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Insurance – intended damages

Wisconsin Court of Appeals


Insurance – intended damages

Ashley Birkholz appeals the grant of summary judgment in favor of the defendant Germantown Mutual Insurance Company, dismissing Birkholz’s claims for damages arising out of the shooting death of her husband, Officer Craig Birkholz. Birkholz was shot and killed in the line of duty by Germantown Mutual’s insured, James Cruckson. Cruckson shot himself dead rather than surrender to police after firing dozens of shots at police inside and outside of his home in March 2011.

Because Cruckson’s homeowner’s insurance policy from Germantown Mutual expressly excluded coverage for injury or damage “which is expected or intended by the insured,” the circuit court granted summary judgment, holding that the damages from Cruckson’s act of shooting Birkholz were, as a matter of law, “expected or intended” by Cruckson. On appeal, Ashley Birkholz argues that the trial court erred because the facts do not establish conclusively that Cruckson intended the harm he caused to Birkholz and because whether the incident was an “accident” should be determined from the point of view of the victim, Birkholz, not Cruckson.

We reject these arguments and affirm. We agree with the circuit court that Cruckson’s actions were intentional as a matter of law and that the insurance policy unambiguously excludes coverage for damages resulting from Cruckson’s intentional shooting of Birkholz. In reaching these conclusions, we note that the Wisconsin Supreme Court’s recent decision in Schinner v. Gundrum, 2013 WI 71, ___ Wis. 2d ___, 833 N.W.2d 685, clarified this area of the law and undermined the view of the law that Ashley Birkholz relies upon in this appeal. Under Wisconsin law, Cruckson’s actions were intentional, not accidental, as a matter of law, and they trigger the intentional acts exclusion. We affirm. This opinion will not be published.

2012AP2730 Birkholz v. Cruckson, et al.

Dist II, Fond du Lac County, Sharpe, J., Per Curiam

Attorneys: For Appellant: Fortune, Michael P., Fond du Lac; For Respondent: Levy, H. B., Cedarburg; Delury, Russ J., Brookfield

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