01-2778 Green v. Heritage Mutual Insurance Co.

Listen to this article

“Accordingly, we conclude that the Congregation has failed to establish a prerequisite for coverage under the D & O policy – that is, that the trustees were legally obligated to pay for the claims made against them. Therefore, because Green and Rasansky, as agents of the Congregation, were not personally liable, Heritage was not obligated to pay the resulting judgment under the terms of the policy, and thus, had no duty to defend Green or Rasansky in the underlying lawsuit.”

Affirmed.

Recommended for publication in the official reports.

DISSENTING OPINION: Wedemeyer, P.J. “The complaint here, in my opinion, clearly alleged covered causes of action-misrepresentation and breach of fiduciary duty. The claims against Green and Rasansky alleged misrepresentations and breaches, which caused some of the ‘Friends of Kenwood’ to make contributions in reliance on the alleged misrepresentations.

“The fact that, ultimately, the allegations were dismissed is not pertinent to our analysis. Looking solely at the allegations in the complaint, I conclude that Heritage had a duty to defend the action, even though, in the end, it turned out that no liability was incurred. The duty to defend is broader than the duty to indemnify.”

Dist I, Milwaukee County, Dugan, J., Curley, J.

Attorneys:

For Appellant: S. Todd Farris, Milwaukee; Robert H. Friebert, Milwaukee; Brian C. Randall, Milwaukee

For Respondent: Arthur P. Simpson, Milwaukee