Rudy Ruiz v. Patrick Atkinson

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.
March 18, 2026
A party may file with the Supreme Court a
Samuel A. Christensen 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 No. 2024AP1485 Cir. Ct. No. 2022CV7104

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

RUDY RUIZ AND DEBRA A. RUIZ,

PLAINTIFFS,

MIDWEST FAMILY MUTUAL INSURANCE,

PLAINTIFF-RESPONDENT,

V.

PATRICK ATKINSON,

DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Milwaukee County:
GLENN H. YAMAHIRO, Judge. Affirmed.

Before White, C.J., Donald, and Geenen, 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).
No. 2024AP1485

¶1 PER CURIAM. Patrick Atkinson appeals an order granting
declaratory judgment in favor of Midwest Family Mutual Insurance Company
(“Midwest”), declaring that Midwest has no duty to defend or indemnify Atkinson
with respect to claims asserted by Rudy and Debra Ruiz. We affirm.

¶2 The Ruizes filed suit alleging that Atkinson intentionally erected a
fence between the parties’ properties for the purpose of harming them after they
declined to sell their property to him. The complaint alleges that the fence was
“intentionally erected and maintained” and was “unreasonable, unnecessary and
maliciously done with the sole purpose of annoying [the Ruizes].” It further alleges
that the fence is an “intentional and unreasonable condition” interfering with their
use and enjoyment of their property. The Ruizes sought damages for alleged
diminution in property value and emotional harm, as well as injunctive relief
requiring removal of the fence.

¶3 Atkinson tendered the action to Midwest under a homeowner’s policy
providing personal liability coverage for damages because of “‘bodily injury’ or
‘property damage’ caused by an ‘occurrence.’” The policy defines “occurrence” as
“an accident, including continuous or repeated exposure to substantially the same
general harmful conditions[.]”

¶4 Midwest defended under a reservation of rights and then sought a
declaration that it owed no duty to defend or indemnify Atkinson. The circuit court
granted Midwest’s motion, concluding that building a fence is an intentional act,
not an accident, and therefore not covered by the policy. Atkinson appeals.

¶5 The interpretation of an insurance policy presents a question of law
that we review de novo. American Fam. Mut. Ins. Co. v. American Girl, Inc.,
2004 WI 2, ¶23, 268 Wis. 2d 16, 673 N.W.2d 65. We must interpret an insurance

2
No. 2024AP1485

policy to determine whether an insurer breached its duty to defend; therefore,
whether an insurer has a duty to defend is likewise a question of law that we review
de novo. Water Well Sols. Serv. Grp., Inc. v. Consolidated Ins. Co., 2016 WI 54,
¶12, 369 Wis. 2d 607, 881 N.W.2d 285.

¶6 As noted above, the policy provides personal liability coverage only
for damages caused by an “occurrence.” An occurrence is defined as “an accident,
including continuous or repeated exposure to substantially the same general harmful
conditions[.]” Thus, unless the complaint here alleges an accident, there is no initial
grant of coverage and the inquiry ends. Id., ¶16.

¶7 The Wisconsin Supreme Court has repeatedly defined “accident” in
liability policies as “an event which takes place without one’s foresight or
expectation.” Estate of Sustache v. American Fam. Mut. Ins. Co., 2008 WI 87,
¶36, 311 Wis. 2d 548, 751 N.W.2d 845 (citation omitted). It clarified that “[a]
result, though unexpected, is not an accident; rather, it is the causal event that must
be accidental[.]” Stuart v. Weisflog’s Showroom Gallery Inc., 2008 WI 86, ¶40,
311 Wis. 2d 492, 753 N.W.2d 448 (citation omitted).

¶8 The complaint alleges that Atkinson intentionally erected and
maintained the fence and that the conduct was malicious and done for the purpose
of annoying the Ruizes. The construction of a fence is a deliberate, volitional act.
The building a fence is not an accident under the policy because it was an intentional
act. See Estate of Sustache, 311 Wis. 2d 548, ¶36. Atkinson argues that even if the
act of building the fence was intentional, the resulting harm to the Ruizes was
unintended and therefore accidental. Wisconsin law, however, focuses not on the
result of the intentional act, but on the nature of the causal event. Stuart, 311
Wis. 2d 492, ¶40 (“‘A result, though unexpected, is not an accident;’ rather it is the

3
No. 2024AP1485

causal event that must be accidental.”). The causal event alleged here—the
construction of a fence—was intentional. Because the complaint alleges only
intentional conduct as the basis of liability, it does not allege an “occurrence” within
the meaning of the policy.

¶9 Even if we were to assume arguendo that the allegations triggered an
initial grant of coverage, the policy has an explicit exclusion for “‘[b]odily injury’
or ‘property damage’ which is expected or intended by an ‘insured.’” The complaint
alleges that the fence was erected “with the sole purpose of annoying” the Ruizes.
This allegation describes expected or intended harm, so the exclusion would apply
to bar coverage. See Estate of Sustache, 311 Wis. 2d 548, ¶¶52-56.

¶10 Atkinson devotes significant argument to whether the circuit court
improperly limited its analysis to the complaint when, in this case, there was a
developed record. We need not resolve that question. Discovery has been
completed and the parties do not dispute that the fence was intentionally
constructed. Whether framed as a “four corners” inquiry or as a review of the
developed record, the operative conduct remains the intentional construction of the
fence. Where the alleged and undisputed conduct is intentional, and intentional
conduct does not constitute an “occurrence,” there is no coverage as a matter of law.
Id., ¶36.

¶11 Because the complaint alleges intentional conduct rather than an
accident, there is no “occurrence” and Midwest has no duty to defend or indemnify
Atkinson with respect to the claims as pleaded.

By the Court.—Order affirmed.

4
No. 2024AP1485

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

5