2009AP1185 Chicago Title Insurance Company v. Voss

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Insurance
Duty to defend; attorney fees; costs

Chicago Title Insurance Company appeals from a declaratory judgment awarding attorney fees and costs to its insured under Wis. Stat. § 806.04(8) and (10) (2007-08). Patrice Voss requested attorney fees and costs after Chicago Title unsuccessfully challenged the damages owing her under its title insurance policy. The primary issue on appeal is whether the trial court erred in awarding attorney fees to an insured under § 806.04(8) when there was no breach of a duty to defend. We conclude that it did. The supreme court’s decision in Reid v. Benz, 2001 WI 106, 245 Wis. 2d 658, 629 N.W.2d 262, reiterates Wisconsin’s adherence to the American Rule and clarifies that an award of attorney fees is not permitted under § 806.04(8), absent a finding of a breach of the duty to defend. However, we uphold the trial court’s discretionary award of costs under § 806.04(10). We therefore reverse that portion of the judgment awarding attorney fees to Voss and affirm that portion of the judgment awarding costs. Not recommended for publication in the official reports.

2009AP1185 Chicago Title Insurance Company v. Voss

Dist II, Waukesha County, Foster, J., Neubauer, P.J.

Attorneys: For Appellant: Beilfuss, Andrew P., Milwaukee; For Respondent: Klein, Joseph J., Madison

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