Insurance Claim – Breach of Duty to Defend

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WI Court of Appeals – District II

Case Name: Roger Choinsky, et al. v. Germantown School District Board of Education, et al.

Case No.: 2018AP116

Officials: Neubauer, C.J., Reilly, P.J., and Hagedorn, J.

Focus: Insurance Claim – Breach of Duty to Defend

The Germantown School District and the Germantown School District Board of Education (collectively the District) challenge the denial of their postverdict motion seeking attorney fees from their liability insurers. Contending that the insurers breached their duty to defend, the District requests its unpaid fees incurred in its defense as damages flowing from the breach as well as its fees incurred in establishing coverage under the equitable principles set forth in Elliott v. Donahue, 169 Wis. 2d 310, 485 N.W.2d 403 (1992). We conclude that the District fails to provide sufficient proof and legal authority to show that the insurers’ delay in paying for a defense constitutes a breach of their duty to defend. We also conclude that, because the insurers agreed to pay for the District’s defense after the insurers’ motion for a stay was denied, the unique circumstances of Elliott are not present and the insurers are not responsible for the District’s own coverage-related fees. We affirm.

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.