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2004AP2177 Baumann and Elite Protection Specialists, LLC v. Elliot and Security Arts Corporation

By: dmc-admin//July 25, 2005//

2004AP2177 Baumann and Elite Protection Specialists, LLC v. Elliot and Security Arts Corporation

By: dmc-admin//July 25, 2005//

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“Even if we assume that the circuit court should have limited its duty-to-defend analysis to the ‘four-corners’ of the complaint, it reached the correct result. Elliott concedes that the ‘occurrence’ prerequisite to personal injury coverage purports to afford coverage only for negligent defamation. No fair reading of this complaint reveals such a claim. Rather, the allegations assert intentional, willful, malicious defamation. In setting forth its second cause of action, defamation, para. 19 of the complaint specifically incorporates the allegations related to its first cause of action, which alleges intentional interference with the EPS’ business relationships. Paragraph 19 is fatal to Elliott’s position that the complaint does not allege intent to defame because it makes clear that the first and second causes of action arise from the same set of facts. …

“We affirm the circuit court’s decision. Because the Wisconsin law of defamation would allow a plaintiff to recover against Elliott without proving wanton and willful, deliberate defamation, we can conceive of some circumstances in which his insurance agreement would require Cincinnati to indemnify him. The policy is therefore not illusory, and we will not read it to cover intentional acts of defamation. We determine that the plaintiff’s complaint alleges only purposeful and malicious defamation, based on the allegations in the body of the complaint, alone and as clarified by the prayer for relief. Further, the court’s determination that Cincinnati had no duty to indemnify Elliott provided an independent ground for its conclusion that Cincinnati has no duty to defend Baumann’s action against Elliott.”

Order affirmed.

Recommended for publication in the official reports.

Dist II, Waukesha County, Erwin, J., Brown, J.

Attorneys:

For Appellant: Joseph J. Voelkner, Sheboygan; Jerry D. Zimmerman, Brookfield

For Respondent: Stephanie L. Dykeman, Brookfield

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