Insurance policy covers drinking party assault on insured’s
An intentional assault can still be considered an
“accident” for insurance purposes, if the insured party is
not the person who engaged in the assault.
By org jforward wisbar Joe Forward, Legal Writer,
State Bar of Wisconsin
Feb. 7, 2011 – An
insured who hosted a party is covered against allegations that he was
negligent in serving alcohol to an underage guest who later caused
bodily harm to the plaintiff, another guest at the party.
That’s what the District II Wisconsin Court of Appeals decided in
Schinner v. Gundrum, 2011AP564 (Feb. 2, 2012), reversing a circuit
court order that dismissed West Bend Mutual Insurance Company from a
negligence case commenced by Marshall Schinner against
Gundrum was 21 years old when he hosted a party
in a shed on his family’s business property. Schinner alleges that Gundrum served alcohol to an underage guest,
and this negligence caused Schinner to be
intentionally assaulted by the drunken underage party-goer.
The Gundrum family had a homeowner’s
insurance policy with West Bend Mutual. West Bend was initially
dismissed from the suit by the circuit court, which found that the
homeowner’s policy did not cover this type of
“occurrence” at that “location.” The appeals court
Was it an accident for insurance purposes?
The Gundrums’ policy covered personal
liability for damages that result from bodily injury caused by an
“occurrence,” including “accidents.” The policy did not
define the term “accident.”
The appeals court reviewed dictionary definitions of the term
“accident” and examined Wisconsin case law to determine that
a third-party assault on the insured’s property was a type of
accident demanding coverage under the homeowner’s policy.
“Although it may seem counterintuitive to think of an assault as
accidental, we rely on Wisconsin case law that has addressed whether an
assault is an accident for purposes of insurance coverage,” wrote
Judge Brian Blanchard, noting that the Wisconsin Supreme Court has
addressed the issue.
An assault is accidental, the appeals court explained, if the injured
person “did not intend, expect, or anticipate the assault or
resulting injuries,” viewing the incident from the injured
person’s vantage point. It may not be an “accident,”
however, if the insured commits the assault.
The appeals court examined Estate of Sustache v. American
Family Mutual Insurance Co., 2008 WI 87, 311 Wis. 2d 548, 751 N.W.2d 845, also a case in which an assault
occurred at an underage drinking party. But unlike the present case, the
insured in Sustache committed the assault.
“In effect, the [Sustache] court
views the assault from the standpoint of the insured and, viewed from
that standpoint, the court concludes the assault was not
accidental,” Judge Blanchard wrote. “Regardless of which way
we view it, the result is the same because the assault was an accident
from both the standpoint of the injured party (Schinner) and the insured (Gundrum).”
Location not excluded
The appeals court also rejected West Bend’s argument that the
homeowner’s insurance policy bared coverage for Schinner’s injuries because they occurred
on a non-insured premises.
Specifically, the policy barred coverage for bodily injuries
“arising out of” a location that was not the residence or a
premises used in connection with the residence.
West Bend argued Schinner’s
injuries arose out of Gundrum’s use
of the shed, and the shed was not used in connection with the Gundrum residence. Although the shed was
located on family business property, the court noted that the Gundrums used the shed to store personal
“[W]hile it was the undisputed physical situs of injury, no particular condition of the
premises correlates to the basis of liability for the injury,”
Judge Blanchard wrote. “And, to show this correlation, the insurer
must present evidence that the alleged negligence is ‘related to
the condition of’ the premises.”