Insurance Coverage in the Age of Cyberbullying Litigation
The prevalence of bullying and particularly cyberbullying and the detrimental physical, psychological, and emotional costs visited upon its victims have recently been recognized as emerging public health concerns as more students utilize mobile devices and social media platforms to engage in inappropriate and harmful social interactions.1 Wisconsin first required schools to promulgate anti-bullying policies with the passage of 2009 Wisconsin Act 309,2 but this law provides no private right of action for bullying victims. To date, much litigation involving bullying has been targeted at school districts whose employees and administrators allegedly failed to prevent ongoing bullying of a student. However, recent litigation has focused on holding the bully or the bully’s parents personally accountable when victims of bullying engage in self-harm, or attempt to commit, or indeed die by, suicide. As these tragic cases unfold, insurance companies must closely scrutinize whether their homeowners policies require them to defend and/or indemnify an alleged bully or his parents in cases where the bullying victim experiences bodily injury arising out of the bullying conduct. Although logic might dictate that a standard homeowners policy would not impose a duty to defend and/or indemnify because bullying and cyberbullying are intentional acts, and therefore the injuries arising out of bullying do not constitute an “occurrence” within the meaning of the policy, a recent decision from a Pennsylvania federal court should give insurers pause.
In December of 2018, the United States District Court for the Eastern District of Pennsylvania, sitting in diversity jurisdiction, held that State Farm Fire and Casualty Company (“State Farm”) had a duty to defend high school student Zach Trimbur under his mother’s homeowners insurance policy in litigation brought by the parents of Trimbur’s classmate, Julia Morath, who died by suicide shortly after receiving a text message from Trimbur attacking her mental health, appearance, cutting and sexual history.3 This article explores how Wisconsin courts might analyze and answer the following question: Does an insurance company have a duty to defend an alleged bully and/or his parents under a homeowners policy because the injury resulting from the bullying constitutes an occurrence” within the meaning of the policy?
I. Pennsylvania Court Finds Duty to Defend:
State Farm Fire & Cas. Co. v. Motta
On December 11, 2018, the United States District Court for the Eastern District of Pennsylvania issued a Memorandum Opinion holding that State Farm had a duty to defend high school student Zach Trimbur and his mother in a case brought by Julia Morath’s parents who sought damages under the theory that Trimbur’s negligence in bullying their daughter caused her death by suicide.4 Trimbur had previously been accused of harassing, bullying, and/or cyberbullying a female classmate.5 Trimbur’s parents were informed of their son’s troubling behavior.6 Trimbur’s parents allegedly assured school administrators that they would supervise, discipline, and/or control their son, preventing him from engaging in similar behavior in the future.7
Trimbur continued his bullying conduct. In 2017, Trimbur texted classmate Julia Morath a lengthy text message implying that Morath let boys engage in sexual intercourse with her because she was desperate for attention; asserting that nobody cared about her anorexia, bulimia, or self-cutting behavior; asserting that Morath’s own mother did not love her; writing that nobody cared about her; and describing her scars from cutting as “mak[ing her] look more repulsive than [she] already” did.8
Per the operative complaint, Morath felt “distraught with severe mental and emotional pain and suffering” and showed the text message to her parents, who informed school administrators of the text message on April 6, 2017.9 Trimbur was suspended on April 6, 2017, but this did not stop his cyberbullying of Morath, who died by suicide on April 7, 2017.10
After Morath’s parents sued Trimbur and his parents for negligence and wrongful death, Trimbur’s mother, Stephanie Motta, sought coverage under her State Farm homeowners policy.11 State Farm defended Motta and her son under a reservation of rights, and filed a motion seeking declaratory judgment that it had no duty to defend or indemnify Motta or her son.12 State Farm argued that “[t]he alleged bodily injury sustained by Julia Morath did not arise from an ‘occurrence’—i.e., an ‘accident’— triggering coverage under the policy, because Zach Trimbur’s harassment, bullying and cyber-bull[y]ing is inherently non-accidental in nature.”13
The Motta court disagreed, concluding that the underlying negligence claim fell within the scope of the State Farm policy because Morath’s death by suicide was an “occurrence,” defined as an accident, when viewed from the perspective of the insured.14 It reasoned that, “[o]utside the categories of faulty workmanship and simple assaults, courts applying Pennsylvania law consider the foreseeability of the resulting injury” in determining if there was an “occurrence,” even in cases “in which the bodily injury is indisputably caused by an intentional act.”15 Viewing the events from the perspective of the insured, the court held, “we cannot conclusively find death by suicide is foreseeable from [Zach Trimbur’s] cyberbullying, and Pennsylvania law appears to prohibit such a sweeping conclusion.”16
The court cited Pennsylvania case law for the principle that, “it is a general rule in Pennsylvania that suicide—or attempted suicide—is not a recognized basis for a tort claim” because “suicide constitutes an independent intervening act so extraordinary as not to have been reasonably foreseeable by the original tortfeasor.”17 The court concluded that Trimbur may have intended to insult Morath and cause her emotional distress, but further held that from Zach Trimbur’s perspective, “his classmate’s death by suicide is an accident.”18 Because Morath’s suicide was an “accident,” it constituted an “occurrence,” and State Farm had a duty to defend Trimbur and his mother under the mother’s homeowners policy.19 The Motta Court did not address “whether State Farm has any duty to indemnify Zach Trimbur.”20
Insurance Coverage and Foreseeable Injuries:
Schinner v. Gundrum
Although no Wisconsin court has addressed whether a covered “occurrence” exists within the meaning of a standard homeowners policy when a bully’s actions cause another person to self-inflict injury or commit suicide, the 2013 Wisconsin case of Schinner v. Gundrum provides guidance on how Wisconsin courts may analyze such a actual situation.21 Whether the duty to defend is triggered would likely depend on the severity of the conduct and the bully’s knowledge about his victim. Bullying situations involving less severe bullying or less severe bodily injury to the victim may very well give rise to a duty to defend. In contrast, Wisconsin courts would likely find no “occurrence” under a homeowners policy if presented with facts similar to those presented in Morath.
In Schinner, the Wisconsin Supreme Court analyzed whether there was insurance coverage under a homeowners policy for bodily injury caused by an intoxicated minor at an underage drinking party.22 In December of 2008, 21-year-old Michael Gundrum hosted a party in a shed at his family’s trucking business, inviting guests by texting friends about it. Gundrum expected friends to text or tell others, and testified that he estimated that 40-50% of the people at the party the night of the incident were under the age of 21.23 Alcohol was prevalent at the party; beer was available to underage drinkers and drinking games intended to lead to rapid intoxication were played.24 Gundrum testified that he was aware that guests were becoming intoxicated from the alcohol at the party, and further testified that he knew that one of the guests, Cecil, was known to become belligerent when intoxicated.25 At the party, Cecil began to make fun of another guest, Schinner, and twice Schinner asked Gundrum to intervene.27 Gundrum asked Cecil to cease the behavior, but Cecil soon resumed provoking Schinner.28 When Schinner tried to leave the party with friends at around 2:30 a.m., Cecil followed him to taunt him and then punched him in the face twice before kicking him in the head.29 Schinner sued Gundrum and his homeowners insurer, West Bend Mutual Insurance Company (“West Bend”), for damages related to his bodily injuries.
West Bend’s policy provided, in pertinent part:
If a claim is made or a suit is brought against an “insured” for damages because of “bodily injury” or “property damage” caused by an “occurrence” to which this coverage applies, we will:
1. Pay up to our limit of liability for the damages for which an “insured” is legally liable [… and]
2. Provide a defense at our expense by counsel of our choice…30
The homeowners policy defined “occurrence” as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.”31 The circuit court concluded that there was no “occurrence” under Gundrum’s policy because any acts by Gundrum, including his providing alcoholic beverages to underage persons, were not accidental conduct within the meaning of the policy.32 The Court of Appeals reversed, holding that the assault on Schinner was an accident from the standpoint of both the injured party, Schinner, and the insured, Gundrum.33
The Wisconsin Supreme Court reversed the Court of Appeals, holding that there was no “occurrence” within the meaning of Gundrum’s policy.34 After holding that whether an injury was accidental under a liability insurance policy should be viewed from the standpoint of the insured, the Court concluded that Gundrum’s series of volitional actions prohibited Schinner’s injury from being found to be an accidental occurrence under the policy.35 The Wisconsin Supreme Court acknowledged that there was no allegation that the insured, Gundrum, intended for Schinner to be injured, or intended or approved of Cecil’s assault on Schinner.36 Nevertheless, the Court, concluded that Gundrum “took a number of intentional actions that ultimately caused Schinner’s bodily injury,” including: (1) intending to host a party with minors at which alcohol was available; (2) arranging for drinking games to be played throughout the evening, thereby promoting heavy drinking at the party; and (3) procuring alcohol for Cecil, all with the knowledge that Cecil was prone to belligerence when intoxicated.37 The Court noted that the “means or cause” of Schinner’s bodily injury was not accidental; Rather, Gundrum’s volitional actions of procuring and serving Cecil alcohol “exposed Schinner to harm.”38
The Court acknowledged that the case before it was not the typical case in which no “occurrence” is found because an insured acts intentionally and directly to cause bodily injury to another, but reasoned that even though there was no certainty that bodily injury would occur due to Gundrum’s intentional actions, “bodily injury was hardly unforeseeable” to Gundrum, as it was “no leap of logic to conclude that Gundrum knew that a combination of underage partygoers, alcohol, and games like beer pong would create a powder keg.”39 In the Court’s view, due to Gundrum’s volitional actions, “[a]ll the conditions for a tragic injury had been put in place, and they were put in place intentionally.”40
Like the Motta court, the Schinner court considered whether the intentional acts of the insured made a “tragic injury” foreseeable, but the Schinner court, unlike the Motta court, did not find that the intervening actions that led to bodily injury (the assault by Cecil in Schinner and Julia Morath’s suicide in Motta), made the resulting bodily injury “accidental” within the meaning of the insurance policy. The Motta court found a duty to defend Trimbur under his mother’s homeowners policy because it found that from Zach Trimbur’s perspective, the court could not conclusively find that death by suicide was a foreseeable result of his bullying and cyberbullying of Morath, and therefore Morath’s death was accidental.41 By contrast, the Schinner court found no insurance coverage because in the Court’s view Gundrum could have foreseen that, from his intentional acts, Schinner could be injured by Cecil, apparently concluding that Cecil’s intervening acts of assault did not render Schinner's injury unforeseeable.42
Based on the logic of Schinner, it seems likely that had the Wisconsin Supreme Court analyzed the facts surrounding Trimbur’s bullying of Morath, it would have held that, due to Trimbur’s intentional actions, including sending a vicious text attacking Morath’s sexual behavior, appearance, mental health issues, and self-cutting behaviors, and continued harassment of Morath after his suspension, “[a]ll the conditions for a tragic injury had been put in place [by Trimbur], and they were put in place intentionally,” making Morath’s suicide non-accidental within the meaning of the insurance policy.43
Indeed, the Wisconsin Supreme Court likely would have considered the fact that Trimbur was aware of Morath’s mental health struggles and issues with cutting to be additional evidence that Trimbur acted with intent to put in place conditions that exposed Morath to foreseeable harm, just as it found that Gundrum’s providing alcohol to Cecil when he knew Cecil became belligerent when intoxicated put in place conditions that exposed Schinner to harm.44 In short, under the logic of Schinner, which found that the incident in which Schinner was beaten by Cecil was not an “occurrence” within the meaning of the policy because the volitional acts of the insured exposed the injured party to harm at the hands of another, there is little basis to distinguish the facts of Motta, and it is likely that had those facts been analyzed under Wisconsin law, no duty to defend Trimbur or his mother would have been found. Just as Gundrum’s volitional acts of hosting an underage drinking party with a belligerent guest exposed Schinner to foreseeable danger of bodily injury caused by Cecil, so too did Trimbur’s volitional acts of viciously cyberbullying Morath – who he knew had issues with self-harm and mental illness – exposed Morath to foreseeable bodily injury caused by herself. The lack of the insured’s specific intent to cause bodily injury is, under Schinner, irrelevant.45
The Schinner Court further grounded its opinion in public policy considerations, holding that finding an occurrence and coverage in a case where an insured had intentionally hosted an underage drinking party that resulted in severe injury to one of the insured’s guests would send the “wrong message about underage drinking parties, implying that whatever tragic consequences might occur, insurance companies will be there to foot the bill.”46 The Court continued:
Moreover, insurance contracts are construed from the standpoint of what a reasonable person in the position of the insured would believe the contract to mean. We do not believe that a reasonable insured would expect coverage for bodily injury resulting from the hosting of a large, illegal underage drinking party.47
Given the Court’s concern with sending the “wrong message” and “implying that whatever tragic consequences might occur” due to an insured’s intentional acts would be covered by insurance companies, it seems likely that the Wisconsin Supreme Court would have similar concerns about sending the message that an insured who engaged in vicious bullying of a classmate could rely on a homeowners policy to provide the insured with a defense and indemnity where the bully’s victims were injured as a result of the bullying conduct.
Justice Ann Walsh Bradley dissented in Schinner and concluded that there was no evidence in the record that Gundrum intended the assault on, or injury to, Schinner to occur, and if the majority had actually viewed the incident from the standpoint of the insured, as it said it had, it would have had to find an initial grant of coverage under the insurance policy.48 Justice Bradley argued that the majority’s use of an objective test, asking whether the resulting injury or damage was reasonably foreseeable to a reasonable person, was improper because objective foreseeability of the injury was irrelevant.49 Rather, the proper question to ask was: “Did this insured expect or intend the injury or property damage?”50 Justice Bradley concluded that “the majority’s analysis undermines the well-established understanding that an intentional act by an insured is within the definition of an ‘occurrence’ if the injury or damage is unexpected and unintended.”51 Two Justices joined the portion of Justice Bradley’s dissent finding that there was an “occurrence” and an initial grant of coverage.52
Justice Bradley’s dissent in Schinner suggests that she would find coverage in certain cyberbullying cases, at least those in which the insured’s bullying of another was not so severe as to give rise to the inference that the bully intended his victim to experience bodily injury, including self-harm or death by suicide.
III. Implications of Motta and Schinner for Insurance Companies Receiving a Tender of Defense in Bullying and Cyberbullying Litigation
Although the facts of Motta would likely be interpreted by the Wisconsin courts as precluding a finding of an “occurrence,” as discussed above, insurance companies must still consider the implications of a tender of defense by the alleged bully in cases presenting facts of less severe cyberbullying than those that were present in Motta. An insured sued for bodily injury arising out of his bullying or cyberbullying and seeking a defense under his parent’s homeowners policy could argue that Schinner does not compel the conclusion that a bully’s conduct leading to bodily injury of the victim by a third party (including the victim herself) can never be an “occurrence.” Indeed, the Schinner Court’s focus on the many volitional acts of the insured and the insured’s knowledge of the danger posed by his underage guest leaves open the question of whether the duty to defend is triggered by facts showing fewer intentional acts by the insured, or lack of knowledge on behalf of the insured, that his intentional acts foreseeably exposed the bullying victim to bodily injury.
Because in Schinner the series of intentional and illegal acts by Gundrum, including his provision of alcohol to minors, his facilitation of drinking games that led to speedy intoxication, and his half-hearted attempt to stop Cecil’s taunting of Schinner despite the fact that he knew Cecil was belligerent when intoxicated, all contributed to the Court’s conclusion that Schinner’s bodily injury was objectively foreseeable,53 one can envision bullying and cyberbullying lawsuits presenting facts that could give rise to the duty to defend and/or indemnify the alleged bully because injury to the victim was not objectively foreseeable.
Consider litigation involving facts less severe than those at issue in Motta. In a case where a bully or cyberbully is both: (1) unaware of his victim’s history of mental illness and propensity to selfinjure; and (2) engaged in less severe verbal attacks on his victim, for example, by repeatedly texting his victim that she is “ugly,” but foregoing malicious statements that the victim allows boys to have sexual intercourse with her because she craves attention and that the victim’s own mother does not love her, the determination of whether there is an “occurrence” when the bullying victim inflicts self-harm or attempts to, or in fact does, die by suicide, is a closer question. Similarly, the frequency of the bullying behavior should be analyzed in determining whether the victim’s bodily injury was objectively foreseeable. An isolated, if cruel, text, may not make a victim’s bodily injury foreseeable, but an endless stream of text messages demeaning the victim over an extended period of time might make the victim’s self-injury foreseeable.
Given Schinner's focus on the objective foreseeability of a “tragic injury” arising from the insured’s intentional acts, an insured sued for a bullying victim’s bodily injury could argue that there is a duty to defend and/or indemnify when the “occurrence” was an unforeseeable accident because of the bully’s use of less inflammatory language, or the isolated nature of the bullying conduct. In other words, a bully who engages in less severe and malicious verbal attacks than those at issue in Motta, or who engaged in an isolated act of bullying, could argue that his victim’s self-harm or attempted or actual suicide was not a foreseeable result of his conduct, especially where the bully did not know his victim had a history of self-cutting and mental illness. As Schinner instructs, the bully’s specific intent is irrelevant to a determination of whether an “occurrence” exists within the meaning of the policy where the insured’s intentional acts make bodily injury foreseeable.
IV. Coverage Issues with Cyberbullying: Negligent Entrustment and Negligent Supervision Claims
Although neither a negligent entrustment nor a negligent supervision claim was raised in Motta or Gundrum, the nature of such claims makes it probable that parties injured by cyberbullying will seek to recover under such theories. Accordingly, the implications for coverage of cyberbullying conduct litigated under theories of negligent entrustment and negligent supervision are briefly discussed.
Relying on the analysis of Schinner, the Court of Appeals held in the unpublished case of Szerbowski v. Trinka that where the insured entrusted a gun to a resident in her home that she knew to be a felon with a history of problems with drinking, anger, and violence, there was no “occurrence” when the resident shot and killed the insured’s son-in-law because the insured created “the means or cause of harm” by giving the tenant the gun.54 As in Schinner, the court held that, due to the insured’s conduct, “[a]ll the conditions for a tragic injury had been put in place, and they were put in place intentionally.”55
Based on Szerbowski, a parent’s entrustment of a minor with, or failure to take back from a minor, a form of technology that the parent knows the minor is abusing to engage in cyberbullying could give rise to lawsuits that will raise coverage issues. However, under Schinner and Szerbowski, the parent’s knowledge of the cyberbully’s misuse of the technology to cause harm seems to preclude a finding of an “occurrence,” because the parent’s intentional conduct of entrusting to the minor a device it knows is being used in a manner that exposes another to harm puts in place the “conditions for a tragic injury.” 56
Similarly, insurance companies may need to respond to tenders of defense in cyberbullying cases advancing theories of negligent supervision. In Talley v. Mustafa, the Supreme Court of Wisconsin relied on Schinner and out-of-state case law to conclude that there was no insurance coverage for a negligent supervision claim in the employment context where the plaintiff alleged only that the employer was negligent in failing to train his employee not to intentionally punch a customer in the face.57 The only “injury-causing event” was the act of the employee in punching the injured party, not any act of the employer.58 The Court reasoned that there was no coverage for the intentional, harmful conduct of the employee where the plaintiff failed to allege that the employer took any independent, intentional and negligent actions that led to the plaintiff’s bodily injury.59 Talley suggests that no insurance coverage will likely be found under Wisconsin law in a negligent supervision case where a parent of a cyberbully is unaware of, and takes no independent, intentional, and negligent act, that allows the cyberbully to continue his behavior.
Somewhat counterintuitively, an insurance company is more likely to be found to have a duty to defend and/or indemnify a bully’s parent under a theory of negligent entrustment or negligent supervision where the parent is without knowledge that the parent has entrusted to the minor a device that is being used in a manner that would make the bully’s victim’s bodily injury foreseeable, because then the court will be more inclined to deem the injury to the bullied party accidental. Unlike the insured’s intentional act of negligent entrustment of a gun to a violent felon in Szerbowski, a parent unaware of a child’s cyberbullying behaviors could not have reasonably foreseen that giving his child a cell phone would put in place “the conditions for a tragic injury,” such as the self-infliction of harm by a bullied party. Similarly, based on the analysis of Talley, where a parent does not know that his child is a cyberbully, and takes no intentional, negligent act to further that cyberbullying, by, for example, returning a phone to a cyberbully known to use it to attack his victims, coverage is unlikely to be found where the intentional act of another leads to bodily injury. Parents who remain carelessly or even willfully ignorant of the existence or severity of their child’s cyberbullying behavior may actually have a better argument that they are entitled to insurance coverage. Given the Wisconsin Supreme Court’s concern in Schinner with sending the “wrong message” about abdication of personal responsibility, it is likely that the courts will be cognizant of sending the wrong message in cyberbullying cases that parents who remain willfully ignorant of their child’s cyberbullying behavior are entitled to insurance coverage. Developments in this area will need to be monitored to determine if a standard homeowners policy may be invoked in litigation involving application of Wisconsin law to the cyberbullying context.
As more minors use technology, such as cell phones and social media sites, in potentially dangerous ways, the scope of an insurer’s duty to defend and/or indemnify under homeowners policies will continue to evolve. If Motta teaches anything, it is that coverage may be found in policies that were not necessarily intended to cover serious bodily injury claims, including those involving a bullying victim’s suicide, arising out of bullying and cyberbullying. Although Wisconsin Supreme Court law suggests that certain bullying cases will not be found to have involved an “occurrence,” coverage lawyers will need to closely monitor developments in bullying and cyberbullying litigation to prepare for tenders of defense in litigation involving conduct by an alleged bully who is arguably covered by a
Christina R. Davis is an attorney with Corneille Law Group, LLC, where she focuses her practice on personal injury and medical malpractice defense. Ms. Davis is admitted to practice in Wisconsin, New York, and California. She is a member of the Wisconsin Defense Counsel and the Honorable Robert J. Parins Legal Society of Northeast Wisconsin. Ms. Davis has litigated cases in Brown, Outagamie, Sheboygan, Door, Fond du Lac, and Waupaca counties. She received her undergraduate degree from Rice University and her law degree from The George Washington University Law School.
1 See generally Apolinaras Zaborskis et al., The Association Between Cyberbullying, School Bullying and Suicidality Among Adolescents, Crisis, Aug. 15, 2018, 1-15 (finding victims of cyberbullying and school bullying have significantly higher risk of suicidal ideations, plans, and attempts); Preventing Bullying Through Science, Policy, and Practice, National Academies of Sciences, Engineering, and Medicine, Washington, DC: The National Academies Press (2016), https://doi.org/10.17226/23482 (recognizing bullying as a serious public health problem).
2 2009 Wisconsin Act 309, available at https://docs.legis.wisconsin.gov/2009/related/acts/309.
3 State Farm Fire & Cas. Co. v. Motta, 2018 U.S. Dist. LEXIS 208472, at *3, 2018 WL 6514907, Case No. 18-3956 (E.D. Pa. Dec. 11, 2018).
4 Id. at *2.
5 Id. at *3.
8 Id. at *4.
10 Id. at *4-5.
11 Id. at *5.
12 Id. at *5-6.
13 Id. at *6 (internal quotations omitted).
14 Id. at *18-19, 22.
15 Id. at *19.
16 Id. at *27.
17 Id. at *28 (internal citations omitted) (emphasis in original). Wisconsin has no case law directly analogous to that cited by Motta, e.g., declaring that suicide or attempted suicide in an independent intervening act so extraordinary as not to have been reasonably foreseeable by the original tortfeasor, but follows the general rule that when an intervening act is a foreseeable consequence of the original actor’s negligent conduct, the intervening act will not constitute a superseding cause. Merlino v. Mut. Serv. Cas. Ins. Co., 23 Wis. 2d 571, 127 N.W.2d 741 (1964). The touchstone of the case law in both jurisdictions in determining whether attempted or actual suicide is an intervening act that cuts off the chain of causal negligence would appear to be foreseeability.
18 Id. at *29.
20 Id. at *29-30.
21 Schinner v. Gundrum, 2013 WI 71, ¶¶ 2, 12, 349 Wis. 2d
529, 833 N.W.2d 685.
23 Id. ¶ 18.
25 Id. ¶ 21.
26 Id. ¶ 22.
27 Id. ¶ 23.
29 Id. ¶ 24.
30 In Schinner, the Wisconsin Supreme Court also analyzed whether the shed where the underage drinking party took place was an insured location within the meaning of Gundrum’s policy. As this issue is not relevant to the present analysis, it is not discussed.
31 Id. ¶ 13.
32 Id. ¶ 30.
33 Id. ¶31.
34 Id. ¶ 81.
35 Id. ¶¶ 52, 92.
36 Id. ¶ 67.
37 Id. ¶ 68 (emphasis added).
38 Id. ¶ 69.
39 Id. ¶¶ 70, 71.
40 Id. ¶ 70.
41 Motta, 2018 U.S. Dist. LEXIS 208472, at *27.
42 Schinner, 349 Wis. 2d 529, ¶ 71 (“Given the facts of this case, it is not reasonable to argue that a fight between intoxicated teenagers was ‘unexpected’ or ‘unforeseen,’ especially when one of the underage drinkers was known to become belligerent when he was drunk.”) (internal citations omitted).
43 Id. ¶ 70. The Gundrum court positively cited Frankenmuth Mut. Ins. Co. v. Masters, 460 Mich. 105, 595 N.W.2d 832, 839 (1999), for the premise that “when an insured’s intentional actions create a direct risk of harm, there can beno liability coverage for any resulting damages or injury, despite the lack of an actual intent to damage or injure.”
44 Id. ¶¶ 71, 92.
45 Id. ¶ 92.
46 Id. ¶ 80.
48 Id. ¶¶ 100, 107 (Bradley, J., dissenting).
49 Id. ¶118 (Bradley, J., dissenting).
52 Chief Justice Shirley Abrahamson joined the dissent in its entirety and Justice N. Patrick Crooks joined the portion of the dissent analyzing whether there was an occurrence.
53 Id. ¶ 71.
54 Szerbowski v. Trinka, 2015 Wisc. App. LEXIS 542, ¶¶ 8-9, 2015 WI App 68, 364 Wis. 2d 759, 869 N.W.2d 171 (unpublished per curiam opinion).
55 Id. ¶ 7 (quoting Schinner, 349 Wis. 2d 529, ¶ 7).
57 Talley v. Mustafa, 2018 WI 47, ¶29, 381 Wis. 2d 393, 911 N.W.2d 55.