Archie A. Talley, Plaintiff-Appellant,
Mustafa Mustafa, d/b/a Burleigh Liquor, a/k/a Burleigh Food Market and Adams Foods, LLC, Defendants, Auto Owners Insurance Company, Defendant-Respondent.
from an order of the circuit court for Milwaukee County, No.
2012CV7847 DANIEL A. NOONAN, Judge. Reversed and cause
Reilly, P.J., Gundrum and Hagedorn, JJ.
Archie Talley appeals from an order granting Auto Owners
Insurance Company's (Auto Owners') motion for summary
and declaratory judgment and dismissing Auto Owners from this
action. The circuit court determined Auto Owners does not owe
Mustafa Mustafa or the other named defendants a duty of
defense or indemnification in relation to an alleged
altercation at Mustafa's business, Burleigh Food Market
(the store), on July 24, 2009. According to the court, the
complaint and factual record indicate that if defendant
"John Doe"-an alleged "agent, employee, or
representative" of Mustafa-struck Talley, it was done
intentionally, and because the injury to Talley was caused by
an intentional act, there is no coverage under Mustafa's
Auto Owners insurance policy.
We conclude the circuit court erred in granting summary and
declaratory judgment to Auto Owners and dismissing it from
this action. Talley's complaint alleged Mustafa
negligently trained and supervised "John Doe, " who
the parties subsequently identified as Keith
Scott. Based upon the language of the policy at
issue, a reasonable insured in the position of Mustafa would
expect to be covered for such a claim, whether founded upon a
negligent or intentional underlying act by Scott. On a
related matter addressed by the parties, we conclude there is
a genuine issue of material fact as to whether Scott was an
employee of Mustafa or otherwise had a special relationship
with him such that Mustafa had a duty to train and supervise
Scott with due care. We reverse and remand for further
Talley filed a complaint against Mustafa and Mustafa's
insurance company, Auto Owners, alleging that while Talley
was at the store on July 24, 2009, Scott, an "agent,
employee or representative" of Mustafa, began a
verbal altercation with Talley and then struck him twice,
fracturing his jaw. Talley alleged Mustafa was negligent with
regard to his "duty to properly train and
supervise" Scott, and his breach of this duty resulted
in Talley's injuries.
Following discovery, Auto Owners moved for declaratory and
summary judgment on the basis that Scott's alleged
injury-causing conduct did not qualify as an
"occurrence" covered under the policy or,
alternatively, that coverage was excluded because the injury
to Talley was "expected or intended" and thus the
intentional acts exclusion precluded coverage. The relevant
facts from the summary judgment record are as follows.
In his deposition, Talley testified he would patronize or
walk past the store almost daily for eight months prior to
the July 24, 2009 incident. Scott, who had a "mouthful
of gold" and was "not as tall" as
6'4½" Talley, would always be "doing
something at the store." Talley observed Scott working
in the kitchen/deli section of the store preparing food and
writing the cost on the food containers, which containers
were then to be taken to Mustafa at the cash register. Talley
also observed Scott performing other tasks, including
providing security, shoveling snow, mopping floors, stocking,
helping with inventory, and cleaning- "the man was doing
any and everything that someone that works in a store would
do." Most of the time, Scott would wear his "normal
street clothes"; however, he would wear a white apron
and "food gloves" "when he was in the meat
When Talley walked into the store on July 24 holding the door
open for an acquaintance, Scott was walking from the kitchen
area "cuss[ing] out" Talley for having the door
open too long because the air conditioning was on. Scott
"ran up on" and stood next to Talley
"look[ing] at me, talking crazy, and I simply looked him
up and down and said, 'poor thing.'" At the
time, Mustafa was "behind the cage"; Talley did not
hear Mustafa say anything. Talley "g[o]t some beer,
" and went to the cashier. Talley stated to his friend,
"[T]hat's some bullshit." Scott then struck
Talley in the face twice, causing him injuries.
Shakevia Winfory, Talley's daughter, provided deposition
testimony that there was "a black guy" at the store
with "gold teeth, " who was around 5'11"
and 250 pounds, who would prepare and serve nachos to
customers, as well as put the price on the nachos so
customers could take them to the counter to pay. The man was
in the store almost every time she went there, and she also
observed him stocking shelves, putting away groceries,
"helping customers with their WIC, " and
"pack[ing] up their WIC products." Noting children
sometimes stole from the store, Winfory testified the man
"watch[ed] over the kids in the store" and
occasionally told children they could not enter. She believed
the man was an employee not a customer.
Geraldine Moore testified that for several months she would
go into the store about twice a week, where she observed a
"black guy" called "Goldy, " who was
medium height, "stocky, " and had "gold in his
mouth." She observed the man "stocking up"
boxes, mopping the floor, and preparing nachos in the kitchen
area. She heard "the owner" "maybe once or
twice call him over to the counter."
Tammy Burks testified to observing a "stout"
"black guy" in the store with "gold
teeth" mopping, "putting beer up, "
"putting people out of the store, " working behind
the counter, and cooking on a restaurant-type grill. She also
observed that "[w]hen the black guy was on the register,
the Iranian guy was cooking." She had heard the man
referred to as both "Keith" and "Goldy."
She never believed the man to be a customer.
Sergeant Thomas Hines, of the Milwaukee Police Department,
also provided deposition testimony. He testified he wrote a
report regarding his investigation of the incident at the
store, the report reflected his questioning of Mustafa, and,
as he sat at his deposition, he had personal recollection of
his conversation with Mustafa, which recollection comported
with what he wrote in his report. Hines then read portions of
the report, including that Mustafa told Hines he only knew
Scott as "Keith, " but that Scott "often comes
in to the store to help [Mustafa] out … with stocking
and security." Mustafa told Hines he noticed Talley and
Scott "exchange words" on July 24 but did not see
Scott hit anyone. Hines left his phone number with Mustafa so
Mustafa could have Scott call him. The next day a man
representing he was Scott called and told Hines, among other
things, that he did not "work" in the store
"but helps out."
Hines also read portions of his report related to his review
of video surveillance footage from July 24, stating he did
have personal recollection, as he sat at the deposition, of
the video footage he had directly observed. The footage
showed Talley enter the store, engage in an argument with
Scott, walk to the area with malt beverages, and then walk
towards the front counter. It appeared Talley and Scott
"inadvertently bumped into one another, " after
which Scott punched Talley in the face. Talley ran to the
exit door, and Scott walked over to him and punched him in
the face a second time. Hines did not observe any items on
Scott that a security guard might have. Hines further
testified he was aware of no evidence Mustafa actually paid
Scott, but that based on his experience, many stores in that
district "employ individuals and pay them cash for
At his deposition, Scott testified he was 6'2" tall
and 260 pounds and lived in Kentucky in 2009, but did not
recall the month or year he moved down there. He stated he
became familiar with Mustafa prior to moving to Kentucky
because he would occasionally go into the store to buy items
for a nearby diner where he worked. He testified he did not
work for Mustafa in the store, knows Talley but has never
punched him, was not in an altercation with him on July 24,
2009, and did not talk with police in July 2009.
After this testimony, Talley's counsel read to Scott the
police report described above that relate to Hines'
questioning of Mustafa and review of surveillance video. Also
from that report, counsel read that Scott informed Hines in a
phone call that he does not work at the store but
helps out Mustafa from time to time because a lot of people
come into the store and try to steal and cause other
[Scott] stated that on the day of this incident the victim
came into the store talking crazy and loud as usual. Scott
stated that he told him to stop or he would have to leave.
Scott stated that a few minutes later the victim bumped into
him, causing him to feel threatened. He felt as though the
victim was picking a fight with him, so he reacted to it and
punched him in the face.
He … stated further that when he walked over to the
exit door to lock it, the victim was standing in the doorway
with the door open, making threats to come back and shoot up
the store. Scott stated that he then punched the ...