                                                                              2013 WI 71

                  SUPREME COURT                OF    WISCONSIN
CASE NO.:                 2011AP564
COMPLETE TITLE:
                          Marshall Schinner,
                                    Plaintiff-Appellant,
                               v.
                          Michael Gundrum,
                                    Defendant,
                          West Bend Insurance Company,
                                    Defendant-Respondent-Petitioner.
                            REVIEW OF A DECISION OF THE COURT OF APPEALS
                            Reported at 340 Wis. 2d 195, 811 N.W.2d 431
                                    (Ct. App. 2012 – Published)
                                       PDC No: 2012 WI App 31

OPINION FILED:            July 12, 2013
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:            October 23, 2012

SOURCE OF APPEAL:
   COURT:                 Circuit
   COUNTY:                Washington
   JUDGE:                 James G. Pouros

JUSTICES:
   CONCURRED:             CROOKS, J., concurs. (Opinion filed.)
   DISSENTED:             BRADLEY, J., ABRAHAMSON, C.J., dissents.
                          (Opinion filed.) CROOKS, J. joins Part II of the
                          dissent.
  NOT PARTICIPATING:

ATTORNEYS:
        For the defendant-respondent-petitioner, there were briefs
filed        by   Jeffrey    Leavell     and   Christopher      John    Koppes,     and
Jeffrey       Leavell,      S.C.,   Racine,    and   oral    argument    by    Jeffrey
Leavell.


       For the plaintiff-appellant, there were briefs by Keith R.
Stachowiak          and   Murphy    &   Prachthauser,       S.C.,   Milwaukee,      and
Daniel P. Patrykus and Keberle & Patrykus, LLP, West Bend, and
oral argument by Keith R. Stachowiak.
     An amicus curiae brief was filed by James A. Friedman and
Linda S. Schmidt, and Godfrey & Kahn, S.C., Madison, on behalf
of the Wisconsin Insurance Alliance, and oral argument by Linda
S. Schmidt.


     An amicus curiae brief was filed by Mark L. Thomsen and
Cannon & Dunphy, S.C., Brookfield, on behalf of the Wisconsin
Association for Justice.




                               2
                                                                   2013 WI 71
                                                           NOTICE
                                             This opinion is subject to further
                                             editing and modification.   The final
                                             version will appear in the bound
                                             volume of the official reports.
No.   2011AP564
(L.C. No.   2009CV870)

STATE OF WISCONSIN                       :            IN SUPREME COURT

Marshall Schinner,

             Plaintiff-Appellant,

      v.
                                                                FILED
Michael Gundrum,
                                                           JUL 12, 2013
             Defendant,
                                                              Diane M. Fremgen
West Bend Insurance Company,                               Clerk of Supreme Court


             Defendant-Respondent-Petitioner.




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



      ¶1     DAVID T. PROSSER, J.   This is a review of a published

decision of the court of appeals1 reversing a grant of summary

judgment by the Washington County Circuit Court2 to West Bend




      1
       Schinner v. Gundrum, 2012 WI App 31, 340 Wis. 2d 195, 811
N.W.2d 431.
      2
          Circuit Judge James G. Pouros, presiding.
                                                                         No.     2011AP564



Mutual       Insurance         Company     (West    Bend)3     against     one   of     its

insureds.

       ¶2      The   insured,       Michael        Gundrum     (Gundrum),      hosted    an

underage drinking party.                 One of Gundrum's many guests, Matthew

Cecil (Cecil), assaulted and seriously injured another guest.

Gundrum knew that Cecil had a tendency to become belligerent

when he was intoxicated but he permitted Cecil to drink anyway.

The    victim,       Marshall       Schinner        (Schinner),      ultimately       sued

Gundrum and West Bend to secure damages for Schinner's injuries.

       ¶3      West Bend disputed coverage.                  The insurer argued that

it    had    no   duty    to     defend    and     indemnify    Gundrum     because     his

actions as a party host were intentional; thus, there was no

"accident"        and     no     "occurrence"       under     the   Gundrum      family's

homeowner's insurance policy.                      West Bend also contended that

even if there were an occurrence under the policy, there was no

coverage because of an exclusion in the policy for bodily injury

arising out of a non-insured location.                       The party had been held

at a shed at Gundrum Trucking, a family-owned business that was
not an insured location under the homeowner's policy.

       ¶4      The   circuit       court    granted    summary      judgment     to     West
Bend       because   it    determined        that    there     is   no   accident     when

someone intentionally procures alcohol for an underage drinking
party,      and   even     if    Gundrum's       actions     were   an   accident,      the

victim suffered bodily injury at an uninsured location.

       3
       The parties, the circuit court, and the court of appeals
have referred to the insurance company as "West Bend Insurance
Company" and "West Bend Mutual Insurance Company."

                                              2
                                                                           No.        2011AP564



       ¶5     The court of appeals reversed on both issues.                                 The

court of appeals concluded that there was an occurrence because

Schinner's         assault       was   an     accident       when    viewed          from   the

standpoint         of   either     the      injured       person    (Schinner)         or   the

insured (Gundrum).              The court of appeals also concluded that the

non-insured location exclusion did not apply because Schinner's

injury did not arise from some "condition" of that premises.

       ¶6     The primary question before us is whether Schinner's

injury resulted from an occurrence as defined by the West Bend

homeowner's         insurance      policy,         thus    triggering          coverage     for

Gundrum.       If the answer is yes, we are required to determine

whether that coverage was excluded because the injury "arose out

of" an uninsured location that was not "used in connection with"

an insured premises under the homeowner's policy.

       ¶7     After carefully considering the facts in the record,

the allegations in Schinner's complaint, the pertinent language

in     the    homeowner's          insurance         policy,        and    our        previous

interpretations           of     "occurrence"        in     insurance          policies,    we
reverse       the       court     of     appeals      and     reach       the        following

conclusions.
       ¶8     First,      Gundrum's      actions      in    setting       up    an    isolated

shed    for    a    drinking       party,     procuring       alcohol      and       expecting
others to bring alcohol, inviting many underage guests to the

party, and encouraging the underage guests to drink——especially
an underage guest known to become belligerent when intoxicated——

were intentional actions that violated the law.                            Gundrum's many

intentional wrongful acts were a substantial factor in causing
                                               3
                                                                        No.      2011AP564



Schinner's     bodily      injury.          Viewed    from     the    standpoint       of   a

reasonable     insured,        Gundrum's      intentional        actions       created      a

direct risk of harm resulting in bodily injury, notwithstanding

his   lack    of    intent      that    a    specific        injury    occur.         Thus,

Schinner's     bodily      injury      was    not     caused    by    an    "occurrence"

within the meaning of the policy, and West Bend is not obligated

to provide insurance coverage for Gundrum.

      ¶9     Second, even assuming there was an occurrence under

the West Bend homeowner's policy, coverage is excluded because

the injury arose out of the use of an isolated shed for an

underage drinking party on uninsured premises.                          The fact that

the   Gundrums      kept      some   personal        property    insured       under    the

policy at the shed did not make the shed a premises used in

connection     with     the    insured's      residence,        as    those    terms    are

defined in the policy.                 Thus, the business shed was not an

insured      location      triggering        coverage     under       the     homeowner's

policy.

                               I. FACTUAL BACKGROUND
      ¶10    The facts of this case are derived from Schinner's

Second Amended Complaint against Gundrum and West Bend, witness
statements, police reports, Gundrum's deposition, and the West

Bend insurance policies of record.
      ¶11    In December 2008 Gundrum, then 21, resided with his

parents, Scott and Teri Gundrum, at their residence on State
Highway      144,   near       Slinger,      Wisconsin.          The       Gundrums     had




                                             4
                                                             No.     2011AP564



purchased a Home and Highway4 policy (homeowner's policy or the

policy) from West Bend covering their residential premises.                The

homeowner's    policy   contained    personal    liability    coverage     for

persons insured under the policy, including Gundrum.

     ¶12    The   personal      liability     coverage    applied     to    an

"occurrence":

     A.     Coverage E – Personal Liability

          If a claim is made or a suit is brought against
     an "insured" for damages because of "bodily injury" or
     "property damage" caused by an "occurrence" to which
     this coverage applies, we will:

          1.   Pay up to our limit of liability for the
     damages   for   which  an   "insured"  is   legally
     liable. . . .

          2.   Provide a defense at our expense by counsel
     of our choice . . . .
     ¶13    The   homeowner's    policy     defined   "occurrence"   as    "an

accident,     including   continuous        or   repeated     exposure     to

substantially the same general harmful conditions."

     ¶14    The policy contained an exclusion for bodily injury or

property damage liability arising out of a premises that is not

an "insured location."5




     4
       The highway, or automobile, portion of the policy is not
relevant to this case.
     5
       The homeowner's policy stated, "Coverages E            and F do not
apply to the following: . . . 'Bodily injury'                 or 'property
damage' arising out of a premises: a. Owned by an             'insured'; b.
Rented to an 'insured'; or c. Rented to others by             an 'insured';
that is not an 'insured location'."

                                     5
                                                               No.        2011AP564



     ¶15   The    homeowner's    policy       also       defined     an   insured

location in part as, "[t]he residence premises," the "part of

other premises, other structures and grounds used by you as a

residence," and any premises used by the insured "in connection

with" the premises described above.

     ¶16   West   Bend   had    also       issued    a    commercial      general

liability (CGL) policy to Howard, Jan, Scott, and Guy Gundrum,

doing business as HJSG Enterprises, located on Arthur Road near

Slinger.   The facilities at this address were commonly referred

to as Gundrum Trucking,6 where the events in question took place.

Because of its liquor exclusion clause, HJSG's CGL policy is not

at issue in this case.

    ¶17    On December 14, 2008, Gundrum hosted a party in a shed

at Gundrum Trucking.      The party lasted into the early morning


     The homeowner's policy also contained an exclusion for
intentional injury, stating that coverage did not apply to
"'[b]odily injury' or 'property damage' which is expected or
intended by an 'insured'."
     6
       West Bend issued the CGL policy to HJSG Enterprises, but
the CGL policy does not refer to Gundrum Trucking.

     The record includes a printed copy of the Wisconsin
Department of Financial Institutions (DFI) corporate record for
Gundrum Trucking, Inc., with its principal office on Arthur
Road, Slinger, presumably as proof of how HJSG Enterprises
publicly conducted its business, or that HJSG is a parent entity
of Gundrum Trucking, Inc.   However, the DFI record for Gundrum
Trucking, Inc. does not refer to HJSG Enterprises. Moreover, a
search of DFI corporate records reveals a Scott Gundrum
Trucking, LLC, also listing its principal office on Arthur Road
in Slinger.   For the sake of simplicity, we will refer to the
entity conducting business on Arthur Road near Slinger as
Gundrum Trucking.

                                       6
                                                                                No.     2011AP564



hours of December 15.                 It was not the first party hosted by

Gundrum at the shed. Gundrum                   testified         in    a   deposition          that

there was at least one prior party, but other witnesses recalled

multiple prior parties.7

       ¶18        As with previous parties, Gundrum texted friends about

the    party       and   expected     his   friends        to    text      or    tell       others,

ensuring a well-attended party.                         Gundrum later estimated that

more       than    40    partygoers    came        to    the    shed    on      the    night    of

December 14.             He also estimated that 40 to 50 percent of the

people were under the age of 21.

       ¶19        The site of the party was a pole barn approximately

40-by-60 feet in size.              It had no windows.                 This shed was used

by    the    trucking       company,     but       it    also    stored         some    personal

property belonging to Gundrum's extended family.                                  The property

included          boats,    a   camper,        and        two    snowmobile            trailers.

Gundrum's         immediate     family      stored        snowmobiles           in    the    shed.

These snowmobiles were insured under the Gundrums' homeowner's

policy.       Gundrum referred to the shed as the "toy shed" because
of "all the junk that's piled in there."

       ¶20        A portion of the shed was set up for parties.                             It was
furnished with couches, chairs, a table, a Ping-Pong table, a CD

player, and a refrigerator.                 The law enforcement personnel who




       7
       At his deposition, Gundrum testified that his father was
aware of small gatherings of friends at the shed, but that he
told Gundrum to "[u]se [his] judgment" and "to not have big
parties."

                                               7
                                                                          No.        2011AP564



responded to Schinner's injury described the atmosphere in the

shed as consistent with an "underage alcohol party."

        ¶21      Alcohol was prevalent at the party, despite the fact

that        up   to   half   of   the   guests       were   underage.         Some    guests

brought their own alcohol; underage guests expected to obtain

alcohol from people who were of legal drinking age.                                  Gundrum

purchased         two    cases    of    Busch       Light   beer    for   a     friend    and

himself.         He kept the beer in the refrigerator but admitted that

it was available for people who did not bring their own alcohol

to the party.           Law enforcement officers reported a "large amount

of alcoholic beverages" in the shed, and Gundrum was aware that

guests were becoming intoxicated from the alcohol at the party.

In fact, Gundrum himself stopped drinking when he realized that

so many guests showed up and became intoxicated.                                He claimed

that he wanted to monitor the situation.                       Nevertheless, alcohol

consumption at the party continued.                         One of the party games,

"beer        pong,"     utilized    the   Ping-Pong         table    in   the     shed    and

encouraged more alcohol consumption.8

        8
       According to Schinner's testimony at the preliminary
hearing in Cecil's criminal assault case, beer pong is a game in
which cups are set up on opposite ends of a Ping-Pong table.
Teams of participants attempt to toss or bounce Ping-Pong balls
into one of the other team's cups.     If successful, the other
team must drink the beer in that cup.

     While there are many variations of the rules of beer pong,
"the common object is the copious consumption of alcoholic
beverages."    Venito v. Salverson, No. 104110/08, 2011 WL
2464760, at *2 (N.Y. Sup. June 21, 2011). See also Kirchoff v.
Abbey, No. WMN-10-1532, 2011 WL 4711898 at *1 n.2 (D. Md. Oct.
5, 2011) ("Beer pong is a game that encourages players to drink
heavily.").

                                                8
                                                                   No.        2011AP564



     ¶22    Cecil was one of the intoxicated underage guests who

participated in beer pong during the party.                      He was known by

Gundrum    and    others   to    become       belligerent   when     intoxicated.

Gundrum    testified     that   he     knew   from    previous    occasions       that

Cecil would become confrontational, had a history of picking on

weaker kids, and used inflammatory language when intoxicated.

     ¶23    Eventually, an intoxicated Cecil started to make fun

of Schinner at the party.9           At least twice Schinner asked Gundrum

to intervene. But Gundrum's lone entreaty to Cecil to cease his

abusive    behavior      was    only     temporarily     successful.            Cecil

returned to making fun of Schinner.

     ¶24    At approximately 2:30 a.m., Schinner and some of his

friends left the shed and got into a car to leave the party.

Cecil also left the shed to taunt Schinner.                 When Schinner got

out of the car, Cecil punched him twice in the face and then

kicked him in the head after Schinner had fallen to the ground.

Schinner was seriously injured in the assault.

     ¶25    About    a   half   hour    later,    Washington      County      Sheriff
deputies    and     medical     personnel      were    dispatched        to   Gundrum

Trucking in response to an anonymous phone call about a physical
altercation and an injured male.               Deputies had trouble locating

Schinner because other guests had carried him inside the shed,
which had no windows "to peer into," and no one in the shed

would answer the door.          Eventually, law enforcement and medical


     9
       According to various accounts by Schinner and witnesses,
Cecil referred to Schinner as a "pussy," "homo," and "fag."

                                          9
                                                           No.       2011AP564



personnel gained entry and treated Schinner for his injuries.10

The   sheriff's   report   noted   that   once   law   enforcement    gained

access to the shed, party guests scattered and hid on top of and

behind a motorhome parked in the shed.

                        II. PROCEDURAL HISTORY

      ¶26   Schinner sued Gundrum and his insurer, West Bend, for

his injuries.     The Second Amended Complaint alleged, in part:

           6.   Defendant Gundrum knew and expected, based
      on a similar party held there months earlier, that
      individuals he invited would invite other youths, who
      in turn would invite others.

           7.   Defendant Gundrum knew and expected that a
      substantial number of individuals, 40%–50% of those in
      attendance, would be under the legal drinking age.
      The underage attendees at the party also knew that
      alcoholic beverages would be available for their
      consumption.


      10
       Schinner testified at the preliminary hearing in Cecil's
criminal case that he suffered spinal cord damage as a result of
the assault, and while Schinner has regained some movement in
his arms and legs, he is "considered quadriplegic."

     The record does not indicate what criminal charges Cecil
faced as a result of the Schinner assault.     The investigating
sheriff's deputy indicated in his supplemental report on the
assault that he would be requesting charges against Cecil for
battery, with intent to cause either substantial or great bodily
harm, contrary to Wis. Stat. § 940.19(2) (2007–08). The deputy
also recommended a hate crime penalty enhancer under Wis. Stat.
§ 939.645(1)(b) (2007–08).

     According to Consolidated Court Automation Programs (CCAP)
records, Cecil pled no contest to a charge of substantial
battery with intent to cause bodily harm, contrary to Wis. Stat.
§ 940.19 (2007–08).    Another charge, second-degree recklessly
endangering safety, contrary to Wis. Stat. § 941.30(2) (2007–
08), was dismissed but read in.

                                    10
                                                                 No.      2011AP564


            . . . .

          12. Defendant Michael Gundrum realized that the
     number of attendees, their age, and their intoxication
     level could lead to fights or arguments, and undertook
     the responsibility to monitor and supervise the party.
     ¶27    Schinner's first claim in the Second Amended Complaint

alleged a statutory violation in serving alcohol to minors.                       It

stated in part:

          21. On December 14th and 15th, 2008, Gundrum
     "procured" alcohol beverages for Cecil as that term is
     used in Chapter 125 of the Wisconsin Statutes or sold,
     dispensed[,] or gave away alcohol beverages to Cecil
     a[s] those terms are used in Chapter 125 of the
     Wisconsin Statutes.11

          22. Further, on December 14th and 15th, 2008,
     Gundrum committed affirmative acts which encouraged,
     advised and assisted Cecil in his consumption of
     alcohol.

          23. On December 14, 2008, Gundrum knew                         that
     Cecil had not attained the legal drinking age.

          24. On December     14th   and 15th,    2008, the
     consumption of beer by Cecil was a substantial factor
     in causing injury to plaintiff Marshall Schinner.
     ¶28    Schinner's      second    claim        in    the    Second     Amended
Complaint     alleged   a   breach    of    duty    as    a    party   host     that

ultimately led to Schinner's injuries.

     ¶29    West Bend moved the circuit court for "separate trials

on the issues of insurance coverage and liability and a stay of

proceedings     on    liability      pending   resolution         of     insurance



     11
       Gundrum pled no contest to a charge of selling or
dispensing alcohol to underage persons, contrary to Wis. Stat.
§ 125.07(1)(a) (2007–08).

                                       11
                                                                   No.         2011AP564



coverage issues."12        After conducting discovery, West Bend moved

for summary judgment.

     ¶30    The     circuit       court     granted      West     Bend's       motion,

concluding that there was no occurrence because "[t]here is no

allegation of any accidental conduct. . . .                     [A]ny acts on the

part of . . . Gundrum were intentional, namely his providing of

alcoholic beverages to underaged persons."                      In addition, the

circuit     court    ruled       that     the     location     exclusion       in     the

homeowner's policy was applicable "because the injury did not

occur at an insured location."

     ¶31    The court of appeals reversed.                   Schinner v. Gundrum,

2012 WI App 31, 340 Wis. 2d 195, 811 N.W.2d 431.                        The court of

appeals    focused upon       the      assault on     Schinner    rather       than    on

Gundrum's     actions       in      determining       whether     there        was     an

occurrence.         Id.,   ¶10.         Furthermore,     the    court    of    appeals

focused    upon     whether      the    assault    was   an    accident       from    the

standpoint of       the    injured      party——Schinner——although          the court

said it would have determined that there was an occurrence even

if the assault were viewed from the standpoint of Gundrum, the

insured.    Id., ¶¶10, 15.

     ¶32    The court of appeals cited three decisions by this

court to support its analysis that, "for purposes of determining


     12
       "Both the insurer and the insured have the right to have
the court resolve the issue of coverage separate from any trial
on liability." Estate of Sustache v. Am. Family Mut. Ins. Co.,
2008 WI 87, ¶26, 311 Wis. 2d 548, 751 N.W.2d 845; see also 2
Arnold P. Anderson, Wisconsin Insurance Law § 7.39, at 39 (6th
ed. 2012).

                                           12
                                                                              No.      2011AP564



whether an assault is an 'accident' or 'accidental' under an

insurance policy, the assault and resulting injuries must be

viewed from the standpoint of the person injured."                                    Id., ¶11

(citing     Tomlin    v.    State      Farm       Mut.    Auto.      Liab.     Ins.    Co.,    95

Wis. 2d 215, 219, 222, 290 N.W.2d 285 (1980); Fox Wis. Corp. v.

Century     Indem.    Co.,    219      Wis. 549,          551,    263    N.W. 567       (1935);

Button v. Am. Mut. Accident Ass'n, 92 Wis. 83, 85, 65 N.W. 861

(1896)).     The court concluded that the assault was an accident

from Schinner's standpoint and that this triggered coverage for

Gundrum under the homeowner's policy.                            Id., ¶15.           The court
acknowledged        that    its    conclusion            appeared       to    conflict       with

Estate of Sustache v. American Family Mutual Insurance Co., 2008

WI    87,   311     Wis. 2d 548,        751        N.W.2d 845,          which       viewed    the

question     of     whether       an   assault           was    an     accident       from    the

standpoint     of    the     insured,        but    the        court    stated       that    "the

outcome of the analysis is the same when viewed from either

vantage point."       Schinner, 340 Wis. 2d 195, ¶16.

      ¶33    The court of appeals also concluded that the exclusion

for   non-insured      locations        in    the        homeowner's         policy    did    not

apply.      Citing Newhouse v. Laidig, Inc., 145 Wis. 2d 236, 426

N.W.2d 88 (Ct. App. 1988), the court of appeals determined that

Schinner's injury did not "'aris[e] out of' the shed under the

terms of the policy because, while [the shed] was the undisputed

physical     situs     of     injury,        no     particular          condition      of     the

premises correlates to the basis of liability for the injury."

Id., ¶28 (emphasis added).


                                              13
                                                                          No.         2011AP564



      ¶34    West Bend petitioned this court for review, which we

granted on June 13, 2012.

                            III. STANDARD OF REVIEW

      ¶35    The    interpretation           of     an    insurance       contract        is    a

question of law which this court reviews de novo.                                Everson v.

Lorenz, 2005 WI 51, ¶10, 280 Wis. 2d 1, 695 N.W.2d 298.

      ¶36    "We    review       a    grant       of     summary    judgment      de       novo,

relying on the same methodology as the circuit court."                                    Estate

of Sustache, 311 Wis. 2d 548, ¶17 (citing Doyle v. Engelke, 219

Wis. 2d 277, 283, 580 N.W.2d 245 (1998)).                          Summary judgment is

proper where the record demonstrates that there is no genuine

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

entitled to judgment as a matter of law.                      Wis. Stat. § 802.08(2)

(2009–10); Estate of Sustache, 311 Wis. 2d 548, ¶17.

                                      IV. DISCUSSION

      ¶37    When determining whether an insurance policy provides

coverage, a court first looks to the initial grant of coverage.

Estate of Sustache, 311 Wis. 2d 548, ¶22; Wadzinski v. Auto-

Owners      Ins.    Co.,   2012        WI     75,      ¶14,   342    Wis. 2d 311,              818

N.W.2d 819.        Normally, if the court determines that the policy

was   not    intended      to    cover       the       asserted    claims,      it     is    not

necessary     to    examine          the    policy's       exclusions.           Estate        of

Sustache, 311 Wis. 2d 548, ¶22.                     "If the court determines that

the   initial      grant   of    coverage          does    cover    the   type       of    claim

presented, the second step requires the court to examine the

policy's     exclusions         to    determine         whether     coverage      has       been

withdrawn by an exclusion."                    Wadzinski, 342 Wis. 2d 311, ¶14
                                              14
                                                                              No.     2011AP564



(citing Am. Family Mut. Ins. Co. v. Am. Girl, Inc., 2004 WI 2,

¶24, 268 Wis. 2d 16, 673 N.W.2d 65).                         "[I]f coverage for the

claim has been withdrawn by an exclusion, the court examines any

exceptions to that exclusion that might reinstate coverage for

the claim."       Id.

     ¶38     We    interpret        an   insurance      contract         as     it   would    be

understood    by        a   reasonable     person       in    the    position          of    the

insured.      Am.       Girl,      268   Wis. 2d 16,         ¶23.        In     interpreting

insurance policy language, we seek to "give effect to the intent

of the contracting parties."                Id. (citing Wis. Label Corp. v.

Northbrook        Prop.      &    Cas.   Ins.    Co.,    2000       WI        26,    ¶23,    233

Wis. 2d 314, 607 N.W.2d 276).

                            A. Was There an "Occurrence"?

     ¶39     The Gundrums' homeowner's policy states:

     A. Coverage E – Personal Liability

          If a claim is made or a suit is brought against
     an "insured" for damages because of "bodily injury" or
     "property damage" caused by an "occurrence" to which
     this coverage applies, we will:

          1.   Pay up to our limit of liability for the
     damage to which an "insured" is legally liable. . . .

         2.   Provide a defense at our expense by counsel
    of our choice . . . .
(Emphasis added.)             As noted previously, the homeowner's policy

defines an occurrence as "an accident, including continuous or
repeated   exposure          to    substantially      the     same       general       harmful

conditions . . . ." (Emphasis               added.)          The    homeowner's         policy
does not define the term "accident."


                                            15
                                                                                No.       2011AP564



        ¶40    Our first task in this analysis is to determine from

whose    standpoint             an      alleged      accident     should       be    viewed:    the

injured party or the insured?                          We then must determine whether

the facts alleged in the Second Amended Complaint constitute an

occurrence or accident covered under the policy.

        1. From Whose Standpoint Should an Accident be Viewed?

      ¶41      Liability             insurance        policies,      like      the     homeowner's

policy in this case, typically contain a provision in which the

insurer        agrees         to     indemnify         the   insured         against     liability

resulting          from       claims     for     bodily      injury     or     property    damage

caused        by    an        occurrence        or     accident.         However,       insurance

treatises          indicate          that    the       definition       of     "occurrence"      in

standard liability policies has changed over time.

      ¶42      Before 1966 standard insurance liability policies did

not     contain          an     occurrence           requirement.            Instead,    policies

"required proof that the bodily injury or property damage was

the result of an 'accident' which was interpreted to mean a

sudden, identifiable event."                         3 Martha A. Kersey, New Appleman

on    Insurance           Law      Library      Edition      § 18.02[6][a]           (Jeffrey    E.

Thomas & Francis J. Mootz, III, eds., 2012).                                 Standard liability

policies were changed in 1966 to include the word "occurrence,"

which    was        defined        as    "an    accident,       including        continuous      or

repeated exposure to conditions, which results in bodily injury

or    property           damage       neither        expected     nor    intended        from   the

standpoint of the insured."                     Id.

        ¶43    In 1986 the definition was changed again, this time

removing           the    phrase         "not        expected   or      intended        from    the
                                                      16
                                                                            No.           2011AP564



standpoint        of    the    insured"        and    moving       that    phrase         to     the

intentional acts exclusion in the liability policy.                              See id.

         ¶44    Assaults, given their intentional nature, would seem

never     to    constitute      an    occurrence        under      a    general      liability

policy.         However, "courts have taken or adopted two divergent

positions as to from whose perspective the assault is to be

viewed     in    determining        whether     it    constitutes         an     'accident'."

Annotation, Liability Insurance: Assault as an "Accident," or

Injuries Therefrom as "Accidentally" Sustained, Within Coverage

Clause, 72 A.L.R. 3d 1090, 1095 (1976); see also 9 Steven Plitt,

Daniel Maldonado & Joshua D. Rogers, Couch on Insurance § 127:21

(3d ed. 2008).           Some courts have held that this determination

should be made from the standpoint of the injured party, while

other courts have held that the determination must be made from

the standpoint of the assailant who is often——but not always——

the insured.

         ¶45    Schinner urges us to decide the question of whether an

"accident" took place from the standpoint of the injured party.

At oral        argument,      counsel for        Schinner         asserted     that        if    the

language        "expected      or    intended        from    the       standpoint         of     the

insured" is not present in the definition of occurrence, then,

as   a    default      rule,    the       occurrence     must      be     viewed     from        the

standpoint of the injured party.                        Schinner and the court of

appeals        both    look    to    Button,     Fox,       and    Tomlin      as    Wisconsin

precedent on point.            We examine each case in turn.

         ¶46    In Button, the insured plaintiff was injured by the

"intentional          discharge      of    a   firearm"      directed       at      him     by    an
                                               17
                                                             No.      2011AP564



unknown person.     Button, 92 Wis. at 84.        The policy at issue, an

accident    policy,   insured    the       plaintiff   against      "death   or

injuries through 'external, violent, and accidental means,'" but

contained    an   exclusion   for,    among    other   things,     intentional

injuries.     Id. at 84–85.      The Button court concluded that "an

injury intentionally inflicted on the insured person by another

is an 'accidental injury,' when such injury is unintentional on

the part of the insured."       Id. at 85 (citation omitted).            It is

important to reiterate that, in Button, the injured party was

also the insured party.       Id. at 84-85.

     ¶47    In Fox, an insurer refused to indemnify an insured

theater when one of the theater's employees assaulted a patron

and the patron sued the theater for damages.              Fox, 219 Wis. at

550 (summary of the case).           Citing Button, the Fox court held

that "[w]hether or not an injury is accidental under the terms

used in the policy here involved is to be determined from the

standpoint of the person injured."             Id. at 551.         Thus, Fox's

holding misconstrued Button by substituting the term "injured"

for "insured."     While the Button plaintiff was both the injured

and insured, Fox's holding focused exclusively on the injured

party's perspective.13


     13
          The court later explained the theater's position:

          The appellant is subject to the liability for
     damages flowing from the tortious conduct of its
     employee.    This liability is imposed upon [the]
     assured by law under the rule of respondeat superior.
     Although the appellant may be held liable for such
     tort, it cannot be said that it committed the assault,
                                      18
                                                                  No.       2011AP564



     ¶48     Finally, in Tomlin this court concluded that injuries

sustained    by   a    state    patrol    officer    who    was   stabbed     by   an

insured     motorist     during     a    traffic     stop    were       "caused    by

accident,"     within     the     meaning      of   the    insured      assailant's

automobile liability policy.              Tomlin, 95 Wis. 2d at 222.               The

Tomlin court stated:

          In determining whether an injury is "caused by
     accident" or "accidentally sustained" within the
     coverage afforded by a liability insurance policy, the
     courts have been primarily concerned with the question
     of whether the occurrence is to be viewed from the
     standpoint of the injured person or the insured. The
     majority  of   courts,  including  this court,    when
     considering the question, have held or recognized that
     the determination of whether injuries resulting from
     an assault were caused by "accident" or "accidentally
     sustained" must be made from the standpoint of the
     injured party, rather than from that of the person
     committing the assault.
Id. at 219 (citing Annotation, Liability Insurance: Assault as
an   "Accident,"        or     Injuries        Therefrom    as    "Accidentally"

Sustained, Within Coverage Clause 72 A.L.R.3d 1090 (1976); 12

George J. Couch, Ronald A. Anderson, & Mark S. Rhodes, Couch on

Insurance § 45:38, at 133-34 (2d ed. 1959)) (emphasis added).

     ¶49     On the surface, Tomlin stands for the proposition that

an accident should be viewed from the standpoint of the injured

party, not the insured.            But there is a factual caveat.                  In

Tomlin, the injured officer was stabbed by a minor.                     The officer

     nor that it authorized it. Thus the appellant has not
     placed itself outside the terms of the policy . . . .

Fox Wis. Corp. v. Century Indem. Co., 219 Wis. 549, 551-52, 263
N.W. 567 (1935).

                                          19
                                                                               No.      2011AP564



sued the minor and the minor's parents.                              Under Wisconsin law,

Wis. Stat. § 343.15(2) (1977–78), "Any . . . wilful misconduct

of a person under the age of 18 years when operating a motor

vehicle upon the highways is imputed to the parents . . . .                                    The

parents . . . [are]              jointly       and     severally         liable       with    such

operator        for       any         damages        caused       by      such . . . wilful

misconduct."              See     also     Wis.        Stat.        § 895.035         (1977–78).

Consequently, the court may have perceived the parents as being

in the same position as the theater in Fox.
       ¶50     While the decisions in Button and Fox make good sense,

the    rule     stated      in        Tomlin    comes       out     of    an    extraordinary

situation and is distinguishable on that basis.

       ¶51     Analyzing         an    accident       from     the       standpoint      of    the

injured       party       goes    against        recent       insurance         decisions      in

Wisconsin, which considered whether the insured acted with lack

of    intent    in    a    particular          incident.          See,     e.g.,      Estate    of

Sustache, 311 Wis. 2d 548, ¶52; Am. Girl, 268 Wis. 2d 16, ¶¶37–

49;    Smith    v.    Katz,       226    Wis. 2d 798,          819–21,         595    N.W.2d 345

(1999); Bruner v. Heritage Cos., 225 Wis. 2d 728, 737–38, 593

N.W.2d 814 (Ct. App. 1999); Kalchthaler v. Keller Constr. Co.,

224 Wis. 2d 387, 397, 591 N.W.2d 169 (Ct. App. 1999); cf. 43 Am.

Jur. 2d Insurance § 674 (2003) ("The determination of whether an

injury resulted from an accident within an occurrence clause of

a     liability       policy      is     made        from     the      standpoint       of     the

insured.").          This approach is consistent with the idea that a

court should interpret an insurance policy from the standpoint

of    a   reasonable         person       in     the    position          of    the     insured.
                                                20
                                                                         No.      2011AP564



Wadzinski, 342 Wis. 2d 311, ¶11.                Moreover, when interpreting an

insurance contract a court should give effect to the intentions

of    the    parties,    Folkman    v.     Quamme,     2003    WI    116,        ¶12,      264

Wis. 2d 617, 665 N.W.2d 857, not the intent of a third party.

       ¶52    Therefore, we hold that when an insured is seeking

coverage, the determination of whether an injury is accidental

under a liability insurance policy should be viewed from the

standpoint of the insured.

              2. Determining Whether an Accident Took Place

       ¶53    Numerous    courts     and     commentators,         both        inside      and

outside of Wisconsin, have attempted to define and interpret the

term    "accident"      when    determining        whether     insurance         coverage

applies.       Compare 9 Steven Plitt, Daniel Maldonado, & Joshua D.
Rogers,      Couch   on       Insurance    § 126:26         ("an    accident          is    a

distinctive event that is unforeseen and unintended") with 1

Arnold P. Anderson, Wisconsin Insurance Law § 5.18, at 26 (6th

ed.    2012)    ("The     difficulty       comes      in    determining . . . what

triggers the coverage.").

       ¶54    This court has interpreted the term "accident" in an

insurance      policy    in    previous    decisions,        and    we    look     to      our

earlier decisions for guidance.

       ¶55    In Doyle we reviewed an employer's alleged negligent

supervision of its employees.               Doyle, 219 Wis. 2d at 281.                     The

court was called upon to interpret the term "event" in a CGL

policy,      which   defined       "event"      as    "an     accident,         including

continuous      or   repeated      exposure      to    substantially            the     same

general harmful conditions."             Id. at 289.
                                           21
                                                                       No.        2011AP564



      ¶56    Because the word "accident" was undefined in the CGL

policy, the Doyle court looked to dictionary definitions and

found that "accident" was commonly defined as "'[a]n unexpected,

undesirable     event'       or   'an     unforeseen       incident'          which     is

characterized    by    a     'lack   of   intention.'"           Id.    (quoting       The

American Heritage Dictionary of the English Language 11 (3d ed.

1992)).     The Doyle court also examined the dictionary definition

of negligence, which was defined as "'failure to exercise the

degree of care considered reasonable under the circumstances,

resulting in an unintended injury to another party.'"                              Id. at
289–90     (quoting    The    American    Heritage      Dictionary,          supra,     at

1209).      The court noted that both definitions "center on an

unintentional occurrence          leading      to    undesirable       results,"       and

the    court    concluded         that    "a        reasonable     insured           would

expect . . . [a       policy] provision         defining    'event'          to   include

negligent acts."       Id. at 290 (emphasis added).14
      14
       Relying on dram shop law in Chapter 125 of the Wisconsin
Statutes, Schinner argues that furnishing alcohol to a minor in
Wisconsin is negligent, not intentional, conduct.     He asserts
that because negligence can constitute an occurrence under an
insurance policy, Doyle v. Engelke, 219 Wis. 2d 277, 290, 580
N.W.2d 245 (1998), Gundrum's furnishing of alcohol to minors was
negligent and should trigger coverage.

     We reject this argument. The facts alleged in a complaint
or as supplemented by affidavits determine a duty to defend and
trigger coverage under an insurance policy, not a plaintiff's
theories of liability. See, e.g., Doyle, 219 Wis. 2d at 284–85
(stating that the insurer has a duty to defend where the
plaintiff's complaint alleges facts that would give rise to
liability under a policy); Berg v. Schultz, 190 Wis. 2d 170,
177, 526 N.W.2d 781 (Ct. App. 1994) (courts "must focus on the
incident or injury that gives rise to the claim, not the
plaintiff's theory of liability").

                                          22
                                                                              No.         2011AP564



      ¶57    In    American         Girl     we     interpreted         a    CGL     policy     to

determine     whether         the     policy      provided      coverage          for     property

damages resulting from an alleged occurrence.                                 Am. Girl, 268

Wis. 2d 16,       ¶¶1–3.         In    American       Girl      a   subcontractor            "gave

faulty      site-preparation           advice        to    a   general        contractor        in

connection with the construction of a warehouse.                                  As a result,

there was excessive settlement of the soil after the building

was completed," and the warehouse was so damaged that it had to

be torn down.               Id., ¶3.       Once again, the CGL policy defined
occurrence        as    an    accident,        but    the      policy       did     not     define

accident.     Id., ¶37.

      ¶58    As        in    Doyle,    the     American        Girl     court       turned      to

dictionaries for help in interpreting the term accident:

      The dictionary definition of "accident" is: "an event
      or condition occurring by chance or arising from
      unknown or remote causes."       Webster's Third New
      International Dictionary of the English Language 11
      (2002).   Black's Law Dictionary defines "accident" as
      follows: "The word 'accident,' in accident policies,
      means an event which takes place without one's
      foresight   or   expectation.      A   result,  though
      unexpected, is not an accident; the means or cause
      must be accidental."   Black's Law Dictionary 15 (7th
      ed. 1999).
Id.   (emphasis         added).        In    light        of   these        definitions,       the

American Girl court concluded that the circumstances in the case

     Furthermore, an allegation of negligence is not the
equivalent of an occurrence.    Am. Family Mut. Ins. Co. v. Am.
Girl, Inc., 2004 WI 2, ¶45, 268 Wis. 2d 16, 673 N.W.2d 65
("Doyle did not . . . equate the term 'accident,' as used in the
CGL policy, with negligence as a form of legal liability; we
simply held that negligent acts were 'accidental' within the
meaning of the CGL's definition of 'event.'").

                                               23
                                                                   No.     2011AP564



constituted an occurrence under the policy: the property damage

was "clearly not intentional," nor was it "anticipated by the

parties."        Id., ¶38.      More specifically:

      The damage to the [warehouse] occurred as a result of
      the continuous, substantial, and harmful settlement of
      the soil underneath the building.     [The] inadequate
      site-preparation advice was a cause of this exposure
      to harm. Neither the cause nor the harm was intended,
      anticipated, or expected.      We conclude that the
      circumstances of this claim fall within the policy's
      definition of "occurrence."
Id. (emphasis added) (footnote omitted).15

      ¶59       In Everson we reviewed whether misrepresentation in a

real estate transaction constituted an occurrence under a CGL

policy.         Everson, 280 Wis. 2d 1, ¶2.          After the transaction, the

buyers determined that a portion of their lot was in a 100-year

floodplain, contrary to the representations made by the seller

in a real estate condition report given to the buyers.16                        Id.,

¶5.        As    a    result,   the   buyer    was   unable   to   build   on   that

location.            Id.   The buyer sued the seller, but the seller's

insurer argued that it had no duty to defend and indemnify under

its CGL policy to the seller.                 Id., ¶7.   The CGL policy covered

      15
       See also Stuart v. Weisflog's Showroom Gallery, Inc.,
2008 WI 86, 311 Wis. 2d 492, 753 N.W.2d 448.    The Stuart court
adopted American Girl's requirement that the underlying causal
event must be accidental for the event to be an occurrence, not
the unexpected result.   Id., ¶40.   "It does not matter whether
[the defendants] intended a specific result; what matters is
whether the cause of the damage was accidental." Id.
      16
       The real estate condition report appeared to have
contained a typographical error that the buyer relied upon when
purchasing a particular lot.    Everson v. Lorenz, 2005 WI 51,
¶16, 280 Wis. 2d 1, 695 N.W.2d 298.

                                          24
                                                                         No.      2011AP564



property damage caused by an occurrence.                      The policy defined the

term     "occurrence"     as     an     accident,       but     "accident"        was    not

defined.       Id.,    ¶¶12,     15.      Thus,     the       Everson    court     had    to

determine      whether      the        seller's        alleged       misrepresentation

constituted an accident and triggered coverage under the CGL

policy.

       ¶60    Noting that "this court has often relied on dictionary

definitions for assistance," the Everson court looked to Black's

Law Dictionary, which defined an "accident" as "'[a]n unintended

and    unforeseen     injurious       occurrence;       something        that    does    not

occur    in   the   usual      course    of     events    or     that    could     not    be

reasonably      anticipated.'"            Id.,     ¶15        (quoting     Black's       Law

Dictionary 15 (7th ed. 1999)).                  The court also cited the Doyle

court's definition of "accident": "'[a]n unexpected, undesirable

event' or 'an unforeseen incident' which is characterized by a

'lack of intention.'"          Id. (quoting Doyle, 219 Wis. 2d at 289).

        ¶61   Ultimately,       the     Everson     court       concluded        that    the

seller's      misrepresentations         did     not     constitute       an     accident.

Id., ¶18.      The seller's misrepresentation required a "degree of

volition inconsistent with the term accident."                       Id., ¶19 (citing

Sheets v. Brethren Mut. Ins. Co., 679 A.2d 540, 552–53 (Md.

1999) (Karwacki, J., dissenting)) (emphasis added).                             The seller

may have made a mistake in a real estate condition report when

he initially placed the lot outside of the 100-year floodplain.

Id., ¶¶5 n.3, 22.        However, the seller later acted with volition

when he intentionally gave this information to the buyer.                               Id.,

¶22     (emphasis     added).         "[S]tripped        to    its    essentials,"        an
                                           25
                                                                                No.      2011AP564



action, not an accident, caused the seller to give misleading

information to the buyer.                Id.

        ¶62   Finally,       in    Estate           of     Sustache,       we      reviewed      an

occurrence case        somewhat          similar to            this     matter.        Estate    of

Sustache involved a fight at an underage drinking party in which

the insured punched a victim, causing the victim to fall to a

curb and sustain severe injuries that ultimately led to death.

Estate of Sustache, 311 Wis. 2d 548, ¶5.                              There was no dispute

that the insured assaulter intended to strike the victim, but

there was also no dispute that the insured assaulter did not

intend the blow to be fatal.                   Id.       The estate and parents of the

victim    sued   the     assaulter         and       his       insurer,    American       Family,

which    moved for      summary judgment                  on    the   grounds         that, inter

alia, the damages were not caused by an occurrence under the

policy.       Id.,    ¶¶6,    12.         Once       again,       the     policy      defined    an

"occurrence" as an accident, but the policy did not define the

term "accident."        Id., ¶9.

        ¶63   After    reviewing         our        previous      analysis        of    the    term

"occurrence" in Doyle, American Girl, Everson, and Stuart v.

Weisflog's Showroom Gallery, Inc., 2008 WI 86, 311 Wis. 2d 492,

753     N.W.2d 448,      we       held    in        Estate       of     Sustache        that    the

allegations in the complaint, supplemented by the deposition of

the insured assaulter, could not "reasonably be construed to

constitute a covered claim" under the American Family policy.

Id., ¶51.

        ¶64   Considering          one         of        the     Doyle      definitions          of

"accident"——"an unintentional occurrence leading to undesirable
                                                26
                                                                         No.        2011AP564



results"——we          concluded         that    the     insured's     actions       did     not

constitute an accident.                 The insured may not have intended the

unexpected result, but he did intend to throw the punch that

ultimately        led    to    the      death    of     the   victim.       Id.,     ¶¶52–53

(quoting Doyle, 219 Wis. 2d at 290).                      American Girl's definition

of    "accident"        also       reinforced    our    conclusion.         The    means     or

cause of the victim's bodily harm was an intentional punch; the

punch could not be said to occur by chance or arise from an

unknown      or    remote      cause.          Id.,     ¶53   (citing   Am.       Girl,    268
Wis. 2d 16,           ¶37).             We      also     noted      that,         like      the

misrepresentation             in    Everson,     the    insured     assaulter's          action

required      a    degree          of   volition       inconsistent     with       the    term

"accident."        Id., ¶54 (citing Everson, 280 Wis. 2d 1, ¶19).

       ¶65    With the above cases and their interpretations of an

insurance policy's requirement of an "occurrence" or "accident"

in mind, we turn to the facts of this case.

       ¶66    At the outset, we must determine where to focus our

analysis.         More specifically, what is the injury-causing event

in this case?           Is it Cecil's assault on Schinner, or is it the

actions of Gundrum in hosting the party?                             In this case, as

opposed      to   a     case       against     Cecil,    Schinner's     Second       Amended

Complaint alleges that wrongful conduct by Gundrum caused his

bodily injury.          Normally, the allegations in a complaint are the

allegations an insurer must defend or indemnify, and it is these

alleged facts that determine whether there is coverage under the

homeowner's policy.                 See Doyle, 219 Wis. 2d at 284-85.                     Here,

the    circuit        court        considered        additional     evidence,       but     the
                                                27
                                                                          No.      2011AP564



additional evidence did not undermine or change the thrust of

the allegations in the complaint.

      ¶67    There is no question that Cecil intended to assault

Schinner.         Schinner does not contend that Gundrum intended or

approved    of     Cecil's      assault    or    that        he   ever   wanted    to    see

Schinner injured.

      ¶68    However, the allegations in Schinner's Second Amended

Complaint    and other evidence            make     clear         that   Gundrum    took a

number of intentional actions that ultimately caused Schinner's

bodily injury.        Gundrum intended to host the party and, based on

the experience from an earlier party he hosted, he intended that

the "individuals he invited would invite other youths, who would

in turn invite others."            Gundrum intended that minors attend his

party.      He     "knew   and    expected       that    a    substantial       number    of

individuals" were under the legal drinking age and that these

underage attendees would consume alcohol made available to them

at   the    party.         By    making    the     arrangements          for    beer    pong

throughout the evening, Gundrum actively promoted heavy drinking
at the party.          In violation of Chapter 125 of the Wisconsin

Statutes, Gundrum procured alcohol for Cecil and other minors.
Gundrum knew that Cecil was an underage individual who became

belligerent when intoxicated.              Nonetheless, Gundrum "encouraged,
advised     and    assisted      Cecil    in     his     consumption       of   alcohol."

Gundrum's actions in hosting an underage drinking party and in
procuring alcohol for Cecil and others were intentional.                                 See

Doyle, 219 Wis. 2d at 290 (concluding that an "accident" is an

"unintentional        occurrence         leading        to    undesirable        results")
                                           28
                                                                                      No.         2011AP564



(emphasis added).              Gundrum's actions were entirely volitional.

He did not host the underage drinking party by mistake, against

his will, or by chance. See Everson, 280 Wis. 2d 1, ¶19.

      ¶69    As    we     stated          in    American         Girl,       "A       result,      though

unexpected,       is    not     an    accident;           the        means       or   cause       must    be

accidental."       Am. Girl, 268 Wis. 2d 16, ¶37 (citation omitted).

Here, "the means or cause" of Schinner's bodily injury was not

accidental.        The intentional, illegal procuring and serving of

alcohol     to    Cecil    exposed             Schinner         to       harm.        Gundrum's         many

intentional acts were a substantial factor in causing Schinner's

bodily injury.          The events leading up to the bodily injury were

not remote and were not accidental.

      ¶70    As a general rule, where an insured acts intentionally

to cause bodily injury to another, insurance coverage for the

injury    will    not     be    available.                This       case     is      more    difficult

because     bodily       injury           was       not   intended           and      there       was     no

certainty that it would occur.                        On the other hand, bodily injury

was   hardly      unforeseeable.                 All      the    conditions            for    a    tragic

injury    had     been    put        in    place,         and    they        were      put    in    place
intentionally.           As the Michigan Supreme Court concluded in an

insurance coverage case dealing with an occurrence, "when an
insured's    intentional             actions         create          a    direct      risk    of     harm,

there can be no liability coverage for any resulting damage or
injury,     despite       the    lack          of    an   actual          intent       to    damage       or

injure."     Frankenmuth Mut. Ins. Co. v. Masters, 595 N.W.2d 832,

839 (Mich. 1999) (quoting Auto Club Grp. Ins. Co. v. Marzonie,

527 N.W.2d 760, 771 (Mich. 1994) (Griffin, J., concurring)).
                                                     29
                                                                              No.        2011AP564



        ¶71    Given the facts of this case, it is not reasonable to

argue     that        a     fight           between      intoxicated         teenagers          was

"unexpected"          or    "unforeseen,"               Doyle,    219       Wis. 2d at         289,

especially when one of the underage drinkers was known to become

belligerent       when          he    was     drunk.        Gundrum      anticipated           that

something undesirable, like a fight, might happen at his party:

he stopped drinking when he realized the increasing number of

guests    attending         the       party along        with     the   amount      of    alcohol

being consumed created a volatile situation.                             It is no leap of

logic    to     conclude         that       Gundrum     knew     that   a    combination         of

underage partygoers, alcohol, and games like beer pong would

create    a     powder      keg.            To    aggravate      this    already         volatile

situation, Gundrum heard Schinner's pleas to intervene and stop

the relentless taunting he was receiving from Cecil who had a

reputation for belligerence when he was intoxicated.

    ¶72        Schinner urges us to adopt an approach in determining

an occurrence like the approach taken by the Minnesota Supreme

Court in American Family Insurance Co. v. Walser, 628 N.W.2d 605
(Minn. 2001).          In that case, three youths were playing in a high

school gym, when one of them, Jewison, jumped up and hung from

the rim of the basketball hoop.                          Id. at 607.          The other two

pulled on Jewison's ankles several times until finally he fell

and suffered bodily injury.                       Id.     Jewison sued the other two

youths,       Walser      and    Shoemaker,        but     Walser's     insurer,         American

Family, argued it had no duty to defend or indemnify Walser

because       there       was    no     occurrence        under    Walser's         homeowner's

policy.        Id.     at   608.            The   definition      of    occurrence        in    the
                                                  30
                                                                     No.      2011AP564



American Family policy was identical to the homeowner's policy

in this case——"an accident," which the policy did not define.

Id. at 609.

      ¶73     The Minnesota Supreme Court held that "in analyzing

whether there was an accident for purposes of coverage, lack of

specific intent to injure will be determinative, just as it is

in an intentional act exclusion analysis."                     Id. at 612.          Thus,

the   court    concluded       that    while   Walser    acted       intentionally——

pulling at Jewison's ankles while he hung from the basketball

hoop——Walser did not act with specific intent to injure Jewison,

thereby constituting an occurrence and triggering coverage under

the   American    Family    policy.         Id.   at    613.      The      court    also
concluded     that,    since     the   three   youths    were     merely      "goofing

around," that both Jewison and Walser had hung on the basketball

rim before and fallen to the ground without injury, and that

Walser's     actions    were     merely    impulsive     actions       resulting       in

unintentional     injury,      the     intentional     acts    exclusion      did     not

apply.    Id. at 614–15.

      ¶74     We have two reservations about applying Walser to the

present     situation.      First,      our    insurance      case    law    does     not

require that an insured intend to harm, or know with substantial

certainty that harm will occur, in order to determine that the

harm was not an accident.                 An accident is "an unintentional

occurrence      leading     to     undesirable       results."             Doyle,     219

Wis. 2d at 290.        To assess the existence of an accident, a court

will focus on the "means or cause" of harm to determine whether

it was truly accidental, even if the result was unexpected.                           Am.
                                          31
                                                                No.       2011AP564



Girl, 268 Wis. 2d 16, ¶37.         Here, there was intentional conduct

in throwing the illegal underage drinking party and encouraging

Cecil to drink when Gundrum had knowledge of Cecil's aggressive

behavior   when   intoxicated.          Intent,    volition,    knowledge,      and

foreseeability are all present, consistent with our case law.

Gundrum's conduct was not accidental, so no occurrence triggered

coverage under the homeowner's policy.

     ¶75    Second, Gundrum's conduct and Schinner's injury differ

greatly    from   the   conduct    and    injury    in   Walser.        While   the
actions of the three youths in Walser were described as "goofing

around" and "impulsive," Gundrum was doing more than "goofing

around."     Gundrum     planned    a    large     drinking    party,    procured

alcohol for minors, knew of Cecil's belligerence, and encouraged

Cecil's consumption of alcohol.               We believe that the facts of

this case——intentionally providing alcohol to minors, resulting

in bodily injury——are closer to the facts in a Minnesota Court

of Appeals case, Illinois Farmers Insurance Co. v. Duffy, 618

N.W.2d 613 (Minn. Ct. App. 2000).17




     17
       The Minnesota Supreme Court's decision in American Family
Insurance Co. v. Walser, 628 N.W.2d 605 (Minn. 2001), did not
specifically overrule the Minnesota court of appeals decision
cited by West Bend in this case, Illinois Farmers Insurance Co.
v. Duffy, 618 N.W.2d 613 (Minn. Ct. App. 2000), review denied
(Jan. 26, 2001).    In fact, the Walser decision did not even
mention Duffy.   In Duffy, the Minnesota Court of Appeals held
that the intentional act of providing alcohol to minors was
wrongful conduct and did not constitute an occurrence under a
homeowner's insurance policy. Duffy, 618 N.W.2d at 615.

                                         32
                                                                   No.       2011AP564



        ¶76     Schinner   also   contends    that    the   lack    of   a    liquor

exclusion in the homeowner's policy is important in this case.

He argues that since other homeowner policies contain liquor

exclusions,18 and West Bend could have put one in its policy,

this court should not rewrite the contract to help West Bend

avoid        coverage.     Schinner   also   points   to    the    presence     of    a

liquor exclusion in the CGL policy for Gundrum Trucking.19                           If

West Bend anticipated liquor liability coverage under the CGL

policy and specifically excluded it, he argues, then surely the

homeowner's policy was expected to cover liquor liability in the

absence of such an exclusion.           We are not persuaded.

     ¶77        CGL policies typically contain an exclusion for liquor

liability.        See, e.g., 1 Anderson, supra, at § 5.187; 9A Lee R.


     It is not surprising that Duffy is still good law.     The
Duffy court and courts in other states have found no accident,
or no occurrence, under a homeowner's policy when an insured
intentionally or knowingly provides alcohol to a minor and
injury results.   See, e.g., Am. Modern Home Ins. Co. v. Corra,
671 S.E.2d 802, 806–07 (W. Va. 2008) (holding that there is no
occurrence and a homeowner's policy does not provide coverage
when injury is caused by an insured's conduct in "knowingly
permitting" a minor to consume alcohol on the insured's
property); Allstate Ins. Co. v. J.J.M., 657 N.W.2d 181, 184
(Mich. Ct. App. 2002) (concluding that the insured "reasonably
should have expected that giving minors enough alcohol to allow
them to pass out would result in harm" and thus no accident
giving rise to coverage existed).
     18
       As an example of a homeowner's policy containing a liquor
exclusion, Schinner cites Anderson v. American Family Mutual
Insurance Co., 2002 WI App 315, 259 Wis. 2d 413, 655 N.W.2d 531.
        19
       The written summary judgment decision in this case
mistakenly placed the liquor exclusion in the homeowner's
policy, not the CGL policy.

                                        33
                                                                           No.         2011AP564



Russ,        Thomas   F.   Segalla,      Steven      Plitt,       Daniel    Maldonado,        &

Joshua D. Rogers, Couch on Insurance § 129:32 (3d ed. 2005).

However, these same treatises say nothing about the frequency of

liquor liability exclusions in homeowner's policies.                               Although

Schinner cites one Wisconsin case20 to support his assertion that

these exclusions are common to homeowner's policies, the absence

of   an      exclusion     does    not   necessarily          mean    the    presence        of

coverage.

      ¶78       As noted above, the first step in a court's analysis

of   an      insurance     contract      is    to    examine      whether        the    policy

provides an initial grant of coverage.                      See, supra, ¶37.            Hence,
if a given set of facts do not trigger coverage, it is not

necessary to look at a policy's exclusions.                           West Bend could

have inserted a liquor liability exclusion into the policy, but

we   would      not   have    reached     it   under        the   facts     of    this     case

because Gundrum's intentional and illegal conduct did not lead

to coverage.

      ¶79       Finally,     we   note   the       strong    public    policy      weighing

against finding an occurrence in this situation.                            As this court

stated in Hedtcke v. Sentry Insurance Co., 109 Wis. 2d 461, 326

N.W.2d 727 (1982):

      Even where the insurance policy contains no language
      expressly stating the principle of fortuitousness,
      courts read this principle into the insurance policy
      to further specific public policy objectives including
      (1) avoiding profit from wrongdoing; (2) deterring
      crime; (3) avoiding fraud against insurers; and (4)

        20
             See supra, n.18.

                                              34
                                                                               No.       2011AP564


        maintaining coverage of a scope consistent with the
        reasonable expectations of the contracting parties on
        matters as to which no intention or expectation was
        expressed.
Hedtcke,       109       Wis. 2d at      484    (citing          Keeton,       Insurance        Law

§ 5.3(a)      at     279    (1971)).          See    also    7    Steven       Plitt,     Daniel

Maldonado,         Joshua     D.    Rogers,      &    Jordan          R.   Plitt,     Couch      on

Insurance § 101:22 (3d ed. 2006) ("In general, it is against

public policy for an insurance contract to provide coverage for

the intentional or willful misconduct of an insured."); 43 Am.

Jur. 2d Insurance § 478 (2003) ("Public policy does on occasion
demand    that       a    wrongdoer      be    forbidden         to    shift    the     cost     of

liability to another through insurance . . . .").

        ¶80    Finding       an     occurrence        and        coverage        under      these

circumstances would allow the host to escape responsibility for

his intentional and illegal actions.                         We would be sending the

wrong    message         about     underage    drinking          parties,      implying       that

whatever      tragic       consequences might             occur,       insurance      companies

will be there to foot the bill.                      Moreover, insurance contracts

are construed from the standpoint of what a reasonable person in

the position of the insured would believe the contract to mean.
Acuity    v.       Bagadia,       2008   WI    62,        ¶13,    310      Wis. 2d 197,         750

N.W.2d 817; Liebovich v. Minn. Ins. Co., 2008 WI 75, ¶17, 310
Wis. 2d 751,         751     N.W.2d 764.             We     do    not      believe       that    a

reasonable         insured       would   expect       coverage          for    bodily     injury
resulting from the hosting of a large, illegal underage drinking

party.




                                               35
                                                                                 No.      2011AP564



       ¶81        We    conclude       that     Gundrum's         intentional          actions     in

hosting       a    large        underage      drinking        party——actions            that     were

illegal——and providing alcohol to an individual known to become

belligerent            when     intoxicated,       were       a    substantial          factor    in

causing       Schinner's            bodily    injury.             These    causes       were     not

accidental.             Since there was no occurrence under the homeowner's

policy, there was no initial grant of coverage to Gundrum under

the policy.

     B. The Exclusion for "Arising Out Of" a Non-Insured Location

       ¶82       Ordinarily, if we find no initial grant of coverage

under an insurance policy, we end our inquiry.                                  See supra, ¶37.

In this case, however, the court of appeals' interpretation of

the non-insured location exclusion has been published and should

be addressed.

       ¶83       The     homeowner's         policy     contained          an    exclusion       for

bodily injury             or    property      damage    liability          arising      out of     a

premises that is not an "insured location" (or a premises used

by    the    insured          "in     connection      with"       an    "insured       location.")

"Coverages E and F do not apply to the following: . . . 'Bodily

injury' or 'property damage' arising out of a premises: a. Owned

by an 'insured'; b. Rented to an 'insured'; or c. Rented to

others      by     an    'insured'; that           is   not       an    'insured       location'."

(Emphasis added.)

       ¶84       The parties dispute the meaning of the phrase "arising

out    of."            West    Bend    argues    that     this         phrase   means,     in     the

context of a general liability insurance policy, "originating

from, growing out of, or flowing from."                            Garriguenc v. Love, 67
                                                 36
                                                                                  No.         2011AP564



Wis. 2d 130, 137, 226 N.W.2d 414 (1975).                              West Bend argues that

the plain language of the exclusion precludes coverage because

Schinner's injuries arose out of the shed and the Gundrums did

not use the shed "in connection with" their insured residence.

Schinner      and      the     court         of        appeals        disagree          with        this

interpretation,         relying         on     Newhouse          v.     Laidig,         Inc.,       145

Wis. 2d 236, 426 N.W.2d 88 (Ct. App. 1988).

      ¶85    In Newhouse, an unsupervised child was injured when he

became      entangled     in       a    silo        unloader.              Id. at       238.         The

defendant's         homeowner's        policy          excluded       coverage          for     bodily

injury   "arising       out    of      any     premises         owned       or    rented       to    any

insured which is not an insured location."                                  Id. at 239.              The

farm silo was not an insured location.                         Id.

      ¶86    The     Newhouse          court      found        the    non-insured             location

exclusion did not apply, and the homeowner's policy provided

coverage to the farm owner.                  Id. at 239–40.                Newhouse relied on

a   Missouri    decision,          Lititz      Mutual         Insurance          Co.    v.     Branch.

Lititz involved a similar "arising out of" exclusion, but the

court held that the bodily injury in that case did not occur as

a result of "a condition" of the non-insured location.                                         Lititz

Mut. Ins. Co. v. Branch, 561 S.W.2d 371, 374 (Mo. Ct. App.

1977).      Newhouse adopted this approach: "The dispositive issue

therefore      is    whether        there      is      some     correlation            between      the

negligence     giving        rise      to    liability         and     a    condition          of    the

premises."      Newhouse, 145 Wis. 2d at 240 (emphasis added).

      ¶87    Newhouse        did       not     cite      the     Garriguenc            case,     which

discussed the same "arising out of" language.                                     The Garriguenc
                                                  37
                                                                 No.      2011AP564



court said: "The words 'arising out of' in liability insurance

policies are very broad, general, and comprehensive; and are

ordinarily understood to mean originating from, growing out of,

or   flowing    from.    All   that        is   necessary   is     some    causal

relationship between the injury and the event [here, "property"]

not covered."    Garriguenc, 67 Wis. 2d at 137 (footnote omitted).

     ¶88   The Newhouse court provided a much narrower reading of

the "arising out of" exclusion than the Garriguenc court.                       In

effect, it attempted to overrule the Garriguenc decision.                       We

think a better reading of the exclusion is not to exclude all

liability coverage for events not on an insured premises but

rather to exclude liability coverage when there is a "causal

relationship" between the premises that are not insured and the

insured's action or non-action giving rise to liability.                       Cf.

St. Paul Fire & Marine Ins. Co. v. INA, 501 F. Supp. 136, 138

(W.D. Va. 1980) (stating that "arising out of" are words of much

broader significance than "caused by" and are usually understood

to mean "incident to or having connection with").

     ¶89   In this case, the homeowner's policy language is clear

on its face.     The policy excludes coverage for injuries arising

out of a non-insured premises, not from a condition of a non-

insured premises.       Schinner's bodily injury clearly arose out

of, or originated, or flowed from, the shed where the illegal

party took place on the premises of Gundrum Trucking, a non-

insured location.

     ¶90   In this case, a causal relationship between the shed

and Schinner's injury is present.           A portion of the shed was set
                                      38
                                                                          No.        2011AP564



up    for    a    social    gathering,      especially          an   underage        drinking

party: chairs, tables, couch, a refrigerator, a CD player, and a

Ping-Pong table for beer pong.               The shed had no windows, thereby

concealing the illegal activities inside.                         As counsel for West

Bend aptly observed at oral argument for summary judgment, "It

was an illegal party. . . .                [T]hat's not the kind of thing one

could have rented out the Knights of Columbus Hall to do.                              Or to

have done out in your front yard at your residence.                             This had a

causal nexus to the premises."

      C. Whether the Shed was a Premises Used in Connection With

                                 an Insured Location

       ¶91       Finally, Schinner advances the argument that the shed

was    in    fact    an     insured    location         because      it   was     used    "in

connection        with"    the   Gundrum's        insured       residence.           Schinner

points       to    the     storage    of    the     Gundrums'        insured         personal

property, like snowmobiles, to turn the shed into an insured

location.21        Such an assertion defies common sense.                       If business

owners were allowed to store insured personal property on their
business premises and obtain insurance coverage for the premises

through a homeowner's policy, there would be much less reason to
obtain      business      insurance.        Such    a    result      would      be    absurd.

Olguin v. Allstate Ins. Co., 71 Wis. 2d 160, 165, 237 N.W.2d 694

(1976)       ("[I]nsurance       policies     should       be     given    a     reasonable

       21
       The shed was used to store personal property for
Gundrum's extended family.  If Schinner's argument were valid,
the shed would be used "in connection with" more than one
residence. Tortfeasors from several residences would be able to
claim coverage.

                                            39
                                                                              No.         2011AP564



interpretation and not one which leads to an absurd result.");

Wilson    Mut.       Ins.    Co.    v.    Risler,       2011     WI     App       70,    ¶12,    333

Wis. 2d 175,         798     N.W.2d 898         ("We     reject       interpretations                of

insurance policies that lead to absurd results.").

                                       V. CONCLUSION

        ¶92    Gundrum's actions in setting up an isolated shed for a

drinking party, procuring alcohol and expecting others to bring

alcohol,       inviting      many        underage       guests     to       the     party,       and

encouraging the underage guests to drink——especially an underage

guest     known        to    become       belligerent          when         intoxicated——were

intentional       actions       that      violated      the     law.          Gundrum's         many

intentional wrongful acts were a substantial factor in causing

Schinner's      bodily       injury.           Viewed    from     the       standpoint          of    a

reasonable       insured,       Gundrum's        intentional           actions          created      a

direct risk of harm resulting in bodily injury, notwithstanding

his     lack    of     intent      that    a    specific        injury        occur.           Thus,

Schinner's       bodily      injury       was    not    caused        by     an    "occurrence"

within the meaning of the policy, and West Bend is not obligated

to provide insurance coverage for Gundrum.
        ¶93    Even assuming there was an occurrence under the West

Bend homeowner's policy, coverage is excluded because the injury
arose    out    of     the   use     of    an    isolated        shed       for    an    underage

drinking       party    on    uninsured         premises.             The     fact      that     the
Gundrums kept some personal property insured under the policy at

the shed did not make the shed a premises used in connection

with the insured's residence, as those terms are defined in the


                                                40
                                                           No.      2011AP564



policy.     Thus, the business shed was not an insured location

triggering coverage under the homeowner's policy.



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

reversed.




                                   41
                                                                    No.   2011AP564.npc


     ¶94    N. PATRICK CROOKS, J.              (concurring).          I agree with

the result reached by the majority that the homeowner's policy

does not provide coverage for Schinner's injuries under these

facts.     I write separately because my approach differs from both

the majority opinion and that of the dissent.

    ¶95     I    agree     with   the   dissent      that   under    the    insurance

policy at issue and our case law, including Doyle v. Engelke,

219 Wis. 2d 277, 580 N.W.2d 245 (1998), and Estate of Sustache

v. American Family Mutual Insurance Co., 2008 WI 87, 311 Wis. 2d

548, 751 N.W.2d 845, Cecil's assault on Schinner constitutes an

occurrence,      and   I   join   the   analysis      of    the   dissent    on   that

issue.

     ¶96    However,       I   agree    with   the    majority      that    the   non-

insured location exclusion applies because Schinner's injuries

arose out of, originated, or flowed from a non-insured location,

consistent with this court's interpretation of "arising out of"

in Garriguenc v. Love, 67 Wis. 2d 130, 226 N.W.2d 414 (1975),

and I join the analysis of the majority on that issue.
     ¶97        Accordingly, I respectfully concur.




                                          1
                                                                    No.    2011AP564.awb



       ¶98    ANN WALSH BRADLEY, J.                (dissenting).      I agree with

the    majority      when    it    holds   that      the   determination      of   what

constitutes an "occurrence" under the insurance policy is to be

analyzed from the standpoint of the insured, not the injured

party.        Majority op., ¶52.              I part ways with the majority,

however, when it fails to apply that holding.

       ¶99    Like the unanimous court of appeals, I conclude that

the "occurrence" here is the event of an assault.                     The insurance

policy defines an "occurrence" as an "accident."

       ¶100 Applying        the      proper       analysis,   the   question       then

becomes whether the assault of Schinner by the assailant was an

"accident" from the standpoint of Gundrum, the insured?                        As even

the majority acknowledges, there is nothing in the record that

suggests that Gundrum intended the assault or any subsequent

injury to Schinner.               See id., ¶67.         Accordingly, when viewed

from the standpoint of the insured, the assault was unintended

and was an "accident," constituting an "occurrence" under the

policy.

       ¶101 Instead of identifying the assault as an "occurrence,"
the    majority's         analysis     simply       ignores   it.         Rather   than

analyzing an "occurrence" from the standpoint of the insured, it

develops a different test, conflating a discussion of negligence

principles with the analysis required to interpret an undefined
word     in    an    insurance       policy.          Ultimately,    its      analysis

undermines          the     well-established           understanding        that     an

intentional act by an insured is within the definition of an

"occurrence" if the injury is unexpected and unintended.
                                              1
                                                                        No.      2011AP564.awb


     ¶102 In      contrast     to    the    majority,        I    conclude         that    the

assault is an "occurrence" for the purposes of coverage and I

further conclude that the non-insured location exclusion does

not apply under these circumstances.                  As a result, the relevant

insurance    policy     provides      coverage       for     damages         arising      from

Schinner's injuries.         Accordingly, I respectfully dissent.

                                           I

     ¶103 The       Second    Amended       Complaint        filed          in   this     case

identifies    the    assault    as    the      occurrence.             It    alleges      that

Schinner    was   "kicked     . . .    in      the    head       [by   the       assailant],

causing     permanent    paralysis."            The     claims         alleged       against

Gundrum sound in negligent supervision, negligence in failing to

protect Schinner, and negligence as a matter of law.1

     1
       Specifically, Schinner alleged a violation of Wis. Stat.
§ 125.035, which is commonly known as the "dram shop" law.   It
provides, in relevant part:

     (2) A person is immune from civil liability arising
     out of the act of procuring alcohol beverages for or
     selling, dispensing or giving away alcohol beverages
     to another person.

     . . . .

     (4)(a) In this subsection, "provider" means a person,
     including a licensee or permittee, who procures
     alcohol beverages for or sells, dispenses or gives
     away alcohol beverages to an underage person in
     violation of s. 125.07(1)(a).

     (b) Subsection (2) does not apply if the provider knew
     or should have known that the underage person was
     under the legal drinking age and if the alcohol
     beverages provided to the underage person were a
     substantial factor in causing injury to a 3rd party.
     In determining whether a provider knew or should have
     known that the underage person was under the legal
     drinking age, all relevant circumstances surrounding
                                2
                                                                             No.    2011AP564.awb


        ¶104 Recognizing that identifying the event that should be

considered       the       "occurrence"         is    critical          to    the      coverage

analysis,       the        majority    jettisons            the        allegation       of     an

"occurrence" stated in the Second Amended Complaint and asks

what is "the injury-causing event in this case?"                               Majority op.,

¶66.     It answers the question by pointing to a course of conduct

by    Gundrum       that   allegedly      was    a    cause       of    Schinner's       bodily

injury and accordingly shifts its focus to Gundrum's acts as the

apparent "occurrence" without further discussion of the assault.

Id.

        ¶105 The remainder of the majority's analysis is fixed upon

developing a new objective test that examines remote theories of

legal    causation         and   events    that           occurred      up    the     chain    of

causation.       It states that "Gundrum took a number of intentional

actions that ultimately caused Schinner's bodily injury."                                    Id.,

¶68.     Ultimately, it concludes that "Gundrum's many intentional

acts    were    a    substantial      factor         in    causing      Schinner's       bodily

injury."       Id., ¶69.




        the procuring, selling, dispensing or giving away of
        the alcohol beverages may be considered . . . .

                                            3
                                                                     No.    2011AP564.awb


     ¶106 Gundrum's        alleged      negligent         acts       are     repeatedly

characterized as "intentional" and "illegal."2                       See id., ¶¶69,

70, 81.     The majority takes Gundrum to task for failing to

foresee   Schinner      being    injured       in    an   assault,     stating           that

Schinner's "bodily injury was hardly unforeseeable."                             Id., ¶70.

Because   his    acts     were   both   "intentional"          and    "illegal"           and

because he should have foreseen a risk of harm, the majority

concludes   that        there    was      no        "accident,"       and        thus     no

"occurrence."     Id., ¶81.

                                        II

     ¶107 At the outset, I observe that if the majority actually

applied a "from the standpoint of the insured" test, it would be

compelled   to    conclude       that   there        is   an   initial           grant    of

coverage.        Guided     by   public        policy,     however,         it     instead

concludes that there should be no insurance coverage for hosting

an illegal underage drinking party.




     2
       In order to determine whether the relevant homeowner's
policy sets forth an initial grant of coverage for the claims
presented, the coverage must be compared to the allegations
advanced in the Second Amended Complaint.      This is the first
step of a coverage determination——the court must examine the
facts of the insured's claim to determine whether the policy's
insuring agreement makes an initial grant of coverage.    Estate
of Sustache v. Am. Family Mut. Ins. Co., 2008 WI 87, ¶22, 311
Wis. 2d 548, 751 N.W.2d 845.    If the facts do not fall within
the initial grant of coverage, the analysis ends there. Id.

      The Second Amended Complaint does not once use the word
"intentional," whether in reference to Gundrum or in reference
to the third-party assailant.    It likewise makes no allegation
that Gundrum in fact foresaw that a fight would occur, or that a
fight was substantially certain to occur as a result of his
acts.
                                4
                                                                    No.   2011AP564.awb


     ¶108 In      its    quest    to   avoid   "sending      the    wrong    message"

about underage drinking parties, the majority looks at the wrong

policy.        Majority    op.,    ¶80.       Instead   of    looking       at    public

policy, it should be looking at the policy of insurance.

     ¶109 This homeowner's policy has a broad grant of coverage.

To narrow that coverage, the insurer in this case had available

to it several standard exclusions that are relevant here:

          •    An underage drinking exclusion;3

          •    An illegal acts exclusion;4

          •    An intentional acts exclusion.5

     ¶110 Despite         the    availability     of    those      exclusions,      the

insurer chose not to include them in the Gundrums' homeowner's

insurance policy or assert them as a defense to coverage.                          As a

result    of     those    deficits,    the     majority      is    forced    to    look

elsewhere for support of its public policy determination.                         It is

not the court's role in this case to send a policy message,

     3
       A standard underage drinking exclusion would provide that
"[w]e will not cover bodily injury . . . arising out of the
insured's knowingly permitting or failing to take action to
prevent the illegal consumption of alcoholic beverages by an
underage person."      1 Susan J. Miller, Miller's Standard
Insurance Policies Annotated 238.3 (Form HOEX) (6th ed. 2012).
     4
       A standard illegal acts exclusion would negate coverage
for "bodily injury . . . caused by violation of a penal law or
ordinance committed by or with knowledge or consent of the
insured."    1 Susan J. Miller, Miller's Standard Insurance
Policies Annotated 238.3 (Form HOEX) (6th ed. 2012).
    5
       The   intentional  acts   exclusion   in  the   Gundrums'
homeowner's policy, which was not asserted as a coverage defense
here, precludes coverage for bodily injury "which is expected or
intended" by an insured even if the resulting bodily injury is
"of a different kind, quality or degree than initially expected
or intended . . . ."

                                          5
                                                                        No.    2011AP564.awb


right or wrong, about underage drinking parties or to determine

whether    Gundrum       should        "escape       responsibility"          under    these

facts.     Majority op., ¶80.              It is this court's role to interpret

the insurance policy——the written contract entered into by the

parties.

     ¶111 I       turn   next        to    discuss     the    primary     flaws       in    the

majority's       opinion.        Its       analysis:    (a)     ignores    the      need     to

analyze    the    assault       as    an    "occurrence,"        (b)    develops       a    new

objective test that conflates principles of negligence with the

analysis required to interpret an undefined word in an insurance

policy,    and    (c)    undermines         the   well-established         premise         that

intentional acts constitute an "occurrence" if the injury is

unexpected or unintended.

                                              A

     ¶112 The majority's public policy focus leads it to ignore

the assault as an "occurrence."                   Contrary to what the majority

implies when it sets up a question setting forth two potential

occurrences,       whether      an     "occurrence"          exists    under    a     set   of

alleged    facts    is    not    an       either-or     proposition       requiring         the




                                              6
                                                              No.    2011AP564.awb


court to choose between Gundrum's acts and the assault.6                         An

"occurrence" in this case is easily identified.               As the court of

appeals   unanimously       recognized,      the   assault    itself     is     the

correct   focus    of     the     "occurrence"     when    viewed     from     the

standpoint of Gundrum.            Schinner v. Gundrum, 2012 WI App 31,

¶22, 340 Wis. 2d 195, 811 N.W.2d 431.

     ¶113 Our     prior   precedent      recognizes   that    an     intentional

assault by a third party can constitute an "occurrence."                        In

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

Wis. 2d 548, 751 N.W.2d 845, this court was called upon to

determine whether an intentional assault by an insured was an

"occurrence,"     defined    as    an   "accident."       Although    the     court

determined that the assault was not an "occurrence," Estate of




     6
       Courts are to examine the factual circumstances alleged in
the complaint to determine whether an "occurrence" exists. See,
e.g., Doyle v. Engelke, 219 Wis. 2d 277, 284-285, 580 N.W.2d 245
(1998)("An insurer has a duty to defend a suit where the
complaint alleges facts which, if proven at trial, would give
rise to the insurer's liability under the terms of the
policy."); Smith v. Katz, 226 Wis. 2d 798, 807, 595 N.W.2d 345
(1999) ("The insurer's duty arises when the allegations in the
complaint coincide with the coverage provided by the policy.");
United Co-op v. Frontier FS Co-op., 2007 WI App 197, ¶15, 304
Wis. 2d 750, 738 N.W.2d 578 (courts are to look to whether "some
alleged event" was an "occurrence"); Glendenning's Limestone &
Ready-Mix Co., Inc. v. Reimer (Glendenning's), 2006 WI App 161,
¶37, 295 Wis. 2d 556, 721 N.W.2d 704 ("we are to look at the
factual circumstances of the claim to decide whether there is an
'occurrence' under the policy . . . ."); 1325 North Van Buren,
LLC v. T-3 Group, Ltd., 2006 WI 94, ¶58, 293 Wis. 2d 410, 716
N.W.2d 822 ("We have repeatedly rejected the argument that
insurance coverage is dependent upon the theory of liability.").
The allegations are to be liberally construed in favor of
coverage. Glendenning's, 295 Wis. 2d 556, ¶41.

                                         7
                                                                 No.    2011AP564.awb


Sustache is distinguishable because the insured in that case was

the assailant and intentionally caused the damage.                    Id., ¶31.

      ¶114 Further context is found in the analysis of this court

in Stuart v. Weisflog's Showroom Gallery, Inc., 2008 WI 86, 311

Wis. 2d 492, 753 N.W.2d 448.                The Stuart court observed that

courts must "focus on the incident or injury that gives rise to

the claim, not the plaintiff's theory of liability."                       Id., ¶36

(quoting Berg v. Schultz, 190 Wis. 2d 170, 177, 526 N.W.2d 781

(Ct. App. 1994)).7      In this case, the assault is an incident that

gave rise to the claims at issue.

      ¶115 The    above    cases       counsel    that        when     viewed     from

Gundrum's   standpoint,      the   "occurrence"          is     the     assault    on

Schinner.   Couch on Insurance further supports that the assault

in this case is an "occurrence" under the policy.                       It explains

that when the insured is not an assailant in a claim involving

an   assault,    the   assault   can    constitute   an        "occurrence"       when

viewed from the standpoint of the insured:

      If the insured is also the assailant, the result is
      that there is no coverage for the assault. . . .
      However, where the insured is not the assailant but is
      instead   liable   based  upon   vicarious  liability,
      negligent   supervision,  or   some  other  negligence

      7
       Most recently, the court of appeals in Henshue Const.,
Inc. v. Terra Engineering & Const. Corp., slip op., no.
2012AP1038 (Ct. App. May 9, 2013) analyzed whether flood damage
caused by the insured "deliberately" cutting into a storm sewer
pipe without providing means for storm water diversion was an
"occurrence."   The Henshue Const., Inc. court cautioned that
"the correct 'occurrence' question is whether the event that
caused the damage, that is, the flooding event resulting from
[the insured's] failure to divert storm water, was an accident."
Id., ¶¶60-61.   Thus, the flooding event was an "occurrence."
Id., ¶62.

                                        8
                                                                    No.   2011AP564.awb

     theory, the assault may constitute an accident or
     occurrence, at least from the standpoint of the
     insured.
Lee R. Russ & Thomas F. Segalla, Couch on Insurance § 127:21 (3d

ed. 2012).

     ¶116 The majority fails to explain why the assault is not

an "occurrence" when viewed from the standpoint of the insured.

Instead   of analyzing the         assault      as   the    "occurrence,"        it    is

simply ignored.

                                       B
     ¶117 Furthermore,       the     majority         develops       a    test      that

conflates    a   discussion    of     negligence           principles       with      the

analysis required to interpret the undefined word, "accident,"

in an insurance policy.       In developing that test, it introduces

concepts that are superficially compelling, but which really do

not, or should not, drive its analysis.

     ¶118 The    majority    appears       to   analyze      this    case    with      an

objective test in mind, looking at whether the resulting injury

or damage was reasonably foreseeable to a reasonable person.

That analysis is irrelevant.          As the majority recognized at the

outset, the question to ask is: "Did this insured expect or

intend the injury or property damage?"

    ¶119 When     applying    the     wrong      test,      the     majority       takes

Gundrum to task for failing to foresee a fight.                      It appears to

conclude that a failure to anticipate or foresee a foreseeable

risk of harm is not an "accident."                   Majority op., ¶71.            Yet,

injury or damage that should have been anticipated or foreseen




                                       9
                                                                    No.    2011AP564.awb


but was not is the very essence of negligence.8                           Such a test

conflates     negligence      principles       with        the   concept      of    what

constitutes       an   "accident"      when    interpreting         this     insurance

policy.

      ¶120 Negligence      is   defined       as    when    "the   person,       without

intending to do harm, does something . . . that a reasonable

person    would    recognize    as     creating      an     unreasonable      risk    of

injury or damage to a person or property."                       Wis. JI-Civil 1005

(2013).     In concluding that failure to anticipate or foresee

harm here is not an "accident," the majority is really declaring

that because negligent behavior is non-accidental, it is not

covered by insurance liability policies.                     That makes no sense

because the very reason people buy liability insurance is to

cover them for their negligent acts.

      ¶121 In     contrast,     when    interpreting         the    undefined       word

"accident" in a liability insurance policy, we often look to

precedent for guidance.          This court has set forth a definition

of the term "accident": "'[a]n unexpected, undesirable event' or

'an unforeseen incident' which is characterized by a 'lack of

intention.'"      Doyle v. Engelke, 219 Wis. 2d 277, 289, 580 N.W.2d

245   (1998).      The   definition      of    an    "accident"      by    its     nature


      8
       Cirillo v. City of Milwaukee, 34 Wis. 2d 705, 711, 150
N.W.2d 460 (1967) (there is no necessity in establishing
negligence that the actual harm was foreseen); see also Behrendt
v. Gulf Underwriters Ins. Co., 2009 WI 71, ¶¶29-31, 318 Wis. 2d
622, 768 N.W.2d 568 (discussing foreseeability); Rockweit v.
Senecal, 197 Wis. 2d 409, 423, 541 N.W.2d 742 (1995)
("Negligence is to be determined by ascertaining whether the
defendant's exercise of care foreseeably created an unreasonable
risk of harm to others.").

                                         10
                                                                  No.   2011AP564.awb


encompasses foreseeable events that were not in fact foreseen by

the insured.

     ¶122 The      Doyle    court   recognized      that   most    negligence       is

accidental for the purposes of interpreting an insurance policy,

stating    that   liability      policies    are    "designed     to    protect     an

insured against liability for negligent acts resulting in damage

to third-parties."         Id. at 290 (citations omitted).                   In short,

our prior precedent recognizes that we buy insurance to cover us

when we are negligent.

     ¶123 The majority's focus on the fact that Gundrum should

have anticipated or foreseen that "something undesirable" might

occur is inconsistent with the definition of an "accident" set

forth in Doyle.9         Majority op., ¶71 (emphasis in original).                  An

"accident" is an unforeseen event that causes injury or damage——

not an unforeseeable risk of harm that causes injury or damage.

     ¶124 To      the   extent   the majority       opinion     can     be    read to

state that a risk of harm that should have been anticipated or

foreseen is not an "accident" even when the risk in fact is
unanticipated and unforeseen, it has rendered liability coverage

illusory in many circumstances.             Defining the word "accident" so

narrowly "so greatly restricts the insurer's liability as to

render    the   policy     valueless   or    even   meaningless,        and     denies


     9
       The definition of an "accident" set forth in Doyle
likewise focuses on a failure to foresee a specific harmful
event rather than a failure to foresee general risk of harm. It
requires an "unexpected . . . event" or "unforeseen incident,"
not an unexpected or unforeseen risk of an injurious event or
incident.   Doyle v. Engelke, 219 Wis. 2d 277, 289, 580 N.W.2d
245 (1998).

                                       11
                                                                               No.       2011AP564.awb


coverage       for       what   is    the    predicate          of    any   likely         liability

against the insured."                  J. P. Ludington, Liability Insurance:

"Accident"          or    "Accidental"        as       Including       Loss    Resulting             From

Ordinary Negligence of Insured or his Agent, 7 A.L.R.3d 1262,

§ 2 (1966).

                                                   C

       ¶125 Ultimately,              the    majority's          analysis       undermines             the

well-established            understanding          that     an       intentional         act     by    an

insured       is    within      the    definition         of     an    "occurrence"             if    the

injury     or       damage      is    unexpected          and        unintended.            Multiple

treatises discussing general principles of insurance law explain

that     an     "occurrence"          exists       if      the       injury     or       damage       is

unexpected and unintended.

       ¶126 One          treatise     provides           that    the     "vast       majority         of

decisions" have held that "intentional conduct can constitute an

accident       if    the     insured        did    not    intend       or     expect       to    cause

injury."            Allan       D.    Windt,       Insurance           Claims        &     Disputes:

Representation of Insurance Companies & Insureds, § 11:3 (2013).
It sets forth the straightforward rule embraced by the "vast

majority of decisions" as follows:

       The correct analysis is as follows.    An "occurrence"
       is defined in a typical general liability policy as an
       "accident."   The word "accident" must be given its
       ordinary, dictionary definition, and the ordinary,
       dictionary definition of "accident" is a happening
       that occurs unintentionally. Accordingly, damage that
       the insured intended——including . . . damage that is
       inherent or substantially certain to result——is not
       covered.   Damage that the insured did not intend is
       covered . . . . In fact . . . damage that the insured
       did not intend is covered regardless of whether the
       insured's act was volitional.     A standard insuring

                                                  12
                                                                               No.   2011AP564.awb

      agreement    requires    only   that    the   property
      damage/bodily   injury   have   been   caused  by   an
      occurrence/accident.       It   is   enough   if   the
      damage/injury "occurs unintentionally" by reason of
      something that the insured has done.
Id.   In an admonition that should give the majority pause, it

further states that courts should "[k]eep in mind" that "under

standard policy language, the "occurrence" is not limited to

actions taken by the insured, but includes any event that causes

injury/damage during the policy period."                       Id.

      ¶127 Another      treatise             observes        that     courts          ordinarily

examine "whether the insured intends or expects the results of

its   conduct,    not   necessarily              whether     the     insured         intends   or

expects the conduct itself, to determine whether there is an

'occurrence'      . . . ."              1    New       Appleman       Law       of     Liability

Insurance, § 1.09[1] (2d ed. 2012).                      Yet another states that "in

order for a claim to be actionable under a liability policy, the

insured's negligence must result in an 'accident' . . . [t]he

word 'accident' implies a misfortune with concomitant damage to

a victim, and not the negligence which eventually results in

that misfortune."          Lee R. Russ & Thomas F. Segalla, Couch on
Insurance    § 126:26        (3d    ed.      2012).          Many     jurisdictions          have

accordingly      focused      on    whether            the   injury       or     damages     were

unexpected     and    unintended.                See    J.P.    Luddington,            Liability

Insurance:     "Accident"          or        "Accidental"           as      Including        Loss

Resulting From Ordinary Negligence of Insured or his Agent, 7

A.L.R.3d 1262 (1966).

      ¶128 This      court    has       long      adhered      to    the       principle     that

insurance policies are             to       be   interpreted         as    understood by        a


                                                 13
                                                             No.   2011AP564.awb


reasonable person in the position of the insured.                    Frost v.

Whitbeck, 2002 WI 129, ¶20, 257 Wis. 2d 80, 654 N.W.2d 225.                   A

reasonable person in the position of the insured understands the

word "accident" to encompass unexpected and unintended injuries

or damages.        See Doyle, 219 Wis. 2d 277, 289 (ascribing the

"common, everyday meaning" to the word "accident").

        ¶129        The   majority's    analysis     not   only    appears   to

require unexpected and unintended injury or damage, but also

that        the   acts    of   the     insured     non-assailant     must    be

unintentional.       Majority op., ¶68.          Such a requirement appears

to eliminate coverage anytime an insured acts with intention,

regardless of whether the injury or damage is unexpected and

unintended.10




       10
       The majority's citation to Frankenmuth Mut. Ins. Co. v.
Masters (Masters), 595 N.W.2d 832 (Mich. 1999) affords it no
assistance for two reasons. First, the facts of that arson case
are different from those in this case. In Masters, the insured
and his son intentionally set fire to their own clothing store
so as to destroy inventory and collect the insurance proceeds.
Id. at 835.    Here, Gundrum is not a participant in anything
similar to an insurance scam. The majority errs in making such
a comparison.

                                        14
                                                           No.   2011AP564.awb


      ¶130 In determining that there is no coverage under the

insurance policy, the majority fails to apply its holding that

the determination of what constitutes an "occurrence" is to be

analyzed from the standpoint of the insured.             Instead it simply

ignores the assault as an "occurrence," develops an objective

test that conflates a discussion of negligence principles with

the   analysis   required    to   interpret   an   undefined     word   in   an

insurance    policy,        and    undermines      the    well-established

understanding that an intentional act by an insured is within

the definition of an "occurrence" if the injury or damage is

unexpected and unintended.        By failing to apply its holding, the

majority is led astray.

                                    III

     Second, the majority does not capture the Masters court's
complete analysis.   It reasoned that "[o]f course, 'an insured
need not act unintentionally' in order for the act to constitute
an 'accident' and therefore an 'occurrence.'"    Id. at 838-39.
To illustrate its analytical framework, it gave an example of a
fire that was started by a faulty electric cord on a coffeemaker
owned by the insured.     Id. at 839 (quotation omitted).     It
stated that "there is no doubt that [the insured] purposely
plugged in the coffeemaker and turned on the switch," and acted
"intentionally." Id. (quotation omitted.) Nevertheless, "[t]he
fire   remains  an   accident   and  the   act  constitutes   an
occurrence . . . because at the time of the insured's purposeful
act he had no intent to cause harm. The act of plugging in the
coffeepot is not a sufficiently direct cause of the harm, and
the fire in this example is an accident."        Id. (quotation
omitted.)

     Thus, Masters not only does not help the majority, it
undermines the analysis.   Masters counsels in favor of finding
an "occurrence" in this case.    Gundrum is not like the insured
that intentionally set a fire hoping to cause damage and thereby
collect insurance proceeds. Instead he is like the insured who
plugged in a faulty coffeepot——he had no intent to cause harm,
and the assault is an accident from his standpoint. Id.

                                     15
                                                                            No.   2011AP564.awb


       ¶131 Even      though the         majority's      coverage         analysis        should

end    with   its     determination        that     there       is     no     coverage,         it

nevertheless      proceeds        to    analyze    whether       coverage           should      be

denied because of an exclusion for bodily injury or property

damage liability "arising out of a premises" that is not an

insured    location.          Majority      op.,     ¶¶82,       83.          The      majority

concludes for the second time that there is no coverage.

       ¶132 In contrast to the majority, I apply the tried and

true    principles      of    coverage          examination      and         conclude        that

coverage is not excluded by the non-insured location exclusion.

I look first to determine whether there is a grant of coverage.

Estate of Sustache, 311 Wis. 2d 548, ¶22.                        If there is a grant

of coverage under the facts alleged, I must determine whether an

exclusion applies.           Id., ¶23.          If an exclusion applies, I then

must determine whether an exception to the exclusion reinstates

coverage.     See id.

       ¶133 The Gundrums' homeowner's policy provides coverage for

"bodily    injury"     or    "property       damage"      that       is     "caused       by    an
'occurrence.'"        It provides a basic grant of coverage in which

the    insurer    agreed     to    pay    all    sums    that    Gundrum          is    legally

obligated to pay as damages because of bodily injury or property

damage caused by an "occurrence":

       If a claim is made or a suit is brought against an
       "insured" for damages because of "bodily injury" or
       "property damage" caused by an "occurrence" to which
       this coverage applies . . . .
       ¶134 An "occurrence" is defined as "an accident, including

continuous       or   repeated         exposure    to     substantially             the      same

general    harmful     conditions,"         but    the    word       "accident"         is     not
                                            16
                                                                              No.    2011AP564.awb


defined       in    the     policy.          This     basic       grant    of       coverage      is

substantially            similar      to    countless    standardized           "occurrence"-

based        liability         insurance      policies        that      are     purchased        by

individuals and businesses                   throughout       the      state.        See    1   New

Appleman Law of Liability Insurance, § 1.07[2] (2d ed. 2012).

        ¶135 In order to fall within the grant of coverage, the

Second        Amended       Complaint        must     allege         facts      showing         that

Schinner's bodily injury was caused by an "occurrence," which is

defined as an "accident."                    For the reasons discussed above, I

conclude that the assault was an "occurrence" when viewed from

Gundrum's standpoint.                 Because the assault was an "occurrence,"

the allegations in the Second Amended Complaint fall within the

policy's grant of coverage.

    ¶136 Having determined that the assault is an "occurrence,"

the next          step is       to determine         whether      an    exclusion        applies.

Estate of Sustache, 311 Wis. 2d 548, ¶23.                               The only exclusion

argued       to    apply        in    this    case     is     a     non-insured          location

exclusion,         which       excludes      bodily     injury         "arising       out   of     a
premises"         that    is    not    an    "insured       location."11            An   "insured

location" is defined in part as "[t]he residence premises," the

"part of other premises, other structures and grounds used by

you as a residence," and any premises used by the insured "in

connection" with the premises described in the policy.

     ¶137 The court of appeals in Newhouse v. Ladig, Inc., 145

Wis. 2d 236, 426 N.W.2d 88 (Ct. App. 1988) addressed the same

        11
        There is no liquor liability exclusion in the Gundrums'
policy.    Likewise, no one argues that an exclusion precluding
coverage for intentional acts applies.

                                                17
                                                               No.    2011AP564.awb


issue before this court today——what is the meaning of the phrase

"arising out of a . . . premises."              Its analysis is instructive

in evaluating whether the non-insured location exclusion applies

in this case.

       ¶138 Under the interpretation adopted in Newhouse, the non-

insured location exclusion applies to bodily injuries "related

to conditions of the premises on which an accident or occurrence

takes place."           Id. at 239.      It does not, however, apply to

"insureds' tortious acts occurring on uninsured lands."                            Id.

The    ultimate     test   for     whether   there   was    bodily        injury    or

property damage "arising out of a . . . premises" is "whether

there is some correlation between the negligence giving rise to

liability and a condition of the premises."12              Id. at 240.

       ¶139 Thus, under Newhouse, the facts alleged must indicate

that    there    was    some   correlation   between   Gundrum's          negligence

giving rise to liability and a condition of the premises on

which the assault occurred.           Here, however, no condition of the

shed itself or the surrounding premises is alleged to correlate
with        Gundrum's    alleged     negligence.       The     only         arguable

correlation between Gundrum's alleged negligence and the shed is

that    Gundrum's       alleged    negligence    occurred    at      an     underage




       12
       In interpreting a non-insured location exclusion, the
Newhouse court relied upon Wisconsin's "policy of strictly
interpreting exclusionary clauses."    145 Wis. 2d at 242.    It
observed that "if the [insurance] company had intended to
geographically limit coverage for tortious personal conduct, 'it
could simply have provided that the exclusion ran to an accident
'occurring on' other owned premises.'" Id. (quotation omitted).

                                        18
                                                                No.   2011AP564.awb


drinking party hosted by Gundrum on the premises where the shed

was located.

        ¶140 Such   a   tenuous    connection   to    the   premises      is   not

enough to fall within the non-insured location exclusion.                      The

Newhouse court soundly rejected the argument that tortious acts

occurring on a non-insured premises are excluded from coverage:

     It makes no difference whether the insured owns the
     premises on which his tortious act takes place. Under
     the policy's terms, there is floating coverage for the
     insured's tortious personal acts wherever he might be.
     The dispositive issue is therefore whether there is
     some correlation between the negligence giving rise to
     liability and a condition of the premises.
Id. at 240.     Like Newhouse, it makes no difference here that the

alleged tortious acts merely occurred on a non-insured premises.

The exclusion is therefore inapplicable and no analysis of any

exceptions to the exclusion is required.                Estate of Sustache,

311 Wis. 2d 548, ¶23.

        ¶141 Because facts alleged in the Second Amended Complaint

fall within the policy's grant of coverage and because coverage

is   not    excluded    by   the   non-insured       location     exclusion,     I

conclude that the homeowner's policy provides coverage in this

case.    Accordingly, I respectfully dissent.

     ¶142 I am authorized to state that CHIEF JUSTICE SHIRLEY S.

ABRAHAMSON joins this dissent. I am also authorized to state

that JUSTICE N. PATRICK CROOKS joins Part II of this dissent.




                                      19
    No.   2011AP564.awb




1
