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Third Party Plaintiff – Duty to Defend

By: Derek Hawkins//May 3, 2017//

Third Party Plaintiff – Duty to Defend

By: Derek Hawkins//May 3, 2017//

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WI Supreme Court

Case Name: Maya Elaine Smith v. Jeff Anderson v. 4th Dimension Design, Inc.

Case No.: 2017 WI 43

Focus: Third Party Plaintiff – Duty to Defend

The petition for review asked the court to decide: (1) whether a third-party complaint may state a claim for which an insurance company has a duty to defend when the third-party plaintiff was sued for misrepresentation by the first-party plaintiff; (2) whether a third-party defendant may supplement the third-party complaint with additional facts when the third party defendant seeks a defense from its insurance company; and (3) whether summary judgment denying a claim for defense conclusively concludes the duty to defend question, notwithstanding subsequent developments in the lawsuit.

The circuit court granted summary judgment to West Bend Mutual Insurance Company.2 The circuit court concluded that there was no initial grant of coverage and also, if there were an initial grant of coverage, the policy exclusions prevented coverage for the claims for which R&B Construction sought defense. Therefore, West Bend Mutual had no duty to defend. The circuit court dismissed West Bend Mutual from the lawsuit and R&B appealed.

Petition Dismissed

Concur: Roggensack

Dissent: Abrahamson, Bradley

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Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.

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