Burgraff v. Menard, Inc.
853 N.W.2d 574
Wis. Ct. App.2014Background
- Burgraff injured while employee of Menard, Inc. loaded materials onto Burgraff’s trailer with a forklift; Burgraff sued Menard for damages.
- Menard tendered defense to Millers First Insurance, arguing coverage under Burgraff’s Millers First policy as a permissive user.
- Menard also had a CNA commercial general liability policy with a $500,000 self-insured retention.
- Millers First and CNA contain different “other insurance” clauses; Millers First’s clause prorates based on policy limits, CNA’s is excess over other insurance.
- Millers First settled its one-sixth share of Burgraff’s claim for $40,000; Millers First then sought to end its duty to defend Menard; circuit court granted partial summary judgment.
- Court held: (1) Millers First’s “other insurance” clause applies and there is pro rata sharing with Menard’s self-insured retention; (2) Millers First’s duty to defend has not extinguished by settlement and must be remanded for damages.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Which policy’s other-insurance clause governs | Millers First (plaintiff) argues its clause controls | Menard argues CNA's excess clause controls | Millers First clause controls |
| Whether Millers First’s duty to defend ended after settling one-sixth share | Menard argues duty ended upon settlement | Millers First contends duty to defend persists until exhausts its limit | Millers First duty to defend did not end; failure to exhaust policy; remand for damages |
Key Cases Cited
- Hillegass v. Landwehr, 176 Wis. 2d 76 (Wis. 1993) (self-insurance qualifies as other collectible insurance under policy clause)
- Brown Cnty. v. OHIC Ins. Co., 300 Wis. 2d 547 (Wis. Ct. App. 2007) (distinguishes self-insured retention from deductible; policy context matters)
- St. John's Home of Milwaukee v. Continental Casualty Co., 147 Wis. 2d 764 (Wis. Ct. App. 1988) (maximum potential liability does not extinguish duty to defend)
- Brown Cnty. v. OHIC Ins. Co., 300 Wis. 2d 547 (Wis. Ct. App. 2007) (self-insured retention vs. other-insurance analysis)
- Teigen v. Jelco of Wis., Inc., 124 Wis. 2d 1 (Wis. 1985) (settlementCredit not always exonerating exhaustion when not credited full policy limit)
- Loy v. Bunderson, 107 Wis. 2d 400 (Wis. 1982) (exhaustion concepts in multiple-insurer scenarios)