Adam Kodra v. Harold Fredd

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 30, 2021
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 No. 2020AP1989 Cir. Ct. No. 2019CV253

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

ADAM KODRA,

PLAINTIFF-APPELLANT,

DEPARTMENT OF VETERANS AFFAIRS AND ABC INSURANCE COMPANIES,

INVOLUNTARY PLAINTIFFS,

V.

HAROLD FREDD, NORTHERN PRECISION RIFLES, USAA CASUALTY
INSURANCE COMPANY AND XYZ INSURANCE COMPANIES,

DEFENDANTS-RESPONDENTS.

APPEAL from orders of the circuit court for Monroe County:
TODD L. ZIEGLER, Judge. Affirmed.

Before Kloppenburg, Fitzpatrick, and Graham, JJ.
No. 2020AP1989

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. Adam Kodra sued Harold Fredd, Fredd’s business,
Northern Precision Rifles, and Fredd’s purported homeowner’s insurer, USAA
Casualty Insurance Company, alleging that Fredd’s negligence in customizing
Kodra’s rifle caused the injuries that Kodra suffered when he subsequently fired
the rifle and it exploded. In this appeal, Kodra challenges two decisions by the
circuit court. In the first decision, the court denied Kodra’s motion for default
judgment against USAA Casualty, the insurance company initially sued and
served by Kodra. In the second decision, after United Services Automobile
Association was substituted as the correct defendant insurance company, the court
granted United Services Automobile Association’s motion for summary judgment
based on the court’s conclusion that two exclusions in Fredd’s United Services
Automobile Association insurance policy apply to bar coverage for Kodra’s
injuries.

¶2 We conclude that we lack jurisdiction over Kodra’s appeal of the
first circuit court decision because Kodra failed either to timely seek leave to
appeal the non-final order denying his motion for default judgment against USAA
Casualty or to timely appeal the subsequent final order substituting United
Services Automobile Association as the defendant insurer and thereby dismissing
USAA Casualty as a party. As to the second circuit court decision, we conclude
that the undisputed facts establish that United Services Automobile Association is
entitled to summary judgment because, given that Fredd was required to and did
have a federal license to perform the work of customizing Kodra’s rifle, the
“professional services” exclusion in Fredd’s United Services Automobile

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Association insurance policy applies to bar coverage for Kodra’s injuries allegedly
resulting from that work. Accordingly, we affirm.

BACKGROUND

¶3 We now briefly summarize proceedings in the circuit court. We will
present additional facts as pertinent to our analysis in the discussion section that
follows.

¶4 Kodra commenced this action by filing a complaint against Fredd,
Northern Precision Rifles as Fredd’s business, and USAA Casualty Insurance as
Fredd’s insurer, seeking damages for injuries that were allegedly caused by
Fredd’s negligent customization of a rifle belonging to Kodra. Specifically, the
complaint alleges as follows:

in November 2018, [Fredd], doing business as
NORTHERN PRECISION was contracted by [Kodra] to
modify [Kodra]’s Desert Tech HTI rifle to fire .416 Garrett
rounds. [Fredd], on behalf of NORTHERN PRECISION,
agreed to modify the weapon, and [Kodra] picked up the
completed firearm on March 17, 2019. Upon information
and belief, on or about March 18, 2019, [Kodra] fired the
rifle for the first time since [Fredd]’s and/or NORTHERN
PRECISION’S modification. Immediately upon firing, the
barrel of the rifle detached from the firearm and was
thrown forward, while the remainder of the rifle flew
backward at high speed. The scope portion of the rifle
impacted [Kodra]’s skull and caused severe injuries.
[Fredd] and/or NORTHERN PRECISION had negligently
modified the firearm, causing the weapon to break apart
from the force of the gunshot.

¶5 After USAA Casualty was served and failed to file an answer by the
statutory deadline, Kodra filed a motion for default judgment against USAA
Casualty. USAA Casualty initially responded by filing an answer admitting that it
had in effect a homeowner’s insurance policy for Fredd; two weeks later it filed an

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amended answer denying that it had in effect a homeowner’s insurance policy for
Fredd and clarifying that United Services Automobile Association issued the
homeowner’s insurance policy for Fredd in effect at the pertinent time. USAA
Casualty also filed a motion for both an order extending the time to file the answer
and an order denying Kodra’s default judgment motion based on the relief from
judgment statute, WIS. STAT. § 806.07 (2019-20).1 After a hearing and
supplemental briefing, the circuit court issued an order dated April 13, 2020,
denying Kodra’s motion for default judgment against USAA Casualty and
accepting USAA Casualty’s answer and amended answer pursuant to
§ 806.07(1)(h).

¶6 On June 26, 2020, upon the parties’ stipulation, the circuit court
entered an order bifurcating insurance coverage issues, staying discovery on
liability and damages, and providing that United States Automobile Association
“shall be substituted in the place of USAA Casualty Insurance Company and that
no further pleadings shall be required of any of the parties.”

¶7 After the parties engaged in discovery, United States Automobile
Association filed a motion for summary judgment on the basis that Fredd’s United
States Automobile Association homeowner’s insurance policy in effect at the
pertinent time bars coverage for Kodra’s injuries under the policy’s “professional
services” and “business” exclusions. The circuit court issued an oral ruling
concluding that both exclusions apply to bar coverage and issued an order dated
October 12, 2020, granting United States Automobile Association’s motion.

1
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

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No. 2020AP1989

¶8 On December 2, 2020, Kodra filed his Notice of Appeal specifically
of the circuit court’s April 13, 2020 order denying his motion for default judgment
against USAA Casualty and of the court’s October 12, 2020 order granting United
Services Automobile Association’s motion for summary judgment.

DISCUSSION

¶9 Kodra argues that the circuit court erred when it denied Kodra’s
motion for default judgment against USAA Casualty and accepted USAA
Casualty’s late-filed answer and amended answer pursuant to WIS. STAT.
§ 806.07(1)(h). Kodra also argues that the circuit court erred when it granted
United Services Automobile Association’s motion for summary judgment based
on the court’s determination that Fredd’s United Services Automobile Association
insurance policy bars coverage for Kodra’s injuries under the “professional
services” and “business” exclusions. We address Kodra’s challenges related to
each decision in turn.

I. Kodra’s Motion for Default Judgment Against USAA Casualty

¶10 To repeat, Kodra challenges the circuit court’s order denying
Kodra’s motion for default judgment against USAA Casualty and accepting
USAA Casualty’s answer and amended answer pursuant to WIS. STAT.
§ 806.07(1)(h). We will sometimes refer to this order as the “default judgment
order.”

¶11 After the parties completed their appellate briefing addressing the
merits of Kodra’s challenge to the circuit court’s default judgment order, this court
ordered the parties to file supplemental letter briefs addressing whether we have
jurisdiction over Kodra’s appeal of that order. As we now explain, we conclude

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No. 2020AP1989

that we lack jurisdiction over Kodra’s appeal of the circuit court’s default
judgment order as to USAA Casualty because Kodra neither timely sought leave
to appeal the non-final default judgment order nor timely appealed the subsequent
final order dismissing USAA Casualty as a party.

¶12 Whether we have jurisdiction to consider an appeal is a question of
law that we review de novo. See Nickel v. United States, 2012 WI 22, ¶20, 339
Wis. 2d 48, 810 N.W.2d 450. We have jurisdiction when we grant a timely filed
petition for leave to appeal a non-final order under WIS. STAT. § 808.03(2) and
WIS. STAT. RULE 809.50(1) and (3), or when a party has timely filed notice of
appeal of a final judgment or order under WIS. STAT. Rule 809.10(1)(e).

¶13 A party may petition for leave to appeal a non-final judgment or
order in advance of a final judgment or order. WIS. STAT. § 808.03(2). The party
must file the petition within 14 days after the entry of the judgment or order. WIS.
STAT. RULE 809.50(1).

¶14 A party in a civil case must generally file an appeal of “a final
judgment or order” no later than ninety days after the date that the circuit court
enters the order. WIS. STAT. §§ 808.04(1); 808.03(1). A judgment or order is final
when it “disposes of the entire matter in litigation as to one or more of the parties.”
Sec. 808.03(1). “An appeal from a final judgment or final order brings before the
court all prior nonfinal judgments, orders and rulings adverse to the appellant and
favorable to the respondent … not previously appealed and ruled upon.” WIS.
STAT. RULE 809.10(4).

¶15 With these principles in mind, we briefly recap the pertinent
procedural history of the case. USAA Casualty was named in the complaint as the
defendant insurance company that issued Fredd’s homeowner’s insurance policy

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No. 2020AP1989

in effect at the pertinent time. On April 13, 2020, the circuit court issued an order
denying Kodra’s motion for default judgment against USAA Casualty. That order
preserved USAA Casualty as a defendant in this action and, therefore, was a non-
final order as to USAA Casualty. Kodra has not petitioned for leave to appeal that
order.

¶16 On June 26, 2020, the circuit court issued an order, upon the parties’
stipulation and without requiring additional pleading, that substituted United
Services Automobile Association for USAA Casualty as the defendant insurer.
Thus, Kodra received in that order the benefit of bringing the correct insurer into
the case as a defendant without filing and serving the correct insurer with a
summons and complaint. As of June 26, 2020, USAA Casualty was no longer a
party, and there remained nothing to litigate as to USAA Casualty; instead, all
subsequent litigation including the summary judgment litigation discussed in the
next section was between Kodra and United Services Automobile Association. In
other words, June 26, 2020, was the last date that USAA Casualty was a defendant
in this action and was, therefore, the date that USAA Casualty was dismissed.
Thus, the June 26, 2020 order was a final order as to USAA Casualty and only by
timely appealing that order could Kodra bring before this court the prior non-final
default judgment order as to USAA Casualty. See WIS. STAT. RULE 809.10(4).
Kodra filed his notice of appeal on December 2, 2020.

¶17 Kodra’s notice of appeal was filed 233 days after the circuit court
issued the April 13, 2020 order denying Kodra’s motion for a default judgment
against USAA Casualty default judgment, well beyond the 14-day time for
seeking leave to appeal the non-final order expired. Under the provisions set forth
above, in the absence of a timely filed petition for leave to appeal the non-final
default judgment order, Kodra was required to timely appeal the final June 26,

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2020 order by which USAA Casualty was dismissed as a party in order to bring
before this court an appeal of the prior non-final default judgment order favorable
to USAA Casualty. However, the notice of appeal was filed 159 days after USAA
Casualty was no longer a party by virtue of the June 26, 2020 order, well beyond
the 90-day time for appealing a final order expired. Thus, Kodra neither timely
petitioned for leave to appeal the non-final default judgment order favorable to
USAA Casualty nor timely appealed the final order dismissing USAA Casualty.

¶18 In sum, we conclude that we lack jurisdiction over Kodra’s appeal of
the non-final default judgment order favorable to USAA Casualty because Kodra
neither timely petitioned for leave to appeal that order nor timely appealed the
final substitution order that dismissed USAA Casualty from this action.

¶19 Kodra does not dispute that the April 13, 2020 default judgment
order is a non-final order, or that the June 26, 2020 substitution order is a final
order. Rather, Kodra appears to argue that he was not required to timely appeal
the June 26, 2020 substitution order to preserve his appeal of the prior default
judgment order because at the time of the June 26 order he “still had a USAA
insurance entity as a defendant in the case” and “the most logical point” for him to
seek appellate review of the default judgment order was when “there ceased to be
an insurance entity remaining in the case as a defendant, which occurred when
summary judgment was entered in favor of [United Services Automobile
Association].” Kodra asserts that both insures are “sister entities” and “part of a
larger whole” with the “same principal place of business, the same registered
agent, and the same staff receiving and processing pleadings.” We do not consider
this argument because Kodra cites to nothing in the record establishing the factual
or legal details of a relationship, if any, between USAA Casualty and United
Services Automobile Association, nor to any legal authority that explains the

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significance of any such relationship under the rules of appellate jurisdiction set
forth above. See State v. McMorris, 2007 WI App 231, ¶30, 306 Wis. 2d 79, 742
N.W.2d 322 (court of appeals “may choose not to consider arguments unsupported
by references to legal authority … and arguments that lack proper citations to the
record”).

¶20 Kodra suggests that it is not fair to deprive him of the opportunity to
challenge the default judgment order in this appeal because, he asserts, the identity
of the proper insurer was not made clear to him before USAA Casualty filed its
amended answer and USAA Casualty “acted as though it were the proper entity”
before and during litigation. Regardless of why Kodra sued the wrong insurer,
Kodra does not cite any evidence in the record supporting his factual assertions
nor any legal authority addressing fairness in the context of the rules of appellate
jurisdiction. Therefore, we do not consider further whatever fairness argument he
seeks to make.

¶21 Kodra also argues that the default judgment issues he raises are
likely to arise again but evade review and should be resolved by this court to avoid
uncertainty. However, Kodra does not cite any legal authority connecting these
considerations to the question of whether his appeal is timely so as to invoke our
jurisdiction, and we reject this argument on that basis. See Industrial Risk
Insurers v. American Eng’r Testing, Inc., 2009 WI App 62, ¶25, 318 Wis. 2d
148, 769 N.W.2d 82 (“Arguments unsupported by legal authority will not be
considered, and we will not abandon our neutrality to develop arguments.”
(internal citation omitted)).

¶22 Essentially, Kodra seeks to circumvent the final-order rule by
piggybacking his untimely appeal of a non-final order as to USAA Casualty on a

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timely appeal of a final order as to United States Automobile Association. As we
have explained above, he may not.2

II. United States Automobile Association’s Motion for Summary Judgment

¶23 Kodra argues that United States Automobile Association is not
entitled to summary judgment because the business and professional services
exclusions in Fredd’s United States Automobile Association insurance policy do
not apply to bar coverage for Kodra’s injuries allegedly resulting from Fredd’s
customization of Kodra’s rifle. We first state the applicable standard of review
governing a motion for summary judgment and the general legal principles
governing interpretation of insurance policies. We then provide additional
background on the motion for summary judgment. Finally, we explain why we
conclude that United States Automobile Association is entitled to summary
judgment and why Kodra’s arguments to the contrary fail.

A. Standard of Review and General Legal Principles

¶24 We review summary judgment de novo, construing the facts and
reasonable inferences from those facts in the nonmoving party’s favor. Strozinsky
v. School Dist. of Brown Deer, 2000 WI 97, ¶32, 237 Wis. 2d 19, 614 N.W.2d
443. Summary judgment “shall be rendered 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).

2
We note that, had Kodra timely appealed so as to bring before this court the circuit
court’s order denying his motion for default judgment against USAA Casualty, it is likely that we
would have affirmed that order.

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¶25 Here, our review of the circuit court’s summary judgment decision
requires us to interpret and apply insurance policy provisions. As a threshold
matter, we note that, although Fredd’s insurance policy was issued in Indiana, the
parties do not dispute the circuit court’s determination that there is no conflict of
law between Indiana and Wisconsin in this case. See Kender v. Auto-Owners-Ins.
Co., 2010 WI App 121, ¶14, 329 Wis. 2d 378, 793 N.W.2d 88 (courts perform a
choice-of-law analysis when “there is a genuine conflict of law”). On appeal,
Kodra cites exclusively to Wisconsin law and United States Automobile
Association asserts that “Wisconsin and Indiana law are identical” as they apply in
this case. Therefore, we rely on Wisconsin law. See Grigg v. Aarrowcast, Inc.,
2018 WI App 17, ¶22, 380 Wis. 2d 464, 909 N.W.2d 183, review granted, 2018
WI 92, 383 Wis. 2d 623, 918 N.W.2d 431 (when parties do not substantiate a
genuine conflict of law, this court assumes Wisconsin law applies).

¶26 The interpretation of an insurance policy is a question of law that we
review de novo. Danbeck v. American Family Mut. Ins. Co., 2001 WI 91, ¶10,
245 Wis. 2d 186, 629 N.W.2d 150. “An insurance policy is construed to give
effect to the intent of the parties, expressed in the language of the policy itself,
which we interpret as a reasonable person in the position of the insured would
understand it.” Id. Therefore, we give the words in an insurance policy their
common and ordinary meaning, and where the policy language is plain and
unambiguous, we enforce it as written without resorting to rules of construction.
Id.

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B. Additional Pertinent Background

¶27 The following facts, taken largely from Fredd’s deposition and his
United States Automobile Association insurance policy, are undisputed for
purposes of summary judgment.

¶28 Fredd’s United States Automobile Association insurance policy in
effect at the pertinent time is a homeowner’s policy that provides personal liability
coverage for claims for damages caused by an occurrence to which the coverage
applies. The policy excludes coverage for claims for damages “[a]rising out of the
rendering or failure to render ‘professional services’” (referred to as the
“professional services exclusion”).3

¶29 The policy defines “professional services” as:

any type of service to the public that requires members[4]
rendering a service to obtain an advanced degree and/or
obtain a license or other legal authorization to provide the
services and includes, but is not limited to services
rendered by dentists, naturopaths, chiropractors, physicians
and surgeons, doctors of dentistry, physical therapists,
occupational therapists, podiatrists, optometrists, nurses,
nurse-midwives, veterinarians, pharmacists, architects,
landscape architects, engineers, accountants, land
surveyors, psychologists, attorneys-at-law, therapists,
counselors and social workers.

3
The policy also excludes coverage for claims for damages “[a]rising out of or in
connection with a ‘business’ engaged in by any ‘insured’” (referred to as the “business
exclusion”). Because our conclusion as to the application of the professional services exclusion
disposes of this appeal, we do not describe or address the application of the business exclusion.
See Barrows v. American Family Ins. Co., 2014 WI App 11, ¶9, 352 Wis. 2d 436, 842 N.W.2d
508 (2013) (“An appellate court need not address every issue raised by the parties when one issue
is dispositive.”).
4
As defined by the policy, “‘Member’ means the owner of the policy who is the person
who meets all eligibility requirements for membership and whose membership number is shown
in the Declarations of this policy.”

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¶30 Fredd has held a Federal Firearms License since 1985. He obtained
a Federal Firearms License because “[a]nybody that sells guns or builds guns or
has anything to do with guns on a regular basis, commercially, if you will” needs
that license. He has operated his own gunsmithing business since 2002.
“[Fredd’s] Federal Firearms License remains the same” regardless of changes in
the name of his business. He has held the license in the name of his current
business, Northern Precision Rifles, LLC, since December 2015 and he is also
personally named on the license.

¶31 Fredd has worked full-time for Northern Precision Rifles since 2015.
For each gun that he works on, Fredd buys parts, installs the barrel, chambers it for
a specific caliber, and does all the finish work.

¶32 Sometime after 2015, Kodra arranged for Fredd to customize
Kodra’s Desert Tech rifle. Fredd customized Kodra’s Desert Tech rifle by re-
chambering it to a larger caliber so that it could accept larger cartridges for
extreme long-range distance shooting. To achieve this, Fredd “had to recut the
chamber,” altering the inside of the rifle’s barrel. Although Fredd would normally
collect $500.00 in fees for such a customization, he waived his customary fees for
the performance of this work on Kodra’s rifle. Kodra picked up the customized
rifle from Fredd in March 2019.

¶33 Kodra’s injuries for which he seeks damages allegedly resulted from
his firing the customized rifle shortly after Fredd completed the customization.

C. Analysis

¶34 We conclude that Fredd’s United States Automobile Association
insurance policy’s professional services exclusion applies to preclude coverage for

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any damages resulting from Fredd’s customization of Kodra’s rifle. The exclusion
unambiguously bars coverage for damages arising from the rendering of services
for which a license is required and the undisputed facts show that Fredd performed
the customization in the course of providing gunsmithing services for which he
was required to and did obtain a Federal Firearms License.

¶35 Kodra does not dispute that Fredd has a Federal Firearms License or
that the work that Fredd performed on Kodra’s rifle is gunsmithing. Rather, he
argues that the professional services exclusion does not bar coverage
notwithstanding Fredd’s license. Specifically, Kodra makes the following three,
apparently alternative, arguments: (1) the exclusion does not apply to licenses for
non-white collar occupations such as gunsmithing; (2) the exclusion does not
apply because the license that Fredd obtained is required only for buying or selling
or distributing firearms, not for gunsmithing; and (3) if the exclusion does apply to
licenses for gunsmithing, it does not apply here because Fredd did not need a
license for his work on Kodra’s rifle that he performed at no charge. We first
summarize the authority pertaining to the license at issue and then address and
reject each argument in turn.

¶36 As stated, the license at issue is a Federal Firearms License. Under
18 U.S.C. § 923(a), a person who manufactures or deals in firearms must obtain a
Federal Firearms License: “No person shall engage in the business of …
manufacturing, or dealing in firearms … until he [or she] has filed an application
with and received a license to do so from the Attorney General.” 18 U.S.C. 923(a)

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(2018).5 Pertinent here, each person shall pay a fee when applying for the license
and a fee when renewing the license every three years. Id.

¶37 Also pertinent here, a “dealer” in firearms is “any person engaged in
the business of repairing firearms or of making or fitting special barrels, stocks, or
trigger mechanisms to firearms.” 18 U.S.C. § 921(a)(11). The Bureau of Alcohol,
Tobacco, Firearms, and Explosives (ATF) interprets 18 U.S.C. § 921 to require a
Federal Firearms License for a person engaged in “the business of engraving,
customizing, refinishing or repairing firearms” because such a person would be
“considered to be a gunsmith within the definition of a dealer.” See Is a license
needed to engage in the business of engraving, customizing, refinishing or
repairing firearms?, BUREAU OF ALCOHOL, TOBACCO, FIREARMS, AND
EXPLOSIVES (July 13, 2020), https://www.atf.gov/firearms/qa/license-needed-
engage-business-engraving-customizing-refinishing-or-repairing-firearms (last
visited June 21, 2021).

¶38 First, Kodra argues that the gunsmithing in which Kodra is engaged
is not a “professional service” because the examples of professional services
contained in the policy’s exclusion are “qualitatively different” from gunsmithing.
He argues that the examples of professional services are uniformly white-collar
professions that require advanced degrees and continuing education, and that
gunsmithing is a craft that has no such requirements. This argument fails because
it ignores the plain language of the exclusion in several respects. The exclusion
provides that “‘[p]rofessional services’” means “any type of service to the public
that requires members rendering a service to obtain an advanced degree and/or

5
All citations to the U.S. Code are to the 2018 version unless otherwise noted.

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obtain a license or other legal authorization to provide the services and includes,
but is not limited to ….” (emphasis added). The use of the phrase “any type”
imposes no limitation or qualitative distinction such as that suggested by Kodra
beyond the requirement expressly stated: “an advanced degree and/or a license or
other legal authorization.” The use of “or” indicates that an advanced degree is
not required if only a license is required. The use of the phrase “includes, but is
not limited to” before the list of examples indicates that the list of examples is
non-exhaustive. Kodra points to no language in the exclusion indicating that,
where a license is necessary to provide a service, something more is required for
the service to be a “professional service.”

¶39 As part of this argument, Kodra also suggests that the license for
gunsmithing is somehow not a license within the meaning of the exclusion
because the license requires neither specialized training nor continuing education,
and “essentially renews automatically every three years when payment is
submitted.” However, Kodra does not point to any language in the exclusion
distinguishing among licenses based on the requirements for obtaining and
maintaining the license.

¶40 Second, and apparently in the alternative, if the policy exclusion
does not distinguish among licenses in its definition of professional services,
Kodra argues that the exclusion does not apply because Fredd’s Federal Firearms
License is required only for buying or selling or distributing firearms, not for the
gunsmithing service that Fredd provided here. Kodra supports this argument by
citing to an ATF guidance document entitled Do I Need a License to Buy and Sell
Firearms?, ATF Publication 5310.2 (Jan. 2016). However, Kodra ignores the
limited reach of that document and the existence of a different document, cited
above at ¶37, which confirms that Fredd’s Federal Firearms License is needed for

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his gunsmithing. The document cited by Kodra addresses only buying and selling.
The ATF guidance document cited above at ¶37 addresses gunsmithing and
indicates that a Federal Firearms License is required for someone engaged in the
business of gunsmithing. Kodra’s failure to address this document in his reply
brief, despite United States Automobile Association’s reference to it in its
response brief, is fatal to his argument. See United Coop. v. Frontier FS Coop.,
2007 WI App 197, ¶39, 304 Wis. 2d 750, 738 N.W.2d 578 (appellant’s failure to
respond in reply brief to an argument made in response brief may be taken as a
concession).

¶41 Third, and somewhat inconsistently with his argument that a Federal
Firearms License is required only for buying or selling, Kodra argues that Fredd
was not required to obtain a license to customize Kodra’s rifle because a Federal
Firearms License is required only for the business of gunsmithing and Fredd did
not charge Kodra for his gunsmithing work on Kodra’s rifle. However, Kodra
does not explain how the gunsmithing work that Fredd did on Kodra’s rifle is
different from Fredd’s gunsmithing work doing business as Northern Precision
Rifles. That Fredd elected to waive his normal fees for customizing Kodra’s rifle,
which Fredd testified would have been about $500.00, has no bearing on whether
the professional services exclusion based on a license requirement applies. The
professional service that Fredd provided was gunsmithing, for which, because he
was in the business of gunsmithing, he was required to have a Federal Firearms
License. In other words, Fredd was required to obtain a Federal Firearms License
for his gunsmithing business and Fredd was engaged in that business when he
performed the work for Kodra, regardless of whether or not he charged Kodra for
the work. Just as a practicing physician who treats a patient at no charge would
still be rendering a professional service because the physician requires a license to

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practice, so too an operator of a gunsmithing business who customizes a gun at no
charge is still rendering a professional service because the gunsmith requires a
license to operate his gunsmithing business.

¶42 In sum, we conclude that Kodra fails to show that United Services
Automobile Association is not entitled to summary judgment under Fredd’s
insurance policy’s professional services exclusion.

CONCLUSION

¶43 For all the reasons explained, we affirm.

By the Court.—Orders affirmed.

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

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