E. K. v. Scott T. Blood

COURT 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.
September 15, 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. 2021AP1377 Cir. Ct. Nos. 2020CV1333
2020CV1589
2021AP1402
2021AP1421
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

NO. 2021AP1377
IN THE INTEREST OF E.K., A PERSON UNDER THE AGE OF 18:

E. K.,

PLAINTIFF-APPELLANT,

B. E., A MINOR,

PLAINTIFF,

V.

SCOTT T. BLOOD,

DEFENDANT,

ERIE INSURANCE EXCHANGE,

DEFENDANT-RESPONDENT.
Nos. 2021AP1377
2021AP1402
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NO. 2021AP1402
IN THE INTEREST OF B.E., A PERSON UNDER THE AGE OF 18:

E. K.,

PLAINTIFF,

B. E.,

PLAINTIFF-APPELLANT,

V.

SCOTT T. BLOOD,

DEFENDANT,

ERIE INSURANCE EXCHANGE,

DEFENDANT-RESPONDENT.

NO. 2021AP1421
IN THE INTEREST OF E.K. AND B.E., PERSONS UNDER THE AGE
OF 18:

E. K. AND B. E.,

PLAINTIFFS,

V.

SCOTT T. BLOOD,

DEFENDANT-APPELLANT,

ERIE INSURANCE EXCHANGE,

DEFENDANT-RESPONDENT.

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APPEAL from an order of the circuit court for Dane County:
STEPHEN E. EHLKE, Judge. Affirmed and cause remanded for further
proceedings.

Before Blanchard, P.J., Fitzpatrick, and Nashold, JJ.

¶1 FITZPATRICK, J. E.K. and B.E., a person to whom the parties to
these consolidated appeals refer as E.K.’s “girlfriend,” are both minors. Each
minor (collectively, “the plaintiffs”) sued Scott Blood—the fiancé of E.K.’s
mother—in the Dane County Circuit Court for invasion of privacy and negligent
invasion of privacy, among other claims, after learning that Blood placed a video
camera in E.K.’s bedroom and recorded E.K. and B.E. in various stages of undress
and engaging in intimate acts.1 Blood is insured through two policies issued by
Erie Insurance Exchange (“Erie”). We refer to Blood’s homeowner’s policy as the
“primary policy” and the other policy issued to Blood by Erie as the “umbrella
policy.” Each policy provides an initial grant of coverage for “invasion of
privacy” claims. Blood tendered the defense of the plaintiffs’ complaints to Erie,
and the proceedings were bifurcated to address whether the plaintiffs’ claims are
covered by the Erie policies. Erie moved for summary judgment and declaratory
judgment, arguing that provisions in the policies preclude coverage for the
plaintiffs’ claims through what we refer to as an “intentional acts” exclusion and a
“willful violation of a law” exclusion. The plaintiffs filed their own motions for

1
The circuit court sealed the record for this case to ensure the confidentiality of the
minor plaintiffs. Consistent with the parties’ briefing, and pursuant to WIS. STAT. §§ 801.21 and
809.19(1)(g) (2019-20), we refer to the plaintiffs and E.K.’s mother by their initials, rather than
by name. All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

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declaratory judgment arguing that the Erie policies are illusory and must be
reformed to provide coverage for invasion of privacy because the exclusions on
which Erie relies would preclude such coverage in every possible circumstance.
In the alternative, B.E. argued that her negligent invasion of privacy claim is not
precluded by those exclusions because that claim does not allege intentional
conduct.

¶2 The circuit court granted Erie’s motion regarding both policies and
concluded that Erie has no duty to defend or indemnify Blood in this matter. The
court also denied the plaintiffs’ motions. E.K., B.E., and Blood each appeal the
circuit court’s order.2

¶3 We affirm the order of the circuit court because, based on the
undisputed facts, Erie is entitled to judgment as a matter of law. More
particularly, we conclude that neither the intentional acts exclusions nor the willful
violation of a law exclusion render illusory either the primary policy or the
umbrella policy because there are circumstances in which an actionable invasion
of privacy claim will not trigger either exclusion. We also conclude that the
intentional acts exclusions in the primary policy and umbrella policy preclude
coverage for the plaintiffs’ claims because there is no dispute that Blood intended
to place the camera in E.K.’s bedroom, used it for recording events there, and
viewed those recordings, and that harm and injury to the plaintiffs was
substantially certain to follow.

2
These appeals were consolidated for briefing and disposition by an August 20, 2021
order pursuant to WIS. STAT. RULE 809.10(3).

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BACKGROUND

¶4 There is no dispute as to the following material facts.

¶5 E.K., a minor, lived at a residence in Dane County, Wisconsin with
his mother, C.K., and C.K.’s fiancé, Blood. In 2019, Blood installed a video
camera in E.K.’s bedroom. Blood admitted to law enforcement, and does not
dispute for purposes of this appeal, that he installed the camera to monitor E.K.’s
behavior, including E.K.’s sexual activity with B.E., E.K.’s girlfriend, who is also
a minor. Over the course of a five-month period—and without the knowledge or
consent of E.K. or B.E.—Blood’s camera recorded E.K. and B.E. when, at times,
they were in various stages of undress and engaged in sexually intimate conduct.
Blood admitted to law enforcement, and admitted in answer to E.K.’s complaint,
that he viewed some of the recordings.

¶6 Acting on a tip to law enforcement, officers searched Blood’s home
and discovered the hidden camera. Blood was placed under arrest and was
charged with sexual exploitation of a child contrary to WIS. STAT. § 948.05(1)(b),
capturing representations depicting nudity contrary to WIS. STAT.
§ 942.09(2)(am)1., and invasion of privacy contrary to WIS. STAT. § 942.08(2)(a).
The state court criminal charges were dismissed because Blood was charged in
federal court. Blood pleaded guilty to, and was convicted of, receipt of child
pornography in violation of 18 USC §§ 2252(a)(2) and 2252(b)(1) and possession
of child pornography in violation of 18 USC §§ 2252(a)(4) and 2252(b)(2). The
possession of child pornography conviction was based on Blood’s possession of
the recordings of E.K. and B.E. Blood was sentenced to a term in federal prison.

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¶7 After Blood’s conviction, E.K. and B.E. each filed a civil complaint
against Blood and Erie based on the above-mentioned acts of Blood. B.E.’s
complaint states five causes of action: invasion of privacy contrary to WIS. STAT.
§ 995.50(2)(am)1. and 4.3 (including the allegation that Blood’s “conduct was in
intentional disregard of [B.E.’s] rights and was malicious”); negligent invasion of
privacy contrary to § 995.50(2)(am)1.; intentional infliction of emotional distress
(including the allegation that Blood’s conduct was “intended to cause emotional
distress to [B.E.]” for Blood’s own sexual gratification); negligent infliction of
emotional distress; and negligence. E.K.’s complaint states a cause of action for

3
As applicable here, WIS. STAT. § 995.50(2)(am)1. and 4. state:

In this section, “invasion of privacy” means any of the
following:

1. Intrusion upon the privacy of another of a nature
highly offensive to a reasonable person … in a place that a
reasonable person would consider private, or in a manner which
is actionable for trespass.

….

4. Conduct that is prohibited under s. 942.09, regardless
of whether there has been a criminal action related to the
conduct, and regardless of the outcome of the criminal action, if
there has been a criminal action related to the conduct.

Sec. 995.50(2)(am)1., 4. WISCONSIN STAT. § 942.09(2)(am) provides in pertinent part:

Except as provided in par. (dr), whoever does any of the
following is guilty of a Class I felony:

1. Captures an intimate representation without the
consent of the person depicted under circumstances in which he
or she has a reasonable expectation of privacy, if the person
knows or has reason to know that the person who is depicted
does not consent to the capture of the intimate representation.

Sec. 942.09(2)(am)1.

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invasion of privacy pursuant to § 995.50(2)(am)1. and 4., alleging that Blood’s
actions were done “maliciously” and “with an intentional disregard for the rights
of” E.K. E.K.’s complaint also alleges that “[t]he facts underlying the [federal
court] indictment [of Blood] are the same facts underlying this civil claim.” The
two cases were consolidated into one action in the circuit court.

¶8 At all pertinent times, Blood was a named insured in two insurance
policies issued by Erie, the primary policy and the umbrella policy. Under the
primary policy, Erie agreed to defend and indemnify Blood for “personal injury
caused by an offense committed during the policy period.” (Emphasis removed.)
This policy defines “personal injury,” in part, as “injury arising out of … invasion
of privacy.” Germane to this appeal, the primary policy contains two exclusions
regarding personal injury. The first excludes coverage for “personal injury caused
intentionally by or at the direction of, and substantially certain to follow from the
act of, an insured person” (the intentional acts exclusion). The second excludes
coverage for “[p]ersonal injury arising out of willful violation of a law or
ordinance by anyone we [insure]” (the willful violation of a law exclusion).
(Emphasis removed.) The umbrella policy provides coverage for “invasion of
privacy” under its “personal injury” coverage and also contains an intentional acts
exclusion. The intentional acts exclusion in the umbrella policy states: “We do
not cover … personal injury … expected or intended by anyone we [insure].”
Unlike the primary policy, the umbrella policy does not contain a willful violation
of a law exclusion. Pertinent provisions of the Erie policies are reproduced in full
later in this opinion.

¶9 Blood tendered defense of the plaintiffs’ complaints to Erie. Erie
reserved its rights and retained counsel to defend him on the merits. As requested

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by Erie, the circuit court bifurcated proceedings regarding the insurance coverage
issues from the underlying merits of the plaintiffs’ claims. Erie then moved for
summary judgment and declaratory judgment, arguing that neither the primary
policy nor the umbrella policy “provide[s] insurance coverage” to Blood for any of
the claims in the plaintiffs’ complaints. Relevant to this appeal, Erie argued that
the intentional acts and willful violation of a law exclusions preclude coverage for
the plaintiffs’ claims.

¶10 The plaintiffs each filed a motion for declaratory judgment arguing
that Erie “provide[d] liability coverage” to Blood for the allegations in their
complaints. The plaintiffs contended that the intentional acts exclusion and the
willful violation of a law exclusion are not enforceable because the application of
those exclusions renders “illusory” Blood’s policies. Specifically, the plaintiffs
argued that there is no circumstance in which the Erie policies provide invasion of
privacy coverage because those exclusions always preclude coverage for
“intentional torts” such as invasion of privacy. The plaintiffs argued that the
policies must be reformed to provide coverage for their invasion of privacy claims.
In addition, B.E. argued in the alternative that, even if the court determined that
the policies are not illusory, those exclusions do not preclude coverage for her
negligent invasion of privacy claim.

¶11 In a written decision, the circuit court concluded that Erie is not
obligated to defend or indemnify Blood for the claims in the plaintiffs’ complaints.
B.E., E.K., and Blood each appeal the circuit court’s order.

¶12 Additional material facts are provided in the following discussion.

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DISCUSSION

¶13 On appeal, B.E., E.K., and Blood (collectively, “the appellants”)
argue that the circuit court erred in granting Erie’s motion for summary judgment
and declaratory judgment and denying the plaintiffs’ motions for declaratory
judgment. We begin by setting forth governing principles regarding summary
judgment and declaratory judgment, and our standards of review for determining
whether an insurance policy provides coverage in these circumstances.

I. Summary Judgment, Declaratory Judgment, and Standards of Review.

¶14 As noted, the parties request summary judgment and declaratory
judgment. This court has recognized that “both declaratory judgments and
summary judgments are proper procedural devices for resolving insurance
disputes.” Young v. West Bend Mut. Ins. Co., 2008 WI App 147, ¶6, 314 Wis. 2d
246, 758 N.W.2d 196.

¶15 We review de novo a circuit court’s decision to grant summary
judgment regarding the interpretation of an insurance policy, applying the same
methodology as the circuit court. Westphal v. Farmers Ins. Exch., 2003 WI App
170, ¶9, 266 Wis. 2d 569, 669 N.W.2d 166. On summary judgment, the moving
party is entitled to judgment as a matter of law “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if
any, 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); see
Bank of N.Y. Mellon v. Klomsten, 2018 WI App 25, ¶31, 381 Wis. 2d 218, 911
N.W.2d 364. Because in this matter there is no genuine dispute of material fact,
we must determine which party is entitled to judgment as a matter of law. Town

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of Grant v. Portage Cnty., 2017 WI App 69, ¶12, 378 Wis. 2d 289, 903 N.W.2d
152.

¶16 As for declaratory judgments, a decision to grant or deny declaratory
relief can be within the discretion of the circuit court. Olson v. Farrar, 2012 WI
3, ¶24, 338 Wis. 2d 215, 809 N.W.2d 1. “However, when the exercise of such
discretion turns upon a question of law, we review the question independently of
the circuit court’s determination.” Id. Put another way, a circuit court’s grant of
declaratory judgment that turns upon the interpretation of an insurance contract
presents a question of law, and our review is de novo. Commercial Union
Midwest Ins. Co. v. Vorbeck, 2004 WI App 11, ¶7, 269 Wis. 2d 204, 674 N.W.2d
665 (2003). This court has stated that, in this context, we “treat the circuit court’s
declaratory judgment as an award of summary judgment.” Young, 314 Wis. 2d
246, ¶6.

¶17 This appeal requires us to determine whether Erie’s insurance
coverage to Blood for invasion of privacy is illusory. Whether an insurance
contract’s coverage is illusory is a question of law that we review de novo.
Gillund v. Meridian Mut. Ins. Co., 2010 WI App 4, ¶19, 323 Wis. 2d 1, 778
N.W.2d 662.

¶18 Determining whether Erie’s policies provide coverage for the
plaintiffs’ invasion of privacy claims also requires us to interpret WIS. STAT.
§ 995.50. “[S]tatutory interpretation ‘begins with the language of the statute. If
the meaning of the statute is plain, we ordinarily stop the inquiry.’” State ex rel.
Kalal v. Circuit Ct. for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681
N.W.2d 110 (quoted source omitted). “Statutory language is given its common,
ordinary, and accepted meaning, except that technical or specially-defined words

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or phrases are given their technical or special definitional meaning.” Id. Statutory
interpretation and the application of statutes to undisputed facts are questions of
law that this court reviews de novo. Landis v. Physicians Ins. Co. of Wis., Inc.,
2001 WI 86, ¶¶12-13, 245 Wis. 2d 1, 628 N.W.2d 893.

¶19 We first interpret the primary policy and then the umbrella policy.

II. The Primary Policy Does Not Require Erie to Defend or Indemnify Blood.

¶20 The appellants argue that the intentional acts exclusion and the
willful violation of a law exclusion in the primary policy are not enforceable, and
the primary policy must be reformed to provide coverage because the application
of those exclusions renders illusory the primary policy’s invasion of privacy
coverage. In the alternative, B.E. argues that, even if the primary policy coverage
for invasion of privacy is not illusory and those exclusions are enforceable, the
exclusions do not preclude coverage for her negligent invasion of privacy claim.4
We address each argument in turn.

4
On appeal, E.K. requests that, if we conclude that the Erie policies’ coverage is not
illusory, and that the two applicable exclusions preclude his invasion of privacy claim, we should
allow him to amend his complaint on remand to add a negligent invasion of privacy claim similar
to that pleaded by B.E. This request must be addressed to the circuit court in a motion after
remand for the circuit court to exercise its discretion in deciding whether E.K. may amend his
complaint after summary judgment has been granted. See Mach v. Allison, 2003 WI App 11,
¶27, 259 Wis. 2d 686, 656 N.W.2d 766 (2002).

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A. The Primary Policy Coverage is Not Illusory.

1. Governing Principles for Construction of Insurance Policies and
Illusory Coverage.

¶21 “The same rules of construction that govern general contracts are
applied to the language in insurance policies.” Folkman v. Quamme, 2003 WI
116, ¶12, 264 Wis. 2d 617, 665 N.W.2d 857. We construe an insurance policy to
give effect to the intent of the parties as expressed in the language of the policy.
Id. To this end, “[p]olicy language is construed as it ‘would be understood by a
reasonable person in the position of the insured.’” Estate of Sustache v.
American Fam. Mut. Ins. Co., 2008 WI 87, ¶19, 311 Wis. 2d 548, 751 N.W.2d
845 (quoting American Fam. Mut. Ins. Co. v. American Girl, Inc., 2004 WI 2,
¶23, 268 Wis. 2d 16, 673 N.W.2d 65).

¶22 Coverage is illusory if the “policy language defines coverage in a
manner that coverage will never actually be triggered.” Marks v. Houston Cas.
Co., 2016 WI 53, ¶56, 369 Wis. 2d 547, 881 N.W.2d 309; Gillund, 323 Wis. 2d 1,
¶19 (“Coverage is illusory when an insured cannot foresee any circumstances
under which he or she would collect under a particular policy provision.”).
“Where a policy’s purported coverage is illusory, the policy may be reformed to
meet an insured’s reasonable expectations of coverage.” Marks, 369 Wis. 2d 547,
¶56.

2. Requirements to Trigger the Primary Policy’s Exclusions.

¶23 The appellants contend that the intentional acts exclusion and the
willful violation of a law exclusion always preclude invasion of privacy coverage
in the primary policy because, according to the appellants, invasion of privacy is

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generally classified as an “intentional” tort, and invasion of privacy claims require
“intent” as part of the proof of that cause of action. However, that argument does
not take into account a complete interpretation of the policy because the appellants
do not substantively address the requirements to trigger each of those exclusions
under Wisconsin law or discuss how those requirements apply to an illusory
coverage analysis.5 An analysis of when those exclusions can apply under
Wisconsin law is critical in determining whether the application of those
exclusions will always preclude coverage for invasion of privacy in the primary
policy. We now address those exclusions.

¶24 In determining whether an intentional acts exclusion precludes
coverage for a particular claim, Wisconsin courts apply a two-part test. “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.” Loveridge v. Chartier, 161 Wis. 2d 150, 168, 468 N.W.2d 146 (1991). As
our supreme court has stated: “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.’ In other words, intent may be actual (a subjective standard) or
inferred by the nature of the insured’s intentional act (an objective standard).” Id.
(citations omitted); see also Raby v. Moe, 153 Wis. 2d 101, 111, 450 N.W.2d 452
(1990).6 Accordingly, the intentional acts exclusion will render the primary
5
We recognize that the appellants and Erie mention these concepts. But the appellants
mention the concepts only in the context of the potential application of the intentional acts
exclusion to B.E.’s negligent invasion of privacy claim. The appellants do not analyze those
concepts in the context of whether the policies are illusory.
6
The intentional acts exclusions in those cases were similar to the intentional acts
exclusions in the two Erie policies in play in this appeal. Loveridge v. Chartier, 161 Wis. 2d 150,
166, 468 N.W.2d 146 (1991); Raby v. Moe, 153 Wis. 2d 101, 107, 450 N.W.2d 452 (1990).

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policy’s invasion of privacy coverage illusory only if every cause of action for
invasion of privacy will satisfy both elements of the above-described test—i.e.,
that every cause of action for invasion of privacy requires that the insured both
committed an intentional act and had an intent (actual or inferred objectively) that
some injury or harm would be substantially certain to follow.

¶25 As for the willful violation of a law exclusion, the parties do not
identify—and our research does not reveal—any Wisconsin case law defining the
requirements necessary to trigger such an exclusion in an insurance policy. As a
result, we must analyze the language of this exclusion to determine its meaning.

¶26 To repeat, this exclusion states, in pertinent part: “We do not cover
… Personal injury arising out of willful violation of a law or ordinance by anyone
we [insure].” The term “willful” is not defined in either Erie policy. “When
determining the ordinary meaning of words not defined in an insurance policy, it is
appropriate to look to the definitions in a non-legal dictionary.” Preisler v.
General Cas. Ins. Co., 2014 WI 135, ¶40, 360 Wis. 2d 129, 857 N.W.2d 136.
Dictionaries define the term as “done deliberately,” Willful, MERRIAM-WEBSTER
ONLINE DICTIONARY, available at https://www.merriam-webster.com/
dictionary/willful (Last accessed Sept. 1, 2022) or as “said or done on purpose;
deliberate,” Willful, AMERICAN HERITAGE DICTIONARY (5th ed. 2011). In a
similar vein, Wisconsin courts have interpreted “willful” in statutory contexts as
synonymous with “intentional.” See, e.g., DOT v. Transportation Comm’n, 111
Wis. 2d 80, 87, 330 N.W.2d 159 (1983); Milwaukee Corrugating Co. v. Winters,
197 Wis. 414, 420, 222 N.W. 251 (1928) (“The words ‘willful’ and ‘willfully’ …
are frequently used in the sense of intentionally, or in other words as implying a

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purpose or design, or proceeding from a conscious motion of the will as
distinguished from accidentally or involuntarily.” (quoted treatise omitted)).

¶27 Those definitions align with our supreme court’s interpretation of the
phrase “willful violation” in the context of judicial misconduct proceedings.
Under WIS. STAT. § 757.81, “misconduct” is defined as including a “[w]illful
violation of a rule of the code of judicial ethics.” Sec. 757.81(4)(a). Our supreme
court has stated that a violation is “willful” under this statute when “the judge’s
conduct was not the result of duress or coercion and … the judge knew or should
have known that the conduct was prohibited by the Code of Judicial Ethics.”
Judicial Disciplinary Proceedings of Tessmer, 219 Wis. 2d 708, ¶¶2, 45, 580
N.W.2d 307 (1998) (emphasis added).

¶28 In the exclusion, the word “willful” modifies the entire phrase
“violation of a law or ordinance.” Accordingly, based on the above-mentioned
authorities, the exclusion requires more than a violation of a law or ordinance that
happens to involve an intentional act. Rather, the exclusion requires that the
insured acted intentionally or deliberately and the insured knew, or should
reasonably have known, that such act violates a law or ordinance. Therefore, this
exclusion will render illusory the primary policy’s invasion of privacy coverage
only if every cause of action for invasion of privacy satisfies both those
requirements.

¶29 We next apply those principles to the cause of action of invasion of
privacy under Wisconsin law.

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3. Application to Cause of Action for Invasion of Privacy.

¶30 The cause of action for invasion of privacy was first recognized in
Wisconsin when the legislature enacted WIS. STAT. § 995.50.7 Zinda v. Louisiana
Pac. Corp., 149 Wis. 2d 913, 928, 440 N.W.2d 548 (1989). Four types of
invasion of privacy are actionable in a civil suit in Wisconsin:

1. Intrusion upon the privacy of another of a nature
highly offensive to a reasonable person … in a place that a
reasonable person would consider private, or in a manner
that is actionable for trespass.

2. The use, for advertising purposes or for purposes
of trade, of the name, portrait or picture of any living
person, without having first obtained the written consent of
the person or, if the person is a minor, of his or her parent
or guardian.

3. Publicity given to a matter concerning the
private life of another, of a kind highly offensive to a
reasonable person, if the defendant has acted either
unreasonably or recklessly as to whether there was a
legitimate public interest in the matter involved, or with
actual knowledge that none existed. It is not an invasion of
privacy to communicate any information available to the
public as a matter of public record.

4. Conduct that is prohibited under s. 942.09,
regardless of whether there has been a criminal action
related to the conduct, and regardless of the outcome of the
criminal action, if there has been a criminal action related
to the conduct.

Sec. 995.50(2)(am)1.-4.

7
This cause of action was initially codified under WIS. STAT. § 895.50, but was
renumbered to WIS. STAT. § 995.50 pursuant to 2005 Wis. Act 155, § 51. The four causes of
action for invasion of privacy, discussed in more detail below, were renumbered to
§ 995.50(2)(am)1.-4., pursuant to 2019 Wis. Act 72, § 1.

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¶31 We assume, without deciding, that acts prohibited by subpart 4.
regarding “[c]onduct that is prohibited under [WIS. STAT. §] 942.09” (described in
footnote 2, above) will always be excluded from coverage in the Erie primary
policy because of the intentional acts exclusion and the willful violation of a law
exclusion. Instead, we focus on subparts 1.-3. quoted above. In considering
subparts 1.-3. of WIS. STAT. § 995.50(2)(am), we are mindful that the question is
not whether Blood’s acts alleged in the complaints are precluded from coverage
based on these exclusions. Instead, for coverage to be illusory, there must be no
circumstance in which coverage could “actually be triggered.” Marks, 369 Wis.
2d 547, ¶56.

¶32 The appellants argue that the causes of action for invasion of privacy
under WIS. STAT. § 995.50(2)(am) are always “intentional” in that each cause of
action requires a “volitional” act and, according to the appellants, that necessarily
means that Erie’s invasion of privacy coverage is illusory. As we now explain, we
reject this contention because it is contradicted by the language of
§ 995.50(2)(am)1.-3. and the meaning of the pertinent exclusions.

¶33 Based on its explicit wording, a cause of action for invasion of
privacy under WIS. STAT. § 995.50(2)(am)1. does not require a showing of intent.
See Kalal, 271 Wis. 2d 633, ¶45 (we are to look to the language of the statute). In
fact, this court has analyzed the requisite mental state required under
§ 995.50(2)(am)1. and confirmed that the intent of the defendant is not part of the
elements of that cause of action:

The test [in current WIS. STAT. § 995.50(2)(am)1.] is an
objective one: whether a reasonable person would find the
intrusion highly offensive. There is no requirement that the
actor have a particular mental state or intent.

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… [WISCONSIN STAT. §] 942.08(2)(b) through (d)
[concerning criminal invasion of privacy] each require that
the defendant have the “purpose of sexual arousal or
gratification.” On the other hand, the civil statute, [current
WIS. STAT. § 995.50(2)(am)1.], does not require a
defendant to act with a particular state of mind. The civil
statute merely requires the plaintiff to demonstrate that the
invasion of privacy is “highly offensive to a reasonable
person.”

Gillund, 323 Wis. 2d 1, ¶¶29, 30.

¶34 To summarize, Gillund concludes that a defendant need not act
“with a particular mental state or intent” or “with a particular state of mind” for
there to be a valid cause of action under WIS. STAT. § 995.50(2)(am)1. For at least
the following reasons, and consistent with that conclusion in Gillund, Erie’s
primary policy coverage for invasion of privacy is not illusory based on the terms
of either exclusion.

¶35 First, both relevant exclusions require an intentional or deliberate act
for their application, yet WIS. STAT. § 995.50(2)(am)1. can be violated even when
an insured does not intend the causal act. Second, § 995.50(2)(am)1. can be
violated even when the insured does not intend injury or harm that is substantially
certain to follow, and that is another reason that the intentional acts exclusion does
not bar coverage for every violation of § 995.50(2)(am)1. Third, that statutory
subpart can be violated even when the insured did not know, and should not have
reasonably known, that his or her act violated a law or ordinance, and that is
another reason that the willful violation of a law exclusion does not bar coverage
for every violation of § 995.50(2)(am)1. Accordingly, a cause of action under
§ 995.50(2)(am)1. may be covered under the primary policy’s invasion of privacy
provision because the requirements to trigger the intentional acts exclusion or the

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willful violation of a law exclusion need not be present in order to prove that cause
of action.

¶36 Consideration of WIS. STAT. § 995.50(2)(am)2. and 3. yields the
same result for at least the following reasons. Subpart 2. requires only that the
defendant “use, for advertising purposes or for purposes of trade, … the name,
portrait or picture of any living person, without having first obtained the written
consent of the person.” Sec. 995.50(2)(am)2. This court has summarized these
elements:

[O]n its face, [WIS. STAT. § 995.50(2)(am)2.] requires only
proof of the following:

1. “use” ... of the name, portrait or picture of any
living person;

2. “use” that is “for advertising purposes or for
purposes of trade”; and

3. “use” without “written consent.”

Habush v. Cannon, 2013 WI App 34, ¶9, 346 Wis. 2d 709, 828 N.W.2d 876.

¶37 Subpart 3. requires in relevant part that a defendant publicize “a
matter concerning the private life of another, of a kind highly offensive to a
reasonable person, if the defendant has acted … unreasonably … as to whether
there was a legitimate public interest in the matter involved.” WIS. STAT.
§ 995.50(2)(am)3. This court has summarized these elements as follows:

In order to establish a cause of action for invasion
of privacy under [WIS. STAT. § 995.50(2)(am)3.], a plaintiff
must prove: (1) a public disclosure of facts regarding the
plaintiff; (2) the facts disclosed are private facts; (3) the
private matter made public is one which would be highly
offensive to a reasonable person of ordinary sensibilities;
and (4) the defendant acted … unreasonably … as to

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whether there was a legitimate public interest in the matter,
or with actual knowledge that none existed.

Pachowitz v. Ledoux, 2003 WI App 120, ¶18, 265 Wis. 2d 631, 666 N.W.2d 88.
One element of that subpart requires a mental state; that is, a defendant who acts
“unreasonably” satisfies that element. The appellants make no viable argument
that “unreasonable” acts, which sound in negligence, come within the ambit of
Erie’s intentional acts exclusion.

¶38 Summarizing, neither of these two causes of action requires that an
insured intend injury or harm that is substantially certain to occur so as to trigger
the intentional acts exclusion. Neither cause of action requires that an insured
know, or should have known, that their acts were in violation of a law so as to
trigger the willful violation of a law exclusion. Further, neither of those
requirements in the two pertinent exclusions can reasonably be read into, or
inferred from, these statutory subparts. See Kalal, 271 Wis. 2d 633, ¶45.

¶39 Therefore, because there is a circumstance in which coverage will
“actually be triggered,” see Marks, 369 Wis. 2d 547, ¶56, the primary policy’s
invasion of privacy coverage is not illusory.

4. Developing Common Law of Privacy.

¶40 As a separate argument, the appellants rely on WIS. STAT.
§ 995.50(3) which states: “The right of privacy recognized in this section shall be
interpreted in accordance with the developing common law of privacy, including
defenses of absolute and qualified privilege, with due regard for maintaining
freedom of communication, privately and through the public media.”
Sec. 995.50(3). The appellants construe that statutory subpart broadly and refer us
to authorities that, in the appellants’ view, establish the “developing common law

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of privacy.” The appellants contend that these authorities support their argument
that every possible actionable invasion of privacy claim under Wisconsin law
would be barred by at least one of the two pertinent exclusions in Erie’s primary
policy. We reject appellants’ arguments for the following reasons.

¶41 First, the appellants rely on the Restatement (Second) of Torts
because two federal courts have interpreted WIS. STAT. § 995.50(3) as
“support[ing] a reading [of WIS. STAT. § 995.50(2)(am)1.] in accordance with the
general common law as reflected by the [Restatement].” Bogie v. Rosenberg, 705
F.3d 603, 610 (7th Cir. 2013) (quoting Fischer v. Mt. Olive Lutheran Church,
207 F. Supp. 2d 914, 928 (W.D. Wis. 2002)). We now address pertinent
Restatement sections and explain why we reject this argument.

¶42 The Restatement recognizes four separate types of conduct that
constitute invasion of privacy: (1) unreasonable intrusion upon the seclusion of
another; (2) appropriation of another’s name or likeness; (3) unreasonable
publicity given to another’s private life; and (4) publicity that unreasonably places
another in a false light before the public. RESTATEMENT (SECOND) OF TORTS
§ 652(A) (AM. L. INST. 1977); Zinda, 149 Wis. 2d at 928-29 (1989). This court
has stated that the cause of action delineated in WIS. STAT. § 995.50(2)(am)1. (a
cause of action brought by both plaintiffs) “correlate[s] to a limited degree” with
the first category identified in the Restatement, unreasonable intrusion upon the
seclusion of another. Hillman v. Columbia Cnty., 164 Wis. 2d 376, 391, 474
N.W.2d 913 (Ct. App. 1991).

¶43 The Restatement describes “intrusion upon the seclusion of another”
as follows: “One who intentionally intrudes, physically or otherwise, upon the
solitude or seclusion of another or his [or her] private affairs or concerns, is

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subject to liability to the other for invasion of his privacy, if the intrusion would be
highly offensive to a reasonable person.” RESTATEMENT (SECOND) OF TORTS
§ 652(B). The appellants contend that the use of the term “intentionally” in this
section of the Restatement indicates that intent is required to prove a cause of
action for invasion of privacy under WIS. STAT. § 995.50(2)(am)1. From that
premise and in light of the language of the primary policy’s intentional acts
exclusion and willful violation of a law exclusion, the appellants argue that Erie’s
coverage for invasion of privacy is illusory.

¶44 For several reasons, we conclude that § 652(B) of the Restatement
does not apply in this particular circumstance. Most importantly, our legislature’s
generalized directive in WIS. STAT. § 995.50(3) that Wisconsin courts interpret the
“right of privacy” in accordance with “the developing common law of privacy”
cannot reasonably be interpreted as an invitation to add the word “intentionally,”
or to otherwise alter the text of § 995.50, to better align with the Restatement.
Rather, reasonably interpreted, § 995.50(3) indicates that we should use the
Restatement, and other authorities, only as aids in interpreting the words that the
legislature has chosen to use in § 995.50. See Kalal, 271 Wis. 2d 633, ¶45. As
this court has recognized, § 652(B) of the Restatement correlates “to a limited
degree” with § 995.50(2)(am)1. Hillman, 164 Wis. 2d at 391. That limited
correlation between § 995.50(2)(am)1. and §652(B) has not been interpreted by
any Wisconsin authority. But whatever the precise range is of this limited
correlation, it cannot reasonably extend to the point of requiring the addition of the
word “intentionally” to that statutory subpart when the legislature did not do so.
As a result, the language in the Restatement does not add the requisite mental state
of intent to the cause of action for invasion of privacy under § 995.50(2)(am)1.

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Therefore, § 652(B) of the Restatement does not support the appellants’ contention
that Erie’s coverage for invasion of privacy is illusory.

¶45 Second, the appellants argue that Gillund is instructive, but that case
does not include any statement that helps the appellants here. In that case, while
Gillund was visiting her aunt and uncle, her uncle hid video cameras and recorded
Gillund in various stages of undress. Gillund, 323 Wis. 2d 1, ¶¶2, 17. Gillund
argued, in part, that the invasion of privacy coverage in her uncle’s insurance
policy was illusory because that coverage applied only to an “occurrence” and the
intentional nature of the invasion of privacy claim directly contradicted the
policy’s definition of an “occurrence” as an “accident.” Id., ¶14. This court,
however, did not address that argument from Gillund. Rather, this court assumed
without deciding that the policy was illusory based on the definition of
“occurrence” and concluded that coverage was precluded based on the exclusion
for “injury caused by a violation of a penal law committed by an insured.” Id.,
¶¶22, 33. Because this court merely assumed without deciding that the policy was
illusory, Gillund’s illusory coverage discussion on that specific point has no effect
on our conclusion that Blood’s primary policy is not illusory.

¶46 Third, the appellants rely on Fox v. Iowa Health System, 399 F.
Supp. 3d 780 (W.D. Wis. 2019). More particularly, the appellants argue that this
federal court opinion requires us to construe WIS. STAT. § 995.50(2)(am)1.-3. as
an intentional tort. In that case, Fox and other plaintiffs sued UnityPoint Health
for invasion of privacy, among other claims, after hackers stole private health and
personal information. Id. at 787. The federal court concluded that the cause of
action for invasion of privacy under WIS. STAT. § 995.50(2)(am)3. requires an
intentional disclosure of private information. Id. at 796. The federal court’s

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reasoning that § 995.50(2)(am)3. is an intentional tort was based on WIS. STAT.
§ 893.57—Wisconsin’s statute of limitations for “intentional torts”—which states
that “invasion of privacy” is governed by that statute of limitations. Id. We
question this conclusion. Statutory titles are not part of the statute. See WIS.
STAT. § 990.001(6). We have recognized that statutory titles “may be resorted to
in order to resolve a doubt as to statutory meaning, [but] we will not resort to them
in order to create a doubt where none would otherwise exist.” State v. Holcomb,
2016 WI App 70, ¶14, 371 Wis. 2d 647, 886 N.W.2d 100.

¶47 More importantly, Fox’s analysis cannot be reconciled with a
decision of this court. The torts of “libel [and] slander” (defamation) are also
listed as causes of action that are governed by the statute of limitations in WIS.
STAT. § 893.57. Nonetheless, this court has concluded that defamation may occur
based on negligent acts. Baumann v. Elliott, 2005 WI App 186, ¶23, 286 Wis. 2d
667, 704 N.W.2d 361. If each cause of action listed in § 893.57 is an intentional
tort, and only an intentional tort, we could not have reached that conclusion in
Baumann.8 Therefore, the Fox opinion does not affect our conclusion that the
primary policy is not illusory.

¶48 Fourth, the appellants rely on Bailer v. Erie Insurance Exchange,
344 Md. 515, 687 A.2d 1375 (1997), as an indication of the developing common
law of privacy. We now summarize that opinion and explain that we do not
consider it instructive because its analysis is not grounded in the particulars of

8
In addition, Fox is of limited or no value to our analysis because that opinion does not
address the particular requirements necessary to trigger an intentional acts exclusion or a willful
violation of a law exclusion in an insurance policy.

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Wisconsin law that guide our analysis. The plaintiff, an au pair working for the
Bailers, sued the Bailers for invasion of privacy after discovering that a camera in
the bathroom had secretly recorded her using the shower. Bailer, 687 A.2d at
1376. The Bailers had an insurance policy with Erie that purported to cover
invasion of privacy, but also contained an intentional acts exclusion. Id. The
Bailers tendered their defense to Erie, but Erie refused to defend on the ground
that the intentional acts exclusion precluded coverage for the plaintiff’s invasion
of privacy claim. Id.

¶49 The Maryland Court of Appeals determined that the Bailers’ policy
was illusory because the intentional acts exclusion “totally swallows the insuring
provision.” Id. at 1380. Of importance for our purposes, that court stated that it
was addressing only the tort of “intrusion upon seclusion” under § 652(B) of the
Restatement because Erie had not briefed whether other forms of invasion of
privacy require intent or whether the Bailers’ policy insured against other forms of
invasion of privacy. Id. at 1381. The court also stated as part of its reasoning that
it was addressing only an intrusion upon seclusion cause of action because the
parties to the insurance contract would not have intended for the Bailers’ policy to
cover any other type of invasion of privacy. The court stated:

To the reasonable person the promise to pay damages for
liability for invasion of privacy, at the time of contracting
and under the circumstances presented here, refers to an
intrusion upon seclusion. In other words, in an excess
policy designed for owners of at least one house and at
least one automobile, the contracting parties would not
contemplate that the term, “invasion of privacy,” primarily
relates to such relatively exotic and usually commercial-
context torts as appropriation of another’s name or likeness,
unreasonable publicity, or false light publicity.

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Id. at 1384. Relying on § 652(B) of the Restatement, the Bailer court concluded
that the intentional acts exclusion rendered illusory the Bailers’ invasion of
privacy coverage because “[i]ntrusion upon seclusion must always be intentional
in order to be tortious.” Id. at 1381, 1384.

¶50 Turning to our analysis of Wisconsin law, the initial reason that
Bailer is not persuasive is that it does not address the requisite mental state for all
forms of invasion of privacy recognized under Wisconsin law. Rather, Bailer
analyzed solely the necessary intent for intrusion upon seclusion as set forth in
§ 652(B) of the Restatement.9 Confirming the point, the Bailer court explicitly
acknowledged that it was expressing “no opinion” on other forms of invasion of
privacy because Erie did not brief that court on those other forms of the tort and
did not argue that its policy covered those other forms. Id. at 1381. Here, by
contrast, Erie has argued that its policy covers all forms of invasion of privacy
recognized under Wisconsin law. Relatedly, we also do not agree with Bailer’s
conclusion that coverage for invasion of privacy in a homeowners insurance
policy must refer exclusively to intrusion upon seclusion. Under WIS. STAT.
§ 995.50(2)(am), the phrase “invasion of privacy” is defined as any of the causes
of action for invasion of privacy set forth therein. We cannot ignore the
unambiguous language of the Erie policy and § 995.50(2)(am) simply because
some forms of invasion of privacy are, according to the Maryland court at least,

9
As discussed earlier, that cause of action recognized in §652(B) of the Restatement
correlates “to a limited degree” with Wisconsin’s version of that cause of action under WIS.
STAT. § 995.50(2)(am)1., and that section of the Restatement’s use of the term “intentionally”
does not alter the language of § 995.50(2)(am)1. chosen by the legislature.

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“relatively exotic” and “usually” appear in the commercial context. See id. at
1384.

¶51 Further, we do not agree with Bailer’s conclusion that an intrusion
upon seclusion claim will always trigger an intentional acts exclusion. As noted,
Bailer based its decision on the proposition that intrusion upon seclusion “must
always be intentional in order to be tortious.” Id. However, this proposition stems
from the use of the term “intentionally” in § 652(B) of the Restatement and the
notion that an invasion of privacy claim requires intentional conduct. Id. at 1380-
81. As discussed above, Wisconsin’s version of that cause of action under WIS.
STAT. § 995.50(2)(am)1. does not include the word “intentionally.”10

¶52 Fifth, the appellants point to Walkowicz v. American Girl Brands,
LLC, 2021 WL 510729 (W.D. Wis. Feb. 11, 2021), as another example of the
“developing common law of privacy” that supports their position. In that case,
Walkowicz sued American Girl, in part, for invasion of privacy and negligence for
the alleged use of her likeness on a doll. Id. at *1. The federal court rejected
Walkowicz’s invasion of privacy claim on the ground that the doll was not based
on Walkowicz’s portrait, picture, or name as required by WIS. STAT.
§ 995.50(2)(am)2. Id. at *5-*8. The court also rejected Walkowicz’s negligence

10
In support of her reliance on Bailer v. Erie Insurance Exchange, 344 Md. 515, 687
A.2d 1375 (1997), B.E. lists several case citations in her brief-in-chief. We conclude that those
opinions do not support B.E.’s argument for at least the following reasons. Two of the opinions
mention invasion of privacy claims but, according to B.E.’s summary of those opinions, neither
discusses the question of whether an insurance policy was illusory. Moreover, B.E. gives no
reason for us to conclude that those same two opinions discuss either an invasion of privacy claim
with elements similar to WIS. STAT. § 995.50(2)(am)1. or insurance policies with exclusions
similar to the Erie policy exclusions at issue in this appeal. The remaining opinions relied on by
B.E. discuss, according to B.E., intentional torts and insurance policy provisions, but B.E. does
not tie those cases to the necessary analysis under Wisconsin law.

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claim on the ground that Wisconsin does not recognize a duty to avoid using
another’s name or likeness. Id. at *8-*9. Here, the appellants argue that
Walkowicz indicates that the “developing common law of privacy” requires “more
than mere negligence to be actionable.” Walkowicz does not shed any light on the
issues in this case. The federal court’s discussion of § 995.50(2)(am)2. did not
address the requisite intent for a claim under that subpart. Also, the court’s
discussion of negligence did not address § 995.50 or the requisite mental state of
the defendant required in the various forms of invasion of privacy under that
section. Therefore, Walkowicz has no bearing on whether Erie’s coverage for
invasion of privacy under § 995.50(2)(am)2.—or any of the other Wisconsin
causes of action for invasion of privacy—is illusory.

¶53 Sixth, the appellants rely on New York case law interpreting the
New York statute on which WIS. STAT. § 955.50(2)(am)2. was modeled. See
Habush, 346 Wis. 2d 709, ¶22 n.6 (“Reliance on New York case law is
particularly useful to our analysis because the Wisconsin legislature used New
York’s privacy statute as a model for [§ 995.50(2)(am)2.]”). More specifically,
the appellants cite to Foster v. Svenson, 128 A.D.3d 150, 7 N.Y.S.3d 96 (2015), in
which a New York appellate court held that there was no cause of action for
invasion of privacy against an “artist” who took photographs of his neighbors
through their windows. Foster, 128 A.D.3d at 152. The court’s discussion
focused on whether the photographs were for the purpose of “advertising” or
“trade” under New York’s invasion of privacy statute and whether the
photographs were protected speech. Id. at 160. The appellants argue that Foster
is instructive because the opinion “supports” the proposition “that mere negligence
is not actionable conduct for this type of tort.” However, Foster never uses the
term “negligence.” To the extent that Foster discusses intent, it is in the context

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of intentional infliction of emotional distress. Id. at 161-62. Thus, Foster has no
instructive value here.

¶54 In sum, there exists an actionable invasion of privacy claim under
WIS. STAT. § 995.50(2)(am)1.-3. that does not trigger the intentional acts
exclusion or willful violation of a law exclusion in the primary policy. As a result,
those exclusions do not render illusory the invasion of privacy coverage.

B. The Intentional Acts Exclusion Precludes Coverage for the
Plaintiffs’ Claims.

¶55 We now discuss whether the intentional acts exclusion in the
primary policy precludes coverage for the plaintiffs’ invasion of privacy claims.11
As noted, B.E. has stated claims for invasion of privacy, negligent invasion of
privacy, intentional infliction of emotional distress, negligent infliction of
emotional distress, and a cause of action styled only as “negligence.” E.K. has
stated a claim for invasion of privacy. The circuit court concluded that Erie does
not provide coverage for any of the plaintiffs’ claims.

¶56 We focus, as do the parties, on the issue of coverage generally,
rather than on the duty to defend, because Erie has provided an initial defense to
Blood and moved to bifurcate the coverage issue from the merits of the plaintiffs’
claims. See Talley v. Mustafa, 2018 WI 47, ¶24, 381 Wis. 2d 393, 911 N.W.2d 55

11
Erie also argues that coverage for the plaintiffs’ invasion of privacy claims is
precluded by the willful violation of a law exclusion and, with respect to E.K.’s claim, by an
exclusion that Erie describes as the “family” exclusion. Because our decision regarding the
intentional acts exclusion is dispositive, we need not address the applicability of these other two
exclusions. See Barrows v. American Fam. Ins. Co., 2014 WI App 11, ¶9, 352 Wis. 2d 436, 842
N.W.2d 508 (“An appellate court need not address every issue raised by the parties when one
issue is dispositive.”).

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(“Our focus is on coverage, not on the duty to defend, because [insurer] followed a
judicially-preferred approach when it received [insured’s] complaint: it provided
an initial defense to its insured and filed a motion to bifurcate the coverage issue
from the liability trial.”). In determining whether an insurance policy provides
coverage for a particular claim, Wisconsin courts follow a three-step test. Id., ¶25.
First, we compare the allegations in the complaint, as supplemented by the
extrinsic evidence submitted, with the language of the policy to determine whether
the policy provides an “initial grant of coverage.” Id. Second, if the policy
provides an initial grant of coverage for the stated claims, we then examine the
policy’s exclusions to determine whether any exclusion precludes coverage. Id.
Finally, if an exclusion applies, we examine the policy to determine whether any
exceptions to the applicable exclusion restore coverage. Id. “The insured has the
initial burden to show coverage, while the insurer has the burden of proving any
exception to coverage.” Estate of Ermenc by Ermenc v. American Fam. Mut.
Ins. Co., 221 Wis. 2d 478, 481, 585 N.W.2d 679 (Ct. App. 1998). Here, Erie does
not dispute that the primary policy provides an initial grant of coverage for
plaintiffs’ claims under the first step of this test. The appellants do not contend
that there is an exception to any exclusion under the third step of this test. Rather,
the parties focus solely on the second step: whether any exclusions preclude
coverage for the plaintiffs’ claims. See Talley, 381 Wis. 2d 393, ¶25.

¶57 To repeat, this exclusion states: “We do not cover under … Personal
Injury Liability Coverage … personal injury caused intentionally by or at the
direction of, and substantially certain to follow from the act of, an insured person.”
(Emphasis removed.) As explained above, intentional acts exclusions such as this

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one will preclude coverage only if the following two-part test is satisfied.12 First,
the insured acted intentionally and, second, the insured intended to injure or harm
another. Loveridge, 161 Wis. 2d at 168. An insured intends to injure or harm
another if he or she “intend[s] the consequences of his [or her] act, or believe[s]
that [those] are substantially certain to follow.” Id. “[I]ntent may be actual (a
subjective standard) or inferred by the nature of the insured’s intentional act (an
objective standard).” Id. (citations omitted). An intentional acts exclusion will
preclude coverage “even if the harm that occurs is different in character or
magnitude from that intended by the insured.” Id. at 169.

¶58 A determination of whether an insured, when assessed from an
objective standpoint, intended that harm or injury result from an intentional act is
often a question of fact. Ludwig v. Dulian, 217 Wis. 2d 782, 788-89, 579 N.W.2d
795 (Ct. App. 1998) (citing Loveridge, 161 Wis. 2d at 151). “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 such inference.” Id. at 789. As this court explained in
Ludwig:

There is no bright-line rule to determine when intent to
injure should be inferred as a matter of law. Rather, each
set of facts must be considered on a case-by-case basis; the
more likely harm is to result from certain intentional
conduct, the more likely intent to harm may be inferred as a
matter of law.

Id. (citations omitted).

12
The parties do not dispute that this two-part test applies to the intentional acts
exclusion in the primary policy.

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¶59 The parties dispute whether Blood’s conduct was an intentional act
under the first prong of the two-part test. The appellants argue that the first prong
is not satisfied because B.E.’s complaint alleges in part that Blood acted
negligently. However, as Erie correctly observes, we must focus on the specific
factual allegations against Blood, not the plaintiffs’ theories of liability. See
Talley, 381 Wis. 2d 393, ¶20 (“[A] plaintiff cannot simply add the word
‘negligence’ to a complaint and expect that a supervision claim against an
employer will create an accident out of the employee’s intentional assault and
battery.”).

¶60 Blood has admitted that he placed the camera in E.K.’s bedroom in
order to monitor E.K.’s intimate behavior with B.E., another minor, and Blood
further admitted viewing some of the recordings. Blood then pleaded guilty in
federal court to a charge of possession of child pornography related to those
recordings. E.K.’s complaint alleges only intentional acts of Blood including an
allegation that the facts underlying the federal court indictment of Blood “are the
same facts underlying this civil claim.” B.E.’s complaint alleges that Blood’s
actions of placing the camera for purposes of recording were “malicious.” For
purposes of resolving this insurance dispute, the allegations of fact in the
plaintiffs’ complaints and the undisputed record lead to one conclusion: that
Blood intentionally placed a camera in E.K.’s bedroom and intentionally caused it
to record visual representations of the plaintiffs engaging in intimate acts and in

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stages of undress that Blood later viewed. Therefore, Blood’s conduct was an
intentional act sufficient to satisfy the first prong of the test.13

¶61 The parties next dispute whether Blood intended to cause injury or
harm. As noted, intent to harm may be based on the insured’s subjective intent or
inferred from an objective standpoint by the nature of the insured’s conduct.
Ludwig, 217 Wis. 2d at 788. The appellants argue that Blood did not subjectively
intend to injure or harm because Blood stated to C.K. that he never meant to harm
E.K. and never intended for E.K. or B.E. to learn of the recordings. According to
the appellants, these statements from Blood create a question of fact that should be
resolved by remanding this case for trial. However, Blood’s statements of his
subjective intent are not dispositive because intent to injure or harm may be
inferred as a matter of law “even if the insured asserts, honestly or dishonestly,
that he [or she] did not intend any harm.” See Loveridge, 161 Wis. 2d at 168.

¶62 Erie argues that we can infer intent to injure or harm as a matter of
law because harm was substantially certain to result from Blood’s conduct. For
the following reasons, we agree. It is manifest that placement of a camera in a
person’s bedroom is nearly certain to record that person in various stages of
undress and is likely, in some circumstances, to record that person engaging in
intimate acts with another. Indeed, Blood was aware of this likelihood because he
stated that the point of installing the camera was to monitor E.K.’s sexual activity
with B.E. This is recognized in B.E.’s complaint, which alleges that Blood’s

13
We emphasize that we need not, and do not, express any opinion on the merits of the
plaintiffs’ claims, including whether Blood’s conduct violates any of the forms of invasion of
privacy under WIS. STAT. § 995.50.

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conduct was done for Blood’s sexual gratification. As well, E.K.’s complaint
alleges that Blood acted “with an intentional disregard for the rights of” E.K.
Reasonable persons are aware that the surreptitious recording of a person’s
bedroom activity is substantially certain to cause harm by violating that person’s
reasonable expectations of privacy. See Safeco Ins. Co. of Am. v. Dooms, 2022
WL 3010695, *9 (W.D. Ark. July 29, 2022) (for the purposes of an intentional
acts exclusion, inferring that a photographer who secretly recorded women
changing in his studio intended to invade the victims’ privacy and cause mental
distress and anxiety).

¶63 The appellants suggest that there is not a substantial certainty that
Blood’s conduct would cause harm because Blood did not intend to distribute the
recordings. According to the appellants, if Blood’s camera had not been
discovered, then E.K. and B.E. would not have suffered harm. The appellants’
argument fails. As noted, the placement of a camera in a person’s bedroom
violates the person’s reasonable expectations of privacy, and this harm occurs at
the moment the camera starts recording. The pictures or video that the camera
captures need not be distributed or made known to the victim in order for such
harm to occur. It is certainly enough that, as happened here, Blood recorded the
activity and viewed the videos.

¶64 Finally, the appellants argue that we may not infer intent as a matter
of law because Erie relied only on the allegations of fact in the pleadings and
failed to “submit evidentiary facts supporting its contentions.” For this argument,
the appellants rely on Fifer v. Dix, 2000 WI App 66, 234 Wis. 2d 117, 608
N.W.2d 740, which states:

[w]hile it is the moving party’s responsibility to initially
establish a prima facie case for summary judgment, once it

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is established the party in opposition to the motion may not
rest upon the mere allegations or denials of the pleadings,
but must, by affidavits or other statutory means, set forth
specific facts showing that there exists a genuine issue
requiring a trial.

Fifer, 234 Wis. 2d 117, ¶15 (alteration in original). Here, Erie is not attempting to
demonstrate that there is a genuine issue of material fact that requires a trial.
Rather, Erie asserts that there is no issue of fact and argues that it is entitled to
judgment as a matter of law. Moreover, Erie does not need further affidavits in
light of the allegations in the complaints and the record, including Blood’s
admissions.

¶65 In sum, Blood’s placement of a camera in E.K.’s bedroom was an
intentional act and, as a matter of law, such conduct was substantially certain to
cause harm or injury. Accordingly, coverage for the plaintiffs’ complaints is
precluded under the primary policy’s intentional acts exclusion.

III. The Umbrella Policy Does Not Require Erie to Defend or
Indemnify Blood.

¶66 The appellants argue that the personal injury coverage in Blood’s
umbrella policy requires Erie to defend and indemnify Blood for the plaintiffs’
claims. We disagree.

¶67 As with the primary policy, the umbrella policy defines “personal
injury” as including “invasion of privacy.” The umbrella policy also contains the
following intentional acts exclusion: “We do not cover: … personal injury or
property damage expected or intended by anyone we protect. We do cover
reasonable acts committed to protect persons or property.” Unlike the primary
policy, the umbrella policy does not include a willful violation of a law exclusion.

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¶68 The appellants do not argue that the different language in the
umbrella policy’s intentional acts exclusion alters the analysis regarding whether
the umbrella policy coverage for invasion of privacy is illusory. Thus, to the
extent that the appellants argue that the umbrella policy is illusory because of the
intentional acts exclusion, we reject that argument for the same reasons we reject
that argument with respect to the primary policy.

¶69 Nonetheless, the appellants contend that the indemnification
provision in the umbrella policy renders illusory the umbrella policy’s coverage
for invasion of privacy. The umbrella policy’s indemnification provision states in
pertinent part:

We pay the ultimate net loss which anyone we
protect becomes legally obligated to pay as damages
because of personal injury or property damage resulting
from an occurrence during this policy period. We will pay
for only personal injury or property damage covered by this
policy. This applies only to damages in excess of the
underlying limit or Self-Insured Retention.

(Emphasis removed.) The umbrella policy defines “occurrence” as “an accident,
including continuous or repeated exposure to conditions, which results in personal
injury or property damage which is neither expected nor intended.” The
appellants contend that the umbrella policy’s agreement to only cover an
“occurrence” or “accident” is “inherently contrary” to its invasion of privacy
coverage because each cause of action under WIS. STAT. § 995.50(2)(am) requires
“volitional conduct.” According to the appellants, this renders illusory the
umbrella policy’s invasion of privacy coverage. This argument fails for the same
reasons discussed already regarding the primary policy’s intentional acts
exclusion; that is, not every cause of action for invasion of privacy requires an
intentional or volitional act. As a result, the definition of “occurrence” in the

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umbrella policy does not render illusory that policy’s invasion of privacy
coverage.

¶70 Further, coverage for the plaintiffs’ claims is precluded by the
intentional acts exclusion in the umbrella policy for the same reasons that
coverage for those claims is precluded under the intentional acts exclusion in the
primary policy. Although the umbrella policy’s intentional acts exclusion uses
somewhat different language than the exclusion in the primary policy, the
appellants do not argue that this difference affects the applicability of that
exclusion in the present case, and we discern no material difference.14

¶71 In sum, we conclude that the umbrella policy does not require Erie to
defend or indemnify Blood for the plaintiffs’ invasion of privacy claims.

CONCLUSION

¶72 For the foregoing reasons, the order of the circuit court is affirmed,
and we remand this matter for further proceedings consistent with this opinion.

By the Court.—Order affirmed and cause remanded for further
proceedings.

Not recommended for publication in the official reports.

14
In E.K.’s reply brief he asserts that the Erie primary policy is not in the record and that
this renders the terms of Erie’s umbrella policy ambiguous in regard to the family exclusion.
However, as with the primary policy, we need not consider this exclusion because coverage is
barred by the intentional acts exclusion. Barrows, 352 Wis. 2d 436, ¶9 (“An appellate court need
not address every issue raised by the parties when one issue is dispositive.”).

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