Hagen v. Gulrud

EICH, J.

(dissenting). The jury found that Gulrud did not intend or expect to cause injury to the plaintiff when he sexually assaulted her. This finding, of course, opened the door to coverage under the insurance policy because it defeated the claim that the "intentional acts" *9exclusion applied. The trial court stated its "personal[ ] agree[ment]" with the proposition that nonconsensual sexual intercourse or sexual contact should be considered a violent crime. The court nonetheless concluded that it had no authority to overturn the jury's factual findings, given the evidence of record. I agree with the court in both instances. While I, too, find it difficult to understand how an intentional physical assault can be treated as anything other than what it is, the issue in this case was framed as one of fact. And questions of fact are for the jury, not the courts, to determine. Capello v. Janeczko, 47 Wis. 2d 76, 80-81, 176 N.W.2d 395, 398 (1970).

That issue, however, is not addressed by the majority. Instead, the appeal is decided on grounds that, despite the jury's verdict, and despite the language of the policy which, given that verdict, would dictate coverage, none should be available in this case because the majority, relying on Hedtcke v. Sentry Ins. Co., 109 Wis. 2d 461, 484, 326 N.W.2d 727, 738 (1982), has concluded that such a result is not consistent with the "reasonable expectations" of the insurance company and Gulrud at the time the policy was taken out.

First, I have been unable to find any such argument in the parties' briefs, nor any citation to Hedtcke. As the majority notes, Implement Dealers refers to Professor Keeton's text and to Altena v. United Fire and Cas. Co,, 422 N.W.2d 485 (Iowa 1988). But neither reference has anything to do with the "reasonable expectations" principle on which the majority has seen fit to decide this case.

Second, the relevant language of the insurance policy provides that no coverage will be extended for any "bodily injury . . . which is expected or intended by the insured." There is no magic in those words. Courts and *10juries deal with them and apply them to a variety of factual situations every day. Here, the jury found that Gulrud did not "intend or expect to cause injury to the plaintiff," and there is no suggestion that that verdict lacks support in the record. Given these facts, I do not see how it can be said that coverage for unintended and unexpected injuries was not within the contemplation of the parties when the policy containing that very language was issued. I am even more unwilling to overturn a factually unchallenged jury verdict on such grounds.

The majority opinion concludes by stating its agreement with the principle that sexual assaults should be deterred. I could not agree more. But this appeal is not governed by noble phrases. It is governed by the language of the insurance contract as applied to the facts found by the jury, and I have explained why I believe that language, and those facts, compel coverage in this case.

I would uphold the trial court's denial of the motion for judgment notwithstanding the verdict. And, seeing no error in the other challenged rulings, I would affirm the judgment as entered, and I join in the decision to impose sanction on appellant's counsel for violating sec. (Rule) 809.23(3), Stats.