Insurance Claim – Duty to Defend – Indemnification

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WI Court of Appeals – District IV

Case Name: Adam N. Ramos, et al., v. Trail Ridge Enterprises, Inc., et al.,

Case No.: 2020AP1521

Officials: Kloppenburg, Fitzpatrick, and Graham, JJ.

Focus: Insurance Claim – Duty to Defend – Indemnification

Plaintiff Adam Ramos was injured while delivering products to Trail Ridge Enterprises, Inc., d/b/a Timber Creek Pizza which at the time occupied a building leased from Ronald Luepke. Prior to Ramos’ injury, Timber Creek and Luepke entered into a written lease (which we refer to as the “lease”) but allowed that lease to expire. Timber Creek continued to rent the premises from Luepke until after the date of Ramos’ injury.

Ramos brought an action against Timber Creek and its insurer, Society Insurance, and Luepke and his insurer, Acuity Insurance, in the Jefferson County Circuit Court alleging that improper maintenance of the rented property caused his injuries. Pursuant to what we refer to as the “indemnification provision” in the lease, Luepke and Acuity tendered the defense and indemnification of Ramos’ claims to Timber Creek and Society. Timber Creek and Society failed to accept the tender, and Luepke and Acuity requested a declaratory judgment requiring Timber Creek and Society to defend and indemnify Luepke and Acuity against Ramos’ claims. Timber Creek and Society responded to the motion arguing that the terms of the lease—including the indemnification provision—no longer applied at the time of Ramos’ accident and that, even if the terms continued to apply, Luepke cannot be indemnified for his own alleged acts of negligence. The circuit court granted Luepke’s motion, ordering in relevant part that: the indemnification provision applies in these circumstances; Timber Creek breached its duty to accept the tender of defense and indemnification from Luepke; and Luepke is entitled to reimbursement from Timber Creek for reasonable attorney fees he has incurred in this action. The circuit court further ordered that Acuity is dismissed from this action with prejudice. Timber Creek and Society appeal.  We affirm the circuit court’s order.

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Derek A Hawkins is Corporate Counsel, at Salesforce.