Schinner and Sustache: When is Intentional Assault Accidental?
For the past several years, few issues in Wisconsin insurance law have been more clear. According to the Wisconsin Supreme Court in Estate of Sustache v. Am. Fam. Mut. Ins. Co., an assault, wherein the insured punched a victim in the face, is not “accidental” conduct that would be covered under an “occurrence” based policy.[i] The Court of Appeals, however, recently called into question this plain rule. In Schinner v. Gundrum,[ii] the court cited a “conflict” between Sustache and prior Supreme Court cases, and appeared to suggest that, when determining what is an “occurrence,” the accidental conduct should be viewed from the perspective of the injured party, not the insured. While Schinner did not overturn Sustache or any other Wisconsin case law, it could potentially affect the insurer’s coverage analysis of future assault and battery cases.
I. Background on Estate of Sustache v. Am. Fam. Mut. Ins. Co.
The facts recited in Sustache are fairly typical of assault and battery cases. James Sustache died from injuries stemming from a fight at an underage drinking party.[iii] The insured, Jeffery Matthews, had traveled to the party after receiving phone calls “harassing and goading him to ‘come over to the party to engage in a fight with [Sustache].’”[iv] There was no dispute that Jeffery Matthews intended to strike Sustache, and that he did not intend the blow to be fatal.[v]
As in most cases, the insured’s homeowner’s policy provided coverage for “damages which any insured is legally liable because of bodily injury or property damage caused by an occurrence covered by this policy.”[vi] The court, in determining whether the policy provided coverage for the plaintiffs’ claims, considered whether the facts in the Complaint alleged an “occurrence.”[vii] The policy defined an “occurrence” as “an accident, including exposure to conditions, which results during the policy period, in: a. bodily injury, or b. property damage.”[viii] The term “accident” was not defined by the policy, so the court was required to construe the meaning of the term.[ix] In performing this analysis, the court reviewed several Wisconsin Supreme Court cases which had previously interpreted the term “accident,” and favorably cited the following definitions:
- ‘[a]n unexpected, undesirable event’ or ‘an unforeseen incident’ which is characterized by a ‘lack of intention.’[x]
- an event or condition occurring by chance or arising from unknown or remote causes . . . an event which takes place without one’s foresight or expectation.[xi]
Sustache also noted that when determining accidental conduct, the court does not analyze whether the damages caused were accidental, but rather whether the conduct giving rise to the claim was accidental.[xii] It noted that “a result, though unexpected, is not an accident; rather, it is the causal event that must be accidental for the event to be an accidental occurrence.”[xiii]
Relying on these definitions, the court held that where there is an allegation of a volitional act, that act removes the claim from coverage as an occurrence under a liability policy because a volitional act cannot be an “accident.”[xiv] As to the particular facts of that case, the defendant voluntarily traveled to Sustache’s location to confront him, and intentionally punched him in the face.[xv] The court concluded that the allegations in the plaintiff’s complaint of an intentional assault and battery, together with the defendant’s deposition testimony, could not reasonably be construed as “accidental” conduct, and thus an “occurrence” under the policy.[xvi] While the defendant’s decision to intentionally punch the plaintiff may have produced unexpected results, his conduct did not constitute an “accident. ” The court summarized the holding by stating the obvious—“one cannot ‘accidentally’ intentionally cause bodily harm.”[xvii]
II. Schinner v. Gundrum
The recent Court of Appeals case of Schinner v. Gundrum dealt with an only slightly different fact pattern than Sustache, and found that the intentional assault committed by a minor was, in fact, an “occurrence” under the insured’s homeowners policy.[xviii] Its holding turned on whose vantage point—the injured party’s or the insured’s—courts should use to determine whether an event is an “accident” qualifying as an “occurrence.”[xix]
Defendant Gundrum was covered under his parents’ West Bend homeowner’s insurance policy.[xx] Gundrum hosted a party in a shed on his family’s property.[xxi] Plaintiff alleged that during the party, twenty-one-year-old Gundrum provided alcohol to minor Matthew Cecil.[xxii] Cecil “became belligerent and assaulted” plaintiff Marshall Schinner, causing serious injuries.[xxiii]
Schinner sued Gundrum for negligence, alleging that Gundrum’s actions, including providing alcohol to Cecil, were a cause of the assault and therefore a cause of Schinner’s injuries.[xxiv] Schinner brought Gundrum’s insurer West Bend into the suit.[xxv]
West Bend moved for summary judgment, arguing, among other things, that it should be dismissed from the action because the intentional assault was not an “accident,” and therefore not an “occurrence,” under the policy.[xxvi] The circuit court granted West Bend’s motion, holding that there was no “occurrence” under the policy.[xxvii]
B. Analysis of “Occurrence”—Two Conflicting Lines of Cases
On review, the Court of Appeals analyzed whether there was an “occurrence” under the Gundrums’ homeowner’s policy.[xxviii] The court cited favorably the definitions in American Girl and Doyle:
“[A]n event or condition occurring by chance or arising from unknown or remote causes,” and “[t]he word ‘accident,’ in accident policies, means an event which takes place without one’s foresight or expectation. A result, though unexpected, is not an accident; the means or cause must be accidental.”[xxix]
With these definitions in mind, the court began its analysis by noting two allegedly conflicting lines of Wisconsin Supreme Court case law—those that view the assault from the standpoint of the person injured, and those that view the assault from the standpoint of the insured.[xxx]
1. Wisconsin Supreme Court cases holding that an assault and the resulting injuries must be viewed from the standpoint of the person injured to determine “accident”
The Schinner court noted in the following cases that the Wisconsin Supreme Court “concluded that, for purposes of determining whether an assault is an ‘accident’ or ‘accidental’ under an insurance policy, the assault and resulting injuries must be viewed from the standpoint of the person injured.”[xxxi] The Schinner court held that in these cases, the Supreme Court reasoned that, “when viewed from the standpoint of the injured party, the assault and resulting injuries are an ‘accident’ or ‘accidental’ because the injured party did not intend, expect, or anticipate the assault or resulting injuries.”[xxxii]
a. Fox Wisconsin Corp. v. Century Indemnity Co.[xxxiii]
In Fox, an employee of the insured assaulted a patron.[xxxiv] The court held that the patron’s injury came “through force not of his own provocation. From his standpoint, then, the injuries were ‘accidentally sustained.’”[xxxv] Thus, even though the assault “in a sense . . . was unlawful and intentional,” when “considered objectively, it occurred without the agency of the patron, and, so far as these particular parties are concerned, the act may be, and legally is to be, termed accidental.”[xxxvi]
b. Tomlin v. State Farm Mut. Auto. Liab. Ins. Co.[xxxvii]
In Tomlin, an insured stabbed a police officer who had stopped his vehicle.[xxxviii] The policy covered bodily injury “caused by accident. . . .”[xxxix] The court held that in determining whether the injury was “caused by accident,” the “majority of courts” have recognized that the determination “must be made from the standpoint of the injured party, rather than from that of the person committing the assault.”[xl] Thus, from the standpoint of the injured police officer, the “events giving rise to his injuries were neither expected nor anticipated by him, and his injuries were therefore ‘caused by accident.’”[xli]
After reviewing Fox and Tomlin, the Court of Appeals in Schinner noted that because there was no claim that Schinner provoked or caused the assault, the assault was an accident, and therefore an “occurrence,” from Schinner’s viewpoint.[xlii]
2. Sustache—the Wisconsin Supreme Court Case holding that an assault and the resulting injuries must be viewed from the standpoint of the insured to determine “accident”
The Gundrums’ insurer—West Bend—argued that the court should reach the opposite conclusion, and find no “occurrence,” under the Sustache case discussed above.[xliii] In response, the Schinner court went on to analyze Sustache, noting that it “does seem to conflict with Fox and Tomlin on the question of whose vantage point—the injured party’s or the insured’s—courts should use to determine whether an event is an ‘accident’ qualifying as an ‘occurrence. ’”[xliv] The Schinner court noted that the proper way to read Sustache is that the court had reasoned that “the assault was not accidental because the insured intended the assault and intended bodily harm.”[xlv] Therefore, the Sustache court viewed the assault from the standpoint of the insured, and determined that the assault was not accidental.[xlvi]
The Schinner court noted that it is “uncertain whether courts in Wisconsin should now view an assault, in the context of insurance policy ‘occurrence’ or ‘accident’ terminology, from the standpoint of the injured party or from the standpoint of the insured.”[xlvii] However, the court determined that it ultimately did not matter because, in this case, “the outcome of the analysis is the same when viewed from either vantage point.”[xlviii] That is, the assault was an accident from both the standpoint of the injured party and the standpoint of the insured, because“[n]either Schinner nor Gundrum could be said to have intended the assault or an injury to Schinner.”[xlix]
The Schinner decision could have implications on how an insurer analyzes assault cases for purposes of both the duty to defend and the duty to indemnify. Up until Schinner, the Sustache case provided a clear rule. If the insured’s conduct causing the assault was volitional, then there was no “occurrence.” If the courts are persuaded—as Schinner advocates— to determine “accidental” conduct from the vantage point of the injured party and not the insured, the analysis becomes murky. To be sure, one stretches to think of examples where any assault could be deemed “non-accidental.” Does the victim of a punch ever plan on being hit? Does the victim of an assault ever intend to be injured? Does any victim of an intentional assault ever act with volition such that his or her injuries could be deemed “non-accidental?” One could argue that if Schinner is followed, provocation would be the only chance of finding non-accidental conduct.
In assessing the ramifications of the Schinner decision, one should keep in mind that Schinner does not overturn Sustache. In fact, a petition to the Supreme Court has been filed. Schinner is, at best, a decision from a lower court that is in conflict with the relatively clear pronouncement of the Sustachecourt. The discussion contained in Schinner should be kept in mind, however, when analyzing coverage issues in assault cases, and close watch should be paid to the Petition for Review and anticipated Supreme Court review.
[i] Estate of Sustache v. Am. Fam. Mut. Ins. Co., 2008 WI 87, 311 Wis. 2d 548, 751 N.W.2d 845 (2008).
[ii] Schinner v. Gundrum, No. 2011AP564, 2012 WL 375238, ¶ 16 (Wis. Ct. App. Feb. 2, 2012) (recommended for publication in official reports; final publication decision pending).
[iii] Sustache, 311 Wis. 2d 548, ¶ 5.
[iv] Id., ¶ 5.
[v] Id., ¶ 5.
[vi] Id., ¶ 30.
[vii] Id., ¶ 31.
[viii] Id., ¶ 32.
[x] Id., ¶ 34 (citing Doyle v. Engelke, 219 Wis. 2d 277, 289, 580 N.W.2d 245 (1998)).
[xi] Id., ¶ 36 (citing Am. Family Mut. Ins. Co. v. Am. Girl, Inc., 2004 WI 2, ¶ 37, 268 Wis. 2d 16, 673 N.W.2d 65).
[xii] Id., ¶ 34.
[xiii] Id., ¶ 46 (citing Am. Girl, 268 Wis. 2d 16, ¶ 37).
[xiv] Id., ¶ 43.
[xv] Id., ¶ 5.
[xvi] Id., ¶ 51.
[xvii] Id., ¶ 52.
[xviii] Schinner v. Gundrum, No. 2011AP564, 2012 WL 375238, ¶ 1.
[xix] Id., ¶¶ 10, 16.
[xx] Id., ¶ 2.
[xxi] Id., ¶ 2.
[xxii] Id., ¶ 3.
[xxiii] Id., ¶ 3.
[xxiv] Id., ¶ 4.
[xxv] Id., ¶ 4.
[xxvi] Id., ¶ 4.
[xxvii] Id., ¶ 4.
[xxviii] Id., ¶ 7.
[xxix] Id., ¶ 8 (citing Doyle, 219 Wis. 2d at 289; Am Girl, 268 Wis. 2d 16, ¶ 37).
[xxx] Id., ¶¶ 11, 16.
[xxxi] Id., ¶ 11.
[xxxii] Id., ¶ 11 (citing Tomlin v. State Farm Mut. Auto. Liab. Ins. Co., 95 Wis. 2d 215, 219, 222, 290 N.W.2d 285 (1980), Fox Wis. Corp. v. Century Indem. Co., 219 Wis. 549, 551, 263 N.W. 567 (1935)).
[xxxiii] Fox, 219 Wis. 549.
[xxxiv] Id. at 549.
[xxxvii] Tomlin, 95 Wis. 2d 215.
[xxxviii] Id. at 217.
[xxxix] Id. at 218.
[xl] Id. at 219.
[xli] Id. at 222.
[xlii] Schinner, No. 2011AP564, 2012 WL 375238, ¶ 15.
[xliii] Id., ¶ 16.
[xliv] Id., ¶ 16.
[xlv] Id., ¶ 19.
[xlvi] Id., ¶ 19.
[xlvii] Id., ¶ 21.
[xlviii] Id., ¶ 16.
[xlix] Id., ¶ 21.