02-1856 Society Insurance v. Capitol Indemnity Corporation

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“Capitol’s policy provided coverage solely to Beckman. Society’s policy provided property damage coverage solely to Bohan, and liability coverage to both Bohan and Beckman. Because this case involved a claim under the property damage provision of Society’s policy, there was no identity of insureds and contribution is not available.”

Further, the two policies each provided coverage for separate and distinct insurable interests. “Society’s policy covered Bohan’s insurable interest as operator of the restaurant located in the building. Capitol’s policy covered Beckman’s interest as owner of the building, which housed the restaurant. …

“Although it may not always be easy to articulate the different interests, they are clearly not the same. The owner benefits both as the title-holder to the property and as the landlord. The operator benefits solely from the proceeds generated by the business operated in the building. If the property is destroyed, the owner loses both the rental income and the value of the real estate, whereas the tenant loses income from the business, goodwill and other items related to the business.

“In sum, we conclude that the trial court erred in entering judgment in favor of Society and ordering Capitol to pay contribution. Rather, the trial court should have granted summary judgment to Capitol because no contribution claim accrued under the facts and circumstances presented here-there was neither an identity of insureds nor insurable interests.”

Judgment reversed.

Recommended for publication in the official reports.

Dist I, Milwaukee County, Donegan, J., Wedemeyer, P.J.

Attorneys:

For Appellant: Allen M. Ratkowski, Milwaukee; Jeaneen J. Dehring, Milwaukee

For Respondent: Arthur P. Simpson, Milwaukee