Everson v. Lorenz

2005 WI 51, 695 N.W.2d 298, 280 Wis. 2d 1, 2005 Wisc. LEXIS 154
CourtWisconsin Supreme Court
DecidedApril 22, 2005
Docket2003AP1331
StatusPublished
Cited by56 cases

This text of 2005 WI 51 (Everson v. Lorenz) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Everson v. Lorenz, 2005 WI 51, 695 N.W.2d 298, 280 Wis. 2d 1, 2005 Wisc. LEXIS 154 (Wis. 2005).

Opinions

N. PATRICK CROOKS, J.

¶ 1. This case comes before us on certification from the court of appeals pursuant to Wis. Stat. § (Rule) 809.61 (2001-02).1 Richard Lorenz and Lorenz Land Development, Inc. (Lorenz) seek review of an order of the Circuit Court for Calumet County, Donald A. Poppy, Judge, granting Intervenor Pekin Insurance Company's (Pekin) motion for summary judgment. This case presents the issue of whether Pekin's insurance policy provides coverage to its insured, Lorenz, for strict responsibility misrepresentation and/or negligent misrepresentation claims filed against it by Paul and Michelle Everson (Everson).

¶ 2. The court of appeals certified three questions to this court: (1) Does an alleged strict responsibility misrepresentation and/or negligent misrepresentation in a real estate transaction constitute an "occurrence" for the purpose of a commercial general liability insurance policy such that the insurer's duty to defend the insured is triggered?; (2) What allegations must a complaint contain to plead sufficiently "loss of use" within the meaning of a commercial general liability insurance policy?; and (3) Under what circumstances does a misrepresentation, negligent or strict responsi[6]*6bility, cause the "loss of use" of property such that a "causation nexus" is established?

¶ 3. We conclude that since there is no coverage based on Everson's complaint and the language of the Pekin insurance policy, Pekin has no duty to defend and no duty to indemnify Lorenz against Everson's claims for strict responsibility and/or negligent misrepresentation. The alleged misrepresentation was not an "occurrence" within the meaning of the policy. We hold that Everson must plead more than "damages" in relation to the misrepresentation claims to plead sufficiently a "loss of use" under the policy. We further conclude that since the complaint fails to allege "property damage," in that there is no allegation of an "occurrence," and no allegation of "loss of use," there clearly is not a sufficient allegation of "causation nexus." The "property damage" was caused by defects in the property, not by any misrepresentations of Lorenz.

I. FACTS

¶ 4. For the purposes of this review, the facts of this case are undisputed. Lorenz, a real estate developer, purchased vacant land in Brillion, Wisconsin in 1997. This property eventually became the subdivision known as Deer Run Estates. Everson bought a parcel in the subdivision from Lorenz, Lot 31, for the purpose of constructing a single family home. Everson accepted the offer on June 29, 2000.

¶ 5. After the transaction was completed, Everson determined that a portion of Lot 31 was located within a 100-year flood plain. As a result, Everson filed a complaint against Lorenz on March 18, 2002.2 The [7]*7claims alleged in the complaint were as follows: (1) negligent misrepresentation; (2) strict responsibility misrepresentation; (3) intentional misrepresentation; and (4) breach of contract. Specifically, Everson alleged that Lorenz represented that no portion of the property (Lot 31) lay within a 100-year flood plain.3 As a result, the construction of the home would not be possible in the location that Everson wished to build. Everson's complaint alleged that the property was "un-buildable," and asked for damages in the amount of $37,000.4

¶ 6. At the time of the purchase, Pekin insured Lorenz under a commercial general liability policy. Following the initiation of suit by Everson, Lorenz tendered its defense to Pekin. Pekin has since moved to intervene, bifurcate the insurance coverage issues from the liability and damage issues, and stay all liability and damage issues until the insurance coverage issues have been decided. The circuit court granted this motion, [8]*8and Pekin subsequently hired counsel to represent Lorenz on the merits of the pending action against Everson.

¶ 7. On February li, 2003, Pekin filed a motion for summary judgment on the issues of insurance coverage, including the duty to defend and indemnify. The circuit court, the Honorable Donald A. Poppy presiding, granted Pekin's summary judgment motion in a written order as follows: (1) No coverage exists under Pekin's policy of insurance, for the complaint and causes of action of Everson in the present matter; (2) no duty exists on behalf of Pekin-to defend Lorenz for the complaint filed by Everson in the present matter; (3) no duty exists on behalf of Pekin to indemnify Lorenz for the complaint filed by Everson in this matter; and (4) the stay of discovery memorialized in the court's order dated August 8, 2002 is hereby dissolved.

¶ 8. Lorenz appealed the circuit court's grant of summary judgment. The court of appeals certified the case to this court. We accepted certification and now affirm the order of the circuit court.

II. STANDARD OF REVIEW

¶ 9. We review a circuit court's grant of summary judgment de novo, applying the same methodology as the circuit court, and benefiting from its analysis. Atkins v. Swimwest Family Fitness Center, 2005 WI 4, ¶ 11, 277 Wis. 2d 303, 691 N.W.2d 334. According to Wis. Stat. § 802.08(2), summary judgment will be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."

[9]*9¶ 10. We also address issues regarding the interpretation of an insurance contract. Such interpretation, we have held, presents a question of law which we review de novo. Lambert v. Wrensch, 135 Wis. 2d 105, 115, 399 N.W.2d 369 (1987).

III. ANALYSIS

¶ 11. The determinative issue presented in this case is whether Pekin's insurance policy provides coverage to Lorenz for the strict responsibility and/or negligent misrepresentation claims filed by Everson. We have held that an insurer's duty to defend its insured is triggered by comparing the allegations of the complaint to the terms of the insurance policy. See Smith v. Katz, 226 Wis. 2d 798, 806, 595 N.W.2d 345 (1999)." '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.... '" Qualman v. Bruckmoser, 163 Wis. 2d 361, 364, 471 N.W.2d 282 (Ct. App. 1991) (quoting Grieb v. Citizens Casualty Co., 33 Wis. 2d 552, 557, 148 N.W.2d 103 (1967).

¶ 12. Since Pekin's duty to defend is determined by the language in both the policy provisions and the complaint, we set forth the relevant portions of each. The insurance policy states in part:

SECTION 1- COVERAGES
COVERAGE A. BODILY INJURY AND PROPERTY
DAMAGE LIABILITY
1. Insuring Agreement.
a. We will pay those sums that the insured becomes legally obligated to pay as damages be[10]*10cause of "bodily injury" or "property damage" to which this insurance applies.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

John McLaughlin v. Gaslight Pointe Condominium Association, LTD
2024 WI App 30 (Court of Appeals of Wisconsin, 2024)
Riverback Farms, LLC v. Saukville Feed Supplies, Inc.
2023 WI App 40 (Court of Appeals of Wisconsin, 2023)
5 Walworth, LLC v. Engerman Contracting, Inc.
2023 WI 51 (Wisconsin Supreme Court, 2023)
5 Walworth, LLC v. Engerman Contracting, Inc.
2021 WI App 51 (Court of Appeals of Wisconsin, 2021)
Uneeda Rest, LLC v. Rick Hexum
Court of Appeals of Wisconsin, 2020
Archie A. Talley v. Mustafa Mustafa
2018 WI 47 (Wisconsin Supreme Court, 2018)
Land O'Lakes, Inc. v. Daniel Ratajczak, Jr.
870 F.3d 650 (Seventh Circuit, 2017)
Wosinski v. Advance Cast Stone Co.
2017 WI App 51 (Court of Appeals of Wisconsin, 2017)
Maya Elaine Smith v. Jeff Anderson
2017 WI 43 (Wisconsin Supreme Court, 2017)
Jones v. Baecker
2017 WI App 3 (Court of Appeals of Wisconsin, 2016)
New London County Mutual Ins. Co. v. Sielski
Connecticut Appellate Court, 2015
Wisconsin Pharmacal Co. v. Nebraska Cultures of California, Inc.
2014 WI App 111 (Court of Appeals of Wisconsin, 2014)
CED Properties LLC v. City of Oshkosh
2014 WI 10 (Wisconsin Supreme Court, 2014)
Grand View Windows, Inc. v. Brandt
2013 WI App 95 (Court of Appeals of Wisconsin, 2013)
Marshall Schinner v. Michael Gundrum
2013 WI 71 (Wisconsin Supreme Court, 2013)
Schinner v. Gundrum
2012 WI App 31 (Court of Appeals of Wisconsin, 2012)
Universal Underwriters Insurance v. LKQ Smart Parts
2012 IL App (1st) 101723 (Appellate Court of Illinois, 2011)
Universal Underwriters v. LKQ Smart Parts
2011 IL App (1st) 101723 (Appellate Court of Illinois, 2011)

Cite This Page — Counsel Stack

Bluebook (online)
2005 WI 51, 695 N.W.2d 298, 280 Wis. 2d 1, 2005 Wisc. LEXIS 154, Counsel Stack Legal Research, https://law.counselstack.com/opinion/everson-v-lorenz-wis-2005.