Opinion
Appeal No. 2017AP2064
05-01-2018
JAMES KLATT AND CAROL KLATT, PLAINTIFFS, MEDICA HEALTH PLANS AND LUMBERMANS UNDERWRITING ALLIANCE, INVOLUNTARY-PLAINTIFFS, v. PENSKE TRUCK LEASING CO., LP, DEFENDANT-THIRD-PARTY PLAINTIFF-APPELLANT, ABC INSURANCE COMPANY, PENSKE TRUCK LEASING CORPORATION, DEF INSURANCE COMPANY, GHI INSURANCE COMPANY AND JKL INSURANCE COMPANY, DEFENDANTS, v. GREAT WEST CASUALTY COMPANY, THIRD-PARTY DEFENDANT-RESPONDENT.
NOTICE
This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See WIS. STAT. § 808.10 and RULE 809.62.
Cir. Ct. No. 2012CV739
APPEAL from a judgment of the circuit court for Eau Claire County: JON M. THEISEN, Judge. Affirmed. Before Stark, P.J., Hruz and Seidl, JJ. Per curiam opinions may not be cited in any court of this state as precedent or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
¶1 PER CURIAM. This insurance coverage dispute is before us for the second time. In a previous appeal, we concluded Great West Casualty Company had a duty to defend Penske Truck Leasing Company against a lawsuit filed by James and Carol Klatt. We further concluded factual disputes precluded summary judgment on the issue of whether Great West had a duty to indemnify Penske. We therefore reversed the circuit court's grant of summary judgment to Great West.
¶2 On remand, Penske moved for summary judgment, arguing Great West had breached its duty under its insurance policy to defend Penske by failing to provide a defense for Penske during a period when no stay of the underlying proceedings on liability was in place. As damages for the breach, Penske asked the circuit court to award Penske its defense costs and the amount of a settlement it had paid the Klatts while the prior appeal was pending. Great West, in turn, moved for a bench trial on the issue of its duty to indemnify Penske. The circuit court denied Penske's summary judgment motion and held a bench trial on Great West's duty to indemnify. The court ultimately concluded Great West had no duty to indemnify Penske and entered judgment in favor of Great West.
¶3 In the present appeal, Penske argues the circuit court erred because Great West breached its duty to defend Penske, and Penske is therefore entitled to recover from Great West both its defense costs and the amount of the settlement it paid the Klatts. In response, Great West argues it did not breach its duty to defend Penske because the circuit court never lifted the stay of the underlying proceedings on liability. In the alternative, Great West argues Penske forfeited its right to argue that Great West breached its duty to defend by failing to raise that argument prior to or during Penske's previous appeal.
¶4 We agree with Penske that the stay of the underlying proceedings on liability was implicitly lifted on June 10, 2014, when the circuit court entered a scheduling order setting deadlines for the completion of discovery on the Klatts' claims. We further assume, without deciding, that Penske did not forfeit its argument regarding Great West's breach of the duty to defend, and that Great West breached that duty. Nevertheless, we conclude Penske cannot prevail because it has not met its burden to show what, if any, damages it sustained as a result of Great West's alleged breach. We therefore affirm the circuit court's judgment in favor of Great West.
BACKGROUND
¶5 In our previous opinion, we summarized the relevant factual background as follows:
James Klatt was an employee of Modern Transport, Inc., which rented trucks from Penske. After Modern Transport's drivers completed their routes, they had to return the trucks to a Penske parking lot. By contract, Penske was included as an additional insured on Modern Transport's automobile insurance with Great West.
Klatt [and his wife] sued Penske for unspecified personal injuries following an incident in the Penske lot in January
2012. Klatt's complaint alleged negligence, but it did not explain precisely how he was injured. Rather, it alleged only that Klatt was required to return his truck to a designated portion of Penske's lot and place paperwork regarding the truck in a designated drop box in the lot, and that his injuries resulted from "large accumulations of ice" in the lot.Klatt v. Penske Truck Leasing Co., No. 2014AP2854, unpublished slip op. ¶¶2-3 (WI App May 17, 2016) (footnote omitted).
¶6 Penske answered the Klatts' complaint in January 2013 and tendered defense of the complaint to Great West the following month. Great West rejected Penske's tender of defense, asserting the additional insured endorsement in its policy was "for auto liability only and [was] therefore not applicable to the allegations made in the [Klatts'] complaint." Penske subsequently filed a third-party summons and complaint against Great West, asserting Great West was required to defend Penske against the Klatts' claims and to indemnify Penske, up to the policy limits, for any sums Penske was ultimately required to pay the Klatts.
¶7 Great West answered Penske's third-party complaint on September 16, 2013, denying that its policy provided coverage for the claims alleged in the Klatts' complaint. Great West's answer also included a counterclaim, which sought a declaratory judgment that Great West "owe[d] no duty to defend or indemnify Penske." On the same day, Great West moved to sever Penske's third-party complaint from the Klatts' underlying complaint or, alternatively, "to stay the proceedings in the underlying action until the issues raised in the third-party complaint [were] resolved." On January 17, 2014, the circuit court granted Great West's motion for a stay and ordered "an expedited settling of the coverage dispute."
¶8 Great West then moved for summary judgment on Penske's third-party complaint and on its own counterclaim for declaratory judgment. Great West argued its policy did not "afford coverage to Penske" because the Klatts' complaint did not "contain any allegations that potentially suggest[ed] that the accident resulted from the ownership, maintenance or use of a covered auto." The circuit court denied Great West's summary judgment motion during a hearing on June 9, 2014. The court concluded, based on the allegations in the Klatts' complaint, that it was "possible" Klatt's injury was related to his use of a covered vehicle. However, the court stated it would "leave open the time for summary judgment and would rehear similar arguments in the future" after additional discovery had taken place.
¶9 The circuit court conducted a scheduling conference during the remainder of the June 9, 2014 hearing. During the scheduling conference, the Klatts' attorney raised the prospect of lifting the stay of proceedings on liability, stating, "[M]y clients were happy to have everything stayed up to this point so that [the court] could render [its] decision, but I think in fairness to them, we need to move forward with the schedule and move the case to mediation or trial as the case may be." In response, Penske's attorney suggested that the circuit court do "two things":
We give [counsel for Great West] a chance to digest the court's ruling and confer with their client and then perhaps touch base with me as to what we do with respect to going forward in terms of the defense and things like that. In the meantime, I think there's no reason why we can't get a schedule in place for the underlying action to move forward. And we can also—we can also set a date, to the extent that [counsel for Great West] and I can't kind of work this out between ourselves, we can set up a date by which time I would need to file a motion on the defense issue.
¶10 The circuit court then proceeded to set various deadlines for the completion of discovery in the underlying liability case. The court began by setting a deadline of July 18, 2014, for the Klatts to name expert witnesses, and it then suggested a deadline of August 15, 2014, for Penske to name experts. At that point, one of Great West's attorneys interjected, stating:
Let me just step in here. You know, normally in this kind of situation, and given that we may be in the position of having to undertake the defense in this case, the normal span of time between the plaintiff's experts and defense experts in this kind of a case would be, I would think, at least 90 days. So I would ask for 90 days before the defense experts would be required to be disclosed.After the Klatts' attorney stated she had no objection to a ninety-day deadline, the circuit court set a deadline of October 17, 2014, for Penske to name experts.
¶11 The circuit court then inquired as to what other deadlines the parties wanted the court to set, at which point Penske's attorney stated the parties "may wish to set some time for the deposition of experts, as well." Great West's attorney responded, "[W]e can accomplish all of that by the close of discovery. So if we set a date for closing discovery, that will take care of that." Great West's attorney also suggested that the court set a date for the parties to inform the court whether they intended to engage in mediation. The court and the parties proceeded to discuss various other deadlines for discovery on the Klatts' claims, as well as deadlines for further motions by Penske and Great West regarding coverage and the duty to defend. At no point during the June 9, 2014 hearing did Great West's attorneys object to the circuit court setting deadlines for discovery on the Klatts' claims. On June 10, 2014, the court entered a written order denying Great West's summary judgment motion and memorializing the deadlines established during the June 9, 2014 hearing.
¶12 Consistent with the circuit court's June 10, 2014 order, Great West filed a "Renewed Motion for Summary Judgment" on July 14, 2014, arguing additional evidence clarified the allegations in the Klatts' complaint and conclusively showed that the accident did not involve the use of a covered vehicle. Penske then filed its own summary judgment motion on August 15, 2014, seeking an order "declaring that, as a matter of law, Great West has a duty to defend Penske with respect to [the Klatts'] claims." Penske argued the court could not look beyond the allegations in the Klatts' complaint when determining whether Great West had a duty to defend, and based on those allegations, Great West's policy arguably covered the Klatts' claims.
¶13 The circuit court granted Great West's summary judgment motion during a hearing on October 20, 2014. The court reasoned that, given the extrinsic evidence Great West had submitted in support of its motion, "[n]o properly instructed, reasonable jury could find ... that the injury was related to use of the truck." The court subsequently entered a written order granting Great West summary judgment and denying Penske's summary judgment motion regarding the duty to defend. Penske appealed that order. However, while Penske's appeal was pending, it reached a settlement with the Klatts. A stipulation and order for dismissal of the Klatts' claims was filed in the circuit court on May 12, 2015.
¶14 Just over one year later, on May 17, 2016, this court issued an opinion reversing the circuit court's grant of summary judgment to Great West. See Klatt , No. 2014AP2854, ¶1. We agreed with Penske that Great West was not entitled to summary judgment on the duty-to-defend issue because "the four-corners rule applies to duty-to-defend inquiries and there was possible coverage under that rule." Id., ¶15. We also concluded the circuit court had erred by granting Great West summary judgment on the duty to indemnify because there was a genuine issue of material fact as to Klatt's location at the time of his injury. Id., ¶¶15, 21-25.
¶15 On remand, Penske again moved for summary judgment, seeking an order "awarding it reimbursement from Great West of Penske's defense costs and settlement payment to the Klatts." Penske argued the court of appeals had held "that Great West wrongly refused to defend Penske." Penske further argued insurers that improperly refuse to defend "are responsible for reimbursing not only the costs incurred to defend the underlying action, but also any amount paid to settle the action."
¶16 Great West opposed Penske's summary judgment motion and moved the circuit court to hold a bench trial on the sole issue of Klatt's location at the time of his injury. Great West argued the court of appeals had concluded there was a disputed issue of material fact as to that issue, and a bench trial was therefore necessary to resolve the factual dispute. Great West further asserted the court of appeals "made no declaration or finding that Great West breached its duty to defend Penske," and an insurer only has a duty to defend "once coverage is decided." Great West contended that, "where the insurer requests a bifurcated trial on the issues of coverage and liability and moves to stay the proceedings until the issue of coverage is resolved ... there is no interim obligation to provide a defense" and the insurer does not breach its duty to defend by failing to do so. Because Great West had requested and obtained a stay of proceedings on liability, Great West argued it was "improper for Penske to seek reimbursement" of its defense and indemnity costs.
¶17 The circuit court held a hearing on Penske's summary judgment motion on October 18, 2016. During that hearing, the parties disputed whether the circuit court had ever lifted the stay of proceedings on liability. The court ultimately made a factual finding that the stay was not lifted. The court therefore concluded Great West "followed the Supreme Court procedure for bifurcation of coverage issues." The court further stated Great West had reasonably relied on the court's prior decision, which was later reversed on appeal, that Great West's policy did not cover the Klatts' claims. For all of these reasons, the court concluded Great West had not "unreasonably or improperly" breached its duty to defend Penske.
¶18 In August 2017, the circuit court held a bench trial regarding Klatt's location at the time of his injury. Based on the evidence presented during the bench trial, the court found that Klatt's injury occurred outside Penske's truck and was therefore not related to his use of the truck. Accordingly, the court concluded Great West had no duty to defend or indemnify Penske for the Klatts' claims. The court therefore dismissed Penske's third-party claim against Great West and entered judgment in favor of Great West on its counterclaim for declaratory judgment. Penske now appeals.
DISCUSSION
¶19 "Contracts for insurance typically impose two main duties: the duty to indemnify the insured against damages or losses, and the duty to defend against claims for damages." Olson v. Farrar , 2012 WI 3, ¶27, 338 Wis. 2d 215, 809 N.W.2d 1. The duty to indemnify requires an insurer to "indemnify an insured against losses that are covered under the terms of the policy." Id., ¶28. The duty to defend, however, is "broader" and "more complicated" than the duty to indemnify. Id., ¶29. It depends on the "nature" of the claim against the insured, rather than the claim's "merits." Id. Thus, "[i]f the allegations in the [plaintiff's] 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." Id., ¶30.
¶20 An insurer's denial of coverage does not constitute a breach of the duty to defend where the issue of coverage is fairly debatable, as long as the insurer provides coverage and a defense once coverage is established. Newhouse by Skow v. Citizens Sec. Mut. Ins. Co., 176 Wis. 2d 824, 836, 501 N.W.2d 1 (1993). "However, when coverage is not determined before a liability trial, the insurer must provide a defense for its insured with regard to liability and damages." Id. When coverage is disputed, the "proper procedure" for an insurance company to follow "is to request a bifurcated trial on the issues of coverage and liability and move to stay any proceedings on liability until the issue of coverage is resolved." Id. "When this procedure is followed, the insurance company runs no risk of breaching its duty to defend." Id. If the insurer does, however, breach its duty to defend, it is liable to its insured for all damages that "naturally flow" from the breach. Id. at 837.
¶21 In Penske's prior appeal, we concluded Great West had a duty to defend Penske because, based on the allegations in the Klatts' complaint, it was "possible" Great West's policy covered the Klatts' claims against Penske. See Klatt , No. 2014AP2854, ¶¶15, 19. Penske now argues Great West breached its duty to defend by failing to provide a defense for Penske before the issue of Great West's duty to indemnify was resolved, during a period in which the underlying proceedings on liability were not stayed. While Penske concedes the circuit court entered an order staying proceedings on liability in January 2014, Penske argues the court's June 10, 2014 scheduling order effectively lifted the stay by setting discovery deadlines regarding the Klatts' claims. In response, Great West argues the circuit court never lifted the stay. The circuit court agreed with Great West, making a factual finding during the October 18, 2016 hearing that the stay "ha[d] not been lifted."
¶22 We agree with Penske that the June 10, 2014 scheduling order effectively lifted the stay of proceedings on liability, and the circuit court's factual finding to the contrary is clearly erroneous. See WIS. STAT. § 805.17(2) (2015-16) (stating a circuit court's factual findings "shall not be set aside unless clearly erroneous"). As noted above, during the June 9, 2014 scheduling conference, the Klatts' attorney acknowledged that the stay was in effect but then asked the circuit court to "get a schedule in place" so that the parties could "move forward" with the underlying action. After a discussion with the parties, the court set multiple deadlines for discovery in the underlying liability action, specifically: (1) deadlines for both the Klatts and Penske to name experts; (2) a deadline for the Klatts to submit a vocational evaluation; (3) deadlines for Penske to complete an independent medical examination and vocational evaluation; and (4) a deadline for the closing of discovery. The court then entered a scheduling order memorializing these deadlines. Although the order did not expressly state that the court was lifting the stay of proceedings on liability, by permitting discovery to proceed in the underlying liability action, the order clearly had that effect.
All references to the Wisconsin Statutes are to the 2015-16 version unless otherwise noted.
¶23 Great West relies on WIS. STAT. § 807.03 to support its claim that the stay was not lifted. That statute provides, in relevant part, "An order made upon notice shall not be modified or vacated except by the court upon notice." Id. (emphasis added). Great West contends it had no notice that the circuit court's prior order imposing the stay had been modified or vacated because no party filed a motion to lift the stay and the circuit court never "issued an order providing notice to the parties that it was modifying the stay order."
¶24 Great West's contention that it had no notice the stay had been lifted is meritless. Once again, we observe that the Klatts' attorney specifically asked the circuit court during the June 9, 2014 hearing to set deadlines so that the parties could "move forward" with proceedings on liability. The parties and the court then engaged in an extensive discussion about setting discovery deadlines in the underlying action. At no point during that discussion did either of Great West's attorneys object to the court setting those deadlines. In fact, one of Great West's attorneys proposed that the court set a specific deadline for Penske to name experts, and he later suggested that the court set a date "for closing discovery." The court accepted those suggestions and ultimately incorporated them into its June 10, 2014 order, which also memorialized the other discovery deadlines that were established during the June 9 hearing. Taken together, the June 9 proceedings and the June 10 order gave Great West clear notice that the stay of proceedings on liability was no longer in place.
¶25 Given that the stay was, in fact, lifted as of June 10, 2014, Penske argues Great West breached its duty to defend by failing to provide a defense for Penske from that point onward. In response, Great West argues Penske forfeited its right to argue that Great West breached its duty to defend by failing to raise that argument either before or during Penske's prior appeal. Specifically, Great West argues Penske should have raised an argument regarding breach in its August 15, 2014 summary judgment motion regarding the existence of Great West's duty to defend, which Penske filed after the circuit court lifted the stay of proceedings on liability.
¶26 In reply, Penske argues it could not have raised any issue regarding a breach of the duty to defend in its August 15, 2014 summary judgment motion because, at the time it filed that motion, it "had not yet had to defend itself." Penske asserts that all the discovery deadlines the June 10, 2014 scheduling order imposed on Penske elapsed after Penske filed its summary judgment motion. Penske further asserts that, because the breach issue "had not been ripe to present ... to the circuit court" when the parties filed their cross-motions for summary judgment in July and August 2014, the breach issue "was not and could not have been presented during the first appeal."
¶27 There is no evidence in the record to indicate that Penske incurred any costs in defending the liability aspects of this case before filing its August 15, 2014 summary judgment motion. We therefore assume, without deciding, that Penske has not forfeited its right to argue that Great West breached its duty to defend. We further assume, without deciding, that Great West breached its duty to defend Penske and that the breach occurred no later than the time the Klatts' claims against Penske were settled and a stipulation and order dismissing those claims was filed. However, even after drawing both of these assumptions in Penske's favor, we nevertheless conclude Penske is not entitled to relief because it has failed to prove that it sustained any damages as a result of Great West's alleged breach.
¶28 Penske contends it is entitled to recover two categories of damages from Great West as a result of Great West's alleged breach of its duty to defend: (1) the costs Penske incurred to defend itself against the Klatts' claims; and (2) the amount of the settlement Penske paid the Klatts. With respect to Penske's defense costs, as noted above, Penske concedes it did not incur any costs to defend itself against the Klatts' claims before it moved for summary judgment regarding the duty to defend on August 15, 2014. Penske's claim for defense costs must therefore be based on costs incurred between August 15, 2014, and May 12, 2015, the date the Klatts' claims against Penske were dismissed. However, the record is completely devoid of evidence that Penske incurred any defense costs during that time period.
¶29 Although the circuit court's June 10, 2014 scheduling order set forth deadlines for discovery on the Klatts' claims, there is no evidence in the appellate record that either the Klatts or Penske actually complied with those deadlines or took any action in attempt to do so. For instance, nothing in the record indicates that either party took any steps toward naming experts, conducting vocational evaluations of Klatt, or completing an independent medical examination. There is also no evidence that any depositions were conducted during the relevant time period. While Penske ultimately settled with the Klatts, we have no information about how that settlement was reached and, specifically, the extent of Penske's attorney's involvement in that process. Penske had ample opportunity to provide this evidence on remand in support of its motion for summary judgment on Great West's claimed breach of its duty to defend, but it failed to do so. On this record, Penske has not established that it incurred any costs to defend itself against the Klatts' claims after the circuit court lifted the stay of proceedings on liability.
¶30 We also reject Penske's argument that it is entitled to recover the amount of the settlement it paid the Klatts as damages for Great West's alleged breach. As Penske correctly notes, our supreme court stated in Newhouse that when an insurer breaches its duty to defend, it is "liable to the insured for all damages that naturally flow from the breach," including "the amount of the judgment or settlement against the insured plus interest." Newhouse , 176 Wis. 2d at 837-38. Penske reads this language to mean that, whenever an insurer breaches its duty to defend, its insured is automatically entitled to recover the amount of any judgment or settlement against the insured. However, two subsequent cases have rejected this broad reading of Newhouse.
¶31 In Hamlin Inc. v. Hartford Accident & Indemnity Co., 86 F.3d 93, 94 (7th Cir. 1996), the district court concluded two insurers had breached their duty to defend Hamlin, and it therefore ordered those insurers to reimburse Hamlin for the amount Hamlin had paid to settle a lawsuit against it. On appeal, the Seventh Circuit observed that the district court had "inferred from Newhouse that an obligation to pay the entire settlement or judgment is the automatic consequence of a finding of a breach of the duty to defend." Hamlin , 86 F.3d at 94. The Seventh Circuit rejected that interpretation, stating Newhouse "is explicit that the insured must show that he was made worse off by the breach than he would have been had the breach not occurred." Hamlin , 86 F.3d at 95. The court concluded Hamlin had not made that showing because Hamlin had been represented by a prestigious law firm during the proceedings on liability and a portion of its defense costs were paid by another insurer. Id. On these facts, the court stated Hamlin was not "some hapless individual who could not afford a good defense unless his insurer or insurers picked up the full tab." Id.
¶32 Our supreme court recently reached a similar conclusion in Burgraff v. Menard , Inc., 2016 WI 11, 367 Wis. 2d 50, 875 N.W.2d 596. In that case, the court concluded Millers First Insurance Company had breached its duty to defend Menard. Id., ¶57. It then addressed the damages Menard was entitled to recover as a result of that breach. Id., ¶58.
¶33 Based on Newhouse , Menard argued it was entitled to recover the entire amount of the judgment that was ultimately awarded against it. Burgraff , 367 Wis. 2d 50, ¶15 n.2, ¶59. The supreme court rejected that argument, stating Menard "reads Newhouse too broadly." Burgraff , 367 Wis. 2d 50, ¶59. The court explained that, "[j]ust as the damages awarded in Newhouse were based on the facts of that case, the damages here depend on the unique facts of this case." Burgraff , 367 Wis. 2d 50, ¶59. Citing Hamlin , the court stated Newhouse requires an insured to show that he or she was made worse off as a result of the insurer's breach than he or she would have been absent the breach. Burgraff , 367 Wis. 2d 50, ¶62 (citing Hamlin , 86 F.3d at 95). The court ultimately concluded, "Just as in Hamlin , Menard cannot demonstrate that the amount of the jury verdict was a result of the breach. Menard chose its own counsel and there is no assertion that it would have achieved a better result at trial had Millers First chosen Menard's counsel." Burgraff , 367 Wis. 2d 50, ¶64.
Menard relied on Radke v. Fireman's Fund Insurance Co., 217 Wis. 2d 39, 577 N.W.2d 366 (Ct. App. 1998), for the proposition that "Wisconsin courts have not adopted Hamlin 's analysis." Burgraff v. Menard , Inc., 2016 WI 11, ¶65, 367 Wis. 2d 50, 875 N.W.2d 596 (referring to Hamlin Inc. v. Hartford Accident & Indem. Co., 86 F.3d 93 (7th Cir. 1996)). The supreme court rejected Menard's reliance on Radke , concluding that case was distinguishable. Burgraff , 367 Wis. 2d 50, ¶¶65-67. Four months after the supreme court issued its decision in Burgraff , it overruled Radke on other grounds. See Marks v . Houston Cas. Co., 2016 WI 53, ¶75, 369 Wis. 2d 547, 881 N.W.2d 309.
¶34 Following Burgraff , it is clear that an insured is not automatically entitled to recover the amount of a settlement or judgment it has paid as damages for its insurer's breach of the duty to defend. Instead, the insured must demonstrate that the settlement or judgment naturally flows from the insurer's breach—that is, that the insured would have obtained a more favorable result had the insurer not breached its duty to defend. See id ., ¶64.
¶35 Penske has failed to make this showing in the instant case. Penske was represented by counsel of its own choosing during the circuit court proceedings, and there is no allegation that it was unable to afford competent representation or that it would have had markedly better representation had Great West paid for its defense. In addition, Penske does not allege—or cite any evidence supporting an allegation—that it would have obtained a more favorable resolution of the Klatts' claims had Great West paid for its defense. Accordingly, on the record before us, there is no basis to conclude that the amount of the settlement Penske paid to the Klatts "flow[ed] naturally" from Great West's alleged breach. See id . Penske has therefore failed to demonstrate that it is entitled to recover the settlement amount from Great West. Because Penske has not demonstrated that it sustained any damages as a result of Great West's alleged breach, we affirm the circuit court's judgment dismissing Penske's third-party complaint against Great West and granting Great West declaratory judgment.
The supreme court released its decision in Burgraff on February 24, 2016. Four months later, Penske moved for summary judgment in the instant case, seeking "reimbursement from Great West of Penske's defense costs and settlement payment to the Klatts" as damages for Great West's breach of the duty to defend. At the time it filed that motion, Penske should have been aware, based on Burgraff , that it needed to show why the settlement amount naturally flowed from Great West's alleged breach. However, Penske did not even acknowledge Burgraff 's holding in its summary judgment brief, much less cite any evidence to make the showing Burgraff requires. Penske similarly fails to address Burgraff 's holding in its appellate briefs. --------
By the Court.—Judgment affirmed.
This opinion will not be published. See WIS. STAT. RULE 809.23(1)(b)5.