Jane Doe 1 v. Jay E. Link ( 2022 )

2022 WI APP 9
COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION
2020AP1244
Case Nos.:
2020AP1509
†Petition for Review filed
Complete Title of Case:
KERRI LINK,
PLAINTIFF,
V.
JAY E. LINK,
DEFENDANT-APPELLANT,†
MIDWEST FAMILY MUTUAL INSURANCE COMPANY,
INTERVENOR-RESPONDENT.
JANE DOE 1, JANE DOE 2, JANE DOE 3, JANE DOE 4,
JANE DOE 5, JANE DOE 6 AND JANE DOE 7,
PLAINTIFFS,
V.
JAY E. LINK,
DEFENDANT-APPELLANT,
MIDWEST FAMILY MUTUAL INSURANCE COMPANY,
INTERVENOR-RESPONDENT.
Opinion Filed: February 1, 2022
Submitted on Briefs: April 13, 2021
Oral Argument:
JUDGES: Stark, P.J., Hruz and Nashold, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYS: On behalf of the defendant-appellant, the cause was submitted on the
briefs of Christopher L. Strohbehn, Kathryn A. Keppel and Jaclyn C.
Kallie of Gimbel, Reilly, Guerin & Brown LLP, Milwaukee.
Respondent
ATTORNEYS: On behalf of the intervenor-respondent, the cause was submitted on the
brief of Brian A. Wood and Brandon D. Meshbesher of Lind, Jensen,
Sullivan & Peterson, P.A., Minneapolis, Minnesota.
2
2022 WI App 9COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
February 1, 2022
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10 and
RULE 809.62.
Appeal Nos. 2020AP1244 Cir. Ct. Nos. 2019CV284
2019CV199
2020AP1509
STATE OF WISCONSIN IN COURT OF APPEALS
NO. 2020AP1244
KERRI LINK,
PLAINTIFF,
V.
JAY E. LINK,
DEFENDANT-APPELLANT,
MIDWEST FAMILY MUTUAL INSURANCE COMPANY,
INTERVENOR-RESPONDENT.
NO. 2020AP1509
JANE DOE 1, JANE DOE 2, JANE DOE 3, JANE DOE 4,
JANE DOE 5, JANE DOE 6 AND JANE DOE 7,
PLAINTIFFS,
V.
Nos. 2020AP1244
2020AP1509
JAY E. LINK,
DEFENDANT-APPELLANT,
MIDWEST FAMILY MUTUAL INSURANCE COMPANY,
INTERVENOR-RESPONDENT.
APPEALS from orders of the circuit court for Douglas County:
ANGELINE E. WINTON and JOHN P. ANDERSON, Judges. Affirmed.
Before Stark, P.J., Hruz and Nashold, JJ.
¶1 NASHOLD, J. These consolidated appeals arise out of separate
lawsuits brought, respectively, by Kerri Link and Jane Does 1-7 (collectively,
Plaintiffs) against Jay E. Link. Plaintiffs’ claims stem from allegations that Link
posted Plaintiffs’ photographs, along with sexually suggestive and degrading
captions about them, on a members-only fetish website.
¶2 Link sought insurance coverage for Plaintiffs’ claims under his
homeowner’s policy with Midwest Family Mutual Insurance (Midwest).1 However,
Link then refused to provide responses to Midwest’s discovery requests in the
coverage proceeding, instead asserting his Fifth Amendment privilege against
self-incrimination. Midwest subsequently sought a no-coverage declaration on that
basis, arguing that Link had violated policy provisions requiring the insured to
cooperate in the investigation and truthfully represent all material facts. The circuit
1
Plaintiffs allege conduct falling within two policy periods. The two policies are
materially identical, so for ease of reading, we discuss them in the singular.
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courts granted summary judgment in favor of Midwest, each determining that
Midwest had no duty to defend or indemnify Link for the underlying claims.2 Link
appeals, arguing that his failure to comply with Midwest’s discovery requests
cannot result in the denial of coverage. We disagree and, accordingly, affirm.
BACKGROUND
¶3 We discuss the underlying lawsuits together because the factual
allegations are similar and the instant motions are materially identical. Plaintiffs
allege that Link, without their knowledge or consent, created sexually suggestive
and derogatory posts about them on a members-only fetish website. Specifically,
Kerri Link alleges that Link posted nude, partially nude, and sexually suggestive
photographs of her that Link took during their marriage, along with sexually
explicit, degrading, and false commentary about her. The Jane Doe plaintiffs allege
that Link copied photographs of them from their Facebook pages and reposted the
photographs on the fetish website, also adding sexually suggestive and false
commentary about them. One Jane Doe plaintiff further alleges that Link posted
photographs of another woman’s vagina next to the plaintiff’s Facebook photograph
and falsely stated that these sexually explicit photographs were of the plaintiff.
Plaintiffs brought claims for invasion of privacy, intentional infliction of emotional
distress, negligent infliction of emotional distress, and defamation; they also sought
punitive damages.
¶4 Link tendered his defense to Midwest, seeking coverage under the
personal injury endorsement to his homeowner’s policy. Midwest defended in both
2
The Honorable John P. Anderson entered the order granting summary judgment in case
No. 2019CV199. The Honorable Angeline E. Winton entered the order granting summary
judgment in case No. 2019CV284.
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cases under a reservation of rights and moved to intervene, bifurcate, and stay
further proceedings on the merits. Once made part of the litigation, Midwest cross-
claimed for a declaratory judgment in each case, seeking a determination that it had
no duty to defend or indemnify Link.3
¶5 Midwest then served various discovery requests on Link in the
coverage proceedings. It is undisputed that Link did not respond to these requests,
instead invoking his Fifth Amendment privilege to avoid self-incrimination. See
U.S. CONST. amend. V. (For ease of reading, we sometimes refer to Link’s
invocation of privilege as his discovery noncompliance.)4
¶6 Based on Link’s discovery noncompliance, Midwest filed motions for
summary judgment in both cases. Midwest argued that, per the policy’s terms, Link
was required to cooperate with the coverage investigation and not conceal or
misrepresent any material facts. Midwest contended that Link’s discovery
noncompliance represented a breach of these contractual duties, thereby eliminating
any possible duty of Midwest to provide coverage for the underlying claims. Both
circuit courts agreed and granted summary judgment in favor of Midwest, and Link
appealed. We discuss additional facts below, where relevant to our analysis.
3
In Kerri Link’s suit, the circuit court stayed proceedings on liability pending the
resolution of coverage issues. In the Jane Doe plaintiffs’ suit, the circuit court neither granted nor
denied Midwest’s motion to bifurcate and stay, ordered alternative dispute resolution, and set a date
for dispositive motions on coverage to be filed.
4
Link’s discovery responses are not in the appellate record; however, Link does not
dispute that he invoked his Fifth Amendment privilege and failed to respond to discovery requests.
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STANDARD OF REVIEW
¶7 The proper interpretation of an insurance policy is a question of law
that we decide de novo. Severude v. American Fam. Mut. Ins. Co., 2002 WI App
33, ¶9, 250 Wis. 2d 655, 639 N.W.2d 772. Likewise, we review a grant of summary
judgment de novo, applying the same methodology as the circuit court. Id.Summary judgment is appropriate where the pleadings and evidence submitted
“show that there is no genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.” WIS. STAT. § 802.08(2) (2019-20).5
DISCUSSION
¶8 Link seeks coverage for Plaintiffs’ claims under the personal injury
endorsement to his homeowner’s insurance policy. As pertinent here, the
endorsement requires Midwest to defend and indemnify Link in suits alleging
slander, libel, and invasion of privacy.6 The policy contains a concealment clause,
stating, “We do not provide coverage to an ‘insured’ who, whether before or after a
loss, has … [c]oncealed or misrepresented any fact upon which we rely, if the
concealment or misrepresentation is material and is made with intent to deceive.”7
5
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.
6
Specifically, the endorsement provides coverage for a claim for damages resulting from
“personal injury,” defined in pertinent part to “mean[] injury arising out of … [o]ral or written
publication of material that slanders or libels a person [or] violates a person’s right of privacy.”
Plaintiffs allege invasion of privacy, defamation, intentional infliction of emotional distress, and
negligent infliction of emotional distress. The issue of which of these claims Link’s policy might
cover is not before us, and we do not address it.
7
Link appears to argue that the concealment clause does not apply to his personal injury
endorsement because that clause is contained within his main homeowner’s policy. Per the policy’s
terms, however, the personal injury endorsement does not delete and replace the concealment
clause in the main policy. Thus, the concealment clause remains a contractual condition of
coverage.
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The endorsement also contains a cooperation clause, requiring Link to “[c]ooperate
with [Midwest] in the investigation, settlement or defense of any claim or suit,” and
stating that Midwest has “no duty to provide coverage” if Link’s failure to do so is
prejudicial to Midwest.
¶9 Midwest argues that Link breached the policy’s concealment and
cooperation clauses by not responding to Midwest’s interrogatories, requests for
admission, and requests for document production, all of which concern Link’s
posting photographs of and commentary about Plaintiffs, his intent in doing so, and
like information. As stated, Link does not dispute that he failed to respond to these
discovery requests and instead invoked his Fifth Amendment privilege against
self-incrimination. Link argues, however, that Midwest cannot ultimately establish
that his discovery noncompliance should result in loss of coverage.
¶10 We conclude that, for the following reasons, the undisputed facts
show that Link violated the concealment and cooperation clauses of his policy and
that these contractual breaches are grounds for coverage denial. We note that each
breach represents an independent basis for denying coverage. For completeness,
however, and because Link’s arguments on these provisions overlap, we address
Link’s duties under both clauses.
I. Application of Walker
¶11 Link raises several specific arguments on appeal that we address in
more detail below; however, his central argument is that an insured’s invocation of
a Fifth Amendment privilege in a coverage dispute cannot be grounds for coverage
denial. In State Farm Fire & Casualty Insurance Co. v. Walker, 157 Wis. 2d 459,
459 N.W.2d 605 (Ct. App. 1990), we considered and rejected this general argument
in the context of applying a policy’s concealment clause. We conclude that Walker
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controls here and that its analysis applies to both the concealment and the
cooperation clauses of Link’s policy.
¶12 In Walker, the insurer, State Farm, was investigating a claim under a
fire insurance policy and sought to question its insured, Walker, under oath. Id. at
463. Walker, who was facing unrelated homicide charges, invoked his Fifth
Amendment privilege. Id. at 463-64. State Farm denied coverage on the grounds
that Walker’s refusal to answer material questions violated the concealment clause
of the policy, and it sought a declaratory judgment to that effect. Id. Walker
counterclaimed for damages stemming from State Farm’s denial of coverage. Id. at
464. The circuit court dismissed Walker’s claims, concluding that Walker had
breached the concealment clause by refusing to answer questions material to State
Farm’s coverage investigation. Id.
¶13 On appeal, Walker “argue[d] that an insurance company cannot
interpret the failure to answer questions as concealment when the insured, following
an attorney’s advice, invokes the fifth amendment to avoid self-incrimination.” Id.
at 468. We rejected this argument, determining that, although Walker was entitled
to invoke privilege, he was not entitled to avoid his contractual duties on that basis:
The trial court correctly concluded that State Farm did not
violate Walker’s constitutional right to avoid
self-incrimination. The fifth amendment protects a
defendant only when it is the state that is the questioner; the
state can use the answers in a criminal prosecution. Fear of
self-incrimination does not exempt one from contractual
duties. Constitutional immunity has no application to a
private examination arising out of a contractual relationship.
Id. (internal quotation marks and citation omitted).
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¶14 We further determined that State Farm’s questions were “material”
within the meaning of the concealment clause, in that the questions “concern[ed] a
subject relevant and germane to the insurer’s investigation as it was then
proceeding.” Id. at 469 (internal quotation marks and citation omitted).
Specifically, Walker was asked about his name change and financial position. We
determined that “Walker’s previous name could have helped State Farm in its arson
investigation,” and that “questions about Walker’s financial position were relevant
to Walker’s possible motives for committing arson.” Id. Thus, Walker breached
the concealment clause by “intentionally conceal[ing] or misrepresent[ing] …
material fact[s] or circumstance[s] relating to his insurance.” Id. at 466. As a result,
Walker was not entitled to coverage under the policy.
¶15 Before addressing Link’s arguments seeking to distinguish Walker,
we note that Walker broadly considered the contractual ramifications of an insured’s
invoking his Fifth Amendment privilege. Walker’s conclusion—that
“[c]onstitutional immunity has no application to a private examination arising out
of a contractual relationship”—did not depend on the language of the concealment
clause but on the scope of Fifth Amendment privilege. Id. at 468. Accordingly,
Walker applies with equal force to evaluating a potential breach of the cooperation
clause. Thus, in this section, we address Link’s arguments concerning Walker as
they relate to both of these contractual duties.
¶16 Link argues that Walker does not control because that case involved
an insurer’s investigation of a first-party claim (i.e., a claim for indemnification for
the insured’s own loss, as opposed to a claim for defense and indemnity resulting
from a third-party suit against the insured). However, Walker’s analysis was in no
way dependent on whether it was the insured or a third party who suffered the loss
for which the insured sought coverage. Rather, Walker considered the general
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question of whether collateral civil consequences may attach to the invocation of
privilege in a coverage dispute. See id. at 468.
¶17 Walker considered this question in the context of a claim following
an insured’s own loss—fire damage to the insured’s property—because that was the
claim at issue. Logically, we discern no reason why the Walker rule should not
apply when the insurance coverage claim giving rise to the contractual obligations
derives from the insured’s liability for a loss suffered by a third party. The insured’s
contractual obligation to assist with the investigation remains the same. And
notably, Link provides no authority for his assumption that the type of insurance
claim is dispositive or even relevant to analyzing an insured’s breach of contract,
whereas Midwest points to a body of persuasive authority applying the principles of
Walker to third-party claims for defense and indemnity. See, e.g., Estate of Hott v.
Augusta Mut. Ins. Co., 335 F. Supp. 2d 727, 730-32 (W.D. Va. 2004) (defendant
in a wrongful death action who invoked Fifth Amendment privilege to avoid
answering material questions was not entitled to coverage; an insured “may not rely
on the Fifth Amendment to avoid a contractual obligation” (internal quotation marks
and quoted source omitted)); Anderson v. Southern Guar. Ins. Co. of Ga., 508
S.E.2d 726, 731-32 (Ga. Ct. App. 1998) (in a suit against the insured alleging
various intentional torts, the insured could not “wield her Fifth Amendment
privilege as a shield and a sword by demanding coverage and a defense under the
insurance contract, while at the same time refusing to answer questions material to
determining [her insurer’s] duties under the contract”).
¶18 Link further argues that Walker does not control here because in
Walker, the insurer’s questioning occurred during the investigative stage, prior to
any lawsuit. Link contends that, in contrast, “[h]is obligation to respond [to
Midwest’s discovery requests] was based not on the insurance contract, but on
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discovery statutes” providing for “specific statutory sanctions.” See WIS. STAT.
§ 804.12 (providing for discovery sanctions). Link also contends that Midwest
could have availed itself of an adverse-inference instruction as a result of Link’s
invocation of the Fifth Amendment. See Grognet v. Fox Valley Trucking Serv., 45
Wis. 2d 235, 239, 172 N.W.2d 812 (1969) (“[I]n a civil case as distinguished from
a criminal case, an inference of guilt or against the interest of the witness may be
drawn from his invoking the fifth amendment.”). In other words, Link appears to
argue that once adversarial proceedings had begun, Midwest’s remedies for his
discovery noncompliance were limited either to those under § 804.12 (which
remedies, Link suggests, do not include contractual avoidance) or to an adverse-
inference instruction.
¶19 We disagree. Link offers no compelling rationale for why the nature
or source of his contractual obligations, or the relief available to his insurer, would
be different in a coverage proceeding, as compared to an insurer’s handling of
claims outside of a lawsuit. As to the issue of relief specifically, Link is correct that
Midwest may have had separate “legal remed[ies] available to it upon [his]
invocation of Fifth Amendment privilege.” But Link provides no legal support for
the assumption that, in the face of a material breach of a policy provision, Midwest
was not permitted to simply seek a declaration that it had no coverage obligation.
Under the plain terms of the policy, coverage is contingent on Link’s fulfilling his
contractual duties, including that he cooperate with Midwest’s investigation and
defense of Plaintiffs’ claims and that he not intentionally conceal or misrepresent
any material fact upon which Midwest must rely as part of that process. Link’s
failure to carry out the terms of his contract did not require Midwest to pursue any
“legal remedy” other than the one it chose. Thus, Link does not meaningfully
explain why the availability of other remedies under rules of civil procedure might
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operate to preclude Midwest from denying coverage on grounds that Link breached
the policy.
¶20 We conclude that Walker controls and that the threat or possibility of
parallel criminal charges did not relieve Link of his contractual duties under the
policy. We now consider whether, as a matter of law, Midwest showed that Link
breached the concealment and cooperation clauses. As part of this analysis, we
address Link’s additional arguments as to why he is entitled to coverage.
II. Link Breached the Concealment and Cooperation Clauses
A. Concealment clause
¶21 The policy’s concealment clause states that Midwest “do[es] not
provide coverage to an ‘insured’ who, whether before or after a loss,
has … [c]oncealed or misrepresented any fact upon which we rely, if the
concealment or misrepresentation is material and is made with intent to deceive.”
Link acknowledges that he intentionally concealed information, insofar as he chose
not to answer any discovery requests. Link implies, however, that any fact he
concealed through his discovery noncompliance was not “material.”
¶22 We disagree. Having reviewed Midwest’s discovery requests, we
conclude that the information sought is directly and patently “germane to
[Midwest’s] investigation as it was then proceeding.” See Walker, 157 Wis. 2d at
469 (internal quotation marks and citation omitted). That is, the discovery requests
seek basic information about Link’s posting photographs of and commentary about
Plaintiffs on an adult website—information that must necessarily be relevant to
determining coverage under the policy.
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¶23 For example, the policy’s personal injury endorsement excludes
coverage for injury caused by the publication of material that the insured knew was
false. Link, however, refused to answer any questions pertaining to his knowledge
or state of mind in posting any material. Another exclusion denies coverage where
the first publication occurred before the beginning of the policy period. Again, Link
refused to provide information about when he made any of the posts. As
demonstrated in Walker, the “materiality” requirement is not a high bar. See id.
(questions about insured’s name change and financial position relevant to arson
investigation). We conclude that this bar was met here. And, like the Walker court,
we reach this conclusion as a matter of law because, despite Link’s implication,
there is no genuine dispute of fact as to whether Midwest’s questions are material.
See WIS. STAT. § 802.08(2).
¶24 Link further argues that Midwest cannot deny coverage because it did
not establish that his discovery noncompliance was prejudicial.8 An insurer must
indeed establish prejudice in denying coverage based on noncooperation. See
Ansul, Inc. v. Employers Ins. Co. of Wausau, 2012 WI App 135, ¶¶29, 32, 345
Wis. 2d 373, 826 N.W.2d 110 (for coverage to be denied, the insurer must show that
the insured’s breach of the cooperation clause was material and prejudicial). But to
the extent Link argues that an insurer must show prejudice in proving intentional
concealment—separate and apart from the above-discussed requirement of
materiality—he presents no authority for that proposition, nor does case law support
8
Link also appears to argue that Midwest was required to show how his discovery
noncompliance prejudiced merits/liability counsel in defending him against Plaintiffs’ claims. Link
does not explain why his discovery noncompliance in the coverage proceeding had to relate to the
underlying lawsuit. Nor does Link provide any authority for the premise that an insured may
choose not to participate in discovery on coverage so long as his underlying defense is not
prejudiced. We therefore reject this argument without addressing it further. See State v. Pettit, 171
Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992) (we do not address arguments that are
undeveloped or unsupported by legal authority).
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it. Thus, in Walker, 157 Wis. 2d at 467-69, we affirmed the denial of coverage
based on the insured’s concealment, without discussing prejudice. See also General
Star Indem. Co. v. Bankruptcy Est. of Lake Geneva Sugar Shack, Inc., 215
Wis. 2d 104, 116-17, 572 N.W.2d 881 (Ct. App. 1997) (not discussing prejudice in
setting forth the elements of the insurer’s misrepresentation defense to the insured’s
business interruption claim); cf. Tempelis v. Aetna Cas. & Sur. Co., 164 Wis. 2d
17, 27, 473 N.W.2d 549 (Ct. App. 1991) (“reliance is not an element required to
establish material misrepresentations in a proof of loss”; however, the insurer “must
still establish that the misrepresentation was material”).9
¶25 Accordingly, we conclude that Link’s breach of the concealment
clause was grounds for coverage denial, and we turn to the policy’s cooperation
clause.
B. Cooperation clause
¶26 Under the policy’s cooperation clause, Link’s duty “[in] the event of
a covered offense” is that he “[c]ooperate with [Midwest] in the investigation,
settlement or defense of any claim or suit.” Midwest has “no duty to provide
coverage under this policy if [Link’s] failure to comply with [the duty to cooperate]
is prejudicial to” Midwest.
¶27 Link raises several arguments as to why he did in fact cooperate with
Midwest or, alternatively, why his lack of cooperation should not constitute a breach
9
We note that even if Midwest needed to show prejudice in order to deny coverage on
concealment grounds, it has made this showing. We discuss prejudice further in the next section,
concerning Link’s breach of the cooperation clause, and that analysis applies equally to Link’s
breach of the concealment clause.
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of the cooperation clause.10 First, he implies that he did not breach the policy
because he cooperated with merits/liability counsel in Plaintiffs’ lawsuit. This
argument is a nonstarter. Preliminarily, we note that the record is silent on whether
or to what extent Link cooperated with merits counsel, a point Link himself
acknowledges. But even assuming that Link cooperated in the merits case, this was
not his only contractual duty. Link’s policy requires his cooperation with “us,” i.e.,
Midwest, in the “investigation, settlement or defense of any claim or suit,” meaning
Link was required to cooperate with Midwest in its coverage investigation. Link
cannot reasonably argue that he fulfilled this duty by participating in his own
defense.
¶28 Along similar lines, Link implies that Midwest cannot use his
discovery noncompliance as the basis for denying coverage because he was in a
“Catch-22.” That is, Link argues, any admission of fault in the coverage dispute
would have harmed his defense in the underlying lawsuit and may have represented
a breach of other policy provisions requiring his cooperation with merits/liability
counsel. This argument ignores the fact that Link himself demanded defense and
indemnification under his policy. Having invoked the policy, Link was required to
abide by its terms, including that he cooperate with coverage counsel and truthfully
represent all material facts in the coverage dispute. Link does not explain why
fulfilling these duties in the coverage cross-claim would have interfered with his
defense on the merits or breached his duty of cooperation with respect to
merits/liability counsel. And, as Midwest notes, if Link believed that fulfilling these
10
These arguments are not always clear, but we construe them as relating primarily to the
cooperation clause and not the concealment clause, and so we address them here. To the extent
these arguments relate to the concealment clause, we reject them in that context as well.
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duties ultimately would have harmed his defense, he could have foregone a defense
paid for by his insurer.
¶29 Relatedly, we reject Link’s argument that Midwest “arbitrarily
decided what facts and what form of a response constitute cooperation.” Rather,
Midwest has merely attempted to follow a well-established procedural path
available to insurers defending under a reservation of rights, in which the free
exchange of information or discovery is a prerequisite to determining coverage. See
Choinsky v. Employers Ins. Co. of Wausau, 2020 WI 13, ¶¶14-18, 390 Wis. 2d
209, 938 N.W.2d 548.
¶30 On a side note, we disagree with Link’s assertion that “nothing in the
policy forbids—or even advises him—that invoking his Fifth Amendment privilege
during adversarial coverage litigation would be deemed a breach of
the … cooperation provision[].” Link’s policy expressly requires him to
“[c]ooperate with [Midwest] in the investigation … of any claim or suit.” We
conclude that, as a matter of law, this clause puts the insured on notice that the
insured must respond to discovery requests in the coverage proceeding. Midwest
had no obligation to enumerate all of the potential consequences for failing to follow
that requirement.
¶31 Link also argues that it would be against public policy to potentially
harm “innocent third part[ies]”—here, Plaintiffs—by “[n]ullifying insurance
coverage due to [his] alleged failure to cooperate.” But “‘[p]ublic policy’ is no
magic touchstone,” and Wisconsin “has more than one public policy.” Cieslewicz
v. Mutual Serv. Cas. Ins. Co., 84 Wis. 2d 91, 103, 276 N.W.2d 595 (1978).
¶32 Public policy, for example, favors the enforcement of contracts: an
insurer’s coverage obligations are dependent on the insured’s fulfilling his or her
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own contractual duties. See id. Another principle strongly at play here is the
concept of “fortuitousness,” which itself reflects several important public policy
considerations:
[I]nsurance covers fortuitous losses and [particular] losses
are not fortuitous if the damage is intentionally caused by the
insured. Even where the insurance policy contains no
language expressly stating the principle of fortuitousness,
courts read this principle into the insurance policy to further
specific public policy objectives including (1) avoiding
profit from wrongdoing; (2) deterring crime; (3) avoiding
fraud against insurers; and (4) maintaining coverage of a
scope consistent with the reasonable expectations of the
contracting parties on matters as to which no intention or
expectation was expressed.
Hedtcke v. Sentry Ins. Co., 109 Wis. 2d 461, 483-84, 326 N.W.2d 727 (1982). As
a corollary to these principles, it makes little sense to require most insureds to
cooperate in the typical coverage investigation while allowing those accused of
more egregious, and potentially criminal, acts to invoke privilege and still receive
coverage. As demonstrated by Walker, the decision to invoke the Fifth Amendment
does not have to be—and sometimes should not be—consequence-free.
¶33 Link next argues that his failure to cooperate was not prejudicial to
Midwest, as is required for coverage denial under the policy. Midwest counters that
without Link’s discovery responses, it has been wholly unable to “evaluate whether
there is actually any coverage available.” In such case, Midwest argues, prejudice
is “self-evident,” in that “Link has refused to provide any information” that it might
use to determine whether any policy exclusions apply. Midwest notes that there are
several potentially applicable policy exclusions, but these “hinge upon Link’s
knowledge or intent”—information in Link’s “sole possession.” Thus, Midwest
contends, it has been wholly stymied, at the outset, from evaluating coverage.
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¶34 We agree with Midwest that, without Link’s discovery responses,
Midwest was prejudiced in its ability to evaluate coverage. That is, in the face of
Link’s noncooperation, there was no obvious or reasonable way for Midwest to
determine if the policy covered any of Plaintiffs’ claims. These claims center on
whether, when, and what Link posted about Plaintiffs and his state of mind in doing
so. Thus, Midwest’s coverage determination rests on information that Link
possesses and can provide. Notably, Link does not meaningfully explain—and we
cannot discern—what alternative procedure Midwest could have used to collect the
necessary information to assess coverage.
¶35 Link further argues that Midwest was required to specifically detail
why his discovery noncompliance precluded Midwest from determining coverage
for each of Plaintiffs’ claims, with reference to the three-part inquiry for evaluating
coverage. See American Fam. Mut. Ins. Co. v. American Girl, Inc., 2004 WI 2,
¶24, 268 Wis. 2d 16, 673 N.W.2d 65 (to determine if the policy covers the claim,
we examine the policy’s initial grant of coverage, its various exclusions, and the
exceptions to those exclusions). But Link provides no authority for his assumption
that Midwest had to present a claim-by-claim analysis in order to establish
prejudice. Nor is it logical that Midwest would have to provide any greater
specificity than that provided in its summary judgment briefing, where its argument
rested on its manifest inability to make any coverage evaluations. We agree with
Midwest that adopting Link’s position would allow him to use his Fifth Amendment
privilege “as both a sword and a shield,” in that coverage could never be determined
so long as he continued to invoke privilege.
¶36 In sum, because Link failed to comply with the policy’s cooperation
clause, Midwest was not required to provide coverage under the policy.
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CONCLUSION
¶37 Based on the undisputed material facts, we conclude that Link
breached the policy and that Midwest therefore has no duty to defend or indemnify
him in Plaintiffs’ suits. Accordingly, the circuit courts properly granted Midwest’s
motions for summary judgment on Midwest’s cross-claims for declaratory
judgment.
By the Court.—Orders affirmed.
18