COURT OF APPEALS

DECISION

DATED AND FILED

July 28, 2020

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 and 

RULE 809.62. 

Appeal No. 2019AP1357 Cir. Ct. No. 2018CV114

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT III

UNEEDA REST, LLC,

 PLAINTIFF-APPELLANT,

 V.

RICK HEXUM,

 DEFENDANT-THIRD-PARTY PLAINTIFF,

 V.

JAKE WESTERHOF,

 THIRD-PARTY DEFENDANT-APPELLANT,

WISCONSIN MUTUAL INSURANCE COMPANY,

 THIRD-PARTY DEFENDANT-RESPONDENT.
No. 2019AP1357

2

APPEAL from an order of the circuit court for Sawyer County: 

JOHN M. YACKEL, Judge. Affirmed in part; reversed in part and cause remanded 

for further proceedings. 

Before Stark, P.J., Hruz and Seidl, 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). 

¶1 PER CURIAM. Jake Westerhof and Uneeda Rest, LLC, appeal a 

summary judgment granted in favor of Wisconsin Mutual Insurance Company. The 

circuit court concluded insurance policies that Wisconsin Mutual had issued to 

Westerhof did not provide coverage for Rick Hexum’s claims against Westerhof 

and Uneeda Rest. We agree that Wisconsin Mutual’s policies do not provide 

coverage for two of the three kinds of property damage asserted by Hexum.

However, the circuit court erred by concluding, as a matter of law, that the policies 

do not cover Hexum’s claim for damage to his noneasement property. We therefore 

affirm in part, reverse in part, and remand for further proceedings consistent with 

this opinion.

BACKGROUND

¶2 Uneeda Rest is a limited liability company that owns property on 

Whitefish Lake in Sawyer County. Westerhof and his siblings are members of 

Uneeda Rest. Uneeda Rest’s property is adjacent to property owned by Hexum. 

Uneeda Rest owns two easements allowing it to use an unpaved, shared driveway 

on the east side of Hexum’s property to access its land. Although the easements lie 

entirely within Hexum’s property, it is undisputed that, at all times relevant to this 
No. 2019AP1357

3

case, the shared driveway was actually located partially on Hexum’s property and 

partially on Uneeda Rest’s property.

¶3 At some point, Hexum constructed a “French drain” in the shared 

driveway, near the base of the concrete apron for his garage. Hexum testified a 

French drain is “an inexpensive way to drain water.” He explained that it consists 

of a hole filled with rock, which allows “large volumes of water to filter through 

without puddling.” 

¶4 In 2015, Westerhof began construction of a new home on 

Uneeda Rest’s property, which replaced a pre-existing cottage. Westerhof retained 

an architect to design the home and a general contractor to build it. The general 

contractor hired a subcontractor—Butterfield, Inc.—to complete the excavation 

work and install the foundation.

¶5 During the construction of Westerhof’s residence, contractors drove 

over the shared driveway in order to access Westerhof’s property. It is undisputed 

that the contractors’ vehicles damaged the driveway and destroyed the French drain. 

Either Westerhof or one of his sisters ultimately paid to fix the damage to the 

driveway, but they refused to pay for the repairs to the French drain.

¶6 Hexum also permitted Butterfield to drive its construction vehicles

over portions of Hexum’s property that were not located within the easement in 

order to access the construction site. Hexum contends that in doing so, the vehicles 

damaged his noneasement property.

¶7 The construction of Westerhof’s new home was completed in the 

early summer of 2016. The new home has a larger footprint than the old cottage. 

Westerhof testified he was aware before construction began that the larger footprint 
No. 2019AP1357

4

of the new home would result in there being less permeable soil on his property. He 

also testified that he was aware the decrease in permeable soil would cause increased 

water runoff. However, Westerhof testified he believed the water would stay on his 

property because his house had gutters that emptied toward the lake and away from 

Hexum’s property.

¶8 Hexum believes Westerhof’s new house was constructed at an 

elevation that is approximately 1.5 feet higher than the elevation of the previous 

cottage. He also believes that the change in elevation has caused additional runoff 

onto his property. Westerhof, however, denies that the elevation has changed. 

Travis Butterfield (of Butterfield, Inc.) testified that the architect’s plan for the new 

house called for the first floor to be constructed at an elevation of “1308.5,” and that 

the elevation of the land before the house was constructed was approximately 

“1307” or “1308.” Butterfield also testified that when he dug the foundation, he 

aimed for the elevation to be within two inches of the elevation specified on the 

plans.

¶9 In the spring of 2016, Hexum noticed an accumulation of water at the 

south end of the shared driveway, at the base of the concrete apron of his garage. 

Hexum contends this water accumulation damaged the concrete slab outside his 

garage, necessitating its replacement.

¶10 In 2018, Hexum constructed a drainage system that allegedly 

obstructed Uneeda Rest’s easements. Uneeda Rest therefore filed the instant lawsuit 

against Hexum, seeking an injunction requiring Hexum to remove the drainage 

system. In response, Hexum filed a number of counterclaims against Uneeda Rest 

and a third-party complaint against Westerhof. As relevant to this appeal, Hexum 

alleged that the construction of Westerhof’s home had caused damage to Hexum’s 
No. 2019AP1357

5

property. He asserted claims against Uneeda Rest for private nuisance, civil 

trespass, and negligence, among other things, and he asserted a civil trespass claim 

against Westerhof.

¶11 Westerhof and Uneeda Rest tendered the defense of Hexum’s claims

to Wisconsin Mutual, Westerhof’s homeowner’s insurer.

1

 Wisconsin Mutual 

agreed to defend Westerhof and Uneeda Rest pursuant to a reservation of rights. It 

then moved to intervene in this lawsuit and to bifurcate and stay the merits of the 

case pending a determination of whether its policies provided coverage for Hexum’s 

claims. The circuit court granted Wisconsin Mutual’s motion.

¶12 Wisconsin Mutual subsequently moved for summary judgment and 

for a declaratory ruling that its policies did not provide coverage for Hexum’s 

claims. First, Wisconsin Mutual argued its policies did not provide an initial grant 

of coverage because Hexum’s alleged property damage was not caused by an 

“occurrence,” as the policies defined that term. In the alternative, Wisconsin Mutual 

argued coverage for some of Hexum’s claims was barred by the policies’ 

“motorized vehicle” and “property you use” exclusions. Westerhof and 

Uneeda Rest opposed Wisconsin Mutual’s motion, arguing that the policies 

provided an initial grant of coverage and that neither of the cited exclusions applied. 

Westerhof and Uneeda Rest also argued that a “collapse coverage endorsement” 

appended to the 2015-16 policy provided coverage for one of Hexum’s claims.

¶13 The circuit court granted Wisconsin Mutual’s summary judgment 

motion and issued an order declaring that its policies did not provide coverage for 

Hexum’s claims. The court concluded the policies did not provide an initial grant 

 

1

 Wisconsin Mutual had issued homeowner’s insurance policies to Westerhof at all times 

relevant to this case. Uneeda Rest was listed as an additional insured on each of those policies.
No. 2019AP1357

6

of coverage because “the trucks moving down the [driveway], the building of the 

property, the house higher and changing the water runoff, all of those were 

purposeful acts, not an accident or occurrence as defined by the policy.” The court 

did not consider whether either of the exclusions cited by Wisconsin Mutual were 

applicable, nor did it address the collapse coverage endorsement. Westerhof and 

Uneeda Rest now appeal.2

DISCUSSION

I. Standard of review

¶14 We independently review a grant of summary judgment, using the 

same methodology as the circuit court. Hardy v. Hoefferle, 2007 WI App 264, ¶6, 

306 Wis. 2d 513, 743 N.W.2d 843. Summary judgment is appropriate if there is no 

genuine issue of material fact and the moving party is entitled to judgment as a 

matter of law. WIS. STAT. § 802.08(2) (2017-18). “Whether to grant a declaratory 

judgment is addressed to the circuit court’s discretion.” State Farm Fire & Cas. 

Co. v. Acuity, 2005 WI App 77, ¶6, 280 Wis. 2d 624, 695 N.W.2d 883. However, 

when the exercise of that discretion turns on the interpretation of an insurance 

 

2

 At certain points in their appellate briefs, Westerhof and Uneeda Rest appear to suggest 

that the issue in this case is Wisconsin Mutual’s duty to defend, and we should therefore restrict 

our analysis to the allegations within the four corners of Hexum’s counterclaims and third-party 

complaint. As Wisconsin Mutual correctly observes, however, this is not a duty-to-defend case. 

Wisconsin Mutual provided a defense for Westerhof and Uneeda Rest pursuant to a reservation of 

rights, and it then successfully moved to bifurcate and stay proceedings on the merits of the 

underlying action pending a determination of coverage. “[T]he purpose of the four-corners rule 

has been served once the insurer has elected to provide a defense pending a final determination on 

coverage.” Olson v. Farrar, 2012 WI 3, ¶34, 338 Wis. 2d 215, 809 N.W.2d 1. Under those 

circumstances, “[t]he four-corners rule is not further implicated, and the court proceeds to a 

determination of coverage,” which includes the consideration of evidence extrinsic to the 

complaint. Id., ¶¶34-35.
No. 2019AP1357

7

policy, which is a question of law, we independently review the court’s decision. 

Id.

¶15 Our goal in interpreting an insurance policy is to give effect to the 

parties’ intent. American Family Mut. Ins. Co. v. American Girl, Inc., 2004 WI 

2, ¶23, 268 Wis. 2d 16, 673 N.W.2d 65. We construe a policy as it would be 

understood by a reasonable person in the position of the insured. Id. If policy 

language is unambiguous, we simply enforce it as written. Marnholtz v. Church 

Mut. Ins. Co., 2012 WI App 53, ¶10, 341 Wis. 2d 478, 815 N.W.2d 708. When 

determining whether an insurance policy provides coverage for a particular claim, 

we first consider whether the policy’s insuring agreement makes an initial grant of 

coverage. American Girl, 268 Wis. 2d 16, ¶24. If it is clear that the policy does 

not provide an initial grant of coverage, our analysis ends there, without the need to 

consider any of the policy’s exclusions. Id.

II. Initial grant of coverage

¶16 As relevant here, the Wisconsin Mutual policies provide an initial 

grant of coverage for “all sums for which an ‘insured’ is liable by law because of ... 

‘property damage’ caused by an ‘occurrence’ to which this coverage applies.”

3

 On 

appeal, the parties agree that Hexum has asserted claims alleging three kinds of 

property damage: (1) damage to the French drain in the shared driveway; 

(2) damage to the concrete slab outside Hexum’s garage, caused by the 

accumulation of water on the slab; and (3) damage to Hexum’s noneasement 

 

3

 Although some of the Wisconsin Mutual policies contain slightly different language, it 

is undisputed that each policy provides an initial grant of coverage for damages stemming from 

property damage caused by an occurrence.
No. 2019AP1357

8

property, caused by construction vehicles driving over that property. The critical 

issue, for purposes of determining whether the policies provide an initial grant of 

coverage for these claims, is whether any of the alleged property damage was caused 

by an “occurrence.”4

¶17 The Wisconsin Mutual policies state that the term “occurrence” 

means “an accident, including repeated exposures to similar conditions, that results 

in ‘bodily injury’ or ‘property damage’ during the policy period.” The policies do 

not define the term “accident.” However, previous cases have relied on dictionary 

definitions in order to ascertain the common meaning of that term. See Everson v. 

Lorenz, 2005 WI 51, ¶15, 280 Wis. 2d 1, 695 N.W.2d 298.

¶18 In American Girl, for instance, our supreme court noted that one 

dictionary defined “accident” as “an event or condition occurring by chance or 

arising from unknown or remote causes.” American Girl, 268 Wis. 2d 16, ¶37

(citation omitted). The court also cited Black’s Law Dictionary for the proposition 

that the term “accident” in a liability insurance policy means “an event which takes 

place without one’s foresight or expectation.” Id. (citation omitted). The definition 

in Black’s further provided that “[a] result, though unexpected, is not an accident; 

the means or cause must be accidental.” Id. (citation omitted). Applying these 

definitions, the American Girl court concluded the relevant property damage in that 

case—i.e., damage to a warehouse caused by soil settlement—was the result of an 

occurrence. Id., ¶38. The court reasoned the soil settlement was caused by 

 

4

 It is undisputed that not all of Hexum’s claims against Westerhof and Uneeda Rest 

alleged property damage, as the policies define that term. On appeal, Wisconsin Mutual asserts—

and Westerhof and Uneeda Rest do not dispute—that the Wisconsin Mutual policies do not provide 

coverage for any claims that do not allege property damage. Accordingly, we do not further address

those claims.
No. 2019AP1357

9

“inadequate site-preparation advice,” and “[n]either the cause nor the harm was 

intended, anticipated, or expected.” Id.

¶19 The supreme court reached a different result in Schinner v. Gundrum, 

2013 WI 71, 349 Wis. 2d 529, 833 N.W.2d 685. There, the insured held an underage

drinking party, during which one guest suffered serious injuries after being 

physically assaulted by another guest. Id., ¶2. The injured guest later sued the 

insured and his insurer. Id. The court held that these facts did not give rise to an 

occurrence because the insured’s intentional acts—specifically, hosting a large 

underage drinking party and providing alcohol to an individual known to become 

belligerent when intoxicated—were a substantial factor in causing the plaintiff’s 

injuries. Id., ¶81. It did not matter that the insured did not intend for the plaintiff 

to be assaulted; what mattered was that the insured performed intentional acts that 

were a substantial factor in causing that result. Id., ¶¶67-69. The Schinner court 

emphasized that in determining whether the plaintiff’s bodily injury was caused by 

an accident, the focus was on identifying “the injury-causing event.” Id., ¶66. The

policy’s initial grant of coverage was triggered only if the facts showed that the 

injury-causing event was an accident. See id., ¶¶66-69, 81.

¶20 Westerhof and Uneeda Rest argue that, in this case, because Hexum’s 

counterclaims and third-party complaint alleged negligence, all of Hexum’s claimed 

property damage must necessarily have been caused by an occurrence. We reject 

this argument because, for purposes of our analysis, it is the evidentiary facts 

concerning the causes of the alleged damages that matter, not the theory of liability 

alleged in Hexum’s pleadings. Merely inserting an allegation of negligence into a 

complaint that alleges only damages caused by intentional acts does not create an 

occurrence, for purposes of insurance coverage. See Talley v. Mustafa, 2018 WI 

47, ¶¶20, 32, 381 Wis. 2d 393, 911 N.W.2d 55.
No. 2019AP1357

10

¶21 Instead, we must analyze whether the evidentiary facts regarding each 

of Hexum’s claimed items of property damage demonstrate that such damage was 

caused by an occurrence. Applying that analysis, we conclude the Wisconsin 

Mutual policies do not provide an initial grant of coverage for Hexum’s claims 

asserting damage to his French drain or his concrete slab. In both of those instances, 

although the property damage itself may have been unexpected or unintended, the 

injury-causing event was intentional and was therefore not an accident—i.e., an 

occurrence.

¶22 As noted above, Hexum first claims that during the construction of 

Westerhof’s new home, construction vehicles destroyed his French drain when 

driving over the shared driveway. During his deposition, Westerhof testified that 

he knew the contractors would have to drive heavy equipment over the shared 

driveway in order to reach the construction site. At the time of construction, 

Westerhof was unaware of the presence of the French drain immediately underneath 

the driveway. Nonetheless, Westerhof also testified that it “wasn’t surprising to 

[him]” that the construction vehicles caused damage to the driveway, although it 

turned out to be “a bit bigger problem than [he] would have expected.”

¶23 On these facts, we cannot conclude that the destruction of the French 

drain was caused by an occurrence. The contractors intentionally drove their 

vehicles over the shared driveway to access the construction site. Westerhof knew 

that they planned to do so, and he expected that their use of the shared driveway 

would damage the driveway to some extent. The fact that the full nature and extent 

of the damages to the driveway—including the destruction of the French drain lying 

immediately underneath the driveway—was unexpected does not mean that the 

damages resulted from an occurrence. Again, the focus of our inquiry is on whether 

the “injury-causing event” was accidental, not the resulting damages. See Schinner, 
No. 2019AP1357

11

349 Wis. 2d 529, ¶¶66-69, 81; see also American Girl, 268 Wis. 2d 16, ¶37. Here, 

the operation of the heavy equipment on the driveway was intentional, not 

accidental, and it directly caused the destruction of the French drain.

¶24 Moreover, the destruction of the French drain in this case is 

distinguishable from the damage to the warehouse in American Girl. In American 

Girl, the cause of the damage was faulty site-preparation advice provided by a soil 

engineering subcontractor. That cause was accidental because, although the 

subcontractor intended to provide site-preparation advice, it did not intend to do so 

negligently. In this case, there has been no allegation or evidence presented that the 

contractors were negligent in their operation of heavy equipment on the shared 

driveway. Instead, as noted above, damage to the shared driveway was an expected 

consequence of the contractors’ use of the driveway to access the construction site. 

Under these circumstances, the destruction of the French drain located in the shared 

driveway was not caused by an occurrence.5

¶25 We next turn to Hexum’s claim for damage to the concrete slab 

outside his garage, which he contends was caused by the accumulation of water on 

the slab. Hexum claims the water accumulation was caused, in part, by the 

destruction of the French drain. However, we have already determined that the 

destruction of the French drain was not caused by an occurrence. Accordingly, any 

 

5

 In the alternative, Wisconsin Mutual argues that the “property you use” exclusion applies 

to Hexum’s claim for damage to the French drain. Because we conclude Wisconsin Mutual’s

policies do not provide an initial grant of coverage for Hexum’s claim for damage to the French 

drain, we need not address this alternative argument.

Wisconsin Mutual also argued in the circuit court that the “motorized vehicle” exclusion 

applied to bar coverage for any claim alleging damage caused by construction equipment. The 

court did not address the “motorized vehicle” exclusion, and Wisconsin Mutual does not raise any 

argument regarding that exclusion on appeal. We therefore do not address it further.
No. 2019AP1357

12

damage to the concrete slab due to water accumulation that resulted from the 

destruction of the French drain was similarly not caused by an occurrence.

¶26 Hexum also claims that the larger footprint of Westerhof’s new home 

and its construction at a higher elevation than the pre-existing cottage resulted in 

water accumulation on the concrete slab. For purposes of these claims, the 

injury-causing event was the construction of Westerhof’s new home. That 

construction, however, was not unexpected or unintended. As such, it does not 

constitute an occurrence.

¶27 Westerhof and Uneeda Rest cite American Girl, Acuity v. Society 

Insurance, 2012 WI App 13, 339 Wis. 2d 217, 810 N.W.2d 812, and 

Glendenning’s Limestone & Ready-Mix Co. v. Reimer, 2006 WI App 161, 295 

Wis. 2d 556, 721 N.W.2d 704, in support of their argument that the damage to 

Hexum’s concrete slab due to the construction of Westerhof’s new home was caused 

by an occurrence. Those cases are distinguishable, however, because they each

involved allegations that faulty workmanship or negligence led to the relevant 

property damage. See American Girl, 268 Wis. 2d 16, ¶38; Acuity, 339 Wis. 2d 

217, ¶17; Glendenning’s, 295 Wis. 2d 556, ¶6.

¶28 Conversely, we agree with Wisconsin Mutual that, in this case, there 

is no evidence that “something went wrong in the construction of the house that 

resulted in unexpected water issues.” As noted above, Westerhof testified he was 

aware before construction began that the larger footprint of the new home would 

result in there being less permeable soil on his property, which would cause 

increased water runoff. In addition, Butterfield testified that the architect’s plans 

called for the new house to be constructed at the same elevation as the elevation of 

the preconstruction land, and he also testified that he dug the foundation to be within 
No. 2019AP1357

13

two inches of that elevation. On these facts, we agree with Wisconsin Mutual that 

the accumulation of water on Hexum’s concrete slab was not the result of defective 

work but, rather, was caused by the intentional and volitional act of building 

Westerhof’s new home according to the architect’s plans and specifications.

¶29 Westerhof and Uneeda Rest also argue that Kalchthaler v. Keller 

Construction Co., 224 Wis. 2d 387, 591 N.W.2d 169 (Ct. App. 1999), supports their 

position that the damage to the concrete slab was caused by an occurrence. In 

Kalchthaler, however, the court principally analyzed a new exception to the 

business risk exclusion in a standard form commercial general liability (CGL) 

insurance policy in a case involving leaking windows installed by a subcontractor. 

Id. at 390-91, 397. Although the court initially discussed the meaning of “accident” 

and “occurrence” in the CGL policy, it observed the parties had already stipulated 

that fifty percent of the damages were caused by the insured general contractor’s 

negligence. See id. at 397. The court then stated, without further analysis, “[T]here 

is no question that an event occurred: the windows leaked. This is an accident. So 

we have property damage caused by an occurrence and the policy applies.” Id. The 

Kalchthaler court did not consider or analyze whether the injury-causing event was 

an accident, as required by subsequent case law. See Schinner, 349 Wis. 2d 529, 

¶¶66-69, 81.

¶30 Westerhof and Uneeda Rest also rely on Wosinski v. Advance Cast 

Stone Co., 2017 WI App 51, 377 Wis. 2d 596, 901 N.W.2d 797. In that case, a jury 

concluded Advance Cast Stone’s negligent installation of a concrete panel caused 

the panel to fail, resulting in several injuries and a death. Id., ¶¶7, 10-12, 26. As 

explained above, however, there is no evidence in this case that something went 

wrong during the construction of Westerhof’s new residence that caused an 

increased accumulation of water on Hexum’s property. Rather, the evidence shows 
No. 2019AP1357

14

that the house was constructed according to the architect’s specifications. Again, 

the injury-causing event—i.e., the construction of the house—was intentional. In 

fact, Westerhof knew that the construction could cause increased water 

accumulation and runoff. We therefore reject Westerhof and Uneeda Rest’s 

argument that any damage resulting from the accumulation of water on Hexum’s 

concrete slab was caused by an occurrence.

¶31 Hexum also claims that he suffered property damage when

construction vehicles drove over his noneasement property. Wisconsin Mutual 

argues its policies do not provide an initial grant of coverage for that claim because 

“the use of vehicles on Hexum’s property was volitional, intentional, and not an 

‘accident.’” Westerhof and Uneeda Rest correctly observe, however, that “when an 

insured is seeking coverage, the determination of whether an injury is accidental 

under a liability insurance policy should be viewed from the standpoint of the 

insured.” Schinner, 349 Wis. 2d 529, ¶52. Westerhof and Uneeda Rest then assert 

that, from their standpoint, any damage to Hexum’s noneasement property was 

unexpected.

¶32 In support of this argument, Westerhof and Uneeda Rest note that 

Butterfield testified he “probably” could have completed all of his work without 

driving over Hexum’s noneasement property. They also observe that there is no 

evidence Westerhof was aware that Butterfield had obtained Hexum’s permission 

to drive vehicles over Hexum’s noneasement property and, to the contrary,

Butterfield expressly testified that he did not tell Westerhof about that agreement. 

In addition, Westerhof testified he was not aware that construction vehicles would 

need to travel over Hexum’s noneasement property in order to access the 

construction site. Based on these facts, Westerhof and Uneeda Rest argue they 

could not have anticipated that Butterfield or any other contractor would operate 
No. 2019AP1357

15

construction vehicles on Hexum’s noneasement property, thereby causing damage 

to it.

¶33 We agree with Westerhof and Uneeda Rest that the evidence cited 

above, at the very least, raises a genuine issue of material fact as to whether the 

damage to Hexum’s noneasement property was unexpected from Westerhof and 

Uneeda Rest’s perspective. In response to Westerhof and Uneeda Rest’s argument, 

Wisconsin Mutual notes that even if Westerhof and Uneeda Rest were unaware that 

Butterfield intended to use Hexum’s noneasement property to access the 

construction site, it is undisputed that Butterfield was aware of his own plan to do

so. Wisconsin Mutual then asserts that Butterfield was Westerhof’s agent. It further 

argues that, by virtue of that agency relationship, Butterfield’s knowledge should be 

imputed to Westerhof for purposes of determining whether its policies provide 

coverage for Hexum’s claim that he suffered property damage when construction 

vehicles drove over his noneasement property.

¶34 As Westerhof and Uneeda Rest correctly note in their reply brief, 

Wisconsin Mutual’s agency argument is undeveloped. Wisconsin Mutual simply 

asserts that Butterfield was Westerhof’s agent, without discussing the legal standard 

for determining whether an agency relationship existed or explaining how the facts 

of this case fulfill that standard. Moreover, as Westerhof and Uneeda Rest observe, 

Wisconsin Mutual did not raise its agency argument in the circuit court. Generally, 

a respondent may raise any argument on appeal that would support the circuit 

court’s ruling, even if that argument was not raised in the circuit court. See State v. 

Kiekhefer, 212 Wis. 2d 460, 475, 569 N.W.2d 316 (Ct. App. 1997). Here, however, 

Wisconsin Mutual’s failure to raise its agency argument below means that it did not 

develop a factual record upon which we could determine, as a matter of first 
No. 2019AP1357

16

impression, whether Butterfield was Westerhof’s agent for the purposes of 

analyzing the available coverage under Wisconsin Mutual’s policies.

¶35 For these reasons, we decline to hold, based on Wisconsin Mutual’s 

agency argument, that Wisconsin Mutual’s policies do not provide coverage for 

Hexum’s claim for damage to his noneasement property. Instead, we conclude 

Wisconsin Mutual was not entitled to summary judgment regarding coverage for 

that claim because Westerhof and Uneeda Rest have demonstrated, at the very least, 

that there is a genuine issue of material fact as to whether the damage to the

noneasement property was unexpected or unintended from their perspective. 

Accordingly, although we affirm the circuit court’s determination that

Wisconsin Mutual’s policies do not provide an initial grant of coverage for Hexum’s 

claims for damage to the French drain and concrete slab, we reverse the court’s grant 

of summary judgment regarding coverage for Hexum’s claim for damage to his 

noneasement property. We remand for further proceedings consistent with this 

opinion.

III. Collapse coverage endorsement

¶36 In the alternative, Westerhof and Uneeda Rest argue that the collapse 

coverage endorsement appended to Westerhof’s 2015-16 policy provides coverage 

for Hexum’s claim for damage due to water accumulation caused by the collapse of 

the French drain. The collapse coverage endorsement provides, in relevant part:

We extend your policy to cover the dwelling and other 

structures against loss caused directly or indirectly by 

earthquake, landslide or other earth movement. Also 

covered is damage caused by water below the surface of the 

ground which exerts pressure on, or flows, seeps or leaks 

through: (l) sidewalks, (2) driveways, (3) foundations, 

(4) walls (basement or otherwise), (5) doors, (6) windows or 

(7) any other openings in (l) through (4) above.
No. 2019AP1357

17

This endorsement applies to your property during 

construction until occupied or until expiration of your 

policy, whichever occurs first, but not to exceed six months 

from the date of this endorsement or policy.

¶37 The collapse coverage endorsement does not provide coverage for any 

of Hexum’s claims against Westerhof and Uneeda Rest because, on its face, the 

endorsement provides only first-party property damage coverage, not third-party 

liability coverage. The first sentence of the endorsement makes it clear that the 

endorsement covers damage to “the dwelling and other structures.” The 

endorsement also expressly states that it “applies to your [i.e., Westerhof and 

Uneeda Rest’s] property during construction.” (Emphasis added.) Furthermore, 

there is no language in the endorsement stating that Wisconsin Mutual will pay 

damages that Westerhof and Uneeda Rest are legally liable to pay to a third party. 

After reading the collapse coverage endorsement, no reasonable insured could 

conclude the endorsement would provide coverage for third-party liability claims. 

We therefore reject Westerhof and Uneeda Rest’s argument that the endorsement 

provides coverage for any of Hexum’s claims in this case.

By the Court.—Order affirmed in part; reversed in part and cause 

remanded for further proceedings.

This opinion will not be published. See WIS. STAT. RULE

809.23(1)(b)5. (2017-18).