Roger Choinsky v. Germantown School District Board of Education ( 2020 )


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    2020 WI 13
    SUPREME COURT            OF    WISCONSIN
    CASE NO.:              2018AP116
    COMPLETE TITLE:        Roger Choinsky, Gary Finn, William Gay, David
    Kliss, Carol
    Rudebeck and Janice Weinhold,
    Plaintiffs,
    v.
    Employers Insurance Company of Wausau and Wausau
    Business
    Insurance Company,
    Intervenors-Respondents,
    Germantown School District Board of Education
    and
    Germantown School District,
    Defendants-Appellants-Petitioners.
    REVIEW OF DECISION OF THE COURT OF APPEALS
    Reported at 
    2019 WI App 12
    , 
    386 Wis. 2d 285
    ,
    926 N.W.2d 196
    - Published
    OPINION FILED:         February 13, 2020
    SUBMITTED ON BRIEFS:
    ORAL ARGUMENT:         October 28, 2019
    SOURCE OF APPEAL:
    COURT:              Circuit
    COUNTY:             Washington
    JUDGE:              Todd K. Martens
    JUSTICES:
    REBECCA GRASSL BRADLEY, J., delivered the majority opinion of
    the Court, in which ROGGENSACK, C.J., ANN WALSH BRADLEY,
    ZIEGLER, and DALLET, JJ., joined. KELLY, J., filed a dissenting
    opinion.
    NOT PARTICIPATING:
    HAGEDORN, J., did not participate.
    ATTORNEYS:
    For the defendants-appellants-petitioners, there were briefs
    filed by Kirk D. Strang, Jenna E. Rousseau and Strang, Patteson,
    Renning, Lewis & Lacy, S.C., Madison and Green Bay.   There was an
    oral argument by Kirk D. Strang.
    For the intervenors-respondents, there was a brief filed by
    Thomas R. Schrimpf and Hinshaw & Culbertson LLP, Milwaukee, and
    Todd G. Smith and Godfrey & Kahn, S.C., Madison. There was an oral
    argument by Thomas R. Schrimpf.
    For amicus Wisconsin Insurance Alliance, a brief was filed by
    Robert I. Fassbender and Great Lakes Legal Foundation, Madison.
    2
    
    2020 WI 13
                                                              NOTICE
    This opinion is subject to further
    editing and modification.   The final
    version will appear in the bound
    volume of the official reports.
    No.   2018AP116
    (L.C. No.   2013CV527)
    STATE OF WISCONSIN                      :              IN SUPREME COURT
    Roger Choinsky, Gary Finn, William Gay, David
    Kliss, Carol
    Rudebeck and Janice Weinhold,
    Plaintiffs,
    v.
    Employers Insurance Company of Wausau and
    FILED
    Wausau Business
    FEB 13, 2020
    Insurance Company,
    Sheila T. Reiff
    Clerk of Supreme Court
    Intervenors-Respondents,
    Germantown School District Board of Education
    and
    Germantown School District,
    Defendants-Appellants-Petitioners.
    REBECCA GRASSL BRADLEY, J., delivered the majority opinion of the
    Court, in which ROGGENSACK, C.J., ANN WALSH BRADLEY, ZIEGLER, and
    DALLET, JJ., joined. KELLY, J., filed a dissenting opinion.
    HAGEDORN, J., did not participate.
    REVIEW of a decision of the Court of Appeals.          Affirmed.
    No.   2013CV52718AP116
    ¶1     REBECCA       GRASSL   BRADLEY,      J.     The    Germantown    School
    District    Board    of    Education      and    Germantown      School    District
    (collectively, the "School District") seek review of a court of
    appeals    decision1       affirming    the      circuit      court's   order    and
    judgment,2 which denied the School District's motion for attorney
    fees.     The School District argues that its insurers, Employers
    Insurance Company of Wausau and Wausau Business Insurance Company
    (collectively, the "Insurer"), breached the duty to defend the
    School    District    in    a   lawsuit       brought   by    retired   employees;
    therefore, the School District claims its Insurer should pay, as
    a remedy for the breach, all the attorney fees incurred by the
    School District.3
    ¶2     This case presents an insurance coverage duty-to-defend
    issue of first impression:             does an insurer breach its duty to
    defend its insured when it denies a tendered claim and then follows
    the judicially preferred procedure of filing a motion to intervene
    1 Choinsky v. Germantown Sch. Dist. Bd. of Educ., 
    2019 WI App 12
    , 
    386 Wis. 2d 285
    , 
    926 N.W.2d 196
    .
    2 The Honorable James G. Pouros of the Washington County
    Circuit Court presided until January 2015 when the case was
    reassigned to the Honorable Todd K. Martens.
    Two of the dates in the circuit court's November 30, 2017
    Order for Judgment and Judgment (Record item No. 590) are
    incorrect. The year "2017" in the second and third lines should
    be "2016."    Both the coverage trial and the special verdict
    resulting therefrom occurred in April 2016, not April 2017.
    3 The final circuit court order and judgment from which the
    School District appealed addressed only attorney fees with respect
    to coverage, not disputed fees relating to the liability defense.
    2
    No.    2013CV52718AP116
    and stay the underlying lawsuit pending a coverage determination,
    which is ultimately resolved in the insured's favor? Additionally,
    we consider the insurer's obligations in order to avoid breaching
    its duty to defend when the circuit court denies the motion to
    stay.4
    ¶3        We conclude that when an insurer initially denies a
    tendered claim but promptly proceeds with one of our judicially
    preferred methods for determining coverage, it does not breach its
    duty to defend.     If a circuit court denies any part of an insurer's
    motion    to    bifurcate   the   coverage   issue   from    the   underlying
    liability lawsuit and stay the latter, causing an insured to
    simultaneously defend the liability suit and litigate coverage
    against the insurer, an insurer must defend its insured in the
    liability lawsuit, retroactive to the date of tender, under a
    reservation of rights, until a court decides the coverage issue.
    Because the School District's Insurer followed this procedure, the
    Insurer did not breach its duty to defend and the Insurer is not
    responsible for any of the attorney fees the School District paid
    for the coverage dispute.         See Newhouse v. Citizens Sec. Mut. Ins.
    Co., 
    176 Wis. 2d 824
    , 832-39, 
    501 N.W.2d 1
    (1993) (when an insurer
    4 We use "coverage" to refer to the coverage issue and
    "liability" to refer to the resolution of the underlying lawsuit
    that triggered the insurance issue. This terminology is frequently
    used in insurance cases, particularly when referring to
    bifurcating the "coverage" determination from the "liability"
    resolution.    We note, however, that "liability" may also be
    referred to as the "merits" issue.         "Merits" refers to a
    determination of the underlying lawsuit, i.e., resolving the
    question of the insured's liability to the plaintiff.
    3
    No.   2013CV52718AP116
    follows a judicially preferred method, the insurer "runs no risk
    of breaching its duty to defend"); see also Carney v. Village of
    Darien, 
    60 F.3d 1273
    , 1277 (7th Cir. 1995) ("[A]n insurer who
    properly   follows    the   procedure   recommended    by   the   Wisconsin
    Supreme Court of first seeking a determination on coverage prior
    to the liability issue, has not breached its duty to defend.");
    Reid v. Benz, 
    2001 WI 106
    , ¶¶26-28, 32-35, 
    245 Wis. 2d 658
    , 
    629 N.W.2d 262
    (explaining an award of coverage attorney fees is
    limited to cases in which insurer breaches duty to defend and
    equity demands a fee-shifting).
    ¶4    In   reaching    this   decision,   we     reject   the   School
    District's claims that:     (1) its Insurer's initial outright denial
    of coverage followed by a delayed decision to defend under a
    reservation of rights constituted a breach of its duty to defend;
    (2) its Insurer's delay in paying liability fees and its failure
    to reimburse the School District for the entire amount it paid to
    its liability lawyer constitutes a breach of its duty to defend;
    and (3) the circuit court's assessment of           whether the Insurer
    breached its duty to defend is subject to the four-corners rule.
    ¶5    We hold:    (1) the Insurer's initial denial of coverage
    did not breach its duty to defend because the Insurer promptly
    followed a judicially-approved method to resolve the coverage
    dispute; further, it defended the School District upon denial of
    the stay motion, agreeing to reimburse the School District for
    liability attorney fees retroactive to the date of the tender; (2)
    a delay in payment of liability attorney fees alone does not mean
    4
    No.    2013CV52718AP116
    an insurer breached its duty to defend and an insurer is obligated
    to pay only reasonable attorney fees; and (3) the four-corners
    rule applies in determining whether a duty to defend exists but
    does not preclude a court's consideration of whether the insurer
    unilaterally denied coverage or whether it chose a judicially
    preferred method of resolving a coverage dispute, in assessing
    whether an insurer breached its duty to defend.               We affirm the
    decision of the court of appeals.
    I.   BACKGROUND
    ¶6    In July 2013, six retired Germantown School District
    employees, as representatives in a class action, filed suit against
    the School District alleging four causes of action:           (1) breach of
    contract, (2) breach of implied contract, (3) breach of the duty
    of good faith and fair dealing, and (4) promissory estoppel.              The
    lawsuit   arose   from   the    School    District's   2012    decision    to
    discontinue group long-term care ("LTC") insurance for its current
    employees.   This decision caused the retired employees to lose
    their LTC insurance benefit.         The retirees' Complaint repeatedly
    describes the School District's decision as a "unilateral action"
    to terminate the insurance benefit, and alleges that "Defendants'
    act of discontinuing LTC benefits for active employees caused
    termination" of LTC insurance benefits for retirees. The Complaint
    further asserts the School District "by their unilateral acts
    terminated the group LTC policy for Plaintiffs in intentional and
    willful disregard of Plaintiffs' rights."              In the Complaint's
    general allegations of fact, the retirees alleged that the School
    5
    No.   2013CV52718AP116
    District "knew or should have known" that eliminating the LTC
    insurance for current employees would cause the retirees to lose
    LTC coverage.
    ¶7   After being served with the lawsuit, the School District
    tendered the defense of the suit to its Insurer.            About a week
    later, the Insurer sent a letter to the School District denying
    the   tender,   explaining   that   the   policies   covered   the   School
    District for negligent acts, not deliberate acts, and because the
    Insurer determined the lawsuit did not allege negligence, there
    was no coverage under the insurance policies.           The letter asked
    the School District to advise whether it agreed with this coverage
    determination and whether the School District would agree to
    withdraw its tender.    If the School District disagreed, or if the
    Insurer did not hear anything by August 20, 2013, the letter
    explained that the Insurer would file a motion in circuit court to
    obtain a coverage determination.
    ¶8   On August 29, 2013, after the School District notified
    the Insurer that it would not withdraw the tender, the Insurer
    filed a motion asking the circuit court to allow the Insurer to
    intervene in the lawsuit, and requested that the circuit court
    bifurcate the liability and coverage issues and stay the liability
    lawsuit until coverage could be resolved.       About three weeks after
    the motion was filed, the circuit court held a hearing on the
    motion, but it did not render a decision until three months later.
    On December 12, 2013, the circuit court granted the Insurer's
    6
    No.   2013CV52718AP116
    motion to intervene and bifurcate, but it denied the motion to
    stay the liability proceedings.5
    ¶9    One week after the decision, the Insurer filed its own
    Complaint for declaratory judgment asking the circuit court for a
    declaration that the Insurer had no duty to defend or indemnify
    the School District.   On December 30, 2013, the Insurer filed a
    motion for summary judgment asking the circuit court to rule it
    had no duty to defend or indemnify.    In this motion, the Insurer
    notified the circuit court that because the stay motion was denied,
    the Insurer decided to provide a full defense for its insured until
    coverage could be resolved.     Two weeks after that filing, the
    Insurer sent a letter directly to the School District saying it
    would provide a full defense under a reservation of rights.       The
    Insurer agreed to pay the fees the Insured incurred in defending
    the liability lawsuit, retroactive to the date of the tender.
    ¶10   The January 2014 letter advised that the School District
    could continue to use the attorney it had hired as long as the
    attorney and the Insurer could agree on "hourly rates."           The
    Insurer started paying the School District's attorney directly in
    5 The circuit court denied the stay based on "the unique
    factual background of this particular case (as compared to other
    reported    insurance  coverage  cases)"   because   it   involved
    elimination of the retired employees LTC benefits, which, if
    needed, could have caused "personal financial devastation." As it
    turned out, the coverage trial preceded the liability trial by
    over a year even though the circuit court denied the requested
    stay.    The coverage trial resulted in a finding in favor of
    coverage and the liability trial resulted in no liability.
    7
    No.      2013CV52718AP116
    May 2014 and reached an agreement on previously paid attorney fees
    by June 2014.
    ¶11    In July 2014, the circuit court denied the Insurer's
    motion for summary judgment because the facts required further
    development.       In October 2014, the Insurer filed a second motion
    for summary judgment seeking a declaration that it did not owe a
    duty to defend or indemnify.         In June 2015, the circuit court
    denied the Insurer's second motion for summary judgment.                   The
    circuit court explained it could not decide as a matter of law
    whether the individuals who made the decision to terminate LTC
    insurance for current employees acted negligently or intentionally
    with respect to the impact that decision would have on retired
    employees.   As a result, this issue was presented to a jury at the
    coverage trial in April 2016.            The jury found that the School
    District decisionmakers acted negligently; based on that finding,
    the circuit court concluded the Insurer had a duty to defend based
    on the Complaint's allegation that the School District "should
    have known" the adverse effect its decision to eliminate LTC
    insurance    for    current   employees    would   have   on    its   retired
    employees.     The School District's motion after verdict asked for
    an award of attorney fees, but the circuit court delayed deciding
    the attorney fees issue to afford the parties the opportunity to
    resolve it on their own.         The Insurer attempted to appeal the
    coverage decision, but the appeal was dismissed by the court of
    appeals because the circuit court had not yet decided whether the
    Insurer owed the School District additional attorney fees.
    8
    No.   2013CV52718AP116
    ¶12   The case proceeded to trial on liability in June 2017
    and the jury returned a verdict in favor of the School District.
    The parties then resurrected the unresolved attorney fees issue
    and the circuit court issued a written decision on November 3,
    2017.   In that order, the circuit court explained that because the
    Insurer followed a judicially preferred approach to the coverage
    dispute, it did not breach its duty to defend; therefore, the
    School District was not entitled to recover any attorney fees it
    expended in establishing coverage.    The November 3rd order does
    not address any unpaid attorney fees related to liability.        The
    School District did not seek clarification of the circuit court's
    order, nor did it object to the proposed Order for Judgment and
    Judgment the Insurer's attorney submitted to the circuit court.
    On November 30, 2017, the circuit court entered its Order for
    Judgment and Judgment, attaching its November 3, 2017 written order
    on attorney fees.   The School District appealed from the November
    30th and November 3rd circuit court orders, and the court of
    appeals affirmed the circuit court.      The School District then
    petitioned this court for review and we granted the petition.
    II. STANDARD OF REVIEW
    ¶13   This case requires the court to interpret an insurance
    contract to determine whether the Insurer breached its duty to
    defend; this presents a question of law reviewed de novo.      Water
    Well Sols. Serv. Grp., Inc. v. Consolidated Ins. Co., 
    2016 WI 54
    ,
    ¶12, 
    369 Wis. 2d 607
    , 
    881 N.W.2d 285
    (citations omitted).    Whether
    an Insurer should pay for its insured's attorney fees relating to
    9
    No.    2013CV52718AP116
    establishing coverage is also reviewed independently.       Reid, 
    245 Wis. 2d 658
    , ¶12.
    III. ANALYSIS
    A.   Insurance Law
    ¶14   This court has provided much guidance on an insurer's
    duty to defend and how an insurer can avoid breaching that duty.
    See, e.g., Water Well, 
    369 Wis. 2d 607
    , ¶¶15-17; Olson v. Farrar,
    
    2012 WI 3
    , ¶29, 
    338 Wis. 2d 215
    , 
    809 N.W.2d 1
    ; 
    Newhouse, 176 Wis. 2d at 832-39
    ; Elliott v. Donahue, 
    169 Wis. 2d 310
    , 317-21,
    
    485 N.W.2d 403
    (1992).   It is the breach of the duty to defend and
    not the existence of the duty itself that triggers equitable fee-
    shifting in insurance cases.      See Reid, 
    245 Wis. 2d 658
    , ¶37
    (explaining that coverage attorney fees were awarded in Elliott as
    a "matter of equity"); see generally Elliott, 
    169 Wis. 2d 310
    .6
    In Elliott, we held that an insured was entitled to recover from
    its insurer any attorney fees the insured incurred to establish
    coverage if the insurer breached its duty to defend.    
    Elliott, 169 Wis. 2d at 314
    , 318, 322.     Elliott recognized that the attorney
    fees awarded must be "reasonable" and remanded the matter to the
    circuit court "for a determination of the reasonable attorney fees
    incurred."   
    Id. at 325;
    see also 
    Newhouse, 176 Wis. 2d at 837-38
    6 In Elliott v. Donahue, we held the insurer's initial denial
    was not a breach of its duty to defend. 
    169 Wis. 2d 310
    , 318, 
    485 N.W.2d 403
    (1992). The insurer's breach of its duty to its insured
    was the insurer's failure to move for bifurcation and a stay so
    that coverage could be decided before the insured incurred attorney
    fees at the liability trial. 
    Id. 10 No.
      2013CV52718AP116
    (explaining that a breach of the duty to defend results in damages
    naturally flowing from that breach).
    ¶15    Since our decision in Elliott, this court established
    several judicially preferred procedures for an insurer to follow
    in order to avoid breaching its duty to defend, which will avert
    exposure to an Elliott/Newhouse fees award against it.                These
    judicially preferred methods are designed to strike a fair balance
    between      the   respective   interests   of   insurers   and   insureds.
    Insureds who pay for insurance policies should receive a defense
    paid by its insurer whenever facing a lawsuit that "appear[s] to
    give rise to coverage" under the policy.          Olson, 
    338 Wis. 2d 215
    ,
    ¶30.     On the other hand, if a complaint does not allege a claim
    covered under the policy, the insurer should not be obligated to
    defend its insured.       Water Well, 
    369 Wis. 2d 607
    , ¶¶32-40.       If "a
    claim is 'fairly debatable,' the insurer is entitled to debate
    it[.]"    Anderson v. Continental Ins. Co., 
    85 Wis. 2d 675
    , 691, 
    271 N.W.2d 368
    (1978).
    ¶16    The duty to defend arises when an insurer is served with
    a complaint that "alleges facts that, if proven, would constitute
    a covered claim" or when an insured who is served with a complaint
    alleging a covered claim tenders the defense to its insurer.            See
    Estate of Sustache v. Am. Family Mut. Ins. Co., 
    2008 WI 87
    , ¶27,
    11
    No.    2013CV52718AP116
    
    311 Wis. 2d 548
    , 
    751 N.W.2d 845
    (quoted sources omitted).7         The
    "four corners" rule is used to determine whether the complaint
    alleges a covered claim, by comparing the words in the complaint
    to the language of the entire insurance policy.       See Water Well,
    
    369 Wis. 2d 607
    , ¶15. The allegations of the complaint "must state
    or claim a cause of action for the liability insured against or
    for which indemnity is paid in order for the suit to come within
    any defense coverage of the policy[.]"     Grieb v. Citizens Cas.
    Co., 
    33 Wis. 2d 552
    , 557-58, 
    148 N.W.2d 103
    (1967). If a complaint
    alleges a covered claim, an insurer must provide a defense to its
    insured or follow one of the judicially preferred methods to
    resolve any dispute over coverage.   Water Well, 
    369 Wis. 2d 607
    ,
    ¶27; Sustache, 
    311 Wis. 2d 548
    , ¶¶25-26.   An insurer is obligated
    to defend "only if it could be held bound to indemnify the
    7 Wisconsin cases have been rather imprecise in pronouncing
    the test that triggers coverage. Some express the test as whether
    a complaint alleges an "arguably" covered claim, see, e.g.,
    Fireman's Fund Ins. Co. v. Bradley Corp., 
    2003 WI 33
    , ¶20, 
    261 Wis. 2d 4
    , 
    660 N.W.2d 666
    ("duty to defend is triggered by
    arguable, as opposed to actual, coverage"), and others discuss
    whether coverage under the allegations in the complaint is "fairly
    debatable," see, e.g., Red Arrow Prod. Co., Inc. v. Employers Ins.
    of Wausau, 
    2000 WI App 36
    , ¶¶16-19, 
    233 Wis. 2d 114
    , 
    607 N.W.2d 294
    . At least one Wisconsin insurance law treatise suggests
    the "fairly debatable" language "should not apply when determining
    whether a complaint triggers coverage."       Rather, the "fairly
    debatable" test relates solely to assessing bad faith, "or, in the
    right circumstances, a breach-of-contract claim."        Arnold P.
    Anderson, Wisconsin Insurance Law § 7.30-7.33 (6th ed. 2013)
    (noting this term first appeared in the "bad-faith case of Anderson
    v. Continental Ins. Co., 
    85 Wis. 2d 675
    , 693, 
    271 N.W.2d 368
    (1978), which concluded there was no bad faith in denying claim if
    it was 'fairly debatable.'").
    12
    No.     2013CV52718AP116
    insured[.]"    Nichols v. Am. Employers Ins. Co., 
    140 Wis. 2d 743
    ,
    747, 
    412 N.W.2d 547
    (Ct. App. 1987) (quoting 
    Grieb, 33 Wis. 2d at 558
    ).   All doubts about the duty to defend must be resolved in
    favor of the insured.       Fireman's Fund Ins. Co. v. Bradley Corp.,
    
    2003 WI 33
    , ¶20, 
    261 Wis. 2d 4
    , 
    660 N.W.2d 666
    (courts "resolve
    any doubt regarding the duty to defend in favor of the insured");
    Sustache, 
    311 Wis. 2d 548
    , ¶21; Liebovich v. Minnesota Ins. Co.,
    
    2008 WI 75
    , ¶18, 
    310 Wis. 2d 751
    , 
    751 N.W.2d 764
    ; Sola Basic
    Indus., Inc. v. United States Fid. & Guar. Co., 
    90 Wis. 2d 641
    ,
    646-47, 
    280 N.W.2d 211
    (1979).       In contrast, if the complaint does
    not allege a covered claim, the insurer has no obligations under
    the policy.    See generally Menasha Corp. v. Lumbermens Mut. Cas.
    Co., 
    361 F. Supp. 2d 887
    , 891 (E.D. Wis. 2005).              Insurers should
    not have to defend an insured if a complaint does not allege any
    claims covered under the insurance policy.          See, e.g., Water Well,
    
    369 Wis. 2d 607
    , ¶¶32-40 (holding insurer had no duty to defend
    and did not breach its duty to defend by unilaterally refusing to
    defend when the complaint contained no allegations covered by the
    policy).
    ¶17   Of course, insurers and insureds do not always agree as
    to   whether   a    complaint   alleges   covered    claims.       For   those
    situations,    we    have   articulated   several   judicially      preferred
    procedures to follow and have repeatedly held that when an insurer
    follows one of those approaches, it is not at risk of breaching
    its duty to defend.     See, e.g., 
    Newhouse, 176 Wis. 2d at 836
    (when
    an insurer follows a judicially preferred method, the insurer "runs
    13
    No.     2013CV52718AP116
    no risk of breaching its duty to defend"); see also 
    Carney, 60 F.3d at 1277
    ("[A]n insurer who properly follows the procedure
    recommended by the Wisconsin Supreme Court of first seeking a
    determination on coverage prior to the liability issue, has not
    breached its duty to defend."). Our cases identify four judicially
    preferred procedures:
       Defend under a reservation of rights;
       Defend     under    a    reservation      of    rights     but    seek   a
    declaratory judgment on coverage;
       Enter into a nonwaiver agreement under which the insurer
    defends the insured but the insured acknowledges that
    the insurer has the right to contest coverage;
       File   a   motion       with   the    circuit    court     requesting    a
    bifurcated trial on coverage and liability and a stay of
    the    proceedings        on     liability      until      coverage      is
    determined.
    Water Well, 
    369 Wis. 2d 607
    , ¶27.
    ¶18   Under the first three options, the insurer elects to
    defend the insured under a reservation of rights and provide a
    defense while the issue of coverage is resolved.                        Provided the
    circuit court stays the liability proceedings, the fourth option
    does   not   require     the    insurer      to    defend    the     insured   pending
    resolution of the coverage issue.                 Rather, a successful motion to
    stay halts the liability case so that the insured does not incur
    attorney fees litigating liability until a coverage determination
    is made by the circuit court.               With all four judicially preferred
    14
    No.     2013CV52718AP116
    methods,    the    goal    is   to   protect    the   insured    from    having   to
    simultaneously pay to defend itself in a liability trial while
    litigating coverage against its insurer.
    ¶19    This case presents a problem with the fourth option when
    the circuit court denies the bifurcation or stay motion, resulting
    in the insured defending itself for a period of time on both
    liability and coverage.           We remedy that problem by clarifying the
    bifurcation/stay procedure:           if a circuit court denies bifurcation
    or a stay of the liability case, in order to protect itself from
    being found in breach of its duty to defend, the insurer must
    defend its insured under a reservation of rights so that the
    insured does not have to pay to defend itself on liability and
    coverage    at    the    same   time.8    Additionally,     the    insurer      must
    reimburse its insured for reasonable attorney fees expended on a
    liability defense, retroactive to the date of tender.
    ¶20    Although we recognize this court has not previously been
    presented    with       this    particular     factual   scenario,       the   well-
    established judicially preferred procedures nevertheless apply
    because the controlling legal principle is not new.                     In Mowry v.
    Badger State Mut. Cas. Co., we said:
    An insurer may need to provide a defense to its insured
    when the separate trial on coverage does not precede the
    trial on liability and damages . . . . Thus, we have
    noted that an insurer may be required to furnish a free
    8 See 
    Elliott, 169 Wis. 2d at 317-21
    ; Mowry v. Badger State
    Mut. Cas. Co., 
    129 Wis. 2d 496
    , 528-29, 
    385 N.W.2d 171
    (1986);
    Barber v. Nylund, 
    158 Wis. 2d 192
    , 197-98, 
    461 N.W.2d 809
    (Ct.
    App. 1990).
    15
    No.   2013CV52718AP116
    defense to its insured prior to the determination of
    coverage.
    
    129 Wis. 2d 496
    , 528-29, 
    385 N.W.2d 171
    (1986) (citation omitted).
    Although the facts and procedural history in Mowry differ from
    this case, Mowry alerted insurers to this additional precondition
    to avoiding a breach of the duty to defend, which arises when the
    circuit court denies a motion to bifurcate or stay.                    Of course,
    just   as    the   insurer    can   unilaterally     deny    coverage     without
    following any of the judicially preferred approaches, the insurer
    can decline to provide this retroactive defense if the circuit
    court denies the bifurcation or stay motion.            However, an insurer
    that does not follow a judicially preferred procedure, or maintains
    its position when a stay motion is denied, runs the risk of
    breaching its duty to defend if coverage is later established.
    B.    Application
    ¶21   We now turn to the specific circumstances of this case.
    The School District makes three arguments.             First, it argues its
    Insurer      breached   its   duty    to    defend   because      it    initially
    "unambiguously and complete[ly]" refused to provide a defense and
    should not be allowed to avoid the consequences of its choice by
    agreeing to defend six months later. Second, it argues its Insurer
    breached its duty to defend because the Insurer did not start
    paying for the defense for almost one year after the Insurer's
    initial denial, and the Insurer did not fully reimburse the School
    District for the attorney fees the School District incurred in
    defending the liability suit before the Insurer stepped in. Third,
    the School District says the four-corners rule prohibits the
    16
    No.   2013CV52718AP116
    circuit court from considering the Insurer's actions in attempting
    to secure a coverage determination.        The School District asks this
    court to reverse the court of appeals decision, hold that the
    Insurer is responsible for both unreimbursed liability attorney
    fees and all attorney fees incurred to establish coverage, and
    remand the case to the circuit court for a determination of the
    amount of those fees.
    1. Insurer's Initial Coverage Refusal and Delayed Defense
    ¶22    The   School   District    argues    the    Insurer's   initial
    coverage denial constituted a breach of its duty to defend and the
    Insurer's    later    decision   to   defend    and    pay   attorney   fees
    retroactive to the date of tender cannot remedy the breach.               We
    conclude that the Insurer's actions did not constitute a breach of
    its duty to defend because, even though the Insurer initially
    denied coverage, it followed one of this court's preferred methods
    to obtain a judicial determination on coverage before the liability
    suit proceeded.      See 
    Newhouse, 176 Wis. 2d at 836
    (when an insurer
    follows a judicially preferred method, the insurer "runs no risk
    of breaching its duty to defend"); see also 
    Carney, 60 F.3d at 1277
    ("[A]n insurer who properly follows the procedure recommended
    by the Wisconsin Supreme Court of first seeking a determination on
    coverage prior to the liability issue, has not breached its duty
    to defend.").
    ¶23    The   School   District    misconstrues     Water   Well,    
    369 Wis. 2d 607
    , to mean that an Insurer who initially denies coverage
    is in breach even if it proceeds to follow one of the judicially
    17
    No.     2013CV52718AP116
    preferred methods.          Water Well does not say that.         In Water Well,
    the insurer unilaterally denied coverage during the pendency of
    the underlying lawsuit.           The insurer in Water Well did not follow
    any of the judicially preferred methods because it determined the
    complaint did not allege any covered claims.               In that case, this
    court    contrasted        the   unilateral    denial   with     the    judicially
    preferred methods only because the insurer never changed its
    unilateral denial posture.           The School District's case involves a
    unilateral denial, shortly after which the Insurer followed one of
    the judicially preferred methods.             In order to avoid breaching the
    insurance contract, an insurer who initially denies must timely
    seek a judicial determination on coverage.              See United States Fire
    Ins.    Co.    v.   Good    Humor   Corp.,    
    173 Wis. 2d 804
    ,       830-31,   
    496 N.W.2d 730
    (Ct. App. 1993) (holding an Insurer's motion seeking
    declaratory judgment on coverage was untimely because it was not
    filed until after liability case had resolved).                  Water Well does
    not support the School District's argument.
    ¶24    Moreover, an insurer has the "right and obligation to
    make timely investigation" as "a condition precedent to [its]
    contractual duties of defense and coverage."             Gerrard Realty Corp.
    v. American States Ins. Co., 
    89 Wis. 2d 130
    , 140, 
    277 N.W.2d 863
    (1979).       The law necessarily permits an insurer to investigate a
    claim before accepting the defense:            "Certainly, an insurer cannot
    make a reasoned judgment as to its duty to defend or provide
    coverage until [it has] had the opportunity to examine and review
    the factual situation and the pleadings as they relate to the terms
    18
    No.    2013CV52718AP116
    of the[] policy of insurance."           
    Id. at 142.
          An insurer cannot
    breach its duty to defend based on its insured having incurred
    defense    costs   during   the   investigation      period     if   an   insurer
    reimburses the insured for defense costs retroactive to the date
    of the claim.      Lakeside Foods, Inc. v. Liberty Mut. Fire Ins. Co.,
    No. 2009AP1428, unpublished slip op., ¶¶41-43 (Wis. Ct. App. July
    21, 2010) (holding insurer did not breach its duty to defend
    because the three-month delay was attributed to the insurer's
    investigation of the matter); see generally Danner v. Auto-Owners
    Ins., 
    2001 WI 90
    , ¶58, 
    245 Wis. 2d 49
    , 
    629 N.W.2d 159
    (noting an
    insurer "should not be found to have acted in bad faith for
    thoroughly      investigating     a   claim"    because    sometimes      it   is
    difficult for the insurer to distinguish between legitimate and
    fraudulent claims).
    ¶25    It is undisputed that the Insurer, when presented with
    the School District's tender, responded by letter within a week,
    explaining why the Insurer concluded that the Complaint did not
    allege    any   covered   claims.      The     Insurer   explained    that     the
    allegations in the Complaint assert "deliberate" acts not covered
    by the insurance policies, which cover only negligent acts.                    In
    the letter, the Insurer asked the School District to notify the
    Insurer if it agreed with the Insurer's coverage analysis and
    advised that if the School District did not agree, the Insurer
    would seek a coverage determination in the circuit court.
    ¶26    Within a week of receiving the School District's written
    notification that it would dispute the denial of coverage, the
    19
    No.    2013CV52718AP116
    Insurer filed a motion asking to intervene in the liability
    lawsuit, to bifurcate the liability and coverage issues, and to
    stay the liability case so that coverage could be decided promptly.
    These actions precisely followed one of the judicially preferred
    approaches this court has said will protect an insurer from
    breaching its duty to defend.       Specifically, the Insurer moved "to
    bifurcate   and   stay"   the     liability    suit   pending    a   coverage
    determination.    The Insurer cannot be faulted for doing exactly
    what this court for years has instructed insurers to do.
    ¶27   The time gap between the filing of the Insurer's motion
    and the circuit court's decision necessarily caused the School
    District to incur attorney fees it would not have had to pay had
    the   circuit   court   granted    the    Insurer's   motion    to   stay   the
    liability proceedings. The circuit court did not decide the motion
    for three-and-a-half months, leaving the School District with
    defense costs as litigation over liability continued.            During that
    time, the School District's attorney filed and argued a motion to
    dismiss, which was denied.        The School District paid an attorney
    to defend it on the liability claim while also paying its attorney
    to litigate the coverage issue.           When the circuit court finally
    decided the Insurer's motions on December 12, 2013, it allowed the
    Insurer to intervene and granted the motion to bifurcate, but it
    denied the motion to stay liability, resulting in the insured
    20
    No.   2013CV52718AP116
    incurring additional attorney fees.9          The circuit court's decision
    caused the School District to pay attorney fees for litigating
    both       coverage   and   liability,   which    the   judicially   preferred
    procedures in coverage disputes are designed to prevent.
    ¶28     Within two weeks of the circuit court's decision denying
    the stay of liability proceedings, the Insurer notified the circuit
    court that it would pay for the defense of the School District.
    Within one month of the circuit court's decision denying the motion
    to stay, the Insurer notified the School District that it would
    defend the School District under a reservation of rights.10                 The
    letter suggests prior communication between the School District
    and the Insurer, as the Insurer acknowledges "its understanding"
    that the School District wanted to retain the attorney the School
    District had hired. The Insurer indicated doing so was "acceptable
    to The Insurers provided an agreement can be reached on the hourly
    rates to be charged by the firm."                The Insurer also asked the
    Between December 12, 2013 and January 14, 2014, the record
    9
    contains 29 items, including filings related to the School
    District's request for a stay so that it could seek an
    interlocutory appeal challenging the circuit court's denial of its
    motion to dismiss. Some of the record items relate solely to the
    coverage issue, including the Insurer's Complaint for Declaratory
    Judgment and its motion seeking summary judgment on coverage.
    The School District argues the Reservation of Rights letter
    10
    was infirm because the letter reserved the Insurer's right "to
    seek reimbursement of defense costs paid in this action in whole
    or in part to the extent permitted by applicable law." We decline
    to address this argument because it involves actions that did not
    occur. "Courts will not render merely advisory opinions." Tammi
    v. Porsche Cars N. Am., Inc., 
    2009 WI 83
    , ¶3, 
    320 Wis. 2d 45
    , 
    768 N.W.2d 783
    (quoted source omitted).
    21
    No.     2013CV52718AP116
    School District to have the firm send its fee schedule to the
    Insurer for approval.
    ¶29   The Insurer acted consistently with well-established
    cases   outlining    an   insurer's    obligations     in     order   to   avoid
    breaching its duty to defend.         It followed a judicially preferred
    approach and when the circuit court's rulings forced its Insured
    to simultaneously defend itself on both liability and coverage,
    the Insurer stepped in to defend the School District on liability
    and agreed to pay for all reasonable liability attorney fees the
    School District incurred retroactive to the date of tender.                 The
    circuit    court    acknowledged   that    it,   not    the     Insurer,    was
    responsible for the Insured having to simultaneously pay both
    liability and coverage attorney fees. The Insurer cannot be deemed
    in breach of its duty to its Insured given that it acted to prevent
    its Insured from paying for both liability and coverage, but the
    22
    No.   2013CV52718AP116
    circuit    court's   actions    thwarted    its   attempt.    The   Insurer
    satisfied its obligations under the insurance contract.11
    ¶30    The judicially preferred methods in coverage disputes
    are designed to prevent this double pay scenario for insureds.
    Promptly employing the "recommended bifurcation procedure of first
    conducting a trial on the coverage issue" protects insureds against
    concurrently paying for both a liability defense as well as
    coverage attorney fees.        Barber v. Nylund, 
    159 Wis. 2d 192
    , 197,
    
    461 N.W.2d 809
    (Ct. App. 1990).           Indeed, staying liability after
    granting bifurcation is generally the best practice.             See Reid,
    
    245 Wis. 2d 658
    , ¶27 (noting that after bifurcation, resolution of
    the coverage issue is "a relatively simple matter" and encouraging
    courts "to expedite resolution of the coverage issue").             Since at
    least 1986, this court has been encouraging circuit courts to
    11 Any damage to the insured as a result of the delay is
    remedied by an insurer paying for reasonable liability attorney
    fees retroactive to the date of tender, and any additional damages
    arising from an insurer's unreasonable actions or reckless
    disregard for its duties under the insurance contract can be
    pursued in a bad faith suit.     See Am. Design & Build, Inc. v.
    Houston Cas. Co., No. 11-C-293, 
    2012 WL 719061
    , at *11 (E.D. Wis.
    Mar. 5, 2012) (citing Lakeside Foods, Inc. v. Liberty Mut. Fire
    Ins. Co., No. 2009AP1428, unpublished slip op., ¶¶31-32, 40-49
    (Wis. Ct. App. July 21, 2010); Anderson v. Continental Ins. Co.,
    
    85 Wis. 2d 675
    , 691, 
    271 N.W.2d 368
    (1978) ("To show a claim for
    bad faith, a plaintiff must show the absence of a reasonable basis
    for denying benefits of the policy and the defendant's knowledge
    or reckless disregard of the lack of a reasonable basis for denying
    the claim."). The School District did not assert any bad faith
    claims against the Insurer. Nor could it. The record confirms
    the Insurer acted reasonably, in conformance with this court's
    guidelines, and consistent with its contractual obligations.
    23
    No.   2013CV52718AP116
    resolve the coverage issue expeditiously for the benefit of the
    insured:
    It would seem that, once an order to bifurcate has been
    made, a trial on a coverage issue should be a relatively
    simple matter. We, therefore, encourage a court which
    has ordered bifurcation to expedite the coverage issue
    by placing the trial on its calendar at an early date to
    assist in avoiding a needlessly protracted claim against
    the insured.
    See 
    Mowry, 129 Wis. 2d at 529
    n.4 (emphasis added).       We continue
    to encourage circuit courts to decide bifurcation and stay motions
    expeditiously and to grant the requested stay unless case-specific
    factors weigh against it.
    2. Attorney Fees Payment Issues
    a. Delay in Paying for Defense
    ¶31    The School District also faults the Insurer for the delay
    in reaching an agreement on attorney fees.      The School District
    argues this establishes a breach of the Insurer's duty to defend.
    We disagree.
    ¶32    The record is woefully inadequate for a complete review
    of this issue; consequently, the School District forfeited review.
    Nickel v. United States (In re Rehab. of Segregated Account of
    Ambac Assurance Corp.), 
    2012 WI 22
    , ¶10, 
    339 Wis. 2d 48
    , 
    810 N.W.2d 450
    ("Our case law is clear and consistent: failure to [adequately]
    preserve issues at the circuit court means that they are waived.").
    It is unclear if the School District or its attorney engaged in
    fee negotiations with the Insurer, or what those negotiations
    entailed.    Without any information regarding what negotiations
    took place or when, it is impossible to determine whether or to
    24
    No.   2013CV52718AP116
    what extent any delay is attributable to the Insurer, the School
    District, its attorney, or other factors.
    ¶33   We do know that in January 2014, the Insurer asked the
    School District to share its fee schedule so that negotiations
    could occur.    We also know the School District amended its cross-
    claim in April 2014 to allege that its attorney "advised" the
    Insurer of its fee schedule in January 2014, March 2014, and twice
    in April 2014.     The cross-claim alleged that the Insurer "failed
    and refused to respond" to each advisement. However, the Insurer's
    reply to the cross-claim denies this.
    ¶34   There is also an indication that the Insurer never
    received one of the attorney's invoices.         An affidavit from the
    School District's attorney attests that the attorney sent invoices
    to the Insurer as it requested, describing:      (1) the amount of the
    invoices; (2) the amount the Insurer paid; and (3) the difference
    between those two amounts that remained unreimbursed.             However,
    the affidavit does not identify the dates the attorney sent the
    invoices to the Insurer or the date the Insurer paid each invoice.
    Additionally, the affidavit is vague as to whether the Insurer
    made payment to the attorney or the School District.
    ¶35   Moreover,   the   Invoices    attached   to    the    liability
    attorney's     affidavit   are   substantially   redacted,      with   some
    descriptions of services completely blacked out and others listed
    only as "Review" or "Continue Review" or something similar.             The
    limited content of the invoices certainly could have impeded the
    Insurer's determination of what fees were reimbursable and whether
    25
    No.   2013CV52718AP116
    each itemized service represented the attorney's work on liability
    or something else.
    ¶36   Further, the record does not reflect the exact date fee
    negotiations concluded.   There is a reference to non-payment for
    three months, as well as indications that a fee agreement was
    reached in April 2014, in May 2014, or no later than June 1, 2014.
    The record does show that as of June 22, 2016, the Insurer paid
    liability attorney fees in the amount of $260,021.32.
    ¶37   It is not surprising that negotiations on attorney fees
    would take some time given that the School District retained its
    own attorney prior to the commencement of the lawsuit, and the
    Insurer subsequently stepped in to defend, agreeing to allow its
    insured's chosen attorney to continue the representation.12       The
    Insurer is obligated to compensate the liability attorney only at
    a reasonable rate, reflecting the market standard associated with
    the type of case and for that geographic location, among other
    relevant factors.    See Fireman's Fund Ins. Co., 
    261 Wis. 2d 4
    ,
    ¶¶68-69; 14 Couch on Ins. § 202:34 ("An insurer's obligation to
    reimburse independent counsel is limited to reasonable attorney's
    fees and disbursements.").   Even when an insurer breaches its duty
    to defend, the attorney fees awarded as damages must be reasonable.
    See 
    Elliott, 169 Wis. 2d at 325
    (remanding for a determination of
    reasonable attorney fees).
    12The School District was aware of the impending lawsuit
    because the retired employees had filed a Notice of Claim.
    26
    No.    2013CV52718AP116
    ¶38     Accordingly, we reject the School District's argument
    that the delay in payment of fees means the Insurer breached its
    duty to defend.          Because the law requires attorney fees to be
    reasonable, an Insurer is entitled to review fees and negotiate a
    reasonable rate. The record in this case contains no determination
    from the circuit court on any of these issues, without which we
    cannot assess whether a delay in payment constituted a breach of
    the Insurer's duty.           The inadequacy of the record means the School
    District forfeited review of this issue.                     Nickel, 
    339 Wis. 2d 48
    ,
    ¶10    ("Our     case    law    is   clear        and   consistent:          failure   to
    [adequately] preserve issues at the circuit court means that they
    are waived.").
    b. Unreimbursed Liability Attorney Fees
    ¶39     The School District also argues the Insurer breached its
    duty to defend by failing to reimburse it for the full amount it
    expended       in    liability       fees.         It    contends      the    Insurer's
    reimbursement fell short by approximately $50,000.                     We reject this
    contention for the same reasons we rejected the School District's
    argument regarding delayed reimbursement:                    (1) attorney fees must
    be    reasonable,       and    (2)   the   record       on   unreimbursed      liability
    attorney fees is sorely incomplete.                 While the record contains the
    specific amounts of liability fees in dispute as well as the amount
    the Insurer paid, we agree with the court of appeals that it is
    "impossible to properly consider [the School District's] unpaid
    fees argument" because "[t]he District leaves us to guess as to
    27
    No.     2013CV52718AP116
    the scope and details of the agreements" between the parties.13
    Additionally,       the    School       District    appealed        from    an     order
    addressing only coverage fees, not unreimbursed liability fees.
    Furthermore, it is undisputed that neither the School District nor
    its    liability       attorney    utilized       the   Insurer's      process      for
    appealing the Insurer's decision to pay less than the amount of
    the attorney fees invoice.
    3. Four-Corners Rule
    ¶40    The   School     District    also    asserts    the    circuit       court
    should examine only the four corners of the complaint to assess
    whether the Insurer breached its duty to defend and cannot consider
    any actions by the Insurer.              The four-corners rule is the well-
    established standard used to assess whether a duty to defend
    exists.       Water Well, 
    369 Wis. 2d 607
    , ¶¶19-20.                    No extrinsic
    evidence can be used to ascertain whether the Complaint alleges a
    covered claim.         
    Id., ¶24. ¶41
       The School District misunderstands this court's holding
    in    Water    Well.      We    never    prohibited     a    circuit       court    from
    considering the actions an insurer took to obtain a judicial
    determination on coverage. Nor did we say the circuit court cannot
    take into account that the insurer followed a judicially preferred
    method to determine coverage.              We held the circuit court cannot
    consider extrinsic evidence the insured, insurer, or anyone else
    might know about circumstances relating to the substance of the
    Complaint that are not within the four corners of the Complaint.
    13   See Choinsky, 
    386 Wis. 2d 285
    , ¶¶13-14, 18, 34 n.10.
    28
    No.   2013CV52718AP116
    In Water Well, the insured asked the court to consider extrinsic
    evidence about the product at issue, claiming the complaint's
    allegations    about     the   product   were   "factually   incomplete    or
    ambiguous."    
    Id., ¶2. This
    court refused Water Well's request and
    reaffirmed that in assessing whether the duty to defend exists, a
    court cannot look beyond the four corners of the Complaint.              
    Id., ¶¶23-24. Once
    the duty to defend has been established, the four-
    corners rule no longer applies.           See Sustache, 
    311 Wis. 2d 548
    ,
    ¶¶27-29.
    ¶42   Water Well did not disturb Wisconsin coverage law:             a
    court is bound by the four-corners rule when deciding whether the
    Complaint alleges a covered claim triggering the insurer's duty to
    defend.      Once a court concludes a duty to defend exists, the
    insurer's actions——unilaterally denying coverage, opting for a
    judicially preferred procedure to determine coverage, or something
    else——will be examined to decide whether the insurer breached its
    duty to defend.
    IV. CONCLUSION
    ¶43   The Insurer did not breach its duty to defend the School
    District because even though it concluded the Complaint did not
    allege a covered claim and issued a denial letter, it followed a
    judicially preferred method for having coverage decided before
    liability.     When the circuit court denied the Insurer's motion to
    stay   the   liability    proceedings,    the   Insurer   provided   a   full
    defense, retroactive to the date of tender.               By doing so, the
    Insurer complied with its contractual responsibilities to its
    29
    No.   2013CV52718AP116
    Insured and therefore is not responsible for the School District's
    coverage attorney fees.      This court has repeatedly said that when
    an insurer follows a judicially preferred procedure to resolve a
    coverage dispute, it will not risk breaching its duty to defend.
    When an insurer seeks bifurcation and a stay, it must defend the
    insured and pay its attorney fees retroactive to the date of tender
    if the circuit court denies any part of the motion.              We strongly
    encourage circuit courts to promptly decide these motions and to
    grant a stay of the liability proceedings whenever possible and
    appropriate.
    ¶44    We reject the School District's assertions that the
    delayed    defense,   the   time    necessary   to   negotiate    reasonable
    attorney fees, and the unreimbursed $50,000 in liability fees
    establish a breach by the Insurer.         The law permits an insurer to
    investigate a claim before defending and requires payment of only
    reasonable attorney fees.          An insufficient record prevents full
    review of the fees issues the School District raises.
    ¶45    Finally, we reject the School District's contention that
    the four-corners rule confines the circuit court's consideration
    of whether an insurer breached its duty to defend.                The four-
    corners rule governs the determination of whether a duty to defend
    exists, but courts necessarily consider the insurer's actions in
    unilaterally denying coverage, or following a judicially preferred
    approach to obtaining a judicial decision on coverage, in order to
    assess whether the insurer breached its duty to defend.
    30
    No.    2013CV52718AP116
    By    the   Court.—The   decision   of   the   court    of   appeals   is
    affirmed.
    ¶46     BRIAN HAGEDORN, J., did not participate.
    31
    No.   2018AP116.dk
    ¶47   DANIEL KELLY, J.   (dissenting).         I agree (mostly) with
    the court's statement of the law governing an insurer's duty to
    defend its insured when there is disagreement over coverage.               I
    don't agree, however, that an insurer can buy its way out of its
    breach of that duty by reimbursing its insured for defense costs.
    Because the Insurer1 in this case refused to provide attorneys for
    their insured during a period of time that our cases unmistakably
    say they owed the insured a defense, I conclude it breached its
    contractual   obligations.    For       these   reasons,   I   respectfully
    dissent.
    ¶48   This case is, as the court stated, about the Insurer's
    defense obligations when it chooses to protect its interests by
    filing a motion "requesting a bifurcated trial on coverage and
    liability and a stay of the proceedings on liability until coverage
    is determined."   Majority op., ¶17.          The court said "[t]his case
    presents a problem with [the bifurcate-and-stay] option when the
    circuit court denies the bifurcation or stay motion, resulting in
    the insured defending itself for a period of time on both liability
    and coverage."    
    Id., ¶19. To
    protect itself from a breach of
    contract claim under such circumstances, the court says, "the
    insurer must defend its insured under a reservation of rights so
    that the insured does not have to pay to defend itself on liability
    and coverage at the same time."         
    Id. 1 I
    will collectively refer to Employers Insurance Company of
    Wausau and Wausau Business Insurance Company as the "Insurer" to
    be consistent with the court's opinion.
    1
    No.   2018AP116.dk
    ¶49   I agree with this much of the court's statement of the
    law.    But I think it requires greater clarification because the
    application    of   that   principle   in    this   case   demonstrates    its
    statement provides a lacuna in the Insurer's defense obligations
    that leaves the insured paying for attorneys to litigate both the
    merits and coverage aspects of the case.
    ¶50   The duty to defend, as the court correctly states, begins
    upon service or tender of a coverage-implicating complaint:               "The
    duty to defend arises when an insurer is served with a complaint
    that 'alleges facts that, if proven, would constitute a covered
    claim' or when an insured who is served with a complaint alleging
    a covered claim tenders the defense to its insurer."                 
    Id., ¶16 (quoting
    Estate of Sustache v. Am. Family Mut. Ins. Co., 
    2008 WI 87
    , ¶27, 
    311 Wis. 2d 548
    , 
    751 N.W.2d 845
    ).
    ¶51   The insurer fulfills its duty to defend, of course, by
    "appoint[ing] defense counsel for its insured . . . ."              Estate of
    Sustache, 
    311 Wis. 2d 548
    , ¶27 (internal marks omitted).              And the
    insurer's duty to provide defense counsel continues until final
    resolution of the coverage issue:          "Wisconsin policy is clear.      If
    the allegations in the complaint, construed liberally, appear to
    give rise to coverage, insurers are required to provide a defense
    until the final resolution of the coverage question by a court."
    Olson v. Farrar, 
    2012 WI 3
    , ¶30, 
    338 Wis. 2d 215
    , 
    809 N.W.2d 1
    (emphasis added).
    ¶52   This duty is unaffected by an insurer's request to
    bifurcate and stay the merits phase of the case.            Mowry v. Badger
    State Mut. Cas. Co., 
    129 Wis. 2d 496
    , 523, 
    385 N.W.2d 171
    (1986)
    2
    No.   2018AP116.dk
    ("[I]f an insurer is granted a bifurcated trial under [Wis. Stat.]
    § 803.04(2)(b) [(1985-1986)], . . . an              insurer's       duties    to   its
    insured should not be suspended pending the outcome of the coverage
    trial." (emphasis added)); Barber v. Nylund, 
    158 Wis. 2d 192
    , 198,
    
    461 N.W.2d 809
    , (Ct. App. 1990) ("The law appears settled that
    even    if   an    insurer    is   granted      a      bifurcated     trial    under
    [§] 803.04(2)(b) [(1989-1990], . . . an insurer's duties to its
    insured are not suspended pending the outcome of the coverage
    trial." (emphasis added)). It necessarily follows that if granting
    a bifurcated trial on the merits does not relieve the insurer of
    its defense obligations, the obligations existed prior to the
    motion.      Once triggered by service or tender of a qualifying
    complaint, therefore, the duty to defend continues unabated until
    final resolution of the coverage question, notwithstanding the
    filing of a motion to bifurcate and stay the merits phase of the
    case.
    ¶53   Here, however, the court allowed the Insurer to escape
    its defense obligations.           The circuit court declared that the
    complaint described a cause of action that, if proved, would be
    covered by the insurance policies at issue.                   Consequently, the
    duty    to   defend   arose   when   the      School    District     tendered      the
    complaint to the Insurer.            But the Insurer did not provide a
    defense; it rejected the tender, and thereafter filed a complaint
    requesting     a   declaration     that    it   owed    no   duty    to   defend    or
    indemnify the School District.            It then moved the circuit court to
    bifurcate and stay the merits phase of the underlying case.                        The
    circuit court granted the bifurcation motion, but did not grant
    3
    No.   2018AP116.dk
    the requested stay.     The Insurer then said it would defend under
    a reservation of rights, but it did not start doing so until
    January 14, 2014 (the date on which it started paying for the
    School District's attorneys).
    ¶54   For a period of over 5 months, therefore, the Insurer
    did not, in fact, provide a defense.       And this failure occurred
    during a period of time our cases say the Insurer owed an unabated
    duty to defend the School District.     So the Insurer breached its
    contractual obligations.    The court concludes otherwise, however,
    stating that "the Insurer's actions did not constitute a breach of
    its duty to defend because, even though the Insurer initially
    denied coverage, it followed one of this court's preferred methods
    to obtain a judicial determination on coverage before the liability
    suit proceeded."      Majority op., ¶22.    But as discussed above,
    filing a motion to bifurcate and stay the merits phase of the case
    does not relieve the Insurer of its duty to defend.
    ¶55   I don't know how to describe the unexcused failure to
    perform an unabated contractual obligation as anything but a breach
    of contract.   Insurers know their refusal to provide a defense is
    courting liability to its insured:
    An insurer also has the option to "[d]eny the tender of
    defense and state the grounds for deciding that the
    complaint does not trigger any obligation to defend
    under the policy." If, however, an insurer chooses this
    option "it does so at its own peril." By declining to
    defend an insured, an insurer opens itself up to a myriad
    of adverse consequences if its unilateral duty to defend
    determination turns out to be wrong. For example, an
    insurer that breaches its duty to defend is liable for
    all costs naturally flowing from the breach.
    4
    No.    2018AP116.dk
    Water Well Sols. Serv. Grp., Inc. v. Consol. Ins. Co., 
    2016 WI 54
    ,
    ¶28, 
    369 Wis. 2d 607
    , 
    881 N.W.2d 285
    (quoted source omitted).             The
    Insurer gambled that its evaluation of the complaint against the
    School District was correct.        It was not, and so it bears the
    consequences of losing that gamble.       
    Id. ¶56 The
    court, however, allows the Insurer to buy its way
    out of its failed gamble.      It says that, in such circumstances,
    "[a]n insurer cannot breach its duty to defend based on its insured
    having incurred defense costs during the investigation period if
    an insurer reimburses the insured for defense costs retroactive to
    the date of the claim."      Majority op., ¶24.      Here, then, is as
    entirely new concept in the continued effort to achieve a détente
    between the interests of insurers and their insureds.            Introducing
    the concept of a "retroactive defense" allows an insurer to refuse
    its duty to defend between:       (a) tender of a coverage-implicating
    complaint; and (b) the court's resolution of coverages issues.             It
    risks nothing doing so because, in the worst case, it simply pays
    for the defense it refused to provide.
    ¶57   The "retroactive defense" concept may or may not be a
    wise policy, but it is definitely new.       The primary case the court
    cited in support of this proposition was an unpublished court of
    appeals decision (which, by definition, can supply no new statement
    of the law).     Lakeside Foods, Inc. v. Liberty Mut. Fire Ins. Co.,
    No. 2009AP1428, 
    2010 WL 2836401
    , unpublished slip op., (Wis. Ct.
    App. Jul. 21, 2010).    And Lakeside Foods, Inc. did not even purport
    to analyze this issue, merely stating that "during the pendency of
    its   coverage   investigation,    Liberty   knew   that    Lakeside      was
    5
    No.   2018AP116.dk
    represented by counsel, and presumably knew that it would be
    obligated to pay Lakeside's fees dating back to the tender of
    defense."    
    Id., ¶43. That
    is not a statement of law, it's just a
    description    of   what   the   insurer   in   that   case    believed     its
    obligation to be.      The Lakeside Foods, Inc. court did not say the
    insurer was correct in its observation, did not analyze the issue,
    and made no normative statement on the subject.
    ¶58    The only other authority the court offered in support of
    its "retroactive defense" proposition was Danner v. Auto-Owners
    Ins., 
    2001 WI 90
    , ¶58, 245 Wis 2d 49, 
    629 N.W.2d 159
    .                The court
    says Danner noted that "an insurer 'should not be found to have
    acted in bad faith for thoroughly investigating a claim' because
    sometimes it is difficult for the insurer to distinguish between
    legitimate and fraudulent claims."         Majority op., ¶24. That may be
    so, but it didn't have anything to say about the duty to defend,
    or the concept of a "retroactive defense," mostly because Ms.
    Danner was not the defendant.      Instead, Ms. Danner had made a claim
    under her underinsured motorist policy.            To the extent Danner
    addressed the thorough investigation of a claim, it did so in the
    context of indemnification, not the duty to defend.
    ¶59    Additionally, citing Danner in the context of this case
    carries the uncomfortable suggestion that an insurer's duty to
    defend can be deferred pending a thorough investigation of the
    claim.     It can't.   Investigation into the duty to defend goes no
    further than comparing the complaint to the insurance policy.
    Estate of Sustache, 
    311 Wis. 2d 548
    , ¶27 ("[W]hen a complaint
    alleges facts that, if proven, would constitute a covered claim,
    6
    No.   2018AP116.dk
    the insurer must appoint defense counsel for its insured without
    looking beyond the complaint's four corners." (internal marks
    omitted)).2
    ¶60   Finally, because I conclude that the Insurers breached
    their duty to defend, the School District is entitled to recover
    certain damages resulting from that breach.    See Water Well Sols.
    Serv. Grp., 
    369 Wis. 2d 607
    , ¶28 ("[A]n insurer that breaches its
    duty to defend is liable for all costs naturally flowing from the
    breach.").    Those damages include the attorney's fees necessary to
    establish coverage.    Elliott v. Donahue, 
    169 Wis. 2d 310
    , 322, 
    485 N.W.2d 403
    (1992).    There, we said:
    The insurer that denies coverage and forces the insured
    to retain counsel and expend additional money to
    establish coverage for a claim that falls within the
    ambit of the insurance policy deprives the insured the
    benefit that was bargained for and paid for with the
    periodic premium payments. Therefore, the principles of
    equity call for the insurer to be liable to the insured
    for expenses, including reasonable attorney fees,
    2 See also W. Bend Mut. Ins. Co. v. Ixthus Med. Supply, Inc.,
    
    2019 WI 19
    , ¶10, 
    385 Wis. 2d 580
    , 
    923 N.W.2d 550
    ("In assessing
    whether a duty to defend exists, we compare the four corners of
    the underlying complaint to the terms of the entire insurance
    policy." (internal marks and quoted source omitted)); Water Well
    Sols. Serv. Grp., Inc. v. Consol. Ins. Co., 
    2016 WI 54
    , ¶15, 
    369 Wis. 2d 607
    , 
    881 N.W.2d 285
    ("Longstanding case law requires a
    court considering an insurer's duty to defend its insured to
    compare the four corners of the underlying complaint to the terms
    of the entire insurance policy."); Olson v. Farrar, 
    2012 WI 3
    ,
    ¶29, 
    338 Wis. 2d 215
    , 
    809 N.W.2d 1
    ("Accordingly, an insurer must
    defend all suits where there would be coverage if the allegations
    were proven, even if the allegations are 'utterly specious.'
    (quoted source omitted)); Newhouse by Skow v. Citizens Sec. Mut.
    Ins. Co., 
    176 Wis. 2d 824
    , 835, 
    501 N.W.2d 1
    (1993) ("The duty to
    defend is triggered by the allegations contained within the four
    corners of the complaint.").
    7
    No.   2018AP116.dk
    incurred by the insured in successfully establishing
    coverage.
    
    Id. Thus, we
    ought to remand this matter to the circuit court for
    a determination of fees the School District reasonably incurred in
    establishing coverage.
    * * *
    So, I agree with the court that when an insurer follows one
    of the judicially-prescribed methods for contesting coverage it
    does not breach its contractual obligations. Until today, however,
    no part of the judicially-prescribed options allowed an insurer to
    refuse   its   defense   obligations   in   favor   of   reimbursing    its
    insured's defense costs at some undefined future date.          Therefore,
    I respectfully dissent.
    8
    No.   2018AP116.dk
    1