In Hansen Storage Co. v. Emp'rs Mut. Cas. Co., ___ F. Supp. 3d ___, No. 23-CV-362-SCD, 2024 WL 2272621 (E.D. Wis. May 20, 2024) (USMJ), the concept of fortuity as understood in Wisconsin law was expressed by a U.S. Magistrate in a bad-faith case in these terms: "The proper focus is not whether the damage existed at the time the policy took effect, but rather whether the parties 'knew about or contemplated the damage's cause before the policy's issuance.'" Hansen Storage, 2024 WL 227621, at *6.
The commercial insurance policy at issue "does not list any specific covered perils. Rather, it covers 'risks of direct physical loss unless the loss is limited or caused by a peril that is excluded.'" Hansen Storage, 2024 WL 227621, at *4. The Magistrate Judge described this as an "all risk" policy. In Wisconsin, the burden of proof of fortuity is apparently placed upon the policyholder. Hansen Storage, 2024 WL 227621, at *5.
Here, the policyholder-plaintiff did not meet that burden in the eyes of the Magistrate Judge, who denied Hansen's motion for summary judgment.
Please read the disclaimer. ©2024 Dennis J. Wall. All rights reserved. Judicial use and misuse of the "Fortuitous" concept as an Exclusion in decided cases involving all risks policies is explored by Dennis Wall in CATASTROPHE CLAIMS / INSURANCE COVERAGE FOR NATURAL AND MAN-MADE DISASTERS, § 7:4 (Thomson Reuters June 2024 Edition).
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