Duty to defend; pay and walk
An insurance policy with a pay and walk clause permits the insurer to satisfy its duty to defend by paying its maximum liability.
“First, we note that none of the above factors distinguishes the instant case from Novak. As explained in more detail above, the two cases are nearly identical. The slight factual differences have no bearing on the issue controlling both cases: whether the insurer properly discharged its duty to defend the insured by paying the policy limits. See id. at 134. Second, none of the above factors present an issue of material fact that would preclude summary judgment. See Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816 (1987) (summary judgment inappropriate when there is no issue of material fact); see also Metropolitan Ventures, LLC v. GEA Assocs., 2006 WI 71, ¶21, 291 Wis. 2d 393, 717 N.W.2d 58 (A material fact is one that would influence the outcome of the controversy.). Regardless of the exact amount of Young’s damages, American Standard’s ‘true motivations’ in paying the policy limit, American Standard’s communication (or lack thereof) with the Welytoks, or its investigation (or lack thereof) of Young’s claim, the simple and significant fact here is that once American Standard paid Young the $100,000 liability limit, it was allowed, under the clearly written and properly emphasized policy provision at issue here, to discontinue defending the Welytoks against Young’s claim. As the trial court deftly observed, the Welytoks ‘contracted with American Standard to get $100,000 worth of coverage, and how that is spent is how it’s spent.’”
Recommended for publication in the official reports.
2009AP3015 Young v. Welytok
Dist. I, Milwaukee County, Cooper, J. Curley, J.
Attorneys: For Appellant: Anderegg, Rex, Milwaukee; For Respondent: Booth, Terry J., Milwaukee; Anderson, Benita L., Milwaukee