¶ 43. (dissenting). In Smith v. Katz, 226 Wis. 2d 798, 822, 595 N.W.2d 345 *29(1999), this court left open the question of whether a negligent misrepresentation can constitute an "occurrence" or "accident" for purposes of general liability insurance. Today, the majority seemingly resolves this matter, but does so by skewing the focus of the inquiry and ignoring the "negligent" component of the negligent misrepresentation. Because I conclude that the alleged negligent misrepresentation in this case can constitute an "occurrence," and because the Eversons' complaint sufficiently alleges the remaining elements necessary to trigger a duty to defend, "loss of use" and "causation," I respectfully dissent.
I
¶ 44. The majority concludes that "where there is a volitional act involved in such a misrepresentation, that act removes it from coverage as an 'occurrence' under the liability insurance policy." Majority op., ¶ 20. The problem with the majority opinion lies not with this conclusion. Rather, the problem arises when in identifying the relevant act, the majority shifts focus from a specific non-volitional act to a more general volitional act. Of course, if the level of generality is extended far enough, a volitional act can always be found somewhere down the line.
¶ 45. As in many cases, the relevant facts here drive the analysis. Lorenz gave the Eversons a Real Estate Condition Report that contained a typographical error, mistaking Lot 21 for Lot 31. The parties agree that the Eversons' Lot 31 has a portion of the property in the flood plain, but the Real Estate Condition Report failed to disclose that fact. Instead, the report erroneously listed Lot 21 as part of the flood plain.
¶ 46. The Eversons attached to the complaint the Real Estate Condition Report which stated, "[s]ome lots *30as shown on Exhibit A attached have as part of their back lots land that lies within the approximate 100[-]year flood plain. On lots 14-22 this area falls in the wooded ravine area and for lots 23-27, 21 & 32 it falls within the grassland area on the back of the lots." (Emphasis added.)
¶ 47. According to the complaint, the Eversons received the Real Estate Condition Report, which provided that "no portion of Lot 31 lay within the 100[-]year flood plain." When they purchased Lot 31, the Eversons received a Warranty Deed, incorporating by reference the representations contained in the report. After the transaction was completed, the Ever-sons discovered that a substantial portion of Lot 31 was located within a 100-year flood plain. They alleged that the flood plain made "the construction of the home which they wished to construct on the property impossible in the location in which the Plaintiffs wished to build based upon the pre-sale representations of LORENZ." As a result, they sustained damages having already paid for items that they could no longer use.
¶ 48. The majority, however, tucks away in a footnote the relevant facts of the negligent misrepresentation claim. Id., ¶ 5, n. 3. In doing so, it shifts the focus away from the accidental typographical error contained in the report and instead focuses in the text on the general action that Lorenz gave the report to Everson. Id., ¶ 22. Consequently, the majority then opines that there is no accident here at all because the decision to give Everson the report is not an "accident." Id. Accordingly, the majority concludes that because there is no accident, there is no coverage under the policy.
*31¶ 49. No one asserts that the "act" of giving the report was an accident. Of course it was volitional or intentional. As part of the real estate transaction, Lorenz needed to provide the Real Estate Condition Report.
¶ 50. Stripped to its essentials, the majority here determines that an accidental act (a typographical error) is not an accident. How can it arrive at such an anomalous conclusion? Only by skewing the focus as described above and ignoring the "negligent" component of a negligent misrepresentation claim.
II
¶ 51. As noted, the question left open by Smith, 226 Wis. 2d 798, and that we address today is whether the alleged negligent misrepresentation of Lorenz can constitute an "occurrence" under Pekin's insurance policy. In the policy, "occurrence" is defined as "an accident, including continuous or repeated exposure to substantially the same general harmful conditions." Because the policy does not elaborate on the term "accident," the majority proffers two definitions for guidance: (1) "[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;" and (2) " '[a]n unexpected, undesirable event'" or " 'an unforeseen incident'" which is characterized by a " 'lack of intention.'" Majority op., ¶ 15 (citations omitted).
¶ 52. Both of the definitions cited by the majority center on an unintentional and unforeseeable event leading to undesirable results. In this case, the alleged negligent misrepresentation of Lorenz meets these criteria. However, in its efforts to convince the reader that there was no accident, the majority emphasizes only *32"misrepresentation" and ignores the "negligent" component of the negligent misrepresentation claim. It defines Lorenz's misrepresentation as an " 'act of making a false or misleading statement about something Id., ¶ 19 (citing Black's Law Dictionary 1016 (7th ed. 1999)). This characterization in itself is a "false and misleading statement," for the conduct at issue is Lorenz's alleged negligent misrepresentation.
¶ 53. Negligent misrepresentation is defined as "[a] careless or inadvertent false statement in circumstances where care should have been taken." Black's Law Dictionary 1016 (7th ed. 1999). Unlike the majority, I have little trouble concluding that a reasonable insured would expect the term "accident" to include a "careless or inadvertent false statement." On this matter, I find the case of Sheets v. Brethren Mut. Ins. Co., 679 A.2d 540 (Md. 1996), instructive.
¶ 54. In Sheets, the Maryland court of appeals was confronted with whether negligent misrepresentation constituted an "occurrence" under a general liability insurance policy. Ultimately, the court was persuaded by a number of cases recognizing that negligent misrepresentation can be considered an "occurrence" or "accident." Id. at 550 (citing SL Industries v. American Motorists Ins. Co., 607 A.2d 1266, 1276-77 (N.J. 1992) ("Courts generally have held that although the insurer must defend an insured who is accused of reckless, negligent, or innocent misrepresentations, no defense is required when the insured is accused of intentional misrepresentations."); Universal Underwriters v. Youngblood, 549 So.2d 76, 78, 79 (Ala. 1989) ("[t]he term 'accident' does not exclude events that occur through negligence," and that "[a]ctions for innocent or reckless misrepresentation have held to be covered"); First Newton Nat. Bank v. Gen. Casualty Co., 426 *33N.W.2d 618, 625-26 (Iowa 1988) ("[t]he very definition of 'negligent misrepresentation' connotes negligent rather than intentional conduct.... '[W]here a complaint is framed in terms of an insured's negligence ... there is a duty to defend.'")).
¶ 55. As this court stated in Smith, 226 Wis. 2d at 822, the decision in Sheets is "strikingly similar" to our negligence analysis in Doyle v. Engelke, 219 Wis. 2d 277, 580 N.W.2d 245 (1998). In Doyle, we held that an insurance policy using the term "event" covered negligent acts. 219 Wis. 2d at 290. The policy at issue in that case defined "event" the same as this policy defines "occurrence," as " 'an accident, including continuous or repeated exposure to substantially the same general harmful conditions.'" Id. at 289. We observed that both the definition for "negligence" and "accident" "center on an unintentional occurrence leading to undesirable results." Id. at 290. Thus, we concluded that a reasonable insured would expect the policy provision using the term "event" to cover negligent acts. Id. Because the conduct in this case also involves a negligent act, Doyle cannot be meaningfully distinguished.
¶ 56. Accordingly, I would conclude that a negligent misrepresentation can constitute an "occurrence" or "accident" for purposes of general liability insurance. After all, language in an insurance policy must be construed as understood by a reasonable person in the position of an insured. Frost v. Whitbeck, 2002 WI 129, ¶ 20, 257 Wis. 2d 80, 654 N.W.2d 225 (citing Kremers-Urban Co. v. Am. Employers Ins., 119 Wis. 2d 722, 735, 351 N.W.2d 156 (1984)). In this case, a reasonable person would not split the legal hair advanced by the majority. See majority op., ¶ 20. Rather, a reasonable *34person would expect that the policy would cover the typological error relied upon by Everson in the pre-sale representation.1
I-H I — I h — H
¶ 57. Having determined that the alleged negligent misrepresentation can constitute an "occurrence," I consider next whether the Eversons' complaint sufficiently alleges the remaining elements necessary to trigger a duty to defend, "loss of use" and "causation." Again, the majority opinion blurs the inquiry by focusing much of its discussion on the sufficiency of the evidence or the underlying merits of the claim rather than on the four corners of the complaint and the terms of the insurance policy. Id., ¶¶ 28-32. However, "[t]he duty to defend focuses on the nature of the claim and has nothing to do with the merits of the claim." Smith, 226 Wis. 2d at 806 (citing Grieb v. Citizens Casualty Co., 33 Wis. 2d 552, 558, 148 N.W.2d 103 (1967)) (emphasis added). Accordingly, the fact that the Eversons' claim may not amount to anything approaching the standard of "uselessness" is irrelevant.
¶ 58. The question in this case is whether Pekin's insurance policy provides coverage to Lorenz for the negligent misrepresentation claim filed by Everson. The answer to this question lies in comparing the allegations of the claim set forth in the complaint to the terms of the insurance policy. Id. (citing School Dist. of Shorewood v. Wausau Ins. Co., 170 Wis. 2d 347, 364-65, 488 N.W.2d 82 (1992)).
*35¶ 59. When focusing on the nature of the claim, courts must liberally construe the allegations in the complaint and assume all reasonable inferences. Doyle, 219 Wis. 2d at 284. While the majority mouths this standard, it fails to apply it here. Majority op., ¶ 25. The relevant allegation is set forth in paragraph seven of the complaint. It states:
7. Subsequently, the Plaintiffs discovered that a substantial portion of Lot 31 lay within the 100[-] year flood plain making the construction of the home which they wished to construct on the property impossible in the location in which the Plaintiffs wished to build based upon the pre-sale representations of LORENZ, rendering the property unbuildable for the Plaintiffs and causing the Plaintiffs to incur damages as a result in excess of $37,000.
¶ 60. Although this paragraph does not use the "magic words" the majority apparently seeks, it should not have to do so. See Smith, 226 Wis. 2d at 817 (a complaint claiming negligent misrepresentation need only "contain some statement about physical injury to tangible property, some reference to loss of use, or some demand for relief beyond money damages ..."). Here, the allegations are tantamount to a claim for "loss of use" under a liberal construction. The plaintiffs allege that a substantial portion of their property lay within the 100-year flood plain, making the construction of the home impossible in the location in which they wanted to build. They seek compensation based on Lorenz's negligent misrepresentation for out-of-pocket expenses, which are now useless to them. Accordingly, one can reasonably infer the "loss of use" of various items relating to that failed construction (e.g., excavation, concrete foundation, house plans, permits, etc.).
*36¶ 61. Likewise, I am satisfied that the complaint sufficiently alleges "causation" under a liberal construction. Again, the relevant language is found in paragraph seven: "Construction of the home which they wished to construct on the property [was] impossible in the location in which the Plaintiffs wished to build based upon the pre-sale representations of LORENZ ...." The majority dismisses this language, concluding that the " 'property damage' in this case was caused by the preexisting 100-year flood plain, not by any presale misrepresentation of Lorenz." Majority op., ¶ 39. However, for purposes of summary judgment, I believe it can be reasonably inferred that reliance on Lorenz's pre-sale representations caused the Eversons' damage. Accordingly, for the foregoing reasons I respectfully dissent.
¶ 62. I am authorized to state that CHIEF JUSTICE SHIRLEY S. ABRAHAMSON joins this dissent.Alternatively, I note that to the extent the term "accident" is ambiguous, it must be construed against an insurer and in favor of coverage. Frost v. Whitbeck, 2002 WI 129, ¶ 19, 257 Wis. 2d 80, 654 N.W.2d 225 (citing Danbeck v. Am. Family Mut. Ins. Co., 2001 WI 91, ¶ 10, 245 Wis. 2d 186, 629 N.W.2d 150).