Wisconsin Supreme Court Hears Oral Argument in Case Deciding whether Physical Assault Qualifies as an “Accident”

The Wisconsin Supreme Court on Tuesday, October 23, heard oral argument in a case that will determine whether a physical assault at a party qualifies as an “accident” for purposes of insurance coverage under a homeowner’s policy. The case is Schinner v. Gundrum, 2012 WI App. 31, 340 Wis. 2d 195 (2011AP1564).


At the time of the incident, the insured (Michael Gundrum, 21) was covered under his parents’ West Bend homeowner’s insurance policy as a resident of their household. Gundrum hosted a party in a shed on his family’s business property. The Gundrums had used the shed, in part, to store personal property.

During the party, Gundrum provided alcohol to Matthew Cecil, who was under the drinking age. Cecil in turn assaulted the plaintiff, Marshall Schinner, who suffered serious injuries. Schinner sued Gundrum for negligence, alleging that Gundrum’s providing Cecil the alcohol was the cause of the assault and thus Schinner’s injuries.

West Bend argued that the case should be dismissed from the suit because there was no “accident,” and therefore no “occurrence,” under the policy. The policy defined “occurrence” as “an accident including continuous or repeated exposure to substantially the same general harmful conditions, which results, during the coverage period, in: a) “bodily injury” or, b) “property damage.”

The trial court agreed with West Bend’s arguments and issued a summary judgment dismissing West Bend from the suit.

Court of Appeals

The court of appeals reversed the circuit court. The court focused on the term “accident,” which was not defined in the policy. The court held that the assault was in fact an “accident” and therefore was an “occurrence” under the homeowner’s insurance policy.

According to the court, although “it may seem counterintuitive to think of an assault as accidental,” the court held that the assault in this case did in fact constitute an accident. Specifically, the court held that, for the purposes of determining whether an assault is an “accident” under an insurance policy, the assault and resulting injuries must be viewed from the standpoint of the person injured, rather than the person committing the assault.

The court further held that the exclusion for non-insured locations did not apply. The homeowner’s policy contained an exclusion barring coverage for bodily injury or property damage “arising out of a premises…owned by an insured…that is not an insured location.”

According to the court, even though the assault took place in Gundrum’s parents’ business shed – which was listed as a non-insured location under the homeowner’s exclusion policy – the exclusion did not apply. The court held that there was no evidence of a correlation between the assault and any condition of the shed; that is, no condition of the shed was a cause of the assault or Schinner’s injuries.

The Wisconsin Supreme Court is expected to issue a decision by July 2013. The oral argument can be viewed here.

This post was originally published by the Wisconsin Civil Justice Council.