COURT OF APPEALS
DATED AND FILED
September 17, 2008
David R. Schanker
Clerk of Court of Appeals
This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports.
A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62.
STATE OF WISCONSIN
IN COURT OF APPEALS
Daniel D. Buckel and Theresa M. Brzykcy,
Allstate Indemnity Company, Douglas Barnes, Kathleen
Barnes, American Family Mutual Insurance Company, Aaron
Lentz, Gregg Lentz, Julie Lentz,
Tauke, Nancy Tauke, ABC Insurance Company, John Doe, Jim
Doe and Jane Doe,
Blue Cross Blue Shield Of
from a judgment of the circuit court for
¶1 SNYDER, J. Daniel D. Buckel and Theresa M. Brzykcy appeal from a summary judgment in favor of the defendants. Buckel and Brzykcy argue that the circuit court erred when it did not allow the questions of intent and parental negligence to proceed to the jury. They further argue that the definitions of “intentional” in the defendants’ insurance policies were ambiguous and should have been interpreted in favor of the insureds to provide coverage. We affirm the judgment.
¶2 This case arises from a single vehicle motorcycle accident
that occurred when Buckel, the motorcycle driver, and Brzykcy, his passenger,
struck a “wall” of plastic wrap that had been placed across the road. Both were injured in the accident. The plastic wrap had been placed across the
road by defendants Douglas Barnes, Trenton Tauke and Aaron Lentz. At the time, Douglas was sixteen years old,
¶3 On the evening of July 12, 2004, Trenton Tauke was an
overnight guest at the home of Douglas Barnes and his parents. That night, they were chatting online with a
friend, David Walker. The boys’ chat
revolved around a plan to place plastic wrap across
¶4 Shortly after midnight,
¶5 Buckel and Brzykcy sued, alleging negligence by the boys and
negligent failure to supervise by the parents.
They filed claims against Douglas and his mother, along with the Barnes’
homeowners insurance carrier, Allstate Indemnity Company. They also sued
¶6 Allstate moved for summary judgment on grounds there was no
coverage under their policy for Douglas or his mother for
¶7 The circuit court held a hearing on the motions on June 25, 2007. It summarized the issues before it as follows:
[I]f the two year statute of limitations applies and the court considers this an intentional act, that this lawsuit then must be dismissed on its very terms because it was not filed in a timely fashion…. [I]f the court determines as a matter of law that this was not an intentional act but rather could be considered a negligent act, then the three year statute of limitations would apply and therefore the lawsuit was in fact timely filed.
The court also noted, “[I]f the
court determines that these actions constitute intentional acts as opposed to negligent
acts, that there is no coverage under any of these insurance policies ….” Applying the
¶8 The court also held that the claims against the parents for negligent supervision could not stand because there was no evidence that the parents knew or should have known that their sons would engage in this sort of conduct. Further, the court determined that the claims against the parents were derivative claims and that the insurance policies’ intentional acts exclusions, which excluded coverage for the acts of the wrongdoers, also excluded coverage for the parents’ supervision and control of the wrongdoers. Buckel and Brzykcy appeal.
¶9 Buckel and Brzykcy raise several issues on appeal. They contend that summary judgment was inappropriate because the question of intent should have gone to the jury, the insurance policy exclusions for intentional acts were ambiguous and should have been construed against the insurers, and the parents should have been held liable for the acts of their children under the theory of negligent supervision.
¶10 We review a summary
judgment using the same methodology as the circuit court, which is
well established and need not be repeated here. See, e.g., Lambrecht v. Estate of Kaczmarczyk, 2001 WI 25, ¶¶20-23, 241
The Intentional Acts Exclusion
¶11 Buckel and Brzykcy contend that the insurance policy
intentional acts exclusions are ambiguous and must be construed against the
companies in this instance. “In
¶12 The relevant American Family policy language is as follows: “Intentional injury: We will not cover bodily injury or property damage caused intentionally by or at the direction of any insured even if the actual bodily injury or property damage is different than that which was expected or intended from the standpoint of any insured.” The relevant Allstate policy language is as follows:
We do not cover any bodily injury or property damage intended by, or which may reasonably be expected to result from the intentional … acts or omissions of, any insured person. This exclusion applies even if … such bodily injury or property damage is of a different kind or degree than intended or reasonably expected ….
¶13 Buckel and Brzykcy argue that the intentional acts exclusions
are ambiguous because neither policy further defines the word “intentionally”
and that the term is susceptible to more than one interpretation. The argument
is unpersuasive in the face of a substantial body of case law concerning
intentional acts, the doctrine of fortuitousness, and public policy. See e.g., Loveridge v. Chartier,
The Intent to Harm or Injure
¶14 The parties agree that the conduct of the boys was intentional;
in other words, they did not accidentally or unknowingly place a clear plastic
wrap barrier across
¶15 We understand that the issue of intent is generally a question
of fact and, where intent is disputed and material to the outcome of the case,
the issue should prevent summary judgment; however, in some circumstances the
state of mind of a person must be inferred from the acts of that person in view
of the surrounding circumstances. See Pfeifer v. World Serv. Life Ins. Co.,
¶16 The question of intent must be addressed on a case-by-case
basis and the “more likely harm is to result from certain intentional conduct,
the more likely intent to harm may be inferred as a matter of law.” Loveridge, 161
¶17 Douglas, Trenton, and Aaron admitted that they intentionally
created a barrier across Guthrie Road using clear plastic wrap and that they
intended for a motor vehicle to strike the barrier. Aaron’s affidavit states, “The plastic wrap
that was placed across
¶18 Buckel and Brzykcy respond that the boys affirmatively averred
that they had no intent to injure and that such subjective evidence should
overcome the objective inference. We
disagree. “[A]n insured cannot prevent a
court from inferring his [or her] intent to injure as a matter of law by merely asserting he [or she] did not
intend to injure
or harm.” Ludwig v. Dulian, 217
Intent ... is broader than a desire to bring about physical results. It must extend not only to those consequences which are desired, but also to those which the actor believes are substantially certain to follow from what he does.... The man who fires a bullet into a dense crowd may fervently pray that he will hit no one, but since he must believe and know that he cannot avoid doing so, he intends it. The practical application of this principle has meant that where a reasonable man in the defendant’s position would believe that a particular result was substantially certain to follow, he will be dealt with by the jury, or even by the court, as though he had intended it.
See Pachucki v. Republic Ins. Co., 89
¶19 Buckel and Brzykcy also argue that the degree of harm the boys
may have expected is substantially different from the degree of harm that
actually occurred. They assert that,
because their injuries were well beyond any harm the boys reasonably expected
to cause, the intent to injure to this
degree is absent. However, the
objective standard for inferring intent also applies to preclude coverage where
the harm that occurs is different in character or magnitude from that intended
by the insured. Loveridge, 161
Parental Liability for Negligent Supervision and Control
¶20 Finally, Buckel and Brzykcy argue that even if the boys’ acts
were intentional, the claim for negligent supervision by their parents is not
subject to the two-year statute of limitations. The duty of a parent to control a child was
explained in Seibert v. Morris, 252
A parent is under a duty to exercise reasonable care so as to control his [or her] minor child as to prevent it from intentionally harming others or from so conducting itself as to create an unreasonable risk of bodily harm to them, if the parent (a) knows or has reason to know that he [or she] has the ability to control his [or her] child, and (b) knows or should know of the necessity and opportunity for exercising such control.
A parent must use ordinary care to control (his) (her) minor child so as to prevent the child from intentionally harming others or from conducting (himself) (herself) so as to create an unreasonable risk or bodily harm to others, if the parent knows or should know:
(1) that (he)(she) has the ability to control the child;
(2) that there is a necessity for exercising such control; and
(3) that there is an opportunity to do it.
¶21 To support their claim, Buckel and Brzykcy allege that the
three boys “had previously engaged in a prank of [S]aran [W]rapping several
cars.” They direct us to Nieuwendorp v. American Family
Insurance Co., 191
¶22 The analogy fails, however, because Nieuwendorp turned on the
fact that the parents knew of their
child’s tendency for disruptive and potentially harmful behavior when he was
not taking his medication. See id.
Here Buckel and Brzykcy suggest that because Douglas and
¶23 We are not persuaded that a few missing rolls of plastic wrap
and “a couple” of undiscovered escapades would alert parents that their child
was going to harm others. See Bruttig v. Olsen, 154
¶24 The circuit court aptly observed that there was
no evidence … to indicate that any of the juvenile[s’] parents involved in this particular case had any sort of knowledge such that they knew or should have known that their respective sons had a habit of engaging in this particular act or course of conduct …. Rather, the evidence unequivocally indicates that the actions of the actual juveniles themselves, leaving in the middle of the night, leaving their parents’ households … and doing these acts was only brought to the attention of the parents after these acts had occurred and … there is absolutely no basis in this record to indicate that any of these parents had any sort of knowledge or should have known that their children were acting in this fashion.
We agree with the circuit court’s assessment. No claims against the parents for negligent supervision survive summary judgment review.
¶25 We conclude that the conduct of Douglas,
By the Court.—Judgment affirmed.
Not recommended for publication in the official reports.
 The record indicates that another boy, identified as David Walker, took part; however, he is not a defendant in this action.
circuit court held that because there was no insurance coverage for the
intentional acts of Douglas,
his deposition, Douglas stated that he and