By: Derek Hawkins//July 11, 2016//
WI Supreme Court
Case Name: David M. Marks v. Houston Casualty Company et al
Case No.: 2013AP2756
Focus: Insurance Coverage
Allegations made in complaint are not claims covered under insurance policy.
“The circuit court below found that Marks’ policy provides an initial grant of coverage. The court of appeals assumed without deciding that Marks’ policy provides an initial grant of coverage, then moved to step two: determining whether any exclusions preclude coverage. Marks, 363 Wis. 2d 505, ¶9. The court of appeals ultimately concluded that the business enterprise exclusion “precludes coverage when measured against the allegations in the complaints.” Id., ¶22. We agree with the court of appeals on both counts: we need not and do not decide whether Marks’ policy provides an initial grant of coverage based on the allegations in the six lawsuits, because, as we will now explain, the business enterprise exclusion clearly establishes that Houston Casualty could have no possible duty to indemnify Marks, even if the allegations in the complaints turned out to be true. See Fireman’s Fund, 261 Wis. 2d 4, ¶21.22 Thus, Houston Casualty did not breach its duty to defend Marks when it declined to defend him.”
Affirmed
Concurring: BRADLEY, A. W., J. and ABRAHAMSON, J. concur (Opinion filed). BRADLEY, R. G., J. concurs (Opinion filed).
Dissenting: