Anderson's Wisconsin Insurance Law: A Preview of the Fifth Edition-Breach of Contract in Not an Occurrence

WDC Journal Edition: Spring 2004
By: Arnold P. Anderson - Mohr & Anderson, LLC

A. Introduction

A general rule of insurance policy construction has long been that a breach of contract is not an “occurrence” as that term is used in a commercial general liability (CGL) policy. When all of a plaintiff’s claims are within the economic loss doctrine, that plaintiff is limited to liability based on breach of contract, as the economic loss doctrine precludes a purchaser from employing negligence or tort liability theories to recover a loss which is solely economic. Wausau Tile, Inc. v. County Concrete Corp., 226 Wis. 2d 235, ¶ 12, 593 N.W.2d 445 (1999). The insurance company for the defendant-insured therefore usually argues in such cases that the alleged breach of contract was not an “occurrence” and therefore, there is no insurance coverage for the claim against the insured.

Wisconsin courts had held that a breach of contract warranty is not an “occurrence” as defined in a CGL policy. Wausau Tile, Inc., supra., ¶ 49. See also, Atlantic Mut. Ins. Co. v. Badger Medical Supply Co., 191 Wis. 2d 229, 243, 528 N.W.2d 486 (Ct. App. 1995); Heil Co. v. Hartford Accident & Indemnity Co., 937 F. Supp. 1355, 1362 (E.D. Wis. 1996). However, in American Family Mutual Insurance Company v. American Girl, Inc., f/k/a Pleasant Company, Inc., 2004 WI 2 (a 3:2 decision reversing and remanding 2002 WI App. 229, 257 Wis. 2d 771, 652 N.W.2d 123) (Pleasant Co.), the Wisconsin Supreme Court stated that a breach of contract could be an occurrence or accident under a commercial general (CGL) policy. The decision was written by Justice Diane S. Sykes, with Justices N. Patrick Crooks and Patience D. Roggensack dissenting. Not participating were Chief Justice Shirely S. Abrahamson and Justice Jon J. Wilcox.

This article reviews Pleasant Co., as well as cases from other jurisdictions which have addressed whether a breach of contract is an occurrence. Cases construing the CGL policy regarding work of subcontractors are also discussed. Finally, there are suggestions on how to deal with breach of contract and occurrence issues after Pleasant Co.

B. Pleasant Co.

In Pleasant Co., a general contractor-insured constructed a warehouse, completing it in 1994. The general contractor had hired a subcontractor to do soil analysis before the construction was started. By the spring of 1995, the building had started to settle; it was buckling, the steel supports were deformed, the floor was cracked and the sewer lines had shifted. The insurance company for the contractor, American Family, filed a declaratory judgment action asserting that there was no coverage, but the trial court disagreed. The court of appeals reversed, holding the claim was not covered because of the “assumption of liability” exclusion. The Wisconsin Supreme Court reversed the court of appeals. In sum, the court held: The claim involved property damage caused by an occurrence; the underlying contract of the insured did not preclude coverage; the economic loss doctrine did not determine insurance coverage; the contractually assumed liability exclusion did not apply; and the subcontractor exception to the completed operations exclusion gave the insured coverage. With regard to excess insurers, the professional service exclusion precluded coverage, as did the “known loss” doctrine. Cases applying the economic loss doctrine were dismissed because they did not apply to insurance coverage, which is based on policy language. Id., ¶ 35.

Justice Sykes held that a breach of contract can be an occurrence:

We agree that CGL policies generally do not cover contract claims arising out of the insured’s defective work or product, but this is by operation of the CGL’s business risk exclusions, not because a loss actionable only in contract can never be the result of an occurrence within the meaning of the CGL’s initial grant of coverage. This distinction is sometimes overlooked and has resulted in regrettably overbroad generalizations about CGL polices in our case law.

¶ 39.

The court acknowledged a number of cases holding that a breach of contract was not an occurrence but (1) the definitions of bodily injury, property damage, and occurrence did not, in and of themselves, indicate there is no coverage for breach of contract; (2) if there was no coverage for breach of contract, there would be no need for the business risk exclusions; and (3) Kalchthaler v. Keller Construction Co., 224 Wis. 2d 387, 591 N.W.2d 169 (Ct. App. 1999), found coverage for liability arising out of the conduct of a subcontractor based on the same exception to business risk exclusion in Pleasant Company, Inc. Cases from other jurisdictions were noted but dismissed because they were split over the issue and were highly fact specific. Thus, the court confined its analysis to Wisconsin law. ¶ 49, fn. 7. The court then held that there was coverage for the insured-contractor for the work of its subcontractor. Id., ¶ 48.

Pleasant Co. also held that the exclusion for the assumption of liability did not apply. No liabilities of others (third parties) had been “assumed” by the insured-contractor. Therefore, the exclusion for contractually assumed liabilities did not operate to exclude coverage for any and all liabilities to which the insured is exposed under the terms of all contracts it makes. Id., ¶ 58.

In his dissent, Justice Crooks contended that the economic loss doctrine applied and that breach of contract/breach of warranty is not an occurrence, citing a number of Wisconsin cases, particularly Vogel v. Russo, 2000 WI 85, ¶ 17, 236 Wis. 2d 504, 613 N.W.2d 177 (CGL policy coverages for tort liability for physical damages to others and not for contractual liability of the insured for economic loss). Justice Roggensack’s dissent noted Pleasant Co. had asked for arbitration for both tort (negligence) and contract (breach of warranty) claims but: “ . . . the parties agreed at oral argument that Pleasant only had a contract claim for breach of warranty.” ¶ 113. Justice Roggensack also distinguishedKalchthaler because the building in that case had windows that leaked which caused damage to other parts of the building constituting an “occurrence:” ¶ 124.

C. Subcontractor Exception To Exclusion

The subcontractor exception to the exclusion for completed operations was enforced in Kalchthaler, supra. Damage was caused by water leakage that happened after the completion of the project. Water leaked through the windows and wrecked drapery and wallpaper. Kalchthaler, p. 397. The subcontractor exception to the “your work” exclusion restored coverage to the insured-contractor. Kalchthaler, p. 400, noted:

For whatever reason, the industry chose to add the new exception to the business risk exclusion in 1986. We may not ignore that language when interpreting case law decided before and after the addition. To do so would render the new language superfluous. We realize that under our holding a general contractor who contracts all the work to subcontractors, remaining on the job in a merely supervisory capacity, can insure complete coverage for faulty workmanship. However, it is not our holding that creates this result: it is the addition of the new language to the policy. We have not made the policy closer to a performance bond for general contractors, the insurance industry has. (Citations omitted).

Whether there was an “occurrence” was not discussed in Kalchthaler. The court found there was coverage for the insured-contractor for the work of the subcontractor and did so by focusing on the work of the subcontractor, not the insured.

D. Breach Of Contract And Occurrence: Other States

The conclusion that a breach of contract is not an occurrence is well established. Isle of Palms Pest Control Co. v. Monticello Ins. Co., 319 S.C. 12, 459 S.E.2d 318, 320 (Ct. App. 1994), aff’d, 468 S.E.2d 304 (S.C. 1996) (“A general liability policy is intended to provide coverage for tort liability . . .; it is not intended to provide coverage for the insured’s contractual liability which causes economic losses”); Redevelopment Authority v. International Ins. Co., 685 A.2d 581, 592 (Pa. Super. Ct. 1996); Data Specialties, Inc. v. Transcontinental Ins. Co., 125 F.3d 909, 911 (5 th Cir. 1997) ( Texas law); Action Ads, Inc. v. Great Am. Inc. Co., 685 P.2d 42, 43-44 (Wyo. 1984) (“Courts universally have interpreted liability-coverage provisions (providing coverage for ‘all sums which the insured shall become legally obligated to pay as damages’) as referring to liability sounding in tort, not in contract”); Indiana Ins. Co. v. Hydra Corp., 245 Ill. App. 3d 926, 615 N.E.2d 70, 73 (1993) (policy providing coverage for “all sums which the insured shall become legally obligated to pay as damages” did not “apply to damages arising from an insured’s breach of a contractual duty”).

A number of courts have held that a breach of contract which causes bodily injury or property damage is not an event that occurs by chance or arises from unknown causes. Therefore, it is not an occurrence. See, State Bancorp Inc. v. United States Fidelity and Guarantee , 483 S.E. 2d 228 ( Va. 1997). Hawkeye – Security Insurance Company v. Davis, 6 S.W. 3d 419 (Mo. Ct. App. 1999) stated: “[Contractor-insured] Davis had sufficient control and management to enable him to fulfill his contractual obligations and build the house for Appellants as warranted. Davis 's failure to perform cannot be characterized as ‘an undesigned or unexpected event.’” But see American States Insurance Company v. Kemker Construction, 71 S.W. 3d 232 (Mo. Ct. App. 2002) (insurer had a duty to defend). In Structural Building Products Corp. v. Business Insurance Agency, Inc., 722 N.Y. S.2d 599 (Sup. Ct. N.Y. 2001), the court explained: “The general rule is that a commercial general liability insurance policy does not afford coverage for breach of contract, but rather for bodily injury and property damage. To hold otherwise would render an insurance carrier a surety for the performance of its insured’s work. . . .” See also, Indiana Insurance Company v. Hydra Corp., 615 N.E.2d 70 (Ill. App. 1993), noting that the natural and ordinary consequences of an act do not constitute an accident and damages resulting from breach of a contractual obligation is not an occurrence. Thus, cracks in the floor and loose paint on the exterior of a building were the natural and ordinary consequences of installing defective concrete flooring and applying the wrong type of paint. In Yegge v. Integrity Mutual Insurance Company, 534 N.W.2d 100 (Iowa 1995), the insured’s alleged failures which gave rise to claims of breach of contract, breach of express warranty, breach of implied warranty and fraud, were not accidental. See also,Whitman Corporation v. Commercial Union Insurance Company, 782 N.E.2d 297 (Ill.App.3d, 2002) (counterclaim against insured for indemnification for expenses incurred for remediating the environmental contamination contemplated by the parties in the purchase agreement).

Some courts have held a breach of contract may be an occurrence if outside elements cause damage to the work done by a contractor. In High Country Associates v. New Hampshire Insurance Co., 648 A.2d 474 (N.H. 1994), the claim was unexpected or unintended from the standpoint of the insured. Damages were caused by moisture seeping through the walls of the unit, which constituted an accident. But see Energy North Natural Gas, Inc. v. Continental Insurance Co., 781 A.2d 969 (N.H. 2001) (release of by-products in a tar pond inherently injurious and not an accident). Fidelity & Deposit Co. of Maryland v. Hartford Casualty Insurance Co., 189 F. Supp. 2d 1212 (D. Kan. 2002) and American States Insurance Co. v. Powers, 262 F. Supp. 2d 1245, 1249 (D. Kan. 2003), concluded the Kansas Supreme Court would find that damage that occurs as a result of faulty or negligent workmanship does constitute an occurrence as long as the insured did not intend for the damage to occur. The workmanship of the contractor constituted an occurrence within the meaning of a policy.

Vandenberg v. Superior Court of Sacramento County, 982 P.2d 229, 244-46 ( Cal. 1999), is often cited as a case which permitted insurance recovery for breach of contract. Vandenberg involved an insured who had leased a parcel of land for the purpose of selling and servicing automobiles. Possession of the land was given back to the owner and subsequent testing established that the soil and groundwater were contaminated from three underground oil storage tanks installed by the insured. The owner sued the insured, and the insurers defended through arbitration ($4 million awarded to the property owner) as the insured had numerous CGL policies that applied to the claim. The insured then sought indemnification for the arbitrator’s award. The trial court held there was no coverage because the claim submitted to the arbitrator was based on contract. The court of appeals reversed the trial court, holding that coverage could not be decided by reference to the general rule that breach of contract is not an occurrence. The California Supreme Court affirmed the court of appeals and its rationale. Id, p. 236. The focus of inquiry was the nature of the risk or peril that caused the injury and the specific policy language, not the form of the action brought by the injured party.

The impact of Vandenberg, however, is limited.

We therefore conclude that the International Surplus rationale, distinguishing contract from tort liability for purposes of the CGL insurance coverage phrase “legally obligated to pay as damages,” is incorrect. Accordingly, we uphold the Court of Appeal’s determination that Vandenberg’s insurers cannot avoid coverage for damages awarded against Vandenberg in the Boyd action solely on grounds the damages were assessed on a contractual theory. (Emphasis added).

Id., p. 246.

One theme that predominates in most cases is the difference between tort and contract law. See for example,Vandenberg, supra. The facts of a case are either the result of tort and an occurrence, or based on contract and not an occurrence. Oak Crest Construction Co. v. Austin Mutual Insurance Co., 998 P. 2d 1254 (Or. 2000), stated there is no tort and no accident when the damage resulted solely from the complete failure of the performance of the contract. Removing and replacing painting work done during the construction of a home was not covered as it arose solely from the breach of contract to provide painting work.

Had the facts demonstrated that the claimed problem with the cabinets and woodwork was the result of that kind of a breach (duty to act with due care), or that the plaintiff (insured) might be liable to the owners in tort for other damage, that might have qualified as an “accident” within the meaning of the commercial liability policy.

Id., p. 1258.

Thommes v. Milwaukee Ins. Co., 641 N.W.2d 877, 881 ( Minn. 2002), also noted the difference between contractual liability and tort liability:

Our review of Bor-Son and Knutson reveals that the distinction between uncovered business risks arising from contractual liability for defective materials and workmanship and covered risks arising from tort liability to third parties is helpful as a means of informing our understanding of the risks intended to be covered by CGL policies. Other jurisdictions have also found this distinction useful.

Id. (citations omitted).

E. Wisconsin: Tort v. Contract

Wisconsin has maintained the distinction between tort and contract when interpreting insurance policies. Bulen v. West Bend Mutual Insurance Co., 125 Wis. 2d 259, 371 N.W.2d 362 (Ct. App. 1985) discussed a “business risk” exclusion, that is, expenses for repair or replacement because the contractor failed to live up to warranties. Bulen noted the underlying rationale of CGL coverage:

The coverage is for tort liability for physical damages to others and not for contractual liability of the insured for economic loss because the product or completed work is not that for which the damage person bargained.

Bulen, supra., p. 265.

Jacob v. Russo Builders, 224 Wis. 2d 436, 592 N.W.2d 271 (Ct. App. 1999), stated a CGL policy does not provide coverage for the cost of repairing or replacing defective work of an insured. The policy does provide coverage for harm to property other than the work of the contractor. In addition, Jacob v. Russo Builders stated:

Thus, Bulen instructs that CGL coverage exists for tort damages but not for economic loss resulting from contractual liability. As we have noted, the parties agree (as do we) that the replacement and repair of Limbach’s masonry product is economic loss to the Jacobs based on Limbach’s contractual liability and is not covered under the West Bend CGL policy. Were it otherwise, West Bend’s CGL policy would truly have been converted to a performance bond contrary to Bulen.

Damages to landscaping, driveway, sidewalk and patio repair were the direct result of assessing, repairing and replacing defective masonry and was not covered. On the other hand, damage to the interior of the residence was damage to other property. The dichotomy between tort and contract was maintained: “As we have noted, these represent economic losses which can be recovered in tort, and, such they were covered by West Bend’s CGL policy.” Jacob v. Russo Builders, supra., p. 452.

Meiser v. Aetna Casualty & Surety Co., 8 Wis. 2d 233, 98 N.W.2d 919 (1959), is also instructive. There, a contractor inadvertently put plaster on windows and in removing the plaster, scratched the windows. There was coverage for the replacement of the windows. The work to be done was limited to plastering walls and ceilings and not any other part of the building. By analogy, based on Bulen, supra. and Oak Crest Construction Co., supra, contract liability went to the walls and ceiling. Tort liability arose when the windows were plastered and scratched, that is, work that was outside the contract, unexpected and therefore, an accident.

The economic loss doctrine is based on maintaining the difference between tort and contract law. Wausau Tile, Inc.,supra. However, Jacob v. Russo Builders, supra. rejected reliance on economic loss doctrine cases when interpreting insurance contracts. By the same token, Condominium Association, Inc. v. Norco Windows, Inc., 257 Wis. 2d 511, 651 N.W.2d 738 (2002 WI App. 205), stated that cases interpreting insurance policies do not apply when deciding the extent of the economic loss doctrine. However, both economic loss doctrine and insurance construction maintain the distinction between tort and contract.

F. Analysis Of Pleasant Co.

Justice Sykes noted the statements in Bulen, supra., and cautioned that Bulen does not support the idea that a loss based on contract and can never be a tort. Id., ¶ 43. Justice Sykes opined that if contract losses were never an occurrence, there would be no need for business risk exclusions. Id., ¶ 47.

No insurance company can stay in business with a policy that has no specific exclusions. The insurance company needs specifics to explain where the insured’s contract stops and coverage (tort) begins. For example, if an insured tells a customer, “I will build your house for $200,000,” the insured has entered into a contract. But where does the contract stop and coverage begin? This is determined by how the policy defines terms such as “your work.” Is there coverage after the house is built and contract completed? The definition of completed operations in the exclusions will give the answer. Thus, CGL policies have definitions and exclusions to specifically delineate the scope of the coverage provided; typically, when there is a tort, there is coverage.

Pleasant Co. did not analyze how a claim for damage to property which is the subject of a contract can constitute an occurrence. Instead, Pleasant Co., ¶ 48, applied Kalchthaler and held that the faulty workmanship of a subcontractor was an occurrence.

The court of appeals has previously recognized that the faulty workmanship of a subcontractor can give rise to property damage caused by an “occurrence” within the meaning of a CGL policy.

Pleasant Co. is limited to cases in which work is done by a subcontractor of an insured. In this regard, Pleasant Co. is consistent with the rule that breach of a contract is not a tort and not an occurrence.

Insurance policies are interpreted by the standard of a reasonable insured that purchased a policy. Ennis v. Western Nat’l Mut. Ins. Co., 225 Wis. 2d 824, 593 N.W.2d 890 (Ct. App. 1999). Whether the mistakes of a subcontractor are an occurrence or accident are viewed from the standpoint of the insured. From the standpoint of the named insured, defective work of a subcontractor can be an accident or occurrence. Does a claim against an insured arise out of the contract with a subcontractor? Yes. But it is a contract, which, at most, requires supervision by the insured-contractor. In this regard, see Kalchthaler, supra., fn. 2, where the parties stipulated that 50% of the damages were the responsibility of the insured based on vicarious responsibility and negligent supervision.

In Pleasant Co., the subcontractor’s work was an “occurrence.” It was not the work (contract) obligation of an insured. As noted in Kalchthaler, p. 400, the insurance industry (ISO) decided to add the exception to the exclusion for a subcontractor. The policy, however, goes no further than that. Nor does Kalchthaler or Pleasant Co. In addition, Pleasant Co. does not support insurance coverage arising out of a homeowner’s, farm owner’s, or any other form of liability policy which does not have the business exclusions or the subcontractor exception to exclusions which is the foundation for the holding in Pleasant Co.

If the economic loss doctrine applies, does that mean there is no insurance coverage? Maybe. The court must look further and see if the facts support a finding that there was an occurrence. That term is used in a CGL policy and insurance rules apply. Is a breach of contract an occurrence? No. No case has so held, not even Pleasant Co. Are the mistakes of a subcontractor an occurrence? Yes. Pleasant Co. was based on the unforeseen conduct (accident) of a subcontractor, not the work of the insured-contractor.

G. Handling Contract Cases And Insurance Coverage

In Pleasant Co., the parties agreed that the only claim against the contractor was for breach of warranty, yet coverage was found. In addition, the economic loss doctrine may apply to limit a plaintiff’s claim against the insured-contractor for contract claims. How then should cases be analyzed to determine if the insured (contractor) has coverage, and if so, what is covered? The following is a list of issues that may assist in applying Pleasant Co. to a CGL insurance policy when there is also a breach of contract or the economic loss doctrine applies.

1. Does the insured owe a duty independent of the contract? See Colton v. Foulkes, 259 Wis. 142, 47 N.W.2d 901 (1951), which held that negligent performance or nonperformance of a contractual duty is an actionable tort. Colton, however, was restricted in Landwehr v. Citizens Trust Co., 110 Wis. 2d 716, 329 N.W.2d 411 (1983), which stated that a contract may create a “state of things” that provides the basis for a tort action but may not be used to create the underlying “duty of care” necessary for a tort claim. See also, Fisher v. Simon, 15 Wis. 2d 207, 112 N.W.2d 705 (1961) (general contractor who contracted to oversee construction of a building was liable in tort for negligent backfilling around basement walls); and Jacob v. Karls, 178 Wis. 2d 268, 504 N.W.2d 353 (Ct. App. 1993) (landlord had a duty to repair independent of the contract).

2. Are the claims of the plaintiff against the insured limited to contract under the economic loss doctrine? Wausau Tile, Inc., supra. Was there any work done by a subcontractor? If the insured-contractor did all the work, Pleasant Co. does not apply and there is probably no coverage for a breach of contract claim against the insured-contractor.

3. The burden of establishing whether there was an “occurrence” is on the insured trying to establish coverage. Estate of Ermenc v. American Family Mut. Ins. Co., 221 Wis. 2d 478, 481, 585 N.W.2d 679 (Ct. App. 1998). The burden of establishing the subcontractor exception to the exclusion is also on the insured. Jaderborg v. American Family Mut. Ins. Co., 2000 WI App. 246, 239 Wis. 2d 533, 620 N.W.2d 468. If a complaint is being reviewed (duty to defend), it is the facts alleged, not the title the plaintiff puts on a cause of action that determine the type of claim. St. Paul Fire & Marine Ins. Co. v. Hauseman, 231 Wis. 2d 25, 31-32, 604 N.W.2d 908 (Ct. App. 1999). Wisconsin is a notice pleading state. If the complaint alleges breach of contract plus negligence, with no underlying facts alleged, the court does not have any facts at its disposal to establish the gravamen of the claim. However, the duty to defend is broader than the duty to indemnify, and doubts are resolved in favor of the insured. Elliott v. Donahue, 169 Wis. 2d 310, 485 N.W.2d 403 (1992). But in Midway Motor Lodge v. Hartford Ins. Group , 226 Wis. 2d 23, 593 N.W.2d 852, 857 (Ct. App. 1999), the court of appeals concluded that an insurer is not required to consider what could have been alleged, only what is alleged.

4. If the work in question was done by a subcontractor, does the contractor-insured have a policy that exempts subcontractors from the completed operation exclusion? Kalchthaler, supra. Is there an endorsement that changes the exclusion for property damage “from work performed by or on behalf of the named insured” (no coverage for work of subcontractor) to “work performed by the named insured” (coverage for work of subcontractor). Corner Construction Co., supra. If the answer to either of these questions is yes, the policy should provide coverage to the insured for the work of its subcontractor.

5. Was there an “occurrence?” Assume a subcontractor is involved, that the contractor’s policy excepts work of subcontractors from the exclusion, and the economic loss doctrine applies. The economic loss doctrine does not determine whether there was an occurrence. Whether there is an occurrence is based on the contract (policy) between the contractor and its insurance company. Pleasant Co., supra. Therefore, the work must be broken down into two areas: (A) work and/or supervision done by the contractor; and (B) work done by the subcontractor. The insurance company does not owe any monies for the work and/or supervision done by the contractor because the breach of contract (with the plaintiff) is not an occurrence, and the business exclusions probably apply to work done by the contractor. On the other hand, the contractor should have coverage for the property damage caused by the subcontractor. This is an occurrence. See Pleasant Co. and the above cases.

6. The more difficult task is establishing if the claim is contract or tort. Some out of state cases assist in providing “tests” or standards that may apply. For example, does the “gist of the action” or “gravamen” of the claim lie in contract or tort?Freestone v. New England Log Homes, Inc., 819 A.2d 550 (Pa. Super. 2003), ¶ 16. Redevelopment Authority, p. 590, stated that for a claim to be construed as a tort action, the tort must be the “gist of the action” with the contract being collateral. The contract action could not be converted in to a tort action by alleging the conduct was done “wantonly.” A tort action is a breach of duties imposed as a matter of social policy while the contract is based on the breach of duties imposed by mutual consent. Id.PennsylvaniaManufacturers Association Insurance Co. v. L.B. Smith, Inc., 831 A.2d 1178 (Super. Ct. 2003), held there was no coverage for the breach of contract/breach of warranty claims. The court applied the “gist of the action” doctrine to maintain the distinction between breach of contract and tort claims and stated: “The test is not limited to discrete instances of conduct; rather, the test is, by its own terms, concerned with the nature of the action as a whole.” Id., p. 1182 (quoting American Gual. & Liab. Ins. Co. v. Fojanini, 90 F. Supp. 2d 615, 622 (E.D. Pa. 2000).


While the Pleasant Co. decision now states that a breach of contract can constitute an occurrence, it does not change Wisconsin law significantly. Nonetheless, insurers, insureds and their counsel must carefully review complaints to assess whether an “occurrence” is indeed alleged and whether any duty to defend or indemnify exists based upon this recent decision.

Arnold Anderson is corporate counsel for Wisconsin Reinsurance Corporation and a member of the law firm of Mohr & Anderson, S.C. A graduate of St. Olaf College and Marquette University Law School, he was law examiner for Justice Connor T. Hansen of the Wisconsin Supreme Court and was assistant and then associate clinical professor of law at Marquette University Law School. He also served as associate legal counsel to Marquette University. Mr. Anderson is a member of the Wisconsin State Bar, American Bar Association, Bar Association in the 7 th Circuit and Defense Research Institute. He has served as president and board member of Civil Trial Counsel of Wisconsin. The author of numerous articles that deal with insurance law, he has lectured nationally on insurance subjects. Mr. Anderson is the recipient of the Defense Research Institute’s Exceptional Performance Citation, and is the author of Wisconsin Insurance Law, 4 th Edition, 1998.



This article is copyright May 2004, State Bar of Wisconsin CLE Books, and is reprinted here with the gracious permission of the State Bar of Wisconsin.