶20 Since Grieb, Wisconsin courts, with one deviation in Berg v. Fall, 138 Wis.2d 115, 405 N.W.2d 701 (Ct. App. 1987), have consistently stated that an insurer's duty to defend its insured depends on the allegations contained in the four corners of the complaint. E.g., Olson, 338 Wis.2d 215, ¶30 ("Wisconsin policy is clear. If the allegations in the complaint, construed liberally, appear to give rise to coverage, insurers are required to provide a defense until the final resolution of the coverage question by a court."); Estate of Sustache, 311 Wis.2d 548, ¶20 ("The duty to defend is triggered by the allegations contained within the four corners of the complaint."); Doyle, 219 Wis.2d at 284 ("In determining an insurer's duty to defend, we apply the factual allegations present in the complaint to the terms of the disputed insurance policy."); Newhouse v. Citizens Sec. Mut. Ins. Co., 176 Wis.2d 824, 835, 501 N.W.2d 1 (1993) ("The duty to defend is triggered by the allegations contained within the four corners of the complaint."); Prof'l Office Bldgs., Inc. v. Royal Indem. Co., 145 Wis.2d 573, 580-81, 427 N.W.2d 427 (Ct. App. 1998) ("[W]e believe the rule of Grieb v. Citizens Casualty Co., 33 Wis.2d 552, 148 N.W.2d 103 (1967), and similar cases, is controlling and compels the determination that the duty to defend is dependent solely on the allegations of the complaint . . . .").

         ¶21 Despite this consistent application of the four-corners rule, the court of appeals in Berg considered extrinsic evidence to determine that an insurer had a duty to defend its insured. Berg, 138 Wis.2d at 123. In Berg, Robin Berg alleged that James Fall punched him in the face. Id. at 117. Fall's insurer, State Farm Insurance Company, was joined as a defendant in the suit. Id. at 116. The central issue before the court of appeals was whether the State Farm policy, which excluded coverage for "bodily injury 'expected or intended by the insured, '" applied where Fall claimed he acted in self-defense when he punched Berg. Id. at 117. The court of appeals held that (1) summary judgment was improper because a material fact-- whether Fall acted in self-defense--was disputed and (2) "that a privileged act of self-defense is not excluded from coverage by State Farm's policy language." Id. at 119-20. The court of appeals concluded that State Farm had a duty to defend Fall even though Berg's complaint did not allege that Fall acted in self-defense. Id. at 122. While the court of appeals cited Grieb and the general rule--that the duty to defend is determined by reference to the four corners of the underlying complaint--it held that "[b]ecause the record shows facts sufficient to support an inference that Fall acted reasonably in self-defense, summary judgment was inappropriate and State Farm owes him a duty of defense." Id. at 123 (footnote omitted). By relying on extrinsic evidence, the court of appeals in Berg departed from the well-established four-corners rule.

         ¶22 We recognized this in Doyle when we soundly rejected an assertion, based on Berg, suggesting a court should look beyond the four corners of the complaint to determine whether an insurer had breached its duty to defend. Doyle, 219 Wis.2d at 284 n.3. A year later, citing our footnote in Doyle, we again declined to recognize an exception to the four-corners duty to defend rule. Smith v. Katz, 226 Wis.2d 798, 815-16, 595 N.W.2d 345 (1999).

         ¶23 In Sustache v. Am. Family Mut. Ins. Co., the court of appeals considered whether any exception to the four-corners rule existed in Wisconsin given that (1) Grieb referenced "at least four exceptions" to the four corners rule, id., 33 Wis.2d at 558, (2) the court of appeals in Berg relied on extrinsic evidence to determine an insurer's duty to defend its insured, and (3) this court rejected an invitation to rely on Berg in Doyle and Smith, but did not explicitly overrule Berg's reliance on extrinsic evidence. Sustache v. Am. Family Mut. Ins. Co., 2007 WI App. 144, ¶¶11-13, 15-16, 303 Wis.2d 714, 735 N.W.2d 186 aff'd sub nom. Estate of Sustache v. Am. Family Mut. Ins. Co., 2008 WI 87, 311 Wis.2d 548, 751 N.W.2d 845.[13] The court of appeals explained "the dilemma in this case goes beyond the tension between Doyle/Smith and Berg. If we should hold that the supreme court has tacitly overruled Berg, it remains that Grieb, a supreme court opinion, is still on the books, and no court of appeals or supreme court opinion has ever called Grieb into question." Sustache, 303 Wis.2d 714, ¶17. The court of appeals concluded that it was required to follow this court's most recent decisions regarding the application of the four-corners rule in duty to defend cases. Id., ¶19. It concluded that our opinions in Doyle and Smith "tacitly overruled . . . [our] recognition of the exceptions to the four-corners rule in Grieb. From that it logically follows that Doyle and Smith have also tacitly overruled Berg." Sustache, 303 Wis.2d 714, ¶19. It concluded: "In sum, the four-corners rule is the law in Wisconsin when measuring an insurer's duty to defend, and the rule knows no exceptions until the supreme court unequivocally holds otherwise." Id.

         ¶24 We now unequivocally hold that there is no exception to the four-corners rule in duty to defend cases in Wisconsin. This position is consistent with long-standing precedent, including Grieb. Our passing reference in Grieb to "at least four exceptions to the general rule, " 33 Wis.2d at 558, should not be read as an adoption of any exception to the four corners rule. Rather, by citation to the American Law Reports, this passage in Grieb merely recognized that exceptions exist in other jurisdictions. That Grieb did not adopt any exceptions to the four-corners rule is further supported by the fact that Grieb never specifically enumerated or described any exception to the four-corners rule. Furthermore, our analysis in Grieb plainly reveals that we did not consider extrinsic evidence; rather, we applied the four-corners rule to conclude that the allegations against Grieb in the taxpayer's suit did not fall within the coverage provided by the insurance policy at issue. Id. at 559. We overrule any language in Berg suggesting that evidence may be considered beyond the four corners of the complaint in determining an insurer's duty to defend its insured.[14]

         ¶25 We have applied the four-corners rule, without exceptions, in duty to defend cases for so long because it generally favors Wisconsin insureds.[15] The rule ensures that courts are able to efficiently determine an insurer's duty to defend, which results in less distraction from the merits of the underlying suit. Also, the four-corners rule supports the policy that an insurer's duty to defend is broader than its duty to indemnify. Estate of Sustache, 311 Wis.2d 548, ¶20. That is because "[i]t is the nature of the claim alleged against the insured which is controlling even though the suit may be groundless, false or fraudulent." Grieb, 33 Wis.2d at 558. Adherence to "[t]he four-corners rule 'ensure[s] that insurers do not frustrate the expectations of their insureds by [prematurely] resolving the coverage issue in their own favor[.]'" Olson, 338 Wis.2d 215, ¶32 (quoting Baumann v. Elliot, 2005 WI App. 186, ¶10, 286 Wis.2d 667, 704 N.W.2d 361) (brackets in original). Without the four-corners rule, insurers would be incentivized to outright refuse to defend their insureds and hope that the facts later revealed that no coverage existed. Olson, 338 Wis.2d 215, ¶32. The end result of strict adherence to the four-corners rule is that "the insurer may have no duty to defend a claim that ultimately proves meritorious against the insured because there is no coverage for that claim. Conversely, the insurer may have a clear duty to defend a claim that is utterly specious because, if it were meritorious, it would be covered." Smith, 226 Wis.2d 798, ¶20.

         ¶26 The four-corners rule ultimately favors insureds in another way. Even if a plaintiff's first complaint does not contain allegations that trigger the duty of a defendant's insurer to defend, a plaintiff has both the opportunity and the incentive to file an amended complaint when discovery results in additional facts that, if alleged in an amended complaint, would trigger a duty to defend: "[I]f a complaint does not allege a covered claim, the true facts will come out in discovery. Sooner or later those facts will be alleged in an amended complaint because the plaintiff will want coverage for the defendant-insured. When that happens, the duty to defend is triggered." Sheila M. Sullivan et al., Anderson on Wisconsin Insurance Law § 7.27 at 29 (7th ed. 2015).

         ¶27 Water Well asserts that strictly applying the four-corners rule encourages insurers to refuse to defend insureds in close cases. We disagree. We continue to strongly encourage insurers to follow one of the judicially-preferred approaches rather than make a unilateral determination to refuse to defend an insured. See Liebovich v. Minnesota Ins. Co., 2008 WI 75, ¶55, 310 Wis.2d 751, 751 N.W.2d 764. For example:

(1) An insurer may request a bifurcated trial on the issue of coverage and move to stay all proceedings on liability until a coverage determination is made. Id.; Elliot v. Donahue, 169 Wis.2d 310, 318, 485 N.W.2d 403 (1992). Under this approach, "the insurance company runs no risk of breaching its duty to defend." Newhouse, 176 Wis.2d at 836.
(2) An insurer may enter into "a nonwaiver agreement in which the insurer would agree to defend, and the insured would acknowledge the right of the insurer to contest coverage." Grube v. Daun, 173 Wis.2d 30, 75, 496 N.W.2d 106 (Ct. App. 1992), overruled on other grounds, Marks, __ Wis.2d __, ¶75. An insurer may also proceed under a reservation of rights under which the insured provides and controls its own defense, but the insurer remains liable for incurred legal costs. Id.
(3) Finally, an insurer may choose to provide an initial defense and seek a declaratory judgment on coverage.[16] Liebovich, 310 Wis.2d 751, ¶55.

         We reiterate:

While these procedures are not absolute requirements, we strongly encourage insurers wishing to contest liability coverage to avail themselves of one of these procedures rather than unilaterally refuse to defend. A unilateral refusal to defend without first attempting to seek judicial support for that refusal can result in otherwise avoidable expenses and efforts to litigants and courts, deprive insureds of their contracted-for protections, and estop insurers from being able to further challenge coverage.

Id.

         ¶28 An insurer also has the option to "[d]eny the tender of defense and state the grounds for deciding that the complaint does not trigger any obligation to defend under the policy." Sheila M. Sullivan et al., Anderson on Wisconsin Insurance Law § 7.54 at 51 (7th ed. 2015). If, however, an insurer chooses this option "it does so at its own peril." Elliot, 169 Wis.2d at 321. By declining to defend an insured, an insurer opens itself up to a myriad of adverse consequences if its unilateral duty to defend determination turns out to be wrong. For example, an insurer that breaches its duty to defend is liable for all costs naturally flowing from the breach. Newhouse, 176 Wis.2d at 837; Maxwell v. Hartford Union High Sch. Dist., 2012 WI 58, ¶¶55-56, 341 Wis.2d 238, 814 N.W.2d 484 (explaining that a breach of the duty to defend results in damages naturally flowing from that breach, but does not expand coverage). This liability is not limited to policy limits:

Damages which naturally flow from an insurer's breach of its duty to defend include: (1) the amount of the judgment or settlement against the insured plus interest; (2) costs and attorney fees incurred by the insured in defending the suit; and (3) any additional costs that the insured can show naturally resulted from the breach.

Newhouse, 176 Wis.2d at 838. Liability for costs and attorneys fees may potentially be greater than what the insurer would have paid had it defended its insured in the first instance because an insurer that refuses to defend its insured cedes control of the defense to its insured and is liable for all reasonable expenses. Patrick v. Head of the Lakes Co-op Elec. Ass'n, 98 Wis.2d 66, 72-23, 295 N.W.2d 205 (1980) ("As long as [the] defense is reasonable and coverage is found, the insurer must pay for the defense.").

         ¶29 In addition, an insurer that breaches its duty to defend its insured places itself at risk that its insured will pursue a successful first-party bad faith action against it. See Anderson v. Cont'l Ins. Co., 85 Wis.2d 675, 687, 271 N.W.2d 368 (1978) (recognizing the intentional tort of bad faith); Brethorst v. Allstate Prop. & Cas. Ins. Co., 2011 WI 41, ¶5, 334 Wis.2d 23, 798 N.W.2d 467 (holding that a breach of contract is a prerequisite for a first-party bad faith claim levied against an insurer). In a successful first-party bad faith action against an insurer, an insured may recover punitive damages. See Weiss v. United Fire & Cas. Co., 197 Wis.2d 365, 393, 541 N.W.2d 753 (1995).

         ¶30 In sum, we follow our long-standing precedent that duty-to-defend cases are governed by the four-corners rule, with no exceptions.[17]

         3. The policy terms

         ¶31 Consolidated's duty to defend Water Well originates from the CGL Policy, under which Consolidated "will have the right and duty to defend the insured against any 'suit' seeking [bodily injury or property] damages. However, [Consolidated] will have no duty to defend the insured against any 'suit' seeking damages for 'bodily injury' or 'property damage' to which this insurance does not apply." Wisconsin courts determine whether an insurer breached its duty to defend its insured by comparing the four corners of the underlying complaint to the terms of the insurance policy. See Doyle, 219 Wis.2d at 284. Water Well argues that if this court does not recognize any exception to the four-corners rule, then it should limit consideration of the policy to only those terms governing an initial grant of coverage. Consistent with Marks, we reject this argument. In Marks, we held that in duty to defend cases a court must compare the four corners of the complaint to the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.