Wisconsin Court of Appeals rules intentional tort coverage not illusory.

Byline: David Ziemer

An insurer is not responsible for defending an invasion of privacy claim, even though its policy explicitly says it provides coverage.

The Wisconsin Court of Appeals held on Dec. 1 that, because the policy also had an exclusion for acts that violate the criminal law, the insurer is only liable for defending invasion of privacy that does not rise to the level of a criminal offense. Daniele Gillund periodically stayed with her aunt and uncle, Nancy and Terry Pfeiffer. According to Gillund, Terry surreptitiously took photographs and videos of her while she was unclothed. No criminal charges were filed, but Gillund brought suit in tort, alleging invasion of privacy. Terry was insured by policies from three insurers during the relevant times: Meridian Mutual Insurance Company, State Automobile Mutual Insurance Company and Harleysville Insurance Company. Meridian and State answered and moved for summary judgment. Harleysville, which was not named in the complaint, moved to intervene and also moved for summary judgment. However, Harleysville never filed an answer. Winnebago County Circuit Court Judge William H. Carver granted summary judgment in favor of all three insurers. Gillund appealed, and in an opinion by Judge Kitty K. Brennan, the court affirmed as to Meridian and State, but reversed as to Harleysville. Penal acts exclusion Gillund argued that, because the Meridian and State policies expressly granted coverage for invasion of privacy, the coverage would be illusory if the penal law exclusion applied to her claim. But the court disagreed. The court first found that Terry's conduct fell within the scope of sec. 942.08(2), which makes it a crime to install a surveillance device to record a nude or partially nude person without that person's consent.

For the invasion of privacy coverage to be illusory, however, the court concluded that Gillund would have to show that it is impossible for a civil invasion of privacy not to violate the criminal law -- something she failed to show. The court noted that sec. 995.50(2) describes four types of invasion of privacy that are actionable in tort, including [i]ntrusion 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. However, the tort requires no particular mental state, while the criminal invasion of privacy statute requires specific intent...