Washington v. Krahn

440 F. Supp. 2d 911, 2006 U.S. Dist. LEXIS 47715, 2006 WL 1938077
CourtDistrict Court, E.D. Wisconsin
DecidedJuly 11, 2006
Docket05-C-673
StatusPublished

This text of 440 F. Supp. 2d 911 (Washington v. Krahn) is published on Counsel Stack Legal Research, covering District Court, E.D. Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Washington v. Krahn, 440 F. Supp. 2d 911, 2006 U.S. Dist. LEXIS 47715, 2006 WL 1938077 (E.D. Wis. 2006).

Opinion

DECISION AND ORDER

ADELMAN, District Judge.

Plaintiffs bring this action under 42 U.S.C. §§ 1982 and 3604 for the purpose of redressing racial discrimination in housing. The individual plaintiffs are African-Americans who participated in a testing program conducted by the Metropolitan Milwaukee Fair Housing Council (“MMFHC”) to determine whether the defendants were engaging in unlawful discriminatory housing practices. The MMFHC is an organization that works to ensure equal access to housing and is also a plaintiff. Defendant James Krahn owns several apartment buildings in Milwaukee County and defendants Patrick and Theodora Szydel manage such buildings. Pursuant to 28 U.S.C. § 2201, Krahn’s liability insurer, Rural Mutual Insurance Company (“Rural”) intervened and now moves for summary judgment on the ground that it has no duty to defend.

In determining whether Rural has a duty to defend, I apply Wisconsin law. Lexington Ins. Co. v. Rugg & Knopp, *913 Inc., 165 F.3d 1087, 1091 (7th Cir.1999). Under Wisconsin law, an insurer has a duty to defend if the complaint alleges facts that, if proven, would give rise to the insurer’s liability under the policy. Doyle v. Engelke, 219 Wis.2d 277, 284-85, 580 N.W.2d 245 (1998). The complaint need only allege one theory of liability that is covered by the policy. Sch. Dist. of Shorewood v. Wausau Ins. Cos., 170 Wis.2d 347, 366, 488 N.W.2d 82 (1992). I construe the complaint liberally and resolve all doubts in favor of the insured. Doyle, 219 Wis.2d at 284, 580 N.W.2d 245. If under any plausible interpretation, the complaint alleges liability covered by the policy, I must find a duty to defend. Hamlin, Inc. v. Hartford Accident & Indem. Co., 86 F.3d 93, 94 (7th Cir.1996).

Rural first argues that plaintiffs’ allegations do not trigger the policy’s “bodily injury” coverage. The policy defines bodily injury as “bodily injury, sickness or disease.” (Riemer Aff. Ex. 1.) Plaintiffs allege that as the result of the insureds’ discriminatory acts, they suffered “emotional distress.” (ComplJ 11.) Relying on United States v. Security Management Co., 96 F.3d 260, 267 (7th Cir.1996), Rural argues that under Wisconsin law a complaint alleging emotional distress does not trigger bodily injury coverage unless it also alleges “some sort of physical malady.” However, since the Seventh Circuit decided Security Management, the Wisconsin Supreme Court decided Doyle and substantially broadened the definition of bodily injury. In Doyle, the plaintiff alleged that she suffered emotional distress and the court held that she had alleged enough to invoke the policy’s bodily injury coverage. Doyle, 219 Wis.2d at 288, 580 N.W.2d 245. The court commenced its analysis by quoting with approval the statement in Tara N. v. Economy Fire & Casualty Insurance Co., 197 Wis.2d 77, 87, 540 N.W.2d 26 (Ct.App.1995), that “a reasonable insured would understand [mental, emotional or psychological] conditions to be included within the concepts of ‘sickness or disease’ which the policy uses to define ‘bodily injury.’ ” Doyle, 219 Wis.2d at 288, 580 N.W.2d 245. It then stated that it could not “ ‘separate a person’s nerves and tensions from his [or her] body. It is common knowledge that worry and anxiety can and often do have a direct effect on other bodily functions.’” Id. (quoting Levy v. Duclaux, 324 So.2d 1, 10 (La.Ct.App.1975)). Based on these propositions, the court rejected the insurer’s contention that an allegation of emotional distress could not trigger bodily injury coverage without an accompanying allegation of physical injury. Id. at 289, 580 N.W.2d 245.

With Doyle, Wisconsin became one of a number of states in which an allegation of emotional distress is sufficient to trigger bodily injury coverage “when there is no physical impact, fear of physical harm, or physical manifestation of emotional distress.” Eric Mills Holmes, 20 Holmes’ Appleman on Insurance 2d § 129.2, at 19 (2002); see e.g., Tortoso v. MetLife Auto & Home Ins. Co., 21 A.D.3d 276, 799 N.Y.S.2d 506, 508 (App.Div.2005) (stating that bodily injury encompasses “purely emotional distress”); see also Pekin Ins. Co. v. Hugh, 501 N.W.2d 508, 512 (Iowa 1993) (stating that “any attempt to distinguish between ‘physical’ and ‘psychological’ injuries just clouds the issue. This is because the medical community now knows that every emotional disturbance has a physical aspect and every physical disturbance has an emotional aspect.”) (internal citation omitted); York Ins. Group of Me. v. Lambert, 740 A.2d 984, 986 (Me.1999) (holding that a claim for emotional distress triggers an insurer’s duty to defend under bodily injury coverage unless explicitly excluded).

As previously indicated, in the present case, as in Doyle, the complaint alleges *914 emotional distress and the policy’s bodily injury coverage defines bodily injury as sickness or disease. Thus, based on Doyle and construing the complaint liberally in favor of coverage, I reject Rural’s argument that plaintiffs’ allegation is insufficient to trigger the duty to defend.

Rural also argues that the complaint does not allege covered liability because the policy limits coverage to bodily injury caused by an “occurrence” (Riemer Aff. Ex. 1), and plaintiffs fail to allege an occurrence. The policy defines occurrence as “an accident,” and it also excludes coverage of any injury that the insured “intended.” Id. Thus, I must determine if the complaint may be reasonably construed as alleging one or more unintentional acts. In Security Management,

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Related

Pekin Insurance Co. v. Hugh
501 N.W.2d 508 (Supreme Court of Iowa, 1993)
Shorewood School Dist. v. Wausau Ins.
488 N.W.2d 82 (Wisconsin Supreme Court, 1992)
Levy v. Duclaux
324 So. 2d 1 (Louisiana Court of Appeal, 1976)
Doyle v. Engelke
580 N.W.2d 245 (Wisconsin Supreme Court, 1998)
Tara N. Ex Rel. Kummer v. Economy Fire & Casualty Insurance
540 N.W.2d 26 (Court of Appeals of Wisconsin, 1995)
York Insurance Group of Maine v. Lambert
1999 ME 173 (Supreme Judicial Court of Maine, 1999)
Tortoso v. MetLife Auto & Home Insurance
21 A.D.3d 276 (Appellate Division of the Supreme Court of New York, 2005)
United States v. Security Management Co.
96 F.3d 260 (Seventh Circuit, 1996)

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Bluebook (online)
440 F. Supp. 2d 911, 2006 U.S. Dist. LEXIS 47715, 2006 WL 1938077, Counsel Stack Legal Research, https://law.counselstack.com/opinion/washington-v-krahn-wied-2006.