The court determined there was a duty to defend negligence and private nuisance claims for dumping materials on the plaintiffs' property. Peters Heavy Construction, Inc. v. X-Pert One Tracking Corp., 2018 Wisc. App. LEXIS 358 (Wis. Ct. App. March 29, 2018). 

    Peters Heavy Construction sued X-Pert One for negligently depositing shingle materials, tires, and other solid materials on Peters' property, causing damage to Peters, including loss of use of portions of the property. Peters also alleged that X-Pert One's actions negligently created a private nuisance causing harm to Peters' property. X-Pert One's insurer, Northfield Insurance Company, was also sued. 

    Northfield appointed defense counsel for X-Pert One, but moved for summary judgment to establish there was not coverage. The trial court granted the motion, finding there was no duty to defend or to indemnify. Northfield was dismissed from the case. 

    The court of appeals reversed. Northfield argued that the complaint alleged that X-Pert One acted intentionally when it deposited material on Peters'' property and failed to remove the material. But even if the material was intentionally left on the property, the complaint alleged that the resulting nuisance was not intended or expected. 

    Under Wisconsin law, an intentional act could have an unexpected and, thus, accidental result, which could be an occurrence within the meaning of the policy. Therefore, the complaint alleged an occurrence.

    "Property damage" was also alleged. The complaint alleged that X-Pert One's negligence "caused damages to the Plaintiff which included . . . damage to Plaintiff's Property which may include diminution in the value of the Plaintiff's Property and loss of use of certain portions of the Property." The complaint also alleged that the negligently created nuisance "has substantially interfered with the Plaintiff's use and enjoyment of Plaintiff's Property." Consequently, the complaint alleged covered property damage in the form of loss of use. 

    On the duty to indemnify, Northfield failed to show there was an absence of genuine issues of material fact. Northfield relied upon an affidavit stating that shingles and other materials were intentionally deposited on Peters' property. Northfield viewed this evidence as establishing beyond dispute that there was nothing accidental about X-Pert One's conduct and, therefore, no "occurrence." The court disagreed. These factual assertions, even if undisputed, did not address the specifics of why it was true that X-Pert One acted in a manner showing an intent to cause damage to the property or an intent to create a nuisance. Rather, these assertions left open the possibility that X-Pert One negligently handled shingle materials on the property or inadvertently created a nuisance in the course of shingle-related operations. 

    Therefore, the circuit court's order granting summary judgment in favor of Northfield was reversed and the case remanded for further proceedings.