                                                              2016 WI 53

                  SUPREME COURT             OF     WISCONSIN
CASE NO.:                2013AP2756
COMPLETE TITLE:          David M. Marks,
                                    Plaintiff-Appellant-Cross-Respondent-
                         Petitioner,
                              v.
                         Houston Casualty Company,
                                    Defendant-Respondent-Cross-Appellant,
                         Bedford Underwriters, Ltd.,
                                    Defendant-Respondent.

                           REVIEW OF A DECISION OF THE COURT OF APPEALS
                          (Reported at 363 Wis. 2d 505, 866 N.W.2d 393)
                                    (Ct. App. 2015 – Published)
                                       PDC No: 2015 WI App 44

OPINION FILED:           June 30, 2016
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:           March 16, 2016

SOURCE OF APPEAL:
   COURT:                Circuit
   COUNTY:               Milwaukee
   JUDGE:                Richard J. Sankovitz

JUSTICES:
   CONCURRED:            BRADLEY, A. W., J. and ABRAHAMSON, J. concur
                         (Opinion filed).
                         BRADLEY, R. G., J. concurs (Opinion filed).
  DISSENTED:
  NOT PARTICIPATING:


ATTORNEYS:
       For        the    plaintiff-appellant-cross-respondent-petitioner,
there were briefs by Jon E. Fredrickson, Brian T. Fahl, Aaron H.
Aizenberg, Stuart J. Check, and Kravit, Hovel & Krawczyk, S.C.,
Milwaukee, and oral argument by Jon E. Fredrickson.




       For the defendant-respondent-cross-appellant, there was a
brief by John D. Finerty, Adam E. Witkov, and Michael Best &
Friedrich         LLP,   Milwaukee   and   Aidan   M.   McCormack,   Robert   C.
Santoro, and DLA Piper LLC (US), New York.       Oral argument by
Aidan M. McCormack.


    There was an amicus curiae brief by James A. Friedman, Todd
G. Smith, Linda S. Schmidt, and Godfrey & Kahn, S.C., Madison on
behalf of Wisconsin Insurance Alliance and American Insurance
Association.   Oral argument by James A. Friedman.




                                 2
                                                                   2016 WI 53
                                                           NOTICE
                                             This opinion is subject to further
                                             editing and modification.   The final
                                             version will appear in the bound
                                             volume of the official reports.
No.   2013AP2756
(L.C. No.   2009CV18145)

STATE OF WISCONSIN                       :            IN SUPREME COURT

David M. Marks,

             Plaintiff-Appellant-Cross-Respondent-
             Petitioner,
                                                                FILED
      v.
                                                            JUN 30,2016
Houston Casualty Company,
                                                              Diane M. Fremgen
             Defendant-Respondent-Cross-Appellant,         Clerk of Supreme Court


Bedford Underwriters, Ltd.,

             Defendant-Respondent.




      REVIEW of a decision of the Court of Appeals.           Affirmed.


      ¶1     ANNETTE KINGSLAND ZIEGLER, J.       This is a review of a

published decision of the court of appeals, Marks v. Houston

Casualty Co., 2015 WI App 44, 363 Wis. 2d 505, 866 N.W.2d 393,

which affirmed the Milwaukee County circuit court's1 grant of




      1
          The Honorable Richard J. Sankovitz presided.
                                                                           No.    2013AP2756



summary judgment in favor of Houston Casualty Company ("Houston

Casualty") and Bedford Underwriters, Ltd.2

      ¶2    In July of 2009, trustee David Marks ("Marks") asked

his professional liability insurer, Houston Casualty, to defend

him   in   six    lawsuits       filed   in        2007,   2008,    and    2009   in    five

different states.          Houston Casualty informed Marks that it had

no duty to defend him in any of those lawsuits, and Marks then

brought suit against Houston Casualty.                       Both the circuit court

and the court of appeals agreed with Houston Casualty that a

comparison of Marks' policy to the allegations in the complaints

against Marks established that Houston Casualty had no duty to

defend Marks.

      ¶3    We     conclude       that    the        complaints      and    counterclaim

against    Marks    do     not    allege       facts       which,   if     proven,     would

constitute       claims    covered       under       the     insurance     policy      Marks

obtained from Houston Casualty.                    Houston Casualty therefore did

not breach its duty to defend Marks when it declined to defend

him in the six lawsuits at issue.                     Consequently, we affirm the
decision of the court of appeals.

                   I.     FACTUAL AND PROCEDURAL BACKGROUND

      ¶4    David       Marks     is     the       trustee     of   two     trusts:      the

Irrevocable       Children's        Trust          ("ICT")    and    the     Irrevocable


      2
       Although   involved   in   these   proceedings,   Bedford
Underwriters did not file a separate brief in this case and
instead joins the positions taken by Houston Casualty.       For
simplicity, Bedford Underwriters will generally not be mentioned
in this opinion.


                                               2
                                                              No.     2013AP2756



Children's Trust No. 2 ("ICT2").            At all times relevant to this

dispute, ICT and ICT2 owned a controlling interest in a company

known as Titan Global Holdings, Inc. ("Titan").3               From 2007 to

2009, a number of lawsuits involving Marks and Titan were filed

throughout the country.         Because the outcome of this case turns

on the allegations contained in the five complaints and one set

of counterclaims filed against Marks, we will set forth the

contents of these documents in some detail.

    ¶5    On or about December 21, 2007, Oblio Telecom, Inc.

("Oblio") filed a lawsuit against Hawaii Global Exchange, Inc.

("Hawaii Global") in the United States District Court for the

Northern District of Texas (the "Hawaii Global action").4                    On

April 7, 2008, Hawaii Global filed a counterclaim against Oblio,

Titan,   Frank      Crivello     ("Crivello"),     Marks,     Bryan     Chance

("Chance"),   and    Kurt      Jensen   ("Jensen").     The    counterclaim

described Marks as a "citizen of the State of Wisconsin" and "a

principal shareholder and equitable owner of Titan" and asserted

one count of conspiracy to commit fraud against the counterclaim


    3
       One of the complaints filed against Titan (discussed
infra) describes Titan as a "high-growth diversified holding
company with a dynamic portfolio of companies engaged in
emerging telecommunications markets and advanced technologies."
A holding company is a "company formed to control other
companies, usu. confining its role to owning stock and
supervising   management."      Holding company,  Black's   Law
Dictionary 339 (10th ed. 2014).
    4
       Houston Casualty supplied this date, which is not in the
record. Marks does not dispute the fact and it is not relevant
to the disposition of this case.


                                        3
                                                   No.   2013AP2756



defendants.5   On October 24, 2008, Hawaii Global filed amended

counterclaims against Titan, Oblio, Marks, Chance, and Jensen.6

     ¶6   On October 28, 2008, the Professional Liability Errors

& Omissions Insurance Policy at issue in this case ("the policy"

or "Marks' policy"), issued by Houston Casualty to Marks, took

effect.   The policy's expiration date was October 28, 2009.   The

policy provided coverage for

     any Loss and Claim Expenses in excess of the
     Deductible amount and subject to the Limit of
     Liability as the Insured acting in the profession
     described in Item 3 of the Declarations shall become
     legally obligated to pay for Claim or Claims first
     made against the Insured during the Policy Period by
     reason of any Wrongful Act by an Insured provided
     always that the Insured has no knowledge of such
     Wrongful Act prior to the Inception Date of this

     5
       The allegations in this lawsuit concern a business
relationship   between  Hawaii   Global   and  the  counterclaim
defendants apparently gone sour.    According to the complaint,
Hawaii Global purchased prepaid phone cards from Oblio and Titan
and sold them to distributors, retailers, and individual users.
Hawaii Global alleges that the counterclaim defendants conspired
to defraud Hawaii Global, among others, by "inducing and
extorting" them to purchase phone cards with "no intention to
deliver the promised service."        Further, the counterclaim
defendants allegedly

     conspired to use Titan and Oblio and other corporate
     shells to perpetrate a fraud upon Oblio's former
     distributors, including [Hawaii Global], with the
     intention of bankrupting them and eliminating them
     from the marketplace so that it could usurp their
     business for the benefit of a newly formed entity,
     Planet Direct, Inc.
     6
       These counterclaims are not in the record. The parties do
not argue that these claims affect our analysis, so we do not
address them.


                                4
                                                                           No.       2013AP2756


       Policy and further provided that such Wrongful                                Act
       took place subsequent to the Retroactive Date                                 set
       forth in Item 8 of the Declarations.
       ¶7     "Loss" is defined in the policy to mean, in part, "a

monetary judgment, award or settlement for damages including an

award by a court of reasonable attorney's fees and costs to a

party making [a] Claim."                "Claim" is defined in the policy to

mean    "a    demand       received     by    the    Insured    for     compensation         of

damages,       including         the    service          of   suit . . . against            the

Insured."          "Claim Expenses" is defined in the policy to mean, in
part:

       (1) fees charged by an attorney designated by the
       Company and (2) all other fees, costs or expenses
       incurred in the investigation, adjustment, defense and
       appeal of a Claim if incurred by the Company or an
       attorney designated by the Company, or by the Insureds
       with the written consent of the Company.
"Wrongful Act" is defined in the policy to mean "any actual or

alleged error or omission or breach of duty committed or alleged

to     have    been        committed     or        for    failure     to     render        such

professional          services     as    are        customarily      rendered         in   the

profession          of     the   Insured      as     stated     in    Item       3    of    the
Declarations."

       ¶8     "Item 3 of the Declarations" lists Marks' profession

as follows: "[s]olely in the performance of services as the

Trustee       of     the    Irrevocable       Children's        Trust      (ICT),      and/or

Irrevocable Children's Trust No. 2 (ICT2), for a fee."                               Relevant

to this appeal, the policy contained the following exclusions:

            This Policy does not apply either directly                                or
       indirectly to any Claim and Claim Expenses:


                                               5
                                                                    No.    2013AP2756


                     a) Based upon          or arising out of any
                dishonest, criminal,        fraudulent, malicious or
                intentional Wrongful       Acts, errors or omissions
                committed by or at the     direction of the Insured.

                     b)   For  liability   arising   out             of     the
                Insured's services and/or capacity as:

                          1)   an   officer,    director,   partner,
                     trustee,   or    employee    of    a   business
                     enterprise not named in the Declarations or
                     a   charitable    organization    or   pension,
                     welfare,    profit     sharing,    mutual    or
                     investment fund or trust; . . . .
      ¶9        Finally, Endorsement Number 10 of the policy reads in

part as follows:

                c)   Defense,     Investigation,        and   Settlement     of
      Claim

           1) With respect to the insurance afforded by this
      Policy, the Company shall have the right and duty to
      defend any Claim brought against the Insured alleging
      a covered Wrongful Act.
      ¶10       On December 23, 2008, ILDN West, LLC ("ILDN") filed a

lawsuit against Titan, Oblio, Titan Communications, Inc. ("Titan

Communications"), Planet Direct, Inc. ("Planet Direct"), Marks,

Crivello, and Does 1-50 in the Superior Court of the State of

California for the County of Los Angeles (the "ILDN action").

The complaint described Marks as "an individual residing at all

material times in or around Dallas, Texas," and stated that

"[a]t all times relevant hereto, Marks was a Chairman of Titan

and represented Oblio, Titan Communications and Planet Direct."

The   complaint        asserted    seven       causes    of   action:     breach   of

contract against Titan, Titan Communications, and Planet Direct;
breach     of    contract   against     Oblio,     Titan      Communications,      and


                                           6
                                                                         No.     2013AP2756



Planet Direct; breach of guaranty against Titan; fraud against

Titan, Marks, and Crivello; negligent misrepresentation against

Titan,    Marks,     and    Crivello;       quantum   meruit/unjust            enrichment

against Titan, Oblio, Titan Communications, and Planet Direct;

and "account stated"7 against Titan, Oblio, Titan Communications,

and Planet Direct.8

      ¶11     On   February    2,     2009,     George     L.    Miller,       Chapter    7

Trustee of the Estate of USA Detergents, Inc. ("USAD"), filed a

lawsuit       against        Greystone          Business        Credit         II,     LLC.

("Greystone"), GBC Funding, L.L.C. ("GBC"), Titan, Frank Orlando

("Orlando"), Chance, R. Scott Hensell ("Hensell"), Marks, Titan

PCB   West,    Inc.,       n/k/a    Titan     Electronics,       Inc.     ("Titan       PCB

West"), Titan PCB East, Inc., n/k/a Titan East, Inc. ("Titan PCB

East"),     Oblio,     Titan       Wireless      Communications,         Inc.        ("Titan

Wireless"),        StartTalk        Inc.      ("StartTalk"),        Pinless,           Inc.

("Pinless"), Appalachian Oil Company ("Appalachian"), Appco-Ky,

Inc. ("Appco"), and Crivello in the United States Bankruptcy

Court for the District of Delaware (the "USAD action").                                 The


      7
       "Generally, an account stated is defined as an agreement
between parties who have had previous transactions of a monetary
character that all the items of the account representing those
transactions, and the balance struck, are correct, together with
a promise, express or implied, for the payment of that balance."
1A C.J.S. Account Stated § 1 (2016).
      8
       The ILDN action concerns debts allegedly due ILDN by the
defendants in that suit for telecommunications services provided
to the defendants by ILDN, and allegedly false representations
made by certain of the defendants to ILDN regarding payment of
those debts.


                                            7
                                                                              No.    2013AP2756



complaint described Marks as "a citizen of Wisconsin," "Chairman

of the Board of Directors of USAD at some point after August 1,

2007," and, "[a]t all material times hereto," "Chairman of Titan

and a Member of Crivello Group[, LLC]."9

      ¶12     The    complaint         asserted      nine    counts:          to    avoid    and

recover preferential transfers pursuant to 11 U.S.C. §§ 547 and

550 against Greystone and GBC; to avoid and recover preferential

transfers      pursuant         to     11   U.S.C.        §§ 547        and    550       against

Greystone, GBC, Titan, Titan PCB West, Titan PCB East, Oblio,

Titan      Wireless,      StartTalk,        Pinless,       Appalachian,            and    Appco;

disallowance        of    all    claims     pursuant        to     11    U.S.C.      § 502(d)

against Greystone and GBC; objection to proof of claim pursuant

to    11    U.S.C.       § 502       against       Greystone     and      GBC;       equitable

subordination pursuant to 11 U.S.C. § 510(c) against Greystone

and   GBC;    breach      of     fiduciary         duty   against       Orlando,         Chance,

Hensell, and Marks; aiding and abetting breach of fiduciary duty

against Greystone, GBC, Titan, and Crivello; civil conspiracy

      9
       The   allegations   in   this  lawsuit  concern   Titan's
acquisition of a controlling interest in USAD, "a manufacturer
and distributor of value priced and mid-priced laundry care
products, household cleaners, personal care items, candles and
air fresheners."    The complaints allege that Titan's operation
of USAD enriched the defendants at the expense of USAD and its
creditors.   More specifically, the complaint alleges that the
defendants should have either recapitalized or liquidated USAD
"for the benefit of all creditors," but "chose instead
wrongfully to perpetuate the USAD entity" for the defendants'
own benefit.     Additionally, the complaint alleges that the
defendants "orchestrated and/or compelled the payment of
preferential transfers for their own benefit at the expense of
USAD and its creditors."


                                               8
                                                                         No.     2013AP2756



against Greystone, GBC, Titan, Orlando, Chance, Hensell, Marks,

and Crivello; and for an accounting against Greystone and GBC.

    ¶13        On   or   about   May     4,   2009,    Phillip     L.    Near     filed   a

lawsuit against Titan, Crivello, Marks, Chance, Greystone, and

Goldberg,       Kohn,     Bell,     Black,         Rosenbloom      &     Moritz,      Ltd.

("Goldberg Kohn") in the United States District Court for the

District of Kansas (the "Near action").                    The complaint described

Marks as "a resident of Wisconsin," "the Chairman of Titan and,

through one or more of his business entities, a shareholder of

Titan."     The complaint also stated that Marks "claims to be a

director    of      Crescent."10       The    complaint     asserted       ten    counts:

fraud    against      Titan,     Crivello,        Marks,   and   Chance;       fraudulent

inducement against Titan, Crivello, Marks, and Chance; negligent

misrepresentation against Titan, Crivello, Marks, and Chance;

fraud by silence against Titan, Crivello, Marks, and Chance;

breach    of    contract       against    Titan;      conversion        against    Titan,

Crivello,       Marks,    and     Chance;         conversion     against       Greystone;

conversion against Goldberg Kohn; civil conspiracy against all




    10
       "Crescent" refers to Crescent Fuels, Inc. and its
subsidiaries, including Crescent Oil Company, Inc., Crescent
Corporation, Crescent Stores Corporation, Crescent Holdings,
Inc., and Crescent Realty, Inc.


                                              9
                                                                         No.       2013AP2756



the defendants; and breach of fiduciary duty against Goldberg

Kohn.11

     ¶14       On   July    1,    2009,    Lanny      Houillion    filed       a    lawsuit

against Chance, Hensell, Oblio, Titan, and Marks in the County

Court     of    Dallas     (the       "Houillion      action").         The    complaint

described Marks as "an individual and Chairman of the Board for

[Titan]."12         The    complaint       asserted      three    causes       of    action

against    the      defendants:         breach   of    contract;       negligence;       and

fraud.13

     ¶15       On July 10, 2009, Appalachian filed a lawsuit against

Titan, Marks, Chance, and Hensell, "individually, and in their

capacities as directors of [Appalachian]," in the United States

Bankruptcy      Court      for    the    Eastern      District    of    Tennessee       (the

"Appalachian action").                The complaint described Marks as "an

individual       residing        in   Milwaukee,       Wisconsin,"      "a     member     of

[Appalachian's] Board of Directors at all times relevant to this

     11
       The Near action alleges that Near "lost his company, his
life savings, and his business reputation by the repugnant,
fraudulent, and unlawful conduct of the Defendants."       Near
contends that Titan acquired an interest in Crescent, a company
involved in the fuel distribution industry, "looted" Crescent
for "millions of dollars," terminated Near, who was once
president and majority shareholder of Crescent Fuels, Inc., and
left him liable to other entities for millions of dollars in
personal guarantees.
     12
       The complaint is titled "Plaintiff's First                                   Amended
Original Petition." No other petition is in the record.
     13
       The Houillion action involves an alleged breach of a
commercial lease agreement between the defendants in that case
and Houillion.


                                            10
                                                                        No.    2013AP2756



Complaint," and "an 'Insider' of [Appalachian] as defined in

§ 101(31) of the Bankruptcy Code."

     ¶16     The complaint asserted six counts: to avoid fraudulent

transfers    pursuant       to    11   U.S.C.       § 548(a)(1)(B)       and     recover

fraudulent transfers pursuant to 11 U.S.C. § 550 against Titan;

to   avoid        fraudulent       transfers         pursuant     to      11     U.S.C.

§ 548(a)(1)(A) and recover fraudulent transfers pursuant to 11

U.S.C.    § 550    against       Titan;     to    avoid     fraudulent    conveyances

pursuant to 11 U.S.C. § 544 and applicable state law and to

recover    fraudulent       conveyances          pursuant    to   11    U.S.C.     § 550

against Titan; to avoid preferential transfers pursuant to 11

U.S.C. § 547 and recover preferential transfers pursuant to 11

U.S.C. § 550 against Titan; to avoid wrongful distributions to

shareholders pursuant to T.C.A. § 48-16-401(C) [of the Tennessee

Code] against Titan; and to recover wrongful distributions to

shareholders pursuant to T.C.A. § 48-18-304 [of the Tennessee

Code] against the director defendants.14

     ¶17     Except    as    detailed        below    with     regard     to     certain
supplemental      counterclaims        in    the    Hawaii     Global    action,     the

parties do not point us to any language in the complaints that




     14
       The Appalachian action involves allegations that Titan
became the 100 percent shareholder of Appalachian, after which
Titan began "to cause [Appalachian] to transfer large amounts of
cash to Titan for its own use . . . with full knowledge that
[Appalachian] (i) was insolvent and (ii) did not have sufficient
capital to operate."


                                            11
                                                                              No.     2013AP2756



reference ICT, ICT2, or Marks' position as trustee of ICT and

ICT2.

     ¶18    On        July    28,     2009,       Marks    provided         notice    of     each

lawsuit——the Hawaii Global action, the ILDN action, the USAD

action,     the       Near        action,     the     Houillion        action,        and    the

Appalachian action——to Houston Casualty.                           In letters to Marks

dated     July     30,       2009,     Professional         Indemnity         Agency,        Inc.

("Professional          Indemnity")         acknowledged          receipt      of     the    six

claims on behalf of Houston Casualty and stated that it was

"presently       in    the    process       of    establishing         a    claim     file   and

reviewing the information provided."

     ¶19    On October 23, 2009, Marks filed a complaint against

Houston    Casualty          in    Milwaukee      County    circuit         court     alleging,

among other things, breach of Houston Casualty's duty to defend

Marks in each of the six lawsuits discussed and denial of Marks'

six claims in bad faith.15

     ¶20    On        October       27,     2009,     Hawaii      Global      and     TransPac

Telecom,    Inc.       ("TransPac")——parties               in    the       earliest    of     the
lawsuits    discussed             above,    the    Hawaii       Global      action——filed       a

"Motion      for        Leave        to      File      Supplemental           and       Amended

Counterclaims."

     ¶21    On October 28, 2009, Marks notified Houston Casualty

of Hawaii Global and TransPac's motion.                           The same day, Marks'

policy expired.

     15
       Neither party argues that it was improper to bring this
suit in Wisconsin.


                                                 12
                                                                           No.   2013AP2756



      ¶22    In     letters     dated      November          4,    2009,    Professional

Indemnity    informed     Marks       on   behalf       of    Houston      Casualty   that

Houston Casualty had "determined that it has no obligation under

the Policy either to defend or indemnify you . . . in connection

with" any of the six lawsuits.                    Although the letters provided

multiple reasons for Houston's refusal to defend or indemnify

Marks, two are most relevant to this appeal: (1) the alleged

conduct giving rise to the claims did "not arise out of the

performance of services by the Insured as the Trustee of the

Irrevocable Children's Trust and/or Irrevocable Children's Trust

No.   2,    for    a   fee";    and    (2)    exclusion           b)1)   (the    "business

enterprise        exclusion")    excluded         any   indemnity        obligation    for

liability arising out of Marks' services and/or capacity as an

officer, director, partner, trustee, or employee of a business

enterprise not named in the declarations of the policy.16




      16
       The policy at issue in this appeal is numbered H708-
15868.    When Marks notified Houston Casualty of the lawsuits
against him, he listed the applicable policy as policy H708-
15868.   Five out of the six letters sent from Houston Casualty
to Marks listed the applicable policy as policy H708-15868.
However, the letter tied to the Hawaii Global action lists the
applicable policy as policy H707-16515. This is the number of a
previous policy Marks had obtained from Houston Casualty and
which had a policy term of October 28, 2007, to October 28,
2008.

                                                                             (continued)
                                             13
                                                            No.     2013AP2756



    ¶23     On November 16, 2009, Houston Casualty filed a notice

of removal to the United States District Court for the Eastern

District of Wisconsin.

    ¶24     On November 17, 2009, Marks voluntarily dismissed his

case and again filed a complaint against Houston Casualty in

Milwaukee   County   circuit   court    alleging,   among   other    things,

breach of Houston Casualty's duty to defend Marks in each of the

six lawsuits discussed and denial of Marks' six claims in bad

faith.    This second complaint, unlike the first, named Bedford

Underwriters as a defendant.

    ¶25     On December 18, 2009, Houston Casualty again removed

the case to federal court.        On March 22, 2010, the case was

remanded to state court.

    ¶26     On January 21, 2010, the United States District Court

for the Northern District of Texas granted Hawaii Global and

TransPac's "Motion for Leave to File Supplemental and Amended


     The reason for this discrepancy is likely because Hawaii
Global filed its counterclaim on April 7, 2008, a date within
the policy term of policy H707-16515, not policy H708-15868.
However, Marks' complaint against Houston Casualty discusses
policy No. H708-15868, arguing that "[t]here is at least one
claim within the four corners of each and every one of the
complaints in the six lawsuits that arguably and/or actually
triggers coverage under the Policy" (the "Policy" being policy
H708-15868).   The complaint notes only in passing that "[t]he
Policy was a renewal of policy H707-16515." Unfortunately, the
parties do not discuss these seemingly significant facts.

     We will address Marks' arguments as he has made them.   We
note that the letter from Houston Casualty denying coverage for
the Hawaii Global action provides the same two reasons for the
denial as are set out above.


                                   14
                                                               No.     2013AP2756



Counterclaims."    On January 25, 2010, Hawaii Global and TransPac

Telecom, Inc. filed supplemental counterclaims against

      [Crivello], both individually and as settlor, de facto
      trustee and de facto beneficiary of the Irrevocable
      Children's Trust and Irrevocable Children's Trust 2,
      [Marks], both individually and as trustee of the
      Irrevocable    Children's    Trust   and    Irrevocable
      Children's Trust 2, . . . the Irrevocable Children's
      Trust[,] . . . the    Irrevocable   Children's    Trust
      2 [,] . . . Crivello      Group    LLC[,] . . . Phoenix
      Investors LLC[,] . . . and Farwell Equity Partners
      LLC.
The   counterclaims    collectively      refer    to   these      latter    five

entities as the "Crivello Family Interests," and assert that

they are "a group of trusts, limited liability companies and/or

corporations   owned   or   controlled    by     Crivello   and      managed   by

Crivello and Marks."

      ¶27   The supplemental counterclaims described Marks as "a

citizen of the State of Wisconsin" and further stated:

      According to Titan's 10-K for the fiscal year ending
      August 31, 2008,

            Mr.   Marks   has  served    as   Trustee   of
            Irrevocable Children's Trust and Irrevocable
            Children's   Trust   No.    2   since    1994.
            Irrevocable Children's Trust and Irrevocable
            Children's Trust No. 2 currently have an
            ownership   or    investment    interest    in
            commercial properties, private residences,
            natural resources, telecommunications, and
            technology companies, and other business and
            investment ventures.     Mr. Marks has the
            responsibility in overseeing all investments
            by   Irrevocable    Children's    Trust    and
            Irrevocable Children's Trust No. 2 with
            responsibilities beginning at acquisition
            and continuing through ownership. Mr. Marks
            generally acts in the capacity of officer or
            director for all of the operating companies

                                   15
                                                                      No.    2013AP2756


             that are vehicles for investments by the
             Trusts   and   is   involved   in   strategic
             planning, and major decision-making.

     In addition to his individual capacity, Marks is being
     added in a representative capacity as ostensible
     trustee and chairman of Crivello-controlled alter ego
     entities alleged herein.
     ¶28     Hawaii Global alleges, among other things, that "[i]n

their various capacities as settlor, de facto trustee, trustee,

de   facto    beneficiaries,        shareholders,    board       members       and/or

officers, Crivello and Marks have caused the Crivello Family

Interests    to    intentionally       misappropriate      and    shield       assets

obtained through fraud and artifice."

     ¶29     The   counterclaims      asserted   three     causes       of    action:

alter     ego;     RICO   conspiracy      against    the     Crivello          Family

Interests;       and   fraudulent     transfer   against     all       counterclaim

defendants.17

     ¶30     On October 28, 2010, Marks filed an amended complaint.

     ¶31     On February 8, 2013, Houston Casualty and Marks filed

motions for summary judgment in Marks' lawsuit against Houston

Casualty in Milwaukee County circuit court.                  Marks made four

arguments    relevant     to   this    appeal.      First,       he    argued     that

although his policy covered only liability arising out of his


     17
       Although only one count had been asserted in Hawaii
Global's original counterclaim, the supplemental counterclaims
began at count three.      The filing, does, however, refer to
"claims and allegations set forth in . . . the Complaint
transferred from Hawaii [Global] . . . and consolidated in this
action."    The parties do not discuss any such transferred
complaint, so we do not address it. See also supra, ¶5 & n.6.


                                        16
                                                                          No.     2013AP2756



"performance     of    services       as   the   Trustee        of    the    Irrevocable

Children's Trust (ICT), and/or Irrevocable Children's Trust No.

2 (ICT2), for a fee," the language in Marks' policy does not

"define the scope of services that are covered when performed by

the trustee."         More specifically, "Marks was sued in all six

lawsuits because he was a director of Titan, and . . . Marks was

on the board of directors of Titan only by virtue of the trusts'

controlling      investment      position        in    Titan."            Second,     Marks

claimed he was sued in the Hawaii Global action "because of his

position as trustee of ICT and ICT2."                  Third, Marks argued that,

in   determining      whether    an    insurer        has    breached       its    duty   to

defend   an    insured,    a    court      may   not        consider      exclusions      or

limiting      language    in    the   insurance        policy        at   issue     if    the

insurer had earlier rejected the insured's tender of defense

without having coverage determined by a court.                            Fourth, Marks

asserted that the business enterprise exclusion in the Houston

Casualty policy rendered the entire policy illusory, because it

excluded coverage for liability arising out of Marks' "services
and/or         capacity          as . . . an . . . trustee . . . of                         a

. . . trust."

      ¶32     On October 4, 2013, the circuit court issued an order

granting    Houston      Casualty's        motion     for     summary       judgment      and

denying Marks' motion for summary judgment.                          The circuit court

determined         that         Marks'          policy,         "when             construed

liberally, . . . can be read to cover the work of a trustee when

working as an officer or director of a corporation in which the
trust corpus is [invested]."               Further, the court found that the
                                           17
                                                           No.     2013AP2756



"allegations of the six lawsuits against Mr. Marks as presented

within the four corners of the pleadings fall within the scope

of the insuring [clause]."         However, the court also found that

the business enterprise exclusion did not render the insurance

policy illusory, "is enforceable[,] and does preclude coverage

for the claims in this case."             Thus, the court concluded that

Houston Casualty had not breached any duty to defend Marks.               On

October 31, 2013, the court dismissed the case.

      ¶33   On December 13, 2013, Marks filed a notice of appeal.

On January 10, 2014, Houston Casualty filed a notice of cross-

appeal.     On May 7, 2015, the court of appeals "affirm[ed] the

circuit court's determination that Houston Casualty did not have

a duty to defend Marks."      Marks, 363 Wis. 2d 505, ¶1.          Like the

circuit court, the court of appeals concluded that the business

enterprise exclusion in the Houston Casualty policy precluded

coverage and did not render the policy illusory.          Id., ¶¶17-27.18

The   court   thus   found   it     unnecessary    to   consider    Houston

Casualty's argument that its policy did not even provide an
initial grant of coverage.        Id., ¶1.

      ¶34   On July 6, 2015, Marks filed a petition for review in

this court.    On September 15, 2015, we granted the petition.




      18
       As we will discuss below, the court of appeals tussled
with some of its prior cases before arriving at its conclusion.
See, e.g., Marks v. Houston Cas. Co., 2015 WI App 44, ¶10, 363
Wis. 2d 505, 866 N.W.2d 393.


                                     18
                                                                                 No.        2013AP2756



                                II.    STANDARD OF REVIEW

      ¶35     "We      review    summary      judgment             rulings      independently,

applying the well-established standards set forth in Wis. Stat.

§ 802.08" (2013-14).19            Hirschhorn v. Auto-Owners Ins. Co., 2012

WI 20, ¶20, 338 Wis. 2d 761, 809 N.W.2d 529 (citations omitted).

Specifically,          summary    judgment        is    granted          if    "the    pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law."                                    § 802.08(2);

Hirschhorn, 338 Wis. 2d 761, ¶20 (citation omitted).

      ¶36     In this case we interpret an insurance contract.                                   "The

interpretation of an insurance contract is a question of law,

which      this   court     reviews      de   novo."               Plastics      Eng'g       Co.   v.

Liberty Mut. Ins. Co., 2009 WI 13, ¶27, 315 Wis. 2d 556, 759

N.W.2d 613        (citation      omitted).             We    also     examine         the     "four-

corners     rule,"       which    is    relevant        in     cases      where        an    insured

argues that its insurer breached its duty to defend the insured.
See   Olson       v.   Farrar,        2012   WI    3,       ¶33,    338       Wis. 2d 215,         809

N.W.2d 1.         "The     proper      application           of    the    four-corners           rule

presents a question of law, which we decide independently of the

determinations rendered by the circuit court and the court of

appeals."           Id.,   ¶22    (determining              whether       four-corners           rule

applies).

      19
       All subsequent references to the Wisconsin Statutes are
to the 2013-14 version unless otherwise indicated.


                                              19
                                                                No.     2013AP2756



                                III.     ANALYSIS

            A.     General Principles Regarding an Insurer's
                  Contractual Duty to Defend Its Insured
     ¶37    Liability        insurance     policies     often    contractually

obligate an insurer both to defend and to indemnify its insured.

Maxwell v. Hartford Union High Sch. Dist., 2012 WI 58, ¶53, 341

Wis. 2d 238, 814 N.W.2d 484.             Generally speaking, what is meant

when courts reference an insurer's "duty to defend" its insured

is the insurer's "responsibility to defend the insured from all
actions brought against the insured based on alleged facts or

circumstances falling within the purview of coverage under the

policy, regardless of the suit's validity or invalidity."                      14

Steven Plitt et al., Couch on Insurance § 200:1 (3d ed. 2015)

(citations       omitted).      An   insurer's      duty   to   indemnify     its

insured, in contrast, is the insurer's duty "to pay all covered

claims    and    judgments     against    [its]     insured."     Id.    § 200:3

(citations omitted).

     ¶38    When an insurer receives a tender of defense from its

insured, it "makes an initial determination about whether it
will defend its insured."            Olson, 338 Wis. 2d 215, ¶33.             The

insurer must make this determination carefully, because if it

refuses to defend and is later found to have "breache[d] a duty

to defend its insured, [it] is on the hook for all damages that

result from that breach of its duty."               Maxwell, 341 Wis. 2d 238,

¶54.20

     20
          See also infra, ¶63 n.29.


                                         20
                                                                       No.    2013AP2756



      ¶39    Both insurers in making this initial determination and

courts in examining whether an insurer has breached its duty to

defend its insured use the same analytical framework, known in

Wisconsin     as      the     "four-corners        rule."       See      Olson,     338

Wis. 2d 215, ¶33.            The name derives from the fact that "[t]he

duty to defend is triggered by the allegations contained within

the four corners of the complaint" against the insured.                         Estate

of Sustache v. Am. Family Mut. Ins. Co., 2008 WI 87, ¶20, 311

Wis. 2d 548,       751       N.W.2d 845         (citations     omitted).            Put

differently, "[w]hen a complaint alleges facts that, if proven,

would   constitute       a    covered    claim,     the     insurer    must    appoint

defense     counsel    for     its   insured      without     looking    beyond     the

complaint's four corners."              Id., ¶27.      Thus, only two documents

are germane in any four-corners analysis: the insurance policy

and   the   complaint        against    the     insured.       No    examination     of

extrinsic facts or evidence takes place.                     Fireman's Fund Ins.

Co. of Wis. v. Bradley Corp., 2003 WI 33, ¶19, 261 Wis. 2d 4,

660 N.W.2d 666.
      ¶40    The   four-corners          rule     is   "well        established"     in

Wisconsin, Fireman's Fund, 261 Wis. 2d 4, ¶18, and is set out in

detail in Estate of Sustache:

           An insurer's duty to defend its insured is
      determined by comparing the allegations of the
      complaint to the terms of the insurance policy. . . .
      It is the nature of the alleged claim that is
      controlling, even though the suit may be groundless,
      false, or fraudulent. . . .

           Courts liberally construe the allegations in the
      complaint and assume all reasonable inferences.  This

                                          21
                                                                     No.    2013AP2756


       rule tends to help an insured's demand for coverage.
       As usual, ambiguity in the coverage terms will be
       construed against the insurer.   This familiar rule of
       contract construction also helps the insured.

            In determining whether there is a duty to defend,
       the court first considers whether the insuring
       agreement makes an initial grant of coverage——i.e.,
       whether the insurer has a duty to indemnify its
       insured——for the claims asserted.        If the court
       determines that the policy was not intended to cover
       the claims asserted, the inquiry ends. . . .

            Only after concluding that coverage exists does
       the court examine the policy's exclusions to determine
       whether they preclude coverage.   In other words, when
       a court determines that there is no coverage in the
       policy for the allegations in the complaint, it is not
       necessary to interpret the policy's exclusions.
Estate       of   Sustache,        311    Wis. 2d 548,       ¶¶20-23       (citations

omitted).         We    add   to   this   summary     that   a   consideration      of

exclusions        in    the    insurance        policy    necessarily        includes

consideration of any exceptions to those exclusions.                       See, e.g.,

Prof'l Office Bldgs., Inc. v. Royal Indem. Co., 145 Wis. 2d 573,

578-79, 580-84, 427 N.W.2d 427 (Ct. App. 1998).

       ¶41    Importantly, the four-corners rule generally protects

the    insured:    "[W]ithout       the    four-corners      rule,   'the    duty   to

defend would often be empty. The insurance company could refuse

to defend in the hope that the facts as they emerged in the

litigation that its insured had asked it to defend would reveal

that    there     was   no    coverage.'"        Olson,   338    Wis. 2d 215,       ¶32

(citation omitted).           Moreover, "an insurer may have a clear duty

to defend a claim that is utterly specious because, if it were

meritorious,       it     would    be     covered."       Fireman's        Fund,    261
Wis. 2d 4, ¶21.         One commentator notes:

                                           22
                                                               No.   2013AP2756


     The complaint test, literally applied, usually will
     preclude insurers from rejecting tenders of defense
     based on policy exclusions.      The reason is that most
     complaints    simply   allege   that   the   insured   was
     negligent and that bodily injury or property damage
     resulted.    These kinds of allegations almost always
     give rise to a duty to defend under the coverage
     clauses   of    standard   liability    policies.      The
     applicability of an exclusion, however, is rarely
     obvious from the allegations in the complaint.
     Insurers   often    have   to  rely   on    investigation,
     discovery and other information not stated in the
     complaint to determine whether an exclusion applies.
     The complaint test, rigidly enforced, forbids that.
     If the allegations fall within the coverage clause and
     are not on their face excluded, then the company must
     defend or promptly take steps to resolve its duty to
     defend in court.
Peter     F.   Mullaney,   Liability   Insurers'   Duty   to   Defend,    Wis.

Law., at 10-11 (July 1995).21




     21
       When an insurer receives a tender of defense from its
insured, it can proceed in several different ways.           See
generally Sheila M. Sullivan et al., Anderson on Wisconsin
Insurance Law § 7.54 (7th ed. 2015). For instance, it can: (1)
"deny the tender of defense and state the grounds for deciding
that the complaint does not trigger any obligation to defend
under the policy," id.; see Liebovich v. Minnesota Ins. Co.,
2008 WI 75, ¶55, 310 Wis. 2d 751, 751 N.W.2d 764; (2) "request a
bifurcated trial on the issue of coverage while moving to stay
proceedings on the merits of the liability action until the
issue of coverage is resolved," Liebovich, 310 Wis. 2d 751, ¶55;
(3) "provide a defense to the insured on the merits, under a
reservation of rights, until the coverage issue is resolved,"
Estate of Sustache v. Am. Family Mut. Ins. Co., 2008 WI 87, ¶25,
311 Wis. 2d 548, 751 N.W.2d 845; or (4) obtain a declaratory
ruling, see Liebovich, 310 Wis. 2d 751, ¶55.

                                                                 (continued)
                                       23
                                                   No.   2013AP2756



    ¶42   A number of other legal principles beneficial to the

insured are built into any four-corners analysis, some of which

were noted above: (1) allegations in the complaint are construed

liberally and all reasonable inferences are assumed, Estate of

Sustache, 311 Wis. 2d 548, ¶21; (2) ambiguity in the insurance

policy is construed against the insurer, id.; and (3) "when an

insurance policy provides coverage for even one claim made in a

lawsuit, the insurer is obligated to defend the entire suit,"

Fireman's Fund, 261 Wis. 2d 4, ¶21 (citation omitted).

    ¶43   With this general framework before us, we now examine

whether the five complaints and one set of counterclaims against

     In the current case, Houston Casualty decided on the first
of the approaches listed above: deny the tender of defense and
explain why it was doing so. When an "insurance company refuses
to defend, it does so at its own peril."     Elliott v. Donahue,
169 Wis. 2d 310, 321, 485 N.W.2d 403 (1992); accord, e.g., Olson
v. Farrar, 2012 WI 3, ¶30, 338 Wis. 2d 215, 809 N.W.2d 1. As was
explained earlier, "[t]he general rule is that where an insurer
wrongfully refuses to defend on the grounds that the claim
against the insured is not within the coverage of the policy,
the insurer is guilty of a breach of contract which renders it
liable to the insured for all damages that naturally flow from
the breach."    Newhouse v. Citizens Sec. Mut. Ins. Co., 176
Wis. 2d 824, 837, 501 N.W.2d 1 (1993) (emphasis added).

     Certain of our past cases have "strongly encourage[d]"
insurers to avoid "unilateral[] refus[al]" to defend their
insureds.    Liebovich, 310 Wis. 2d 751, ¶55.      But we also
recognize that in some cases it may be obvious to insurers that
they have no duty to defend their insureds based on a comparison
of the insurance policy with the complaint at issue. Insurance
companies are in the business of risk.     They are undoubtedly
cognizant of the risk that inheres in denial of an insured's
tender. Sheila M. Sullivan et al., supra, § 7:54 ("To be sure,
when an insurance company denies and does nothing, it takes a
risk. Insurance companies are aware of the risk . . . .").


                               24
                                                                        No.       2013AP2756



Marks allege facts that, if proven, would constitute a claim

covered under Marks' professional liability insurance policy.

If they do not, Houston Casualty did not breach its duty to

defend Marks when it denied Marks' tender of defense.

                 B.   Whether Houston Casualty Breached Its
                             Duty to Defend Marks
                               1.    Initial Coverage

      ¶44   The four-corners rule dictates that we first examine

whether Marks' policy provides an initial grant of coverage for
the claims against Marks in the six lawsuits at issue.                                  See

Estate of Sustache, 311 Wis. 2d 548, ¶22.

      ¶45   As explained           supra,    Marks'     policy provides coverage

for

      any Loss and Claim Expenses . . . as the Insured
      acting in the profession described in Item 3 of the
      Declarations shall become legally obligated to pay for
      Claim or Claims first made against the Insured during
      the Policy Period by reason of any Wrongful Act by an
      Insured . . . .
(Emphasis added.)            "Item 3 of the Declarations" in turn lists

Marks' profession as follows: "[s]olely in the performance of
services    as    the    Trustee     of     the    Irrevocable       Children's      Trust

(ICT), and/or Irrevocable Children's Trust No. 2 (ICT2), for a

fee."   And, finally, "Wrongful Act" is defined in the policy to

mean "any actual or alleged error or omission or breach of duty

committed or alleged to have been committed or for failure to

render such professional services as are customarily rendered in

the   profession        of   the    Insured       as   stated   in    Item    3    of   the
Declarations."

                                            25
                                                                   No.    2013AP2756



      ¶46     Taken    as   a   whole,   the     policy   essentially     provides

coverage for liability arising out of mistakes Marks makes in

rendering services in his capacity as trustee of ICT and ICT2.

Though it does not affect our analysis, we note that such a

scope of coverage is consistent with the type of policy Marks

purchased:          professional    liability        errors       and     omissions

insurance.

      An   errors-and-omissions    policy    is   professional-
      liability   insurance   providing   a   specialized   and
      limited   type   of   coverage    compared   to   general
      comprehensive insurance.     It is designed to insure
      members of a particular professional group from
      liability arising out of the special risk such as
      negligence, omissions, mistakes and errors inherent in
      the   practice    of   the    profession. . . .     These
      professional-liability    policies   differ   in   detail
      depending upon the company which issues them and are
      generally called malpractice insurance when issued to
      members of the healing profession where the exposure
      is largely bodily injury and errors-and-omissions
      insurance where the risk is primarily that of damage
      to intangible property such as coverage for attorneys,
      insurance agents, and architects.
Grieb v. Citizens Cas. Co. of New York, 33 Wis. 2d 552, 556-57,
148 N.W.2d 103 (1967).

      ¶47     The    circuit    court    below    found    that    Marks'   policy

provides an initial grant of coverage.                    The court of appeals

assumed without deciding that Marks' policy provides an initial

grant of coverage, then moved to step two: determining whether

any exclusions preclude coverage.                Marks, 363 Wis. 2d 505, ¶9.

The   court    of     appeals   ultimately     concluded    that    the   business

enterprise exclusion "precludes coverage when measured against
the allegations in the complaints."                Id., ¶22.       We agree with

                                         26
                                                                           No.     2013AP2756



the court of appeals on both counts: we need not and do not

decide      whether         Marks'   policy       provides      an   initial     grant    of

coverage based on the allegations in the six lawsuits, because,

as    we    will      now    explain,      the      business    enterprise       exclusion

clearly establishes that Houston Casualty could have no possible

duty       to   indemnify       Marks,     even      if   the    allegations        in   the

complaints       turned       out    to   be   true.      See    Fireman's       Fund,   261

Wis. 2d 4, ¶21.22            Thus, Houston Casualty did not breach its duty

to defend Marks when it declined to defend him.

                      2.     The Business Enterprise Exclusion

       ¶48      The   business       enterprise        exclusion     in   Marks'     policy

excludes coverage:

                     b)   For  liability   arising   out                   of      the
                Insured's services and/or capacity as:

                            1)   an   officer,    director,   partner,
                       trustee,   or    employee    of    a   business
                       enterprise not named in the Declarations or
                       a   charitable    organization    or   pension,
                       welfare,    profit     sharing,    mutual    or
                       investment fund or trust . . . .
       ¶49      For purposes of this case, what is important is that

the    exclusion           unambiguously         precludes      coverage     for     Marks'

activities as an officer or director of any business enterprise



       22
        We have significant doubts that Marks' policy provides
even an initial grant of coverage in this case.     Were we to
determine that Marks' policy does not provide an initial grant
of coverage, however, our analysis would end and we might not
reach the important issues set forth in Marks' petition for
review.


                                               27
                                                                       No.    2013AP2756



not   named       in   the   declarations.23            The   only    entities      even

mentioned in the declarations are ICT and ICT2.24

      ¶50    We    now     turn   to   the    complaints.            Except   for     the

supplemental counterclaims in the Hawaii Global actions, which

we    will    examine        momentarily,         the    claims       against       Marks

characterize       Marks     as   follows:    a    "citizen     of     the    State   of

Wisconsin" and "a principal shareholder and equitable owner of

Titan" (the Hawaii Global action); "an individual residing at

      23
       We refer to this exclusion as the "business enterprise
exclusion" because it bears a resemblance to "a standard [type
of] exclusion in lawyers' professional liability insurance
policies" sometimes referred to as a business enterprise
exclusion. See, e.g., Am. Guarantee & Liab. Ins. Co. v. Timothy
S. Keiter, P.A., 360 F.3d 13, 16-17 (1st Cir. 2004).

     At least with respect to lawyers' professional liability
insurance policies,

           Some courts have explained that standard business
      enterprise exclusions have two purposes:

            1)   "to    prevent    collusive   suits    whereby
      malpractice coverage could be used to shift a lawyer's
      business loss onto the malpractice carrier" and 2) to
      avoid    the    circumstance   where   an   insured    so
      intermingles his business relationships with his law
      practice that an insurance carrier incurs additional
      risk of having to cover the insured for legal
      malpractice    claims   relating   to  the   conduct   of
      business, rather than solely out of the professional
      practice.

Id. at 17 (citation omitted).
      24
       Marks points us to Black's Law Dictionary, which defines
a "business enterprise" as "[a] for-profit company, business, or
organization that provides financial, commercial, or industrial
goods   and  services."     Business  Enterprise,   Black's  Law
Dictionary 240 (10th ed. 2014).


                                         28
                                                                            No.   2013AP2756



all material times in or around Dallas, Texas," and "[a]t all

times       relevant          hereto . . . a          Chairman         of     Titan      and

represent[ative]            [of]   Oblio,     Titan    Communications         and     Planet

Direct" (the ILDN action); "a citizen of Wisconsin," "Chairman

of the Board of Directors of USAD at some point after August 1,

2007," and, "at all material times hereto," "Chairman of Titan

and a Member of Crivello Group[, LLC]" (the USAD action); "a

resident of Wisconsin," "the Chairman of Titan," "through one or

more of his business entities, a shareholder of Titan," and "a

[putative]        director         of   Crescent"      (the       Near      action);     "an

individual and Chairman of the Board for [Titan]" (the Houillion

action); and "an individual residing in Milwaukee, Wisconsin,"

"a    member      of        [Appalachian's]        Board     of    Directors        at   all

[relevant] times," and "an 'Insider' of [Appalachian] as defined

in § 101(31) of the Bankruptcy Code" (the Appalachian action).

      ¶51    Conspicuously absent from these characterizations is

any mention of Marks' position as trustee of ICT and ICT2.                                 In

fact, the allegations in the complaints do not discuss ICT and
ICT2 at all.           Instead, the various claims against Marks attack

him   in    his   capacity         as   an   officer    or    director       of   Titan,    a

business enterprise not named in the declarations, as well as in

his   capacity         as    an    officer    or    director      of     other    business

enterprises not named in the declarations.                         And, quite simply,

the business enterprise exclusion of Marks' policy makes clear

that the policy does not provide coverage for Marks' liability

as a director or officer of Titan or other business enterprises
not mentioned in the policy's declarations.                       The phrasing of the
                                              29
                                                                        No.     2013AP2756



business enterprise exclusion itself suggests how Marks could

have obtained coverage for his work as director or officer of

Titan: he could have bargained for and obtained a policy that

"named" Titan "in [its] Declarations."                   He did not do so, and

may not now force Houston Casualty to participate in lawsuits

not contemplated by the contract between it and Marks.

      ¶52    We acknowledge that ICT and ICT2 owned a controlling

interest in Titan.         Marks explains that "[i]n order to properly

and   effectively      manage    the    trusts'       significant       investment      in

Titan, Marks accepted a seat on the Titan board of directors and

assumed the role of chairman," and that "Marks' professional

positions     with    Titan     were    solely    by    virtue     of     the      trusts'

controlling investments in Titan."               Even if true, these facts do

not change our conclusion.             At most, Marks has merely identified

a causal relationship: his position as trustee of ICT and ICT2

led   him    to   accept   a    role   as    officer     or   director        of    Titan.

However,     that    alleged    connection       is    nonetheless       deficient      as

Marks   is   being    sued     for   his    alleged     failures     as       officer   or
director of Titan, not for any alleged failures as trustee of

ICT and ICT2.

      ¶53    The supplemental counterclaims against Marks in the

Hawaii Global action were filed almost six months after Marks

notified Houston Casualty of the lawsuits against him, almost

three months after Marks' policy expired and Houston Casualty

informed Marks it had no obligation to defend him, and over two

months after Marks initially filed this lawsuit against Houston
Casualty alleging breach of its duty to defend him.                           Those 2010
                                            30
                                                                No.    2013AP2756



counterclaims were not a part of Houston Casualty's 2009 duty to

defend    analysis   and   are   not   a    part   of   our   duty    to   defend

analysis.25




     25
        Marks points out that on October 28, 2009, he notified
Houston Casualty that Hawaii Global and TransPac had filed a
"Motion    for   Leave   to   File   Supplemental   and   Amended
Counterclaims."    But "[t]he duty to defend is based solely on
the allegations 'contained within the four corners of the
complaint,' without resort to extrinsic facts or evidence,"
Fireman's Fund Ins. Co. v. Bradley Corp., 2003 WI 33, ¶19, 261
Wis. 2d 4, 660 N.W.2d 666 (emphasis added) (citation omitted),
which is what Hawaii Global and TransPac's motion amounts to,
despite its formal trappings.     Marks suggests his October 28,
2009 letter to Houston Casualty was "proper notice of claim,"
but no such "claim" had yet been made.         Those supplemental
claims would not be made until January 25, 2010. Cf. Amerisure
Mut. Ins. Co. v. Microplastics, Inc., 622 F.3d 806, 812 (7th
Cir. 2010) (Illinois law) ("[I]t is the actual complaint, not
some hypothetical version, that must be considered." (citation
omitted).); Travelers Prop. Cas. Co. of Am. v. Hillerich &
Bradsby Co., 598 F.3d 257, 273 (6th Cir. 2010) (Kentucky law)
(pursuant to duty to defend analysis, draft complaint attached
as an exhibit to a motion for reconsideration would not be
considered filed as a complaint on that day).

                                                                     (continued)
                                       31
                                                                           No.   2013AP2756



      ¶54    To summarize, Marks obtained a professional liability

policy from Houston Casualty for his work as trustee of two

trusts.     He was sued multiple times for activities pertaining to

his performance as an officer or director of various businesses

affiliated with those trusts, but these lawsuits had nothing to

do   with   Marks'      services       as    trustee   of     those    trusts.        When

Houston     Casualty     received       Marks'      request    for    a     defense,    it

examined     Marks'      policy        and    the   complaints        at     issue,    and

reasonably made the same conclusion that we do today: Houston

Casualty     had   no    duty     to    defend      Marks    based    on     the   claims

asserted against him.

      ¶55    Ordinarily,        our    analysis      would    end     here.        Perhaps

realizing the weakness of his position given the plain terms of

the business enterprise exclusion, however, Marks provides two


     Although there was brief reference to it in the proceedings
below, we are not faced with a developed argument that Houston
Casualty separately breached a duty to defend on January 25,
2010, a date which is outside of the applicable policy period.
Such a claim would face its own hurdles, including: (1) the
question of whether these counterclaims survive the business
enterprise exclusion; (2) application of Marks' policy's
intentional acts exclusion (in fact, although the circuit court
concluded otherwise, Marks conceded before the circuit court
that "Hawaii Global alleged only intentional acts"); and (3) an
argument we have not otherwise addressed——the possibility that
the Hawaii Global counterclaims should be read to date back to
April 7, 2008, the original filing date of Hawaii Global's
counterclaim and a date which is also outside of the applicable
policy period. With regard to this last issue, we note that a
section of Marks' policy titled "Multiple Claims" reads: "One or
more Claims based upon or arising out of the Same Wrongful Act
or Interrelated Wrongful Acts by one or more of the Insureds
shall be considered a single claim." See also supra, n. 16.


                                             32
                                                                         No.   2013AP2756



reasons why we should not give effect to the business enterprise

exclusion at all: (1) the exclusion renders the policy illusory,

so we must interpret the policy in favor of coverage; and (2)

because Houston Casualty "unilaterally disclaim[ed] coverage,"

it     is    "estopped    from        using    policy   exclusions        to   litigate

coverage if it is sued for breaching its duty to defend."                           Both

arguments are without merit.

      C.    Whether the Business Enterprise Exclusion Renders the
                     Houston Casualty Policy Illusory
       ¶56    "Insurance policies are contracts and are governed by

the    same    rules     that    govern       interpretation        of   contracts    in

general."      Wisconsin Label Corp. v. Northbrook Prop. & Cas. Ins.

Co., 2000 WI 26, ¶23, 233 Wis. 2d 314, 607 N.W.2d 276 (citation

omitted).       "In order that a contract may arise, three things

must    concur:    first,       the    offer;      second,    the   acceptance;     and,

third, the consideration."              Briggs v. Miller, 176 Wis. 321, 325,

186 N.W. 163 (1922).             "Where an illusory promise is made, that

is, a promise merely in form, but in actuality not promising

anything, it cannot serve as consideration."                         3 Williston on
Contracts       § 7:7     (4th        ed.).        In   the    insurance       context,

"[i]llusory policy language defines coverage in a manner that

coverage will never actually be triggered."                     Continental Western

Ins. Co. v. Paul Reid, LLP, 2006 WI App 89, ¶7, 292 Wis. 2d 674,

715 N.W.2d 689 (citation omitted).                   "Where a policy's purported

coverage is illusory, the policy may be reformed to meet an




                                              33
                                                                        No.    2013AP2756



insured's reasonable expectations of coverage."                    Id.26      We stress

that "reformation is an extraordinary remedy, and . . . courts

exercise it with great caution and restraint."                     43 Am. Jur. 2d

Insurance § 358 (citing Haddad v. Elkhateeb, 46 So. 3d 244, 255

(La.    Ct.   App.    4th     Cir.    2010));      see   also,   e.g.,        Kansas   v.

Nebraska,     575    U.S.     ___,    135   S.     Ct.   1042,   1061    (2015)     ("Of

course, courts generally hold parties to the deals they make;

and of course, courts should hesitate, and then hesitate some

more, before modifying a contract, even to remove an inadvertent

flaw.");      2   Steven      Plitt   et    al.,    Couch   on   Insurance       § 26:1

("Reformation       is   an    extraordinary        remedy . . . .       Accordingly,

the courts exercise it with great caution" (citing Mutual of

Omaha Ins. Co. v. Russell, 402 F.2d 339 (10th Cir. 1968).).27


       26
       This statement of law is, in some sense, incomplete.
Generally, the insurer's understanding of the contract is also
of critical concern when reforming a policy.   See infra, n.27;
Vandenberg v. Continental Ins. Co., 2001 WI 85, ¶53, 244
Wis. 2d 802, 628 N.W.2d 876 ("In the context of insurance
contracts,   there    are  special   considerations   regarding
reformation. . . . [A] policy may not be rewritten to bind the
insurer to a risk that it did not contemplate and for which it
received no premium.").
       27
       "Reformation is an equitable remedy which emanates from
the maxim that equity treats that as done which ought to have
been done. . . . Reformation may be granted only in two narrow
circumstances: Mutual mistake, or unilateral mistake plus
fraudulent concealment." 27 Williston on Contracts § 70:19 (4th
ed.). With regard to the first of these circumstances,

       [t]he purpose of reforming a contract on the basis of
       mutual mistake is to make a defective writing conform
       to the agreement of the parties upon which there was
       mutual assent. While the erroneous instrument must be
       made to correctly express the real agreement between
                                                      (continued)
                                            34
                                                               No.   2013AP2756



      ¶57   Marks argues that the business enterprise exclusion

"completely     swallows    the     coverage    granted   in   the     insuring

agreement" of his policy because it excludes coverage "[f]or

liability arising out of the Insured's services and/or capacity

as:   an    . . . trustee         . . . of     . . . a . . . trust . . . ."

Thus, Mark concludes,        this court must "reform the policy in

favor of coverage."        This argument, though perhaps clever, does

not withstand scrutiny.

      ¶58   Marks essentially contends that because a portion of

the   business     enterprise        exclusion      not   at     issue     (the

trustee/trust    portion     of    the    exclusion)   renders   the     policy


      the parties, no court can make a new contract for the
      parties.

Id. (emphases added) (citations omitted); see also 2 Steven
Plitt et al., Couch on Insurance § 26:1 (3d ed. 2015) ("[A]n
insurance policy is subject to reformation precisely as any
other written instrument upon the same grounds and subject to
the same limitations. . . .     Reformation is a proper remedy
where the parties have reached a definite and explicit
agreement.   There must be an understanding that there is an
agreement, but whether by mutual or common mistake, or mistake
on one side and fraud or inequitable conduct on the other, the
written contract fails to express the agreement; in which case,
the policy will be corrected so as to make it conform to their
real intent, and the parties will be placed as they would have
stood if the mistake had not occurred." (citations omitted)).

     Such are the general principles. Also present in Wisconsin
case law is the recognition that "[i]n insurance cases less is
required to make out a cause of action for reformation than in
ordinary contract disputes." Artmar, Inc. v. United Fire & Cas.
Co., 34 Wis. 2d 181, 186, 148 N.W.2d 641 (1967). This case does
not require us to delve into the niceties of insurance policy
reformation, but we raise these issues to emphasize that
reformation is not a tool to be applied casually.


                                         35
                                                                                   No.    2013AP2756



illusory, we should provide coverage otherwise eliminated by a

separate      portion       of       the    business           enterprise         exclusion       (the

officer-director/business enterprise portion of the exclusion).

       ¶59    Even if Marks is correct in his interpretation of the

policy,      our   task     would      be       to    reform      the     policy     so     that    it

"conform[s] to [the] real intent" of the parties; that is, to

reform     the     policy    so       that       it    represents         the      "definite       and

explicit agreement" originally reached by the parties before any

mistake      occurred.           2    Plitt      et     al.,     supra       § 26:1;      see     also

Vandenberg v. Continental Ins. Co., 2001 WI 85, ¶50 & n.35, 244

Wis. 2d 802,        628    N.W.2d 876.                If   a     clause      in    Marks'     policy

renders the policy illusory, we consider whether to reform that

clause.       We do not consider whether to reform other clauses,

simply because they too eliminate coverage.

       ¶60    The coverage provision of Marks' policy establishes

that     Marks     is     covered          for       liability      arising         out     of     his

"performance        of    services         as     the      Trustee      of    the     Irrevocable

Children's Trust (ICT), and/or Irrevocable Children's Trust No.
2 (ICT2), for a fee."                If Marks is correct in his interpretation

of   the     business       enterprise           exclusion,         reformation           might     be

appropriate and we might excise the trustee/trust portion of

that exclusion.            We would not, however, absent other argument,

excise other portions of the business enterprise exclusion not

in conflict with the coverage provision of the policy.                                      Houston

Casualty      is     not     arguing            that       the    putative         trustee/trust




                                                  36
                                                               No.    2013AP2756



exclusion applies to exclude coverage, and we need not examine

it further.28

  D.    Whether this Court Should, in Conducting Its Four-Corners
         Analysis, Consider the Exclusions in Marks' Policy
       ¶61   Marks    also   argues     that     the   business      enterprise

exclusion does not apply in this case because "an insurer that

unilaterally disclaims coverage and its duty to defend will be

estopped from using policy exclusions or limiting language to

litigate coverage if it is subsequently sued by its insured for
breaching its duty to defend."                 Marks principally relies on

three court of appeals cases for this proposition:                    Radke v.

Fireman's    Fund    Insurance   Co.,    217    Wis. 2d 39,   577    N.W.2d 366

(Ct. App. 1998); Kenefick v. Hitchcock, 187 Wis. 2d 218, 522

N.W.2d 261 (Ct. App. 1994); and Grube v. Daun, 173 Wis. 2d 30,

496 N.W.2d 106 (Ct. App. 1992).              As will be shown, Grube, the

earliest of these cases, relied on an earlier case, Professional

Office Bldgs., Inc. v. Royal Indemnity Co., 145 Wis. 2d 573, 427

N.W.2d 427 (Ct. App. 1988).             We thus begin with Professional

Office Buildings.




       28
       This reasoning applies with equal force to Marks'
contention that because the business enterprise exclusion is
supposedly ambiguous, Houston Casualty was obligated to defend
him. The fact that portions of Marks' policy not at issue (the
trustee/trust portion of the business enterprise exclusion) may
be ambiguous does not render the portion of the exclusion upon
which Houston Casualty relied in denying Marks a defense (the
officer-director/business enterprise portion of the business
enterprise exclusion) ambiguous.


                                        37
                                                                        No.   2013AP2756



       ¶62     The facts in Professional Office Buildings stem from

an    airplane    crash      near     Tupelo,     Mississippi.         Prof'l    Office

Bldgs., 145 Wis. 2d at 577.                  A passenger injured in the crash

sued    the    corporate      owner     of    the    plane,     Professional     Office

Buildings, Inc. ("POB"), which had leased the plane to another

corporation at the time of the crash.                       Id. at 577-78.          POB's

insurer, Royal Indemnity Company ("Royal"), refused to defend it

under two potentially applicable policies; Royal pointed to the

coverage clause of one policy and an exclusion in the other

policy.        Id. at 578-79.           POB sued Royal Indemnity alleging,

among other things, breach of the duty to defend.                      Id. at 579.

       ¶63     After   stating       the     four-corners      rule,    the   court    of

appeals determined that Royal had a duty to defend POB.                         Id. at

580-83.       Importantly, the court relied for its conclusion on an

exception to the exclusion which had been cited by Royal to POB

when it had denied POB a defense.                    Id. at 578, 583.         The court

then concluded that "an insurer, who has breached its duty to

defend    an     insured,      may    be     estopped    from     later     challenging
coverage."       Id. at 584-85 (emphasis added).                  "Royal could have

tried    coverage      prior     to    undertaking       the     liability     defense.

Where     coverage      is     an     issue,        bifurcated     trials     are     the

norm. . . .       Royal,      having        breached    its    duty    to   defend    the

Mississippi action, may not now challenge or otherwise litigate

the    coverage    issues."           Id.    at   585-86.       Professional     Office




                                             38
                                                                No.     2013AP2756



Buildings is consistent with our analysis in this case.29                      We

proceed to examine Grube.

    ¶64     Grube involves many issues, and we recite only the

portions of that opinion relevant to this appeal.                      In Grube

Louis    Achter   ("Achter")   sold   property      to   John   Daun    ("Daun")

without mentioning a gasoline leak that had occurred on the

property.    Grube, 173 Wis. 2d at 46-47.           Daun sold the property

to Gordon and Julie Grube ("the Grubes").                   Id. at 47.        The

Grubes    discovered    that    wells      on   the      property      had   been

contaminated by the leak, and a flurry of litigation ensued.

Id. at 47-48.      Relevant to this case, Achter sued his insurer,

Secura Insurance ("Secura"), demanding a defense and insurance

coverage.     Id. at 48.       The court of appeals concluded that

"[n]egligence     causing   property       damage     was   alleged     [against

Achter] and is covered under Achter's policy" and that Secura

    29
       Lest we inadvertently undo recent work of this court, we
observe our statement from a few years ago:

         When an insurer breaches a duty to defend its
    insured, the insurer is on the hook for all damages
    that result from that breach of its duty. . . .

    While these damage awards are sometimes framed as the
    insurer being "estopped" from denying coverage, see,
    e.g.,   Grube  v.   Daun,   173 Wis. 2d 30,  74,  496
    N.W.2d 106 (Ct. App. 1992) . . . , they are the
    measure of damages actually caused by an insurer's
    breach of the contractual duty to defend, not an
    estoppel based on some otherwise inequitable conduct
    in the eyes of the insured.

Maxwell v. Hartford Union High Sch. Dist., 2012 WI 58, ¶¶54-55,
341 Wis. 2d 238, 814 N.W.2d 484.


                                      39
                                                                           No.    2013AP2756



was therefore required to provide a defense.                        Id. at 73.        Secura

"argue[d] that it did not have a duty to defend because the

claims alleged fall within exclusions of the policy."                               Id. at

74.     The court of appeals rejected the argument, stating, "We

hold     that      under    Professional            Office     Buildings,        Secura    is

estopped from raising any challenges to coverage; it must both

defend      and    indemnify      Achter       because       Secura    denied      coverage

outright."        Id. at 74 (citation omitted).

       ¶65     The      Grube    court    misinterpreted           Professional       Office

Buildings.        Important       to     the    Professional        Office       Buildings.

court's holding that Royal could not contest coverage was the

fact    that      the    court    had    already          determined   that      Royal    had

breached its duty to defend POB——a determination made, notably,

after the court analyzed an exclusion and an exception to that

exclusion in POB's policy.                Prof'l Office Bldgs., 145 Wis. 2d at

584-85.        The Grube decision is also internally inconsistent in

this regard; later in its analysis, the Grube court stated, "The

issue in the instant case——whether an insurer who breached its
duty to defend can later contest coverage——is identical to the

issue in Professional Office [Buildings]."                          Grube, 173 Wis. 2d

at     74-75      (emphasis      added).            The    Grube   court     should       have

addressed Secura's exclusions argument.30
       30
       It is not clear that examination of exclusions in the
Secura policy would have changed the result in that case.   The
trial court in that case had concluded that an exclusion "for
damage to the insured's own property did not apply as the
property was no longer owned by Achter." Grube, 173 Wis. 2d at
49.


                                               40
                                                                    No.   2013AP2756



      ¶66   In     Kenefick      David     and     Carolyn    Hitchcock       ("the

Hitchcocks") were sued by their neighbors, Emmett and Amelia

Kenefick ("the Keneficks"), who alleged that gasoline tanks on

the   Hitchcock's        property    had      leaked   and   contaminated       the

groundwater.        Kenefick, 187 Wis. 2d at 221.               The Hitchcocks

eventually       sued    their   insurer,        Federated   Mutual       Insurance

Company ("Federated"), claiming that it had breached its duty to

defend them.       Id.    The details of the case are not particularly

germane to this case because Marks relies on a single statement

made by the Kenefick court at the beginning of its duty to

defend analysis:

      The nature of [the Keneficks'] claim [against the
      Hitchcocks] is such that——ignoring, as we must at this
      stage of the inquiry, both the merits of the claim and
      any exclusionary or limiting terms and conditions of
      the policies and, further, resolving all doubts in
      favor of the insured——we cannot say that there was no
      duty on Federated's part to defend the action, at
      least up to the point that its policy defenses to
      coverage were resolved.
Id. at 232.

      ¶67   As noted in a treatise on Wisconsin insurance law,
"that statement . . . does not cite to any supporting authority.

This is probably because case after case in Wisconsin has held

that an insurance company's obligation to defend is based on the

entire   contract."         Sheila   M.    Sullivan    et    al.,    Anderson    on

Wisconsin Insurance Law § 7.23 (7th ed. 2015); see also Menasha

Corp. v. Lumbermens Mut. Cas. Co., 361 F. Supp. 2d 887, 892-93

(E.D. Wis. 2005) ("Plaintiff also argues that in determining
whether defendants had duties to defend, I may not consider

                                         41
                                                                           No.   2013AP2756



exclusions in their policies.               Plaintiff bases this argument on

statements in [Kenefick and Radke].                      However, when addressing

whether there is a duty to defend, Wisconsin courts frequently

consider exclusions. . . .             [D]espite the language in Radke and

Kenefick,       I     will    consider      the        exclusions     in     defendants'

policies." (citations omitted)).

     ¶68    Moreover, the Kenefick court did not even apply the

"estoppel"      discussion      in   Grube;       in    fact,   it    recognized      that

unlike     in   Professional         Office      Buildings,      the       coverage     and

liability issues in Kenefick were bifurcated.                           Kenefick, 187

Wis. 2d    at       233-34;   see    also   id.    at     235   n.7    ("There     is   no

indication      in     Grube,   however,         that    the    insurer      obtained    a

bifurcated trial as Federated did in this case. . . . Grube is

inapposite.").31

     ¶69    Radke is the last case for our consideration.                         We need

spend even less time with Radke because it simply quoted the

     31
       In Kenefick the court concluded that Federated did not
breach its duty to defend, although Federated did not,
apparently, request bifurcation until six months after the
complaint against the Keneficks was filed.          Kenefick v.
Hitchcock, 187 Wis. 2d 218, 233 & n.6, 522 N.W.2d 261 (Ct. App.
1994). The court remanded the case on the "very limited ground"
that "if the Hitchcocks necessarily incurred expenses in defense
of the liability and damage portions of the case prior to the
time it was determined there was no coverage under the Federated
policies, they could seek reimbursement from Federated." Id. at
236.   We do not discuss the merits of this aspect of the
Kenefick court's analysis, and our comment that Kenefick
distinguished   itself  from   Grube   and  Professional  Office
Buildings is not meant as an endorsement of that conclusion; we
merely point out that the Kenefick court did not purport to
apply the estoppel discussion in Grube.


                                            42
                                                                             No.     2013AP2756



statement from Kenefick just discussed.                         Radke, 217 Wis. 2d at

44    ("However,     our    inquiry        at    this   stage      is     limited;       we   are

required     to    ignore      'both       the    merits      of    the    claim        and   any

exclusionary or limiting terms and conditions of the policies.'"

(quoting Kenefick, 187 Wis. 2d at 232)).

       ¶70   In    sum,     Marks'     argument         that       we    must    ignore       the

business enterprise exclusion because Houston Casualty refused

to defend him rests upon: (1) analysis in Grube based on a

faulty    reading     of    Professional             Office    Buildings;          and    (2)   a

statement in Kenefick that did not rely on any cases or other

sources for support.            We decline to rely on these statements,

for multiple reasons.

       ¶71   First, as an original matter, a rule that an insurer

who    declines     to     provide     a    defense       may      not    rely     on    policy

exclusions to protect itself against allegations of breach of

the duty to defend makes no sense.                      If A demands that B perform

an action under a contract, B relies on a particular clause in

the contract in refusing to perform that action, and A sues B
for breach of contract, a court of necessity must interpret that

clause in order to determine whether B in fact breached the

contract.         See Restatement (Second) of Contracts § 235 (1981)

("When performance of a duty under a contract is due any non-

performance is a breach." (emphasis added)).                            The fact that that

contract may sometimes be an insurance contract does not change

the    analysis.         See   Wis.    Label         Corp.,     233      Wis. 2d 314,         ¶23

("Insurance policies are contracts and are governed by the same


                                                43
                                                                           No.       2013AP2756



rules     that      govern     interpretation            of    contracts       in    general"

(citation omitted).).

    ¶72        Insurers are not allowed to contest coverage after a

court has determined that the insurer has breached the duty to

defend     its      insured     because,      having          breached     a       contractual

obligation,       the    insurer      must    pay    damages       flowing          from    that

breach.       Maxwell, 341 Wis. 2d 238, ¶¶55-56 (citing Prof'l Office

Bldgs., 145 Wis. 2d at 585-86).32                    But if the insurer has not

breached its duty to defend——something a court cannot determine

based simply on the fact that the insurer declined to defend an

action——then it is not obligated to pay out any damages.                                     See

Sullivan et al., supra ¶67, at § 11.100 ("If there is, in fact,

no contract to defend an insured, an insurer should not have a

duty to defend.          If no duty to defend exists, there should be no

waiver    or     estoppel      for    failure       to    respond    to        a    tender    of

defense.");       Prod.      Stamping       Corp.   v.        Maryland    Cas.       Co.,    199

Wis. 2d 322, 327, 544 N.W.2d 584 (Ct. App. 1996); cf. Sisson v.

Hansen Storage Co., 2008 WI App 111, ¶16, 313 Wis. 2d 411, 756
N.W.2d 667 ("Although it is risky for an insurance carrier to

reject    a    tender     of    defense       by    its       insured,     the      justified

rejection      of    a   tender      does    not    create       coverage          where    none

exists . . . .").         In the current case, we needed to examine the

business       enterprise      exclusion       to        determine       whether      Houston

Casualty had breached its duty to defend Marks.


    32
          See supra, ¶63 n.29.


                                             44
                                                                             No.       2013AP2756



       ¶73   Second,       as     we    have   explained,      Grube,        Kenefick,       and

Radke are inconsistent with a long line of Wisconsin case law.

See, e.g., Liebovich v. Minnesota Ins. Co., 2008 WI 75, ¶¶2, 13,

310 Wis. 2d 751, 751 N.W.2d 764; Last v. Am. Family Mut. Ins.

Co.,    2000    WI    App       169,     ¶¶2-4,     9-10,     238     Wis. 2d 140,           617

N.W.2d 215; Bruner v. Heritage Companies, 225 Wis. 2d 728, 732-

33, 737-40, 593 N.W.2d 814 (Ct. App. 1999); Production Stamping

Corp., 199 Wis. 2d at 325-26, 329-31; Prof'l Office Bldgs., 145

Wis. 2d at 578-79, 580-83; Sola Basic Indus., Inc. v. U.S. Fid.

&   Guar.    Co.,    90     Wis. 2d 641,        644-47,       653-54       280     N.W.2d 211

(1979); Grieb v. Citizens Cas. Co. of New York, 33 Wis. 2d 552,

556-57, 148 N.W.2d 103 (1967).

       ¶74   Grube, Kenefick, and Radke constitute a stunted strand

of law that conflicts with our four-corners jurisprudence; it

also has produced uncertainty.                  See Menasha Corp. v. Lumbermens

Mut. Cas. Co., 361 F. Supp. 2d 887, 893 (noting conflict and

declining to apply Radke and Kenefick); Sullivan et al., supra

¶67, at § 7.23 (discussing Radke and Kenefick and noting that
"case   after       case    in     Wisconsin        has     held    that     an    insurance

company's      obligation          to     defend       is    based     on        the     entire

contract").     The court of appeals below recognized this.                              Marks,

363 Wis. 2d 505, ¶10 ("Marks accurately portrays the pertinent

parts of Grube, Kenefick, and Radke.                          However, . . . in this

respect the three cases impermissibly conflict with our earlier

decision in Professional Office Bldgs.").                            The circuit court

below   recognized         this    ("[M]y      first      reaction     was    astonishment
when Mr. Marks argued that there is a rule in Wisconsin that
                                               45
                                                                          No.    2013AP2756



forbids      a    court    in    coverage      disputes        from   looking     at     the

exclusions. . . .            [I]t appears that Grube changed the rules set

forth in Professional Office Bldgs. from a . . . process that

makes estoppel contingent on coverage to a . . . process that

makes estoppel automatic, regardless of coverage.                         And the dicta

we    read   in      Radke      and    Kenefick      reflects       the   same    kind    of

automatic rule . . . .").33

       ¶75       Grube, Kenefick, and Radke are "unsound in principle,"

and    "detrimental        to    coherence         and   consistency      in     the   law"

insofar as they suggest that exclusions may not be considered in

an    analysis      of    whether      an   insurer      has   breached    its    duty   to

defend its insured simply because the insurer declined to defend

its    insured.          Johnson       Controls,     Inc.      v.   Employers     Ins.    of

Wausau, 2003 WI 108, ¶¶98-99, 264 Wis. 2d 60, 665 N.W.2d 257;

see supra, ¶¶71-74.              In order to resolve conflicting precedent

in Wisconsin case law, we explicitly overrule any statements in

these cases that suggest such an analysis is appropriate.

       ¶76       Accordingly,         the   business      enterprise      exclusion       is
properly considered in this case and establishes that Houston

Casualty did not breach its duty to defend Marks.


       33
       Indeed, even Marks seemingly recognized this conflict in
his motion for summary judgment below, in which he noted
"apparent tension in the law" between Grube, Kenefick, and Radke
and "cases like Production Stamping [Corporation v. Maryland
Casualty Company, 199 Wis. 2d 322, 544 N.W.2d 584 (Ct. App.
1996)],"   a  case   which   "cites  to   various  portions   of
Kenefick . . . but . . . incorporated a policy exclusion into
its duty to defend analysis."


                                              46
                                                                     No.    2013AP2756



   E.    Whether the Court of Appeals Complied with Cook v. Cook

    ¶77     We must address one final issue.                As noted, the court

of appeals below acknowledged it had erred in Grube, Kenefick,

and Radke, stating, "Contrary to the approach that we applied in

Professional   Office     Bldgs.,   in       Grube   and    more   explicitly      in

Kenefick and Radke, we imposed a different and illogical hurdle

for insurers."       Marks, 363 Wis. 2d 505, ¶13.            However, the court

of appeals then took a further step.            It concluded:

         To the extent. . . that in Grube, Kenefick and
    Radke we modified Professional Office Bldgs. as we
    have described, we agree with the circuit court that
    we lacked the authority to do so under Cook v. Cook,
    208 Wis. 2d 166, 189, 560 N.W.2d 246 (1997) (the court
    of appeals "must speak with a unified voice" and may
    not overrule, modify or withdraw language from its
    prior published decisions[).]      Likewise, court of
    appeals cases may not conflict with supreme court
    precedent.   Id. (the supreme court is the only court
    in the State of Wisconsin with the power to "overrule,
    modify or withdraw language from a previous supreme
    court case[").]     Consequently, Grube, Kenefick and
    Radke do not establish precedent for the modification
    of how a claim of breach of duty to defend is
    evaluated.   See, e.g., State v. Bolden, 2003 WI App
    155, ¶¶9-11, 265 Wis. 2d 853, 667 N.W.2d 364.

Id., ¶15.
    ¶78     The first of the two propositions cited by the court

of appeals——the idea that the court of appeals need not follow a

case that conflicts with an earlier case of that court——has been

stated elsewhere in Wisconsin law.              See, e.g., State v. Swiams,

2004 WI App 217, ¶23, 277 Wis. 2d 400, 690 N.W.2d 452 (citing

Bolden   for   the    proposition   that       "if    two    court     of    appeals
decisions   conflict,     the   first    governs");        Steiner    v.    Steiner,


                                        47
                                                                  No.    2013AP2756



2004    WI    App    169,   ¶23   n.2,    276   Wis. 2d 290,    687     N.W.2d 740

(Dykman, J., dissenting) (explaining that Bolden holds that "if

a conflict exists between two published court of appeals cases,

the first in         time governs");       Leo's Salons, Inc. v. Deonne's

Salon and Day Spa, LLC, No. 2006AP1563, unpublished slip op.,

¶13    &     n.5    (Wis.   Ct.   App.     2007)   (citing     Bolden    for   the

proposition that the "first of two published conflicting court

of appeals opinions controls").

       ¶79    We need not express an opinion on the merits of the

theory that, because "the court of appeals may not overrule,

modify or withdraw language from a previously published decision

of the court of appeals," Cook v. Cook, 208 Wis. 2d 166, 190,

560 N.W.2d 246, 256 (1997), any court of appeals decision which

does so, whether explicitly or not, is essentially voidable by

the court of appeals in that respect.               This is so because, even

if logically valid, application of that principle by the court

of appeals is problematic.34             Whether a later case misinterpreted
       34
       Determining the theoretical validity of this principle
would likely require interpretation of Article VII of the
Wisconsin Constitution ("Judiciary") and Wis. Stat. § 752.41
("Decisions"). See, e.g., Cook v. Cook, 208 Wis. 2d 166, 185-86,
560 N.W.2d 246. Neither of these sources receive attention in
the parties' briefing. Indeed, Houston Casualty did not address
the issue at all, instead contending that it was moot. "Courts
should think carefully before expending 'scarce judicial
resources'   to  resolve   difficult  and  novel   questions  of
constitutional or statutory interpretation that will 'have no
effect on the outcome of the case.'" Ashcroft v. al-Kidd, 563
U.S. 731, 735 (2011) (citations omitted). Given that this issue
was not fully briefed, it would be dangerous to address an issue
as weighty as the constitutional authority of the court of
appeals. Therefore, we decline to do so.


                                          48
                                                                                  No.    2013AP2756



or "modif[ied]" an earlier case is not always apparent, and

judges     might          disagree      on        that    question.          Additionally,       a

determination that a case impermissibly modified an earlier case

and is thus not binding is effectively the same as overruling

that case.

         It is our goal that the court of appeals speak
    with a unified voice . . . and it generally achieves
    that goal exceedingly well. However, when a perceived
    conflict arises, which is understandable given the
    huge volume of cases the court of appeals so capably
    handles, a certification to this court that points out
    the perceived conflict will best serve the public
    interest and will also aid this court in its law
    developing   and    clarifying   function.    However,
    overruling an earlier court of appeals decision is not
    an option.
State     v.    Johnson,         2004        WI     94,    ¶18,     273     Wis. 2d 626,       681

N.W.2d 901 (citations omitted).

    ¶80        The court of appeals below was faced with a complex

situation.          However, we clarify that the court of appeals should

have certified this case rather than resolved for itself whether

Grube,    Kenefick, and               Radke       misinterpreted          Professional Office
Buildings,          and    we    instruct          it     to   certify      cases       presenting

similar types of conflicts in the future.                                 Because we overrule

portions of Grube, Kenefick, and Radke ourselves today, there is

no reason to reverse the decision of the court of appeals.

                                        IV.       CONCLUSION

    ¶81        We     conclude         that        the    complaints        and    counterclaim

against    Marks          do    not    allege       facts        which,    if     proven,   would

constitute      claims          covered       under        the    insurance       policy     Marks
obtained from Houston Casualty.                          Houston Casualty therefore did

                                                    49
                                                  No.   2013AP2756



not breach its duty to defend Marks when it declined to defend

him in the six lawsuits at issue.   Consequently, we affirm the

decision of the court of appeals.

    By the Court.— The decision of the court of appeals is

affirmed.




                               50
                                                                         No. 2013AP2756.awb




      ¶82      ANN WALSH BRADLEY, J. (concurring).                I agree with the

majority's       conclusion     that     the     four-corners        rule      includes

consideration      of     exclusions    as     well    as     exceptions      to   those

exclusions in an insurance policy.               Majority op., ¶40.

      ¶83      Additionally, I agree with its determination that "the

complaints and counterclaim against Marks do not allege facts

which,    if    proven,    would   constitute         claims    covered     under     the

insurance       policy     Marks      obtained        from     Houston      Casualty."

Majority op., ¶3.

      ¶84      I write separately, however, because I disagree with

the     majority's      determination     that        "only    two   documents        are

germane in any four-corners analysis:                  the insurance policy and

the complaint against the insured.                No examination of extrinsic

facts    or    evidence    takes   place."        Majority       op.,    ¶39    (citing

Fireman's Fund Ins. Co. of Wis. v. Bradley Corp., 2003 WI 33,

¶19, 261 Wis. 2d 4, 660 N.W.2d 666); see also majority op., ¶53

n. 25 ("[t]he duty to defend is based solely on the allegations

contained      within    the   four    corners    of    the     complaint,      without

resort to extrinsic facts or evidence . . . ") (citing Fireman's




                                          1
                                                                            No. 2013AP2756.awb


Fund,     261       Wis. 2d 4,    ¶19)    (emphasis         in    original)     (internal

quotations omitted).1

      ¶85       The issue of whether the four-corners rule allows for

an   exception        to   consider      the       known   facts    extrinsic      to    the

complaint is not before the court in this case.                        Instead, it is

presented in Water Well Sols. Serv. Grp. Inc. v. Consol. Ins.

Co., 2016 WI 54, ___ Wis. 2d ___, ___ N.W.2d ___, which is being

released concurrently with this decision today.

      ¶86       My dissenting opinion in Water Well sets forth the

analysis in support of my conclusion that when the complaint is

factually       incomplete       or   ambiguous,         Wisconsin    should      adopt     a

narrow      known        fact    exception          to     the    four-corners        rule.

Consequently, I will not repeat the entirety of my dissent, but

instead incorporate that conclusion and its analysis here.

      ¶87       Accordingly, I respectfully concur.

      ¶88       I   am   authorized      to    state       that   Justice     SHIRLEY      S.

ABRAHAMSON joins this concurrence.




      1
       The majority opinion is internally inconsistent because on
one hand it says the duty to defend decision is based solely on
the four-corners of the complaint while on the other hand it
encourages insurers to investigate in order to inform its
decision, acknowledging that "the applicability of an exclusion
is rarely obvious from the allegations in the complaint."
Majority op., ¶41 (citing Peter F. Mullaney, Liability Insurers'
Duty to Defend, Wis. Law., at 10-11 (July 1995). See also Water
Well Sols. Serv. Grp. Inc. v. Consol. Ins. Co., 2016 WI 54, ¶58-
59, ___ Wis. 2d ___, ___ N.W.2d ___ (Ann Walsh Bradley, J.,
dissenting).


                                               2
                                                                        No.    2013AP2756.rgb




       ¶89   REBECCA        G.    BRADLEY,    J.       (concurring).           I     join   the

majority in affirming the court of appeals.                          I write separately,

however, to address two important issues.                         First, although the

majority reaffirms Cook v. Cook, 208 Wis. 2d 166, 560 N.W.2d 246

(1997), and holds the court of appeals should certify an appeal

when its disposition depends upon conflicting published court of

appeals cases, the majority does not explicitly overrule State

v. Swiams, 2004 WI App 217, 277 Wis. 2d 400, 690 N.W.2d 452, or

State v. Bolden, 2003 WI App 155, 265 Wis. 2d 853, 667 N.W.2d

364.    This, in my opinion, may leave the courts and the bar with

uncertainty.         I write to clarify that the principle implied in

Bolden and repeated as dicta in Swiams that "if two court of

appeals      decisions           conflict,       the     first       governs"        directly

conflicts with Cook and therefore is implicitly overruled by the

majority      opinion.            Second,        I    would     clarify       or     withdraw

problematic language from Grube v. Daun, 173 Wis. 2d 30, 496

N.W.2d 106 (Ct. App. 1992), rather than overrule it.
                                    I.     COOK V. COOK

       ¶90   In Bolden, the court of appeals' disposition depended

upon two cases, State v. Jackson, 187 Wis. 2d 431, 523 N.W.2d

126 (Ct. App. 1994), and State v. Kuehl, 199 Wis. 2d 143, 545

N.W.2d 840 (Ct. App. 1995).                  The district II court of appeals

decided      Kuehl        one    year    after       district    I     decided       Jackson.

District     II      in     Kuehl       disagreed      with     district       I's    Jackson

opinion,     held         that    Jackson    had       been     wrongly       decided,      and
overruled it.         See Kuehl, 199 Wis. 2d at 149.                   Although district

                                              1
                                                                No.   2013AP2756.rgb


II acknowledged it was obligated to abide by Jackson, district

II explained that it believed Jackson conflicted with an earlier

case, State v. Haseltine, 120 Wis. 2d 92, 352 N.W.2d 673 (Ct.

App. 1984); therefore, district II concluded it was "free to

follow the decision which we conclude is correct."                       Kuehl, 199

Wis. 2d at 149.          Kuehl, which was decided before this court's

pronouncement in Cook, was not appealed.                  Cook made clear that

when the court of appeals believes a previously published court

of appeals case was wrongly decided, the court of appeals does

not have the power to overrule itself.                   Cook, 208 Wis. 2d at

189-90.       If the court of appeals finds itself in a situation

where   it    wants     to    overrule   an    earlier   decision,      it    has   two

choices:      (1) certify the appeal to this court; or (2) "decide

the appeal, adhering to a prior case but stating its belief that

the prior case was wrongly decided."                Cook, 208 Wis. 2d at 190.

Cook did not, however, explicitly overrule Kuehl.                     As a result,

parties continued to ask the court of appeals to overrule its

published decisions, relying on                Kuehl's mistaken proposition.
See Bolden, 265 Wis. 2d 853, ¶9.

    ¶91       Bolden,    relying on       Cook's   statement prohibiting the

court of appeals from overruling itself, reasoned that district

II in Kuehl did not have the power to overrule district I's

Jackson      decision,       and   therefore   relied    on   Jackson    to    affirm

Bolden's conviction.               Bolden, 265 Wis. 2d 853, ¶11.             One year

after     Bolden,     this     court     specifically    addressed       Kuehl      and

Jackson and reiterated the Cook rule that the court of appeals
cannot overrule an earlier court of appeals decision.                        State v.

                                           2
                                                                           No.   2013AP2756.rgb


Johnson, 2004 WI 94, ¶¶16-18, 273 Wis. 2d 626, 681 N.W.2d 901.

Johnson     overruled       the     language             in   Kuehl     suggesting         that

disregarding a published court of appeals opinion is a valid

option.     Id., ¶17.       Johnson reiterated that the court of appeals

does not have the option of disregarding its published opinions.

Despite Johnson's clear holding that the court of appeals cannot

overrule itself, the court of appeals has, on a few occasions

since Johnson, cited Bolden for the very proposition that was

overruled in Johnson.             The majority cites the court of appeals

decisions that have done so, see majority op., ¶78, most notably

Swiams.

      ¶92   Swiams    ignored       this       court's        holding      in    Johnson    and

cited Bolden for the erroneous proposition that the court of

appeals may decline to follow a case that conflicts with an

earlier case.     See Swiams, 277 Wis. 2d 400, ¶23.1                         This court has

repeatedly held that the court of appeals cannot overrule itself

and   therefore      does    not        have       the    option      to     disregard     one

published    decision       so     it     can       follow     an     earlier       published
decision.     The majority says so again here, thereby implicitly

overruling the language in Swiams and any decision supporting

the   proposition       that      "if     two       court      of     appeals       decisions

conflict, the first governs."                   I would expressly overrule such

language.


      1
       This language in State v. Swiams, 2004 WI App 217, 277
Wis. 2d 400, 690 N.W.2d 452, was dicta as it appears in the last
paragraph of that opinion, almost as an aside, and was not
necessary for disposition of the appeal. Id., ¶23.


                                               3
                                                                        No.    2013AP2756.rgb


       ¶93      The    majority      emphasizes       that     Cook    and    Johnson     hold

that the court of appeals does not have the power to overrule

itself.         The majority explains why it is so important that the

court of appeals does not disregard one opinion and choose to

follow an earlier opinion:                    (1) the court of appeals does not

have the authority to do so; (2) choosing to follow an earlier

case       is   overruling       the    more       recent    case;     and    (3)    courts'

interpretations          of    whether       cases    conflict    can     widely     differ.

Majority op., ¶79.             Also, as noted in Cook, allowing the court

of appeals to follow the first-decided case because it believes

a   later       case   conflicts       would       interfere    with    "predictability,

certainty and finality relied upon by litigants" and encourage

forum shopping in the four districts of the court of appeals.

Cook, 208 Wis. 2d at 189.                     For these important reasons, the

court      of   appeals       must    abide    by    Cook,     Johnson,      and    now   this

opinion, and stop disregarding one court of appeals decision

because it believes an earlier decision should be followed.

       ¶94      In this case, both the circuit court and the court of
appeals decided that Grube, 173 Wis. 2d 30, and two other cases2

were not good law, disregarded those opinions, and applied the

law    from      an    earlier       court    of     appeals    opinion,      Professional

Office Buildings, Inc. v. Royal Indemnity Co., 145 Wis. 2d 573,

427 N.W.2d 427 (Ct. App. 1988).                      That should not have happened.


       2
       The other two cases were Kenefick v. Hitchcock, 187
Wis. 2d 218, 522 N.W.2d 261 (Ct. App. 1994), and Radke v.
Fireman's Fund Insurance Co., 217 Wis. 2d 39, 577 N.W.2d 366
(Ct. App. 1998).


                                                4
                                                                      No.   2013AP2756.rgb


Such action creates dangerous precedent for our court system.

The circuit court should have followed the case law and the

court of appeals should have certified Marks to this court to

resolve any perceived conflict.                    See Cook, 208 Wis. 2d at 190;

Johnson, 273 Wis. 2d 626, ¶¶16-18.

                                       II.     GRUBE

       ¶95    The majority overrules Grube, 173 Wis. 2d 30, Kenefick

v. Hitchcock, 187 Wis. 2d 218, 522 N.W.2d 261 (Ct. App. 1994),

and Radke v. Fireman's Fund Ins. Co., 217 Wis. 2d 39, 577 N.W.2d

218, 522 N.W.2d 366 (Ct. App. 1998) as "inconsistent with a long

line     of   Wisconsin       case     law,"       and    "unsound    in    principle."

Majority op., ¶¶73, 75.                The majority explicitly overrules any

statements in these cases "that exclusions may not be considered

in an analysis of whether an insurer has breached its duty to

defend    its      insured"     when    the       insurer    unilaterally      denies   a

defense without seeking a coverage determination in court.                            Id.,

¶75.

       ¶96    I    agree   with      the   majority        that    Wisconsin    duty-to-
defend    law      requires     comparing         the     complaint   to    the     entire

insurance policy, including exclusions.                      See Estate of Sustache

v. Am. Family Mut. Ins. Co., 2008 WI 87, ¶20, ¶¶22-23, 311

Wis. 2d 548, 751 N.W.2d 845.                  Instead of overruling Grube and

its    line       of   cases,     however,         I     would    harmonize    it    with

Professional Office Buildings.

       ¶97    In determining whether a duty to defend exists under a

policy, the court compares the four corners of the complaint to
the entire policy, including exclusions.                          Estate of Sustache,

                                              5
                                                                No.   2013AP2756.rgb


311 Wis. 2d 548, ¶¶22-23.          Typically, however, as the majority

notes at ¶41, an examination of policy exclusions at the duty-

to-defend stage will not operate to relieve an insurer of its

duty to defend.     This is because whether an exclusion applies to

preclude coverage often depends on extrinsic evidence, which is

not considered in the duty-to-defend analysis.                       See Fireman's

Fund Ins. Co. of Wis. v. Bradley Corp., 2003 WI 33, ¶19, 261

Wis. 2d 4, 660 N.W.2d 666.

    ¶98    This    basic       principle,     together        with    a     lack    of

consistency of language used in insurance cases, is what has

created confusion in the Grube line of cases.                   Grube, Kenefick,

and Radke are often cited to argue that a court, which is asked

to rule on a duty-to-defend question, cannot consider exclusions

if an insurer unilaterally denied a defense to its insured.                         Of

course, this is not the law.            A duty-to-defend analysis always

requires a comparison of the complaint to the entire policy,

regardless of whether the insurer unilaterally denied a defense

or chose one of the preferred methods to determine if a duty to
defend was triggered by a complaint.                 It is only when a court

determines an insurer breached its duty to defend, after the

court   compares   the     complaint    to    the    entire     policy,     that    an

insurer may no longer rely on exclusions to avoid its indemnity

obligations under the policy.           See Professional Office Bldgs.,

Inc., 145 Wis. 2d at 585-86.

    ¶99    In    Grube,    the   circuit     court    determined      the    insurer

breached   its    duty    to   defend   after   the     court    considered        the
entire policy, including exclusions.                Grube, 173 Wis. 2d at 49,

                                        6
                                                                   No.   2013AP2756.rgb


Unlike this case, the policy exclusions in Grube, when compared

to the language in the complaint, did not preclude coverage.                          It

was the insurer's breach of its duty to defend, and not the

decision to unilaterally decline to defend its insured, which

later     precluded    the     insurer    in   Grube    from     invoking      coverage

defenses.      The concluding paragraph in Grube makes this clear:

"[the     insurer],    by    not   contesting        coverage    in    court    and    by

breaching its duty to defend [the insured], is estopped from

raising      any    challenges     to    coverage     and   must      indemnify      [the

insured] up to the limits of his policy."                        What the majority

interprets as a departure from Wisconsin insurance law was more

likely the court of appeals abbreviating its analysis in a case

where it agreed with the circuit court that an insurer breached

its   duty    to    defend.3       When    a   court    determines       the    insurer

breached      the    duty    to    defend,     the     insurer     cannot      use    its

exclusions to avoid paying out on the policy.                            Professional

Office Bldgs., Inc., 145 Wis. 2d at 585-86.                        It is for this

reason that we repeatedly caution insurers to opt for one of the
preferred methods of determining coverage, see majority, ¶41 &

n.21, rather than unilaterally refusing to defend.




      3
       The language in Grube v. Daun, 173 Wis. 2d 30, 74, 496
N.W.2d 106 (Ct. App. 1992), triggering the confusion about
whether it is the breach of the duty to defend or the unilateral
decision of the insurer not to defend is as follows:    "We hold
that under Professional Office Bldgs., [the insurer] is estopped
from raising any challenges to coverage; it must both defend and
indemnify [the insured] because [the insurer] denied coverage
outright."


                                           7
                                                             No.   2013AP2756.rgb


       ¶100 This case, and a companion insurance case heard the

same    day,    Water     Well   Solutions       Service     Group     Inc.   v.

Consolidated Insurance Co., 2016 WI 54, ___ Wis. 2d ___, ___

N.W.2d ___, presented the less typical scenario where exclusions

demonstrated the insurer did not have a duty to defend.                  In this

case, we hold that a comparison of the complaint to the business

enterprise exclusion confirms the insurer did not have a duty to

defend.    Majority op., ¶¶47-55.          In Water Well we hold that a

comparison     of   the   complaint   to   the   "your     product"    exclusion

confirms the insurer did not have a duty to defend.                   Water Well

Sols. Serv. Grp., ___ Wis. 2d ___, ¶3.

       ¶101 For these reasons, I respectfully concur.




                                       8
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1
