West Bend Mutual Insurance v. Berger

GARTZKE, P.J.

(dissenting). The sexually explicit acts Matthews and Plautz allegedly committed against; Berger are disgusting and intolerable. But for the exclusivity provision in the Worker's Compensation Act, § 102.03(2), Stats., she probably could seek compensatory and punitive damages in a tort suit against them. The only potentially relevant exception to the exclusivity provision is an "action against any coem-ploye for an assault intended to cause bodily harm " Id. The disputed element of the exception is whether the acts were "intended to cause bodily harm."

We should apply the same principles applicable to the intentional-acts exclusion in liability insurance policies. In Loveridge v. Chartier, 161 Wis. 2d 150, 168-69, 468 N.W.2d 146, 150-51 (1991), our supreme court said:

In Wisconsin, an intentional-acts exclusion precludes insurance coverage only where the insured acts intentionally and intends some harm or injury to follow from the act. Raby, 153 Wis. 2d at 110 (citing Pachucki v. Republic Ins. Co., 89 Wis. 2d 703, 710, 278 N.W.2d 898 (1979)). An insured intends to injure or harm another if he "intend [s] the consequences of his act, or believe [s] that they are substantially certain to follow." Pachucki, 89 Wis. 2d at 710 (citing Restatement (Second) of Torts, § 8A at 15 (1965)). In other words, intent may be actual (a subjective standard) or inferred by the nature of the insured's intentional act (an objective standard). Pachucki, 89 Wis. 2d at 709. Therefore, an intentional-acts exclusion precludes insurance coverage where an intentional act is substantially certain to produce injury even if the insured asserts, honestly or dishonestly, that he did not intend any harm. Raby, 153 Wis. 2d at 113. As Professor Pros-ser commented:

"Intent, however, is broader than a desire to bring about physical results. It must extend not only to those consequences which are desired, but also to those which the actor believes are substantially certain to follow from what he does .... The man who fires a bullet into a dense crowd may fervently pray that he will hit no one, but since he must believe and know that he cannot avoid doing so, he intends it. The practical application of this principle has meant that where a reasonable man in the defendant's position would believe that a particular result was substantially certain to follow, he will be dealt with by the jury, or even by the court, as though he had intended it."

Raby, 153 Wis. 2d at 111 (emphasis added) (quoting Prosser, Law of Torts, at 31-32 (4th ed. 1971)).

Furthermore, the exclusion precludes coverage even if the harm that occurs is different in character or magnitude from that intended by the insured. Raby, 153 Wis. 2d at 111 (citing Pachucki, 89 Wis. 2d at 714). For example, in Pachucki, we held that an intentional-acts exclusion precluded insurance coverage for severe eye injuries even though the insured subjectively intended only to sting the plaintiff by firing a greening pin at his body. Pachucki, 89 Wis. 2d at 712.

Ordinarily, the question of whether an insured intended (subjectively or objectively) harm or injury to result from an intentional act is a question of fact. Raby, 153 Wis. 2d at 111. However, a court may infer that an insured intended to injure or harm as a matter of law (an objective standard):

"if the degree of certainty that the conduct will cause injury is sufficiently great to justify inferring intent to injure as a matter of law."

K.A.G. v. Stanford, 148 Wis. 2d 158, 163, 434 N.W.2d 790 (Ct. App. 1988), adopted N.N. v. Moraine Mutual Ins. Co., 153 Wis. 2d 84, 91-92, 450 N.W.2d 445 (1990). There is no bright-line rule to determine when intent to injure should be inferred as a matter of law.

That Berger suffered physical harm does not satisfy the "intended to cause bodily harm" element in § 102.03(2), STATS. The question is whether a reasonable person in the position of Matthews or Plautz would believe that Berger's physical harm — her loss of weight and stomach pains — were in Professor Prosser's words, "substantially certain to follow" from the acts she claims they committed. Just as a court may infer that a person in such a position intended to injure or harm as a matter of law (the objective standard referred to by the Loveridge court), so a court may conclude that intent to injure should not be inferred as a matter of law.

The facts before us are of course unlike the situation described by Professor Prosser, in which a person fires a bullet into a dense crowd, hoping to hit no one. Because the person must believe that he cannot avoid doing so, he intends that someone will be hit. Hitting someone is substantially certain to follow from shooting into a crowd.

Here, a reasonable person in the position of Matthews or Plautz would believe that physical harm to Berger could result from the alleged acts. Perhaps a reasonable person in their position would know that the physical harm of which she complains probably would result to her. But no reasonable person in their position would know or believe that physical harm to her was substantially certain to follow from the alleged acts.

I conclude that, as a matter of law, the exclusivity provision in the Worker's Compensation Act applies, the statutory exception regarding an "assault intended to cause bodily harm" does not apply, and the trial court properly dismissed Berger's claim.