Duty to Defend
Over the last few years, Wisconsin appellate courts have issued a number of decisions relating to the duty to defend, beginning with Water Well Solutions Services Group, Inc. v. Consolidated Insurance Co., 2016 WI 54 and Marks v. Houston Casualty Co., 2016 WI 53, which collectively reaffirmed Wisconsin’s strict “four corners” rule under which an insurer’s duty to defend is determined exclusively by reference to the facts alleged in the underlying complaint against the insured. This trend continued in 2019 with several new decisions further clarifying important principles relating to the duty to defend analysis and the consequences of an insurer’s breach of its duty to defend.
West Bend Mutual Insurance Company v. Ixthus Medical Supply, Inc., 2019 WI 19
In Ixthus, the Wisconsin Supreme Court held that if at least one of the causes of action asserted against the insured does not require a showing of intent as an element of the claim, an insurer may not rely on allegations of excluded intentional conduct to avoid its duty to defend.
Abbott Laboratories sued Ixthus Medical Supply and others in the underlying lawsuit, alleging trademark and fraud claims. Ixthus tendered the suit to its CGL insurer, West Bend, seeking coverage under the “personal and advertising injury” provision of the policy. West Bend filed a separate suit against Ixthus seeking a declaration of no coverage. West Bend argued that coverage—including any defense obligation—was barred under the “knowing violation” exclusion of the policy because Abbott had alleged in its complaint exclusively intentional conduct against Ixthus—conduct that West Bend argued established Ixthus had acted with knowledge that its actions would violate the rights of another and would inflict “personal and advertising injury.”
The Supreme Court rejected West Bend’s argument and held that Abbott’s complaint triggered West Bend’s duty to defend Ixthus because at least one of the causes of action against Ixthus did not require Abbott to prove intent—Abbott might prevail at trial based on evidence of non-intentional or negligent acts by Ixthus. Liberally construing the complaint as a whole and drawing all inferences in Ixthus’ favor, it remained possible that West Bend might be obligated to indemnify Ixthus, notwithstanding the allegations of intentional conduct. So West Bend owed Ixthus a duty to defend Abbott’s lawsuit.
According to the Court:
The knowing violation exclusion will preclude coverage at the duty-to-defend stage only when every claim alleged in the complaint requires the plaintiff to prove the insured acted with knowledge that its actions “would violate the rights of another and would inflict ‘personal and advertising injury.’” If the complaint alleges any claims that can be proven without such a showing, the insurer will be required to provide a defense.
Ixthus does not change Wisconsin’s “four corners” rule, under which a court may not consider facts extrinsic to the underlying complaint in determining whether an insurer must defend its insured. But Ixthus does confirm that the duty to defend remains broader than the duty to indemnify. And because a court must liberally construe allegations in favor of coverage and resolve ambiguities in the insured’s favor, allegations of excluded conduct alone may not be controlling in the duty to defend analysis.
Anderson v. Kayser Ford, Inc., 2019 WI App 9
Anderson answers the related question of when the insurer’s duty to defend terminates in cases involving mixed covered and uncovered claims. Here, the Wisconsin Court of Appeals held that an insurer may not cease to defend its insured upon the trial court’s dismissal of the covered claims if the dismissal does not dispose of the action as a whole, with finality. As long as there remains the possibility of an appeal of the dismissal of the covered claims, the insurer must continue to defend the entire suit, including any remaining uncovered claims.
A consumer sued Kayser Ford alleging four causes of action. Kayser tendered the suit to its insurer, Regent Insurance Company, which intervened in the suit and sought a declaration of no coverage. The trial court determined that one of the causes of action was arguably covered under Regent’s policy. However, Kayser subsequently obtained dismissal of that cause of action on the merits. So Regent renewed its request for a finding of no coverage. The trial court granted Regent’s motion.
Kayser appealed, arguing that although the court had dismissed the sole covered cause of action, the dismissal did not represent a final judgment of the entire action, triggering rights of appeal, which rights the consumer might later invoke, resulting in renewed litigation regarding the covered cause of action and possibly, a reversal. So Regent still might be obligated to indemnify Kayser for the covered cause of action. And as long as Regent might be obligated to indemnify Kayser for at least one claim, Regent had a duty to defend Kayser against all allegations in the suit under the terms of the policy.
The Court of Appeals agreed with Kayser. It held that absent the sort of finality achieved in settlement or following an appeal, the trial court’s dismissal of the covered cause of action did not terminate Regent’s duty to defend Kayser in the underlying suit—the duty to defend extended through trial on the uncovered claims and any appeal of the dismissal of the covered claim.
Choinsky v. Germantown Sch. Dist. Bd. of Educ., 2019 WI App 12
While decisions like Ixthus and Anderson reaffirmed and clarified long-standing rules relating to the duty to defend, Choinsky introduced the potential for confusion regarding an insurer’s obligation to defend its insured while the insurer seeks a judicial determination of no coverage. In Choinsky, the Wisconsin Court of Appeals held that Employers Insurance Co. of Wausau and Wausau Business Insurance Company (collectively, “Wausau”) did not breach their duty to defend the Germantown School District and Education Board (collectively, the “District”) by failing to pay defense costs the District incurred in an underlying suit for a period of five months while Wausau sought a declaration of no coverage. The decision, which the Wisconsin Supreme Court will review in 2020, is controversial and drew a notable dissenting opinion that criticized the majority for impermissibly considering extrinsic evidence in violation of the “four corners” rule and misunderstanding Supreme Court precedents in which the insurer in fact provided a defense under a reservation of rights while seeking a coverage determination.
The facts in Choinsky are as follows: Former teachers sued the District in July 2013, alleging negligence and other causes of action relating to the District’s decision to discontinue a group long-term care insurance policy. The District tendered the suit to Wausau. Wausau denied any coverage obligation, intervened in the suit, and moved to bifurcate the action and stay any litigation relating to the teachers’ claims pending a decision regarding coverage. The trial court did not rule on Wausau’s motion for five months, during which period Wausau refused to pay for the District’s defense. Ultimately, the trial court granted Wausau’s motion to intervene and bifurcate merits and coverage proceedings. But the trial court denied Wausau’s motion to stay litigation on the merits of the teachers’ claims. Shortly thereafter, Wausau began to pay for the District’s defense costs under a reservation of rights. And Wausau reimbursed the District for the defense costs it previously had incurred, excluding $50,000 in fees to which Wausau objected as violating its standard billing guidelines (to which counsel for the District apparently had agreed in unrelated lawsuits).
Wausau continued to pay the defense costs incurred by the District through trial on the coverage dispute, which the District won, and through a trial on the merits, in which the District again prevailed. Nevertheless, the District argued Wausau had breached its defense obligation by failing to assume the defense of the District while Wausau’s motion to stay remained pending and later failing to reimburse the District in full for all defense costs incurred during the same period.
In a split decision, the Court of Appeals rejected the District’s arguments. The majority characterized Wausau’s refusal to pay for five months as a mere “delay” in payment, which the majority found did not rise to the level of “breach” on the record before it, apparently in large part because Wausau timely filed its motion to stay and bifurcate proceedings, the District incurred only minimal fees during the five month period, and Wausau largely cured any alleged breach by reimbursing the District most of its fees. The majority then proceeded to fault the District for failing to provide “sufficient proof or legal authority to support its assertion that the timing of [Wausau’s] agreement to defend constituted a breach.” As to the $50,000 in fees Wausau refused to pay, the majority held the record lacked sufficient information regarding the dispute for the majority to conclude the fees were reasonable and that Wausau should have paid them. Because the majority rejected the District’s claims regarding Wausau’s breach, the majority refused to award the District the fees it had incurred in pursuing coverage—such fees otherwise would be considered damages flowing from Wausau’s breach under well-established Wisconsin law.
The dissent took issue with each part of the majority’s analysis and holding. As to the majority’s core criticism—the District’s purported failure to provide “sufficient proof”—the dissent noted that under Wisconsin’s strict “four corners” test, the District had no burden (or right) to provide any “proof.” The duty to defend analysis instead depends exclusively on the allegations in the teachers’ complaint against the District, which allegations the trial court correctly found triggered Wausau’s duty to defend, an issue not disputed on appeal. The dissent argued the majority erred in its analysis in considering any extrinsic information such as the amount of the fees the District incurred during the five month period. The dissent disputed the majority’s characterization of Wausau’s conduct, noting that Wausau undisputedly did not merely delay paying for the District’s defense—Wausau expressly and unequivocally denied any duty to defend the District during the entire five month period. The dissent noted that in prior cases involving insurers who moved to bifurcate and stay proceedings to allow for litigation regarding coverage to proceed first, the insurers in fact honored their defense obligations pending a coverage determination by paying for the defense of their insureds under a reservation of rights. Because the dissent agreed with the District that Wausau breached its duty to defend, the dissent argued Wausau must pay all damages flowing from its breach, including the fees the District incurred in pursuing coverage.
The outcome in Choinsky may have turned on its somewhat unique circumstances, including evidentiary matters impacting the record on appeal. But it is concerning to policyholders for obvious reasons and warrants close attention in 2020 as we await the Supreme Court’s decision.
Steadfast Ins. Co. v. Greenwich Ins. Co., 2019 WI 6
Like Choinsky, Steadfast also arose out of somewhat unique circumstances. But here, the Wisconsin Supreme Court affirmed a finding of breach and proceeded to address the consequences where another insurer pays for the insured’s defense. The Court held that an insurer that defends its insured has rights of subrogation to recover a proportionate share of the defense expenses it pays from any other insurer of the same insured that breaches its duty to defend.
Greenwich and Steadfast each issued policies covering Metropolitan Milwaukee Sewage District (“MMSD”) as an “additional insured.” But they did so under policies issued to two different contractors, Veolia and United Water, which MMSD had hired over two different periods of time to maintain the sewer system. MMSD was sued in multiple lawsuits based on alleged negligence and defective work by both contractors. MMSD tendered the suits to both insurers. Steadfast ultimately agreed to pay defense costs MMSD incurred. Greenwich refused to do so. After paying MMSD $1.55 million to cover MMSD’s defense costs, Steadfast sued Greenwich claiming that it stepped into MMSD’s shoes and was therefore entitled to full reimbursement of the defense costs it paid on MMSD’s behalf. Greenwich defended Steadfast’s claim, arguing that its denial was justified by its “other insurance” clause which purported to make Greenwich’s policy excess over the policy issued by Steadfast.
The Supreme Court rejected Greenwich’s defense, holding that the “other insurance” provisions of the policies are irrelevant as they apply only to policies that cover the same time period and the same risk, not policies that cover different periods and risks that happen to be implicated by the same suit. The two policies at issue not only covered different time periods, but different named insureds—Veolia and United Water—and, therefore, different risks. So Greenwich could not invoke its “other insurance” clause to avoid its duty to defend MMSD.
The Court went on to accept Steadfast’s subrogation theory to a point, but not entirely. The Court agreed that because Steadfast had assumed the duty to defend MMDS in its entirety, Steadfast was entitled to step into MMSD’s shoes and pursue MMSD’s right to be reimbursed for its defense costs from Greenwich. But the Court was not prepared to foist the entirety of the defense on Greenwich when Steadfast also had an independent defense obligation. So the Court allocated the defense costs between the two carriers under a weighted pro rata method based on the insurers’ respective policy limits. Instead of recovering $1.55 million from Greenwich, the Court held that Steadfast was entitled to $625,000 in defense fees paid on behalf of MMSD, plus interest and Steadfast’s attorney’s fees in establishing coverage.
Although this case was between two insurers, it has implications for policyholders that are a bit of a mixed bag. On the positive side, it affirms certain pro-policyholder rights, including the right to recover fees in breach of duty to defend cases, and denies an insurer’s right to rely on an “other insurance” clause to avoid liability due to the presence of another policy except in the narrow circumstance where two policies cover the same specific risk. On the negative side, the case waters down the venerable Wisconsin principle that an insurer who refuses to defend does so “at its peril”—that apparently no longer is the case where another insurer steps up and assumes the defense.
Leicht Transfer and Storage Co. v. Pallet Central Enterprises, Inc., 2019 WI 61
In Leicht, the Wisconsin Supreme Court held that there is no coverage under a standard Commercial Crime policy where the insured suffers a loss as a result of paying invoices supported by fraudulent delivery receipts.
Pallet Central Enterprises created and presented to Leicht Transfer and Storage fake pallet delivery tickets bearing forged signatures of Leicht employees. Relying on the tickets as evidence of the validity of the corresponding invoices, Leicht paid Pallet Central for pallets Leicht never ordered and Pallet Central never delivered. When Leicht discovered the fraud, it sought to recover for its loss under its crime policy, which covered “loss resulting directly from Forgery or alteration of checks, drafts, promissory notes, convenience checks, HELOC checks, or similar written promises, orders or directions to pay a sum certain in Money . . . .” Leicht argued that the combination of the fake, forged delivery tickets and invoices constituted a “direction to pay a sum certain” triggering coverage. A majority of the Wisconsin Supreme Court disagreed, finding that the forged delivery tickets included no direction at all, and even when bundled with invoices, represented a mere “request to pay,” not a “direction to pay.”
To a reasonable insured, any distinction between a “request” and “direction” to pay might seem thin. But the outcome likely would not have been any different even if the Court had agreed with Leicht that the delivery tickets and invoices constituted a “direction to pay.” This is so because the policy further required that such direction to pay be at least purportedly “[m]ade or drawn by or drawn upon You,” or “by one acting as Your agent.” And it is hard to see how the delivery tickets or invoices made and prepared by Pallet Central represent directions to pay “made or drawn by” Leicht, the recipient of the invoices and delivery tickets.
Leicht therefore best serves as a reminder of the often limited scope of crime coverage and highlights a potential gap in coverage when vendors or contractors—not the insured’s own employees—perpetuate a fraudulent scheme. To close this gap, policyholders should consider ensuring that their crime coverage includes an “agents coverage endorsement” expanding the coverage available for employee thefts to include theft by agents. Policyholders also should consider requiring that vendors and contractors purchase fidelity bonds that include a “theft of client property” coverage endorsement.
State ex rel. CityDeck Landing LLC v. Circuit Court for Brown Cty., 2019 WI 15
In CityDeck, the Wisconsin Supreme Court held that a court lacks jurisdiction to stay private arbitration proceedings to allow for related coverage litigation to proceed in court.
A claimant commenced arbitration proceedings against a general contractor. The general contractor joined several subcontractors to the arbitration, asserting claims of indemnification. The general contractor also sought additional insured coverage for its alleged liability under a policy issued to one of the subcontractors. The subcontractor’s insurer filed suit in circuit court seeking a determination of its coverage obligations to the general contractor and subcontractor. The insurer then requested that the court issue an order staying the underlying private arbitration, pending a decision by the court regarding the insurer’s coverage obligations. The circuit court granted the insurer’s request and issued the order. The claimant in the arbitration objected to the stay and petitioned the Supreme Court to issue a supervisory writ vacating the circuit court’s order staying the arbitration.
The Supreme Court granted the claimant’s petition and vacated the stay, holding that the circuit court clearly had exceeded its authority by interfering with the arbitration proceedings. While a circuit court has authority to bifurcate and stay proceedings on the merits of claims pending before the court to allow for coverage litigation to proceed first, a circuit court cannot stay even related private arbitration proceedings over which the court lacks jurisdiction.
Estate of Payette v. Marx, 2020 WI App 2
In Marx, the Wisconsin Court of Appeals addressed the circumstances under which a third-party claimant is entitled to prejudgment interest pursuant to Wisconsin’s prompt payment statute, Wis. Stat. §628.46.
The case arose out of an auto accident that result in the death of a bicyclist. The at-fault driver had an auto insurance policy with SECURA Insurance that provided $500,000 in liability coverage and a personal umbrella insurance policy through 1st Auto that provided $1,000,000 in additional coverage. The bicyclist’s Estate demanded the full policy limits of the 1st Auto policy in addition to the policy limits of the SECURA auto policy. In support of its demand to 1st Auto, the Estate itemized damages of: (1) $7,806.42 in “Medical Specials/Funeral Expenses”; (2) $1,988,779 in “future damages”; and (3) an unspecified amount of damages for “Conscious Pain and Suffering.” 1st Auto responded with a settlement offer of $525,000, which the Estate rejected.
The case proceeded to trial in which the jury awarded the Estate $673,000. SECURA paid its policy limits of $500,000, leaving 1st Auto liable for the remaining $173,000. The Estate sought prejudgment interest on this amount under Wis. Stat. § 628.46, which requires an insurer to “promptly pay every insurance claim” within thirty days of an insurer being provided “written notice of the fact of a covered loss and the amount of the loss” unless “the insurer has reasonable proof to establish that the insurer is not responsible for the payment.” The Estate argued its demand satisfied the statutory requirement of a written notice of “the amount of the loss” because the Estate had demanded the sum certain of $1 million, the limits of the 1st Auto policy. 1st Auto disagreed, arguing that the itemized “future damages” and unspecified “Conscious Pain and Suffering” damages in the demand were insufficient to trigger the right to prejudgment interest under § 628.46.
The circuit court agreed with the Estate, but the Court of Appeals reversed. It held that a third-party demand satisfies § 628.46 only where “the amount of the damages is in a sum certain amount.” (emphasis added). That the demand is for a sum certain does not suffice. The Court of Appeals then proceeded to find the Estate’s demand deficient in several respects, including because the Estate failed to specify any amount for “Conscious Pain and Suffering” damages and in fact expressly admitted it could not calculate them with certainty because no one knew whether the bicyclist lived for minutes or hours following the accident, making it impossible to determine whether the jury would award any “pain and suffering” damages at all.
Notwithstanding the outcome in Marx, the Court of Appeals explicitly rejected any contention that a demand based on general damages cannot ever suffice to satisfy § 628.46. According to the Court, “[e]ven though general damages are, by definition, ‘not readily susceptible to direct proof or easily estimable,’ there certainly are cases where a third-party claimant can satisfy the sum certain condition based upon a claim for such damages,” including, for example, where no reasonable jury would return a lesser amount of general damages than the amount covered by a policy’s limits.
Construing “One Event”
Superior Water, Light and Power Co. v. Certain Underwriters at Lloyds, London, 2019 WL 6121350 (Wis. Ct. App. Nov. 19, 2019)
In Superior Water, the Wisconsin Court of Appeals applied established principles of interpretation in construing an ambiguity in the definition of “occurrence” against the drafter of the policy.
Superior produced carbureted water gas and then stored manufactured gas at a site in Douglas County between 1889 and 1959. According to the Wisconsin Department of Natural Resources, these operations left chemicals in the soil and groundwater that eventually led to environmental contamination. Superior sought insurance coverage for its ensuing liabilities, including under policies issued in 1970 by London Market insurers. Collectively, the policies provided $20 million of coverage. Each policy covered losses resulting from an “occurrence,” which they defined as “one happening or series of happenings arising out of or caused by one event taking place during the term of this contract.” (emphasis added). The London Market insurers argued that this definition required there to be a release of contaminants during the policy period, which could not have happened here because the policies incepted eleven years after operations at the site ceased. The trial court agreed and granted the insurers’ motion to dismiss.
The Court of Appeals reversed. It held that “one event” could reasonably include the influx and contamination of clean groundwater by chemicals already in the ground each year after operations at the site ceased. The Court of Appeals therefore found the policy language to be ambiguous and ordered that, under the doctrine of contra proferentem, it must be construed against the drafter.
Ordinarily, this would have meant a finding of coverage. But the Court of Appeals found a suggestion in the record that Superior may have drafted the policies. So the Court remanded the case back to the trial court to determine whether Superior or the insurers drafted the policies, and to construe the ambiguous language against the drafting party.
Crum & Forster Specialty Ins. Co. v. DVO, Inc., 939 F.3d 852 (7th Cir. 2019)
In DVO, the Seventh Circuit applied Wisconsin law in addressing the proper construction of broad exclusionary language and the standard for reforming policies where such language renders coverage illusory.
A customer sued DVO for breach of contract, alleging that DVO improperly designed certain anaerobic digesters. DVO tendered the suit to its E&O insurer, Crum & Forster, under a policy providing coverage for “those sums the insured becomes legally obligated to pay as ‘damages’ or ‘cleanup costs’ because of a ‘wrongful act’ to which this insurance applies.” The policy defined “wrongful act” to include “a failure to render professional services” such as the design of the digesters.
Crum initially defended DVO but, a few months later, advised DVO it would no longer provide a defense because coverage was barred under the policy’s breach of contract exclusion, which excluded coverage for “claims” or “damages” “based upon or arising out of breach of contract.” DVO responded that the exclusion was so broad as to render the policy’s professional liability coverage illusory and sought reformation of the policy to reinstate coverage for the customer’s claim.
The district court ruled in Crum’s favor, finding that the coverage was not illusory, notwithstanding that it barred coverage for any claims brought by parties such as DVO’s customer, because coverage would exist for any claims by third parties suing in tort. The Seventh Circuit reversed, finding that coverage in fact would be barred for third party claims too because any such claims necessarily “arise out of” the contract under which DVO rendered the professional services. According to the Seventh Circuit, the phrase “arise out of” is “very broad, general and comprehensive and is ordinarily understood to mean originating from, growing out of, or flowing from” such that “[a]ll that is required is some causal relationship between the injury” and a contract to trigger the exclusion.
Having found coverage illusory, the Seventh Circuit proceeded to address the remedy—reformation. It held that the policy must be reformed to meet DVO’s reasonable expectations and not simply to reinstate the most limited scope of coverage to avoid rendering the policy illusory. The Seventh Circuit remanded the case to the district court for further proceedings to determine DVO’s reasonable expectations.
Insurers routinely argue that the phrase “arising out of” is just as broad as the Seventh Circuit construed it when the insurers seek to deny coverage based on an exclusion like the breach of contract exclusion at issue in DVO. So, for policyholders, DVO represents a sort of poetic justice. The Seventh Circuit’s confirmation of the standard in reformation cases is important, as the remedy of reformation itself is illusory if the reinstated scope of coverage is limited to some coverage, even if not the coverage the policyholder reasonably expected in purchasing the policy.
A Warning Regarding Notice
Emmis Commc’ns Corp. v. Ill. Nat’l Ins. Co., 937 F.3d 836 (7th Cir. 2019)
An interim decision by the Seventh Circuit in Emmis briefly caused substantial concern for all policyholders and brokers as it suggested that providing notice of a claim to prior claims-made insurers might actually bar coverage under current policies. To understand the concern and how the Seventh Circuit ultimately mitigated it, we must consider the facts and history of Emmis.
In 2012, shareholders sued Emmis alleging securities claims. Emmis advised its broker that the suit had been filed and asked the broker to tender the suit to its D&O carriers. The broker did so, sending copies of the complaint to Emmis’ current D&O carrier, AIG, and a former D&O carrier, Chubb, which had earlier agreed its policy covered arguably related claims. Chubb denied coverage on the basis that the 2012 claims were not in fact related to the claims for which Chubb earlier had acknowledged coverage. AIG denied coverage on the basis that the broker’s act in tendering the suit to Chubb triggered a “Specific Event Exclusion” in the AIG policy under which coverage was barred for claims “as reported” under a prior policy.
Emmis disputed AIG’s denial, arguing AIG had misconstrued the “Specific Event Exclusion.” Emmis argued it applied only to claims Emmis already had reported before AIG issued its policy, not claims first reported during the AIG policy period to AIG and prior insurers. The district court found the exclusion ambiguous and held it must be construed against AIG and in favor of coverage.
On appeal, the Seventh Circuit initially reversed the district court’s decision. Because “as reported” lacked any express temporal limitation, the Seventh Circuit found the exclusion applied to claims contemporaneously reported to AIG and a prior insurer regardless of when the claims were reported. But on rehearing, the Seventh Circuit withdrew its opinion and reinstated the decision of the district court.
The Emmis decision therefore now stands more as a reminder to policyholders and brokers to carefully consider all exclusions in determining to which carriers to tender a claim.
Emer’s Camper Corral, LLC v. Alderman, 2019 WI App 17
Camper Corral involved a dispute between a policyholder and its insurance agent, not insurance carrier. As a matter of first impression, the Wisconsin Court of Appeals addressed the policyholder’s burden of establishing causation where the policyholder seeks to hold its agent liable for negligent failure to procure specified coverage.
Camper Corral, a used camper dealership, sued its insurance agent, alleging that the agent negligently obtained a policy covering hail damage with a $5,000 per-camper deductible when the agent should have obtained a policy with a $1,000 per-camper deductible and a $5,000 aggregate deductible. The case proceeded to trial, during which Camper Coral presented evidence of the general commercial availability of a policy with the deductibles Camper Corral sought. But after the trial, the circuit court entered a directed verdict in favor of the agent because Camper Corral had failed to present any evidence that Camper Corral would have been able to secure the lower deductible coverage it alleged the agent negligently failed to procure.
The Court of Appeals affirmed, holding that Camper Corral’s evidence of the commercial availability of the preferred coverage does not suffice to establish causation, a required element of Camper Corral’s claim. Camper Corral instead was obligated to present evidence proving that an insurer would have issued a policy with such deductibles to Camper Corral, notwithstanding its loss experience.
As is often the case with issues of first impression, the Wisconsin Supreme Court will review the Court of Appeals decision in 2020. So Camper Corral represents another case in which we may not have heard the final word.