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Eberts v. Goderstad

June 29, 2009

ERIC G. EBERTS AND DEBORAHR. EBERTS, PLAINTIFFS,
v.
TORGE GODERSTAD, SVETLANA GODERSTAD, ALSO KNOWN AS SUZANNE GODERSTAD, AND NATIONALPLASTICS TRADINGCOMPANY, INCORPORATED, DEFENDANTS-APPELLANTS,
v.
AMERICAN FAMILY MUTUAL INSURANCE COMPANY, DEFENDANT-APPELLEE.



Appeal from the United States District Court for the Eastern District of Wisconsin. No. 05 C 527-William C. Griesbach, Judge.

The opinion of the court was delivered by: Sykes, Circuit Judge.

ARGUED APRIL 7, 2008

Before RIPPLE, WILLIAMS, and SYKES,Circuit Judges.

This case arises from the sale of an expensive and historic home in Neenah, Wisconsin. After moving in, the buyers discovered numerous defects in the home and sued the sellers in federal district court for breach of contract, various forms of misrepresentation, and negligence. The present appeal is limited to a dispute about insurance coverage-specifically, whether the sellers' insurer has a duty to defend the sellers under the terms of several insurance policies, all of which provide defense-and-indemnity coverage for "property damage" caused by an "occurrence," which is defined in the policies as an "accident." The district court, sitting in diversity and applying Wisconsin law, held there was no duty to defend, entered summary judgment for the insurer, and certified the no-coverage judgment as final for purposes of an immediate appeal under Rule 54(b) of the Federal Rules of Civil Procedure.

In their briefs and at oral argument, the sellers maintained that their insurer's duty to defend was triggered by the allegations in two of the claims in the underlying lawsuit: a fraudulent misrepresentation claim under section 100.18 of the Wisconsin Statutes and a commonlaw negligent misrepresentation claim. The Wisconsin Supreme Court's intervening decision in Stuart v. Weisflog's Showroom Gallery, Inc. ("Stuart II"),*fn1 2008 WI 86, 311 Wis. 2d 492, 753 N.W.2d 448, has eliminated the first of these arguments, as the sellers have conceded. As to the remaining argument, we conclude that the buyers' claim for negligent misrepresentation does not allege "property damage" caused by an "accident." Accordingly, the insurer owes no duty to defend, and we affirm the judgment of the district court.

I. Background

Torge and Svetlana Goderstad owned a vintage 19th century home in Neenah, Wisconsin, and in 1996-1997 they enlarged it with a 4,000 square-foot addition. In 2003 they sold the home to Eric and Deborah Eberts for $1.85 million. The Ebertses took occupancy in August 2003 and by November began to notice defects in the exterior insulation and finishing work in the addition, which led to water leaks and moisture entrapment between the home's interior and exterior walls. These and other defects in the home prompted the Ebertses to sue the Goderstads and their home-based business, National Plastics Trading Co., Inc., in the United States District Court for the Eastern District of Wisconsin; the Goderstads had since moved to Colorado, and the suit invoked the court's diversity jurisdiction. The complaint alleged seven claims for relief under Wisconsin law: (1) breach of con-tract; (2) intentional misrepresentation; (3) a claim under Wis. Stat. § 895.80(1)*fn2 for violation of Wisconsin's criminal theft statute, Wis. Stat. § 943.20; (4) strict-responsibility misrepresentation; (5) fraudulent misrepresentation in violation of § 100.18, which prohibits false, deceptive, or misleading representations in the sale of real estate; (6) negligent misrepresentation; and (7) negligence.

American Family Mutual Insurance Co., the Goderstads' insurer under several policies, appointed counsel for the Goderstads under a reservation of rights, see Estate of Sustache v. Am. Family Mut. Ins. Co.,2008 WI 87, ¶ 25, 311 Wis. 2d 548, ¶ 25, 751 N.W.2d 845, ¶ 25, and moved to intervene under Rule 24(a) of the Federal Rules of Civil Procedure in order to protect its interest in the lawsuit. The district court allowed the intervention and on American Family's motion, agreed to bifurcate the issues of liability and coverage.

American Family then moved for summary judgment on the coverage issue, which the district court granted. Applying Wisconsin law, the court held that none of the Ebertses' claims were covered under any of the Goderstads' policies and therefore the insurer had no continuing duty to defend. The district court then certified its judgment under Rule 54(b) of the Federal Rules of Civil Procedure to satisfy the final-judgment rule and permit immediate review. 28 U.S.C. § 1291; FED. R. CIV. P. 54(b). In its current posture, therefore, this case comes to us as the Goderstads versus American Family, with the Goderstads as the appellants, opposing their insurer's early exit from the suit.

II. Discussion

A. The American Family Policies and Applicable Insurance-Law Principles

The Goderstads and National Plastics were covered under four American Family insurance policies during the relevant time period-a homeowner's policy, an umbrella liability policy, and two business policies-the relevant portions of which are not materially different. Each policy provides coverage for "property damage" caused by an "occurrence." As is usually the case, "occurrence" is defined in the policies as an "accident," but the term "accident" is otherwise left undefined. Wisconsin caselaw provides several alternative definitions, all of which attempt to capture the fortuity principle central to liability insurance. Lucterhand v. Granite Microsystems, Inc.,564 F.3d 809, 812-13 (7th Cir. 2009). An "accident" for purposes of liability insurance coverage is "[a]n unexpected, undesirable event or an unforeseen incident which is characterized by a lack of intention." Everson v. Lorenz,2005 WI 51, ¶ 15, 280 Wis. 2d 1, ¶ 15, 695 N.W.2d 298, ¶ 15 (internal quotation marks omitted). " 'The word "accident," in accident policies,means an event which takes place without one's foresight or expectation. A result, though unexpected, is not an accident; the means or cause must be accidental.' " Am. Family Mut. Ins. Co. v. Am. Girl, Inc.,2004 WI 2, ¶ 37, 268 Wis. 2d 16, ¶ 37, 673 N.W.2d 65, ¶ 37 (quoting BLACK'S LAW DICTIONARY 15 (7th ed. 1999)).

American Family will owe a continuing duty to defend the Goderstads if the allegations in the Ebertses' complaint raise the possibility of coverage under the foregoing policy language. Lucterhand,564 F.3d at 811; Wausau Tile, Inc. v. County Concrete Corp., 593 N.W.2d 445, 459 (Wis. 1999) ("[T]he duty to defend hinges on the nature, not the merits, of the claim."); see also Doyle v. Engelke, 580 N.W.2d 245, 248 (Wis. 1998). On appeal, the Goderstads have focused on just two of the seven claims in the underlying suit; they contend that the claim for ...


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