2019 WI 61 

SUPREME COURT OF WISCONSIN

CASE NO.: 2016AP2334 

COMPLETE TITLE: Leicht Transfer & Storage Company, 

 Plaintiff-Appellant-Petitioner, 

 v. 

Pallet Central Enterprises, Inc., 

 Defendant, 

Travelers Property Casualty Company, Acuity, A 

Mutual Insurance Company and Hiscox Insurance 

Company Inc., 

 Defendants-Respondents. 

REVIEW OF DECISION OF THE COURT OF APPEALS 

Reported at 382 Wis. 2d 270,915 N.W.2d 729 

 (2018 – unpublished) 

OPINION FILED: May 31, 2019 

SUBMITTED ON BRIEFS: 

ORAL ARGUMENT: February 1, 2019 

SOURCE OF APPEAL: 

 COURT: Circuit 

 COUNTY: Brown 

 JUDGE: Marc A. Hammer 

 

JUSTICES: 

 CONCURRED: 

 DISSENTED: A.W. WALSH, J. dissents (opinion filed). 

 NOT PARTICIPATING: 

 

ATTORNEYS: 

For the plaintiff-appellant-petitioner, there were briefs 

filed by George Burnett and Conway, Olejniczak & Jerry, S.C., 

Green Bay. There was an oral argument by George Burnett. 

 For the defendant-respondent Hiscox Insurance Company, 

Inc., there was a brief filed by Kris Bartos, and Jeffrey 

Leavell, S.C., Racine. There was an oral argument by Jeffrey 

Leavell. 
2019 WI 61

NOTICE

This opinion is subject to further 

editing and modification. The final 

version will appear in the bound 

volume of the official reports. 

No. 2016AP2334 

(L.C. No. 2015CV878) 

STATE OF WISCONSIN : IN SUPREME COURT 

Leicht Transfer & Storage Company,

 Plaintiff-Appellant-Petitioner, 

 v. 

Pallet Central Enterprises, Inc., 

 Defendant, 

Travelers Property Casualty Company, Acuity, A 

Mutual Insurance Company and Hiscox Insurance 

Company Inc., 

 Defendants-Respondents. 

FILED 

May 31, 2019 

Sheila T. Reiff 

Clerk of Supreme Court 

REVIEW of a decision of the Court of Appeals. Affirmed. 

¶1 DANIEL KELLY, J. Pallet Central Enterprises, Inc., 

("Pallet Central") forged certain delivery tickets and used them 

to bill Leicht Transfer & Storage Company ("Leicht") for the 

sale and delivery of pallets that Pallet Central never sold or 

delivered. This case followed, and in the piece of it we 

address today, Leicht sought coverage for its losses under the 
No. 2016AP2334 

 

2 

Commercial Crime Insurance Policy issued to it by Hiscox 

Insurance Company, Inc. ("Hiscox"). Specifically, Leicht 

asserts that the forged delivery tickets comprise "directions to 

pay" within the meaning of the "Forgery or Alteration" insuring 

agreement of the Hiscox policy. We disagree, and so we affirm 

the court of appeals.1 

I. BACKGROUND 

¶2 Leicht provides warehousing services in the Green Bay 

area. It uses pallets to assist in the storage and shipment of 

warehoused items. Between January 2013 and February 2015, 

Leicht purchased pallets from Pallet Central. The companies 

followed a standard practice for documenting these transactions 

for the purpose of inventory control and billing. Part of that 

standard practice involved Pallet Central's preparation of a 

delivery ticket describing the shipment, including the type of 

pallets, the number to be delivered, the delivery date, and the 

identification number of the trailer conveying them. The 

delivery ticket would accompany the truck driver making the 

shipment. Upon delivery, a Leicht employee would verify the 

shipment and sign the delivery ticket. The truck driver would 

then return a copy of the delivery ticket to Pallet Central, 

after which Pallet Central would prepare an invoice package. 

 

1 This is a review of an unpublished per curiam opinion of 

the court of appeals, Leicht Transfer & Storage Co. v. Pallet 

Cent. Enter., No. 2016AP2334, unpublished slip op. (Wis. Ct. 

App. Apr. 25, 2018) (per curiam), which affirmed the Brown 

County Circuit Court, the Honorable Marc A. Hammer, presiding. 
No. 2016AP2334 

 

3 

The package comprised an invoice, a copy of the signed delivery 

ticket, and a voucher.2 Pallet Central would then submit the 

invoice package to Leicht for payment. Leicht would pay the 

invoice only if the package contained a copy of the signed 

delivery ticket. Leicht would then bill its customers for, 

inter alia, the pallets it used in storing and shipping their 

goods. 

¶3 Eventually, Leicht became aware that the number of 

invoice packages Pallet Central was submitting had dramatically 

increased. Leicht's internal investigation revealed that many 

of the delivery tickets bore the apparent signatures of Leicht 

employees who could not possibly have executed the documents. 

Ultimately, Leicht concluded that the signatures were forged, 

and that it had consequently paid Pallet Central for pallets it 

never received.3 Leicht says Pallet Central submitted fraudulent 

invoice packages worth approximately $751,000.00, of which it 

paid approximately $505,000.00. 

 

2 Leicht did not describe the voucher, and the sole invoice 

package in the Record contains only an invoice and delivery 

ticket. Therefore, our analysis does not rely on the nature or 

content of the voucher. We have included the invoice package as 

an appendix to our opinion. We assume this invoice package is 

representative of all invoice packages submitted by Pallet 

Central to Leicht (aside from the question of forgery and the 

absence of the voucher). 

3 Leicht reported its findings to the DePere Police 

Department. The investigating officer concluded that Leicht had 

been the victim of theft by use of fraudulent invoices. Whether 

the delivery tickets at issue actually were forged is not before 

us, and we express no opinion on that question. 
No. 2016AP2334 

 

4 

¶4 Leicht submitted its loss to Hiscox pursuant to the 

terms of its Commercial Crime Insurance Policy (the "Policy"). 

The relevant language, found in the "Forgery or Alteration" 

insuring agreement, states the following: 

(1) Checks 

We will pay for loss resulting directly from Forgery 

or alteration of checks, drafts, promissory notes, 

convenience checks, HELOC checks, or similar written 

promises, orders or directions to pay a sum certain in 

Money that are: 

(i) Made or drawn by or drawn upon You; or 

(ii) Made or drawn by one acting as Your 

agent; or that are purported to have been so 

made or drawn.[4]

(Emphasis added). Hiscox denied coverage, and Leicht sued. It 

alleged Hiscox breached its contract, and asked the circuit 

court to declare that the Policy covers its losses from the 

forged delivery tickets.5

¶5 Hiscox moved for summary judgment, arguing that the 

Policy's "Forgery or Alteration" insuring agreement did not 

provide coverage because the forged delivery tickets were 

neither "checks" nor any of the other types of documents 

 

4 The Policy emphasizes certain words to indicate they are 

defined terms. We have omitted the emphasis to avoid a 

suggestion we are assigning particular importance to those 

words. 

5 Leicht also named two of its other insurers, as well as 

Pallet Central, as defendants. However, Hiscox is the only 

defendant currently before the court, and so we do not address 

claims made against any other party. 
No. 2016AP2334 

 

5 

identified by the Policy. Hiscox also argued that the forged 

delivery tickets were not "drawn upon" Leicht, which it said is 

a prerequisite to coverage. Leicht disagreed. It said the 

Policy covers the delivery tickets because Pallet Central used 

them as a means of directing payment. Therefore, it concluded, 

the Policy covers the delivery tickets as "directions to pay a 

sum certain in Money."6 

¶6 The circuit court granted Hiscox's motion, concluding 

that the Policy's "Forgery or Alteration" insuring agreement did 

not provide coverage. The court of appeals affirmed, explaining 

that the Policy "enumerate[s] specific covered instruments, 

including checks, drafts and promissory notes, and 'similar 

written promises, orders or directions to pay a sum certain' in 

money" and that "[t]he delivery tickets Leicht relies upon were 

not written promises, orders or directions to pay 'similar' to 

the enumerated documents covered under the polic[y]." Leicht 

Transfer & Storage Co. v. Pallet Cent. Enter., No. 2016AP2334, 

unpublished slip op., ¶11 (Wis. Ct. App. Apr. 25, 2018) (per 

curiam). The court of appeals said the forged delivery tickets 

"were merely evidence of a claim that pallets were delivered by 

Pallet Central to Leicht." Id., ¶¶12-13. 

 

6 To the extent Leicht previously argued that coverage 

exists under other portions of the Hiscox policy, those 

arguments are not before this court and we therefore consider 

only the coverage question presented. See, e.g., A.O. Smith 

Corp. v. Allstate Ins. Cos., 222 Wis. 2d 475, 491, 588 

N.W.2d 285 (Ct. App. 1998) ("[A]n issue raised in the trial 

court, but not raised on appeal, is deemed abandoned."). 
No. 2016AP2334 

 

6 

¶7 Leicht's petition for review asserted that the 

Policy's coverage of "similar written promises, orders or 

directions to pay a sum certain" is a "recipe for ambiguity" 

because "[n]othing in the policy alerts the policyholder how or 

why other forged documents might be similar." We granted 

Leicht's petition and now hold that the Policy does not afford 

the coverage Leicht seeks because Pallet Central's delivery 

tickets are not "written . . . directions to pay a sum certain 

in Money." 

II. STANDARD OF REVIEW 
No. 2016AP2334 

 

7 

¶8 We review the disposition of a motion for summary 

judgment de novo, applying the same methodology the circuit 

courts apply. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 

315, 401 N.W.2d 816 (1987). While our review is independent 

from the circuit court and court of appeals, we benefit from 

their analyses. See Preisler v. Gen. Cas. Ins. Co., 2014 

WI 135, ¶16, 360 Wis. 2d 129, 857 N.W.2d 136. Summary judgment 

is appropriate only "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 

judgment as a matter of law." Wis. Stat. § 802.08(2) (2017-18); 

see also Columbia Propane, L.P. v. Wis. Gas Co., 2003 WI 38, 

¶11, 261 Wis. 2d 70, 661 N.W.2d 776 (quoting and applying Wis. 

Stat. § 802.08(2) (2001-02)). 

¶9 The interpretation of an insurance policy presents a 

question of law. Water Well Sols. Serv. Grp. Inc. v. Consol. 

Ins. Co., 2016 WI 54, ¶12, 369 Wis. 2d 607, 881 N.W.2d 285. We 

review such questions de novo. Id. 

III. ANALYSIS 

¶10 The Policy contains three relevant requirements that 

Leicht must satisfy before it is entitled to coverage for its 

losses. First, it must demonstrate that a "delivery ticket" is 

the type of document encompassed by the Policy's insuring 

agreement. Second, it must show that the delivery tickets were 

"[m]ade or drawn by or drawn upon [Leicht]; or [m]ade or drawn 
No. 2016AP2334 

 

8 

by one acting as [Leicht's] agent; or that are purported to have 

been so made or drawn." And third, it must establish that the 

payments it made to Pallet Central constitute a "loss resulting 

directly" from the forgery. To evaluate these requirements, we 

must discern the meaning of the Policy's insuring agreement, and 

how its terms apply to the facts of this case. 

¶11 Our goal in interpreting and applying an insurance 

policy's terms is the same as it is in addressing any other 

contract: To "effectuate the intent of the contracting 

parties." Estate of Sustache v. Am. Family Mut. Ins. Co., 2008 

WI 87, ¶19, 311 Wis. 2d 548, 751 N.W.2d 845 (citations omitted). 

In doing so, we construe insurance contracts "as they would be 

understood by a reasonable person in the position of the 

insured[,]" yet we will "not interpret insurance policies to 

provide coverage for risks that the insurer did not contemplate 

or underwrite and for which it has not received a premium." Am. 

Family Mut. Ins. Co. v. Am. Girl, Inc., 2004 WI 2, ¶23, 268 

Wis. 2d 16, 673 N.W.2d 65 (citations omitted). We will 

interpret undefined words and phrases as they would be 

understood by a reasonable insured, Bethke v. Auto-Owners Ins. 

Co., 2013 WI 16, ¶22, 345 Wis. 2d 533, 825 N.W.2d 482, and "[w]e 

give undefined words and phrases their common and ordinary 

meaning." Day v. Allstate Indem. Co., 2011 WI 24, ¶28, 332 

Wis. 2d 571, 798 N.W.2d 199. "If the undefined language is 

ambiguous, we will construe it in favor of the insured to afford 

coverage." Bethke, 345 Wis. 2d 533, ¶22. A term or phrase is 
No. 2016AP2334 

 

9 

ambiguous only if it is "'fairly susceptible to more than one 

reasonable interpretation.'" Wilson Mut. Ins. Co. v. Falk, 2014 

WI 136, ¶24, 360 Wis. 2d 67, 857 N.W.2d 156 (citation omitted). 

¶12 We begin our analysis with Leicht's position that 

"delivery tickets," when combined with corresponding invoices, 

are included in the type of documents the Policy covers. The 

insuring agreement describes covered documents as "checks, 

drafts, promissory notes, convenience checks, HELOC checks, or 

similar written promises, orders or directions to pay a sum 

certain in Money." Because Leicht says the delivery tickets are 

covered as "directions to pay a sum certain in Money," this part 

of the inquiry actually involves two steps. First, we must 

determine whether a delivery ticket is, in fact, a direction to 

pay a sum certain in money (alone or in conjunction with an 

invoice). If it is, then we must consider whether it is 

"similar" to "checks, drafts, promissory notes, convenience 

checks, [or] HELOC checks." It is a covered document only if it 

meets both criteria. 

¶13 Neither party has suggested the phrase "directions to 

pay a sum certain in Money" is ambiguous. And as the following 

analysis will demonstrate, we espy no ambiguity in it either. 

Therefore, we "interpret the policy according to its plain and 

ordinary meaning to avoid imposing contract obligations that the 

parties did not undertake." Frost ex rel. Anderson v. Whitbeck, 

2002 WI 129, ¶17, 257 Wis. 2d 80, 654 N.W.2d 225. The plain and 

ordinary meaning of the phrase unmistakably indicates that, by 
No. 2016AP2334 

 

10 

themselves, the delivery tickets are not "directions to pay a 

sum certain in Money." The documents' most obvious defect in 

this regard is that they contain no directions to pay. They 

are, instead, simple statements that Pallet Central delivered a 

certain type and number of pallets on a particular day. To the 

extent the delivery tickets contain any directions at all, they 

are as follows: 

[Leicht] [m]ust notify us of any quantity disputes 

and/or quality matters within 72 hours of delivery or 

credit will not be issued. 

Please use our tickets for DELIVERIES and PLEASE make 

three (3) copies, one for you, one for the customer 

and one for the driver. Have the driver fill out the 

ticket (truck #, trailer # and driver signature). 

Then PLEASE fax the filled out ticket back to me at 

[###-###-####]. 

With respect to payment, they are entirely inert, and contain no 

motive force whatsoever by which to direct anyone to pay 

anything. 

¶14 The delivery tickets also conspicuously lack any 

reference to a "sum certain." In fact, they do not reference an 

amount due, or even a calculation by which one may arrive at an 

amount due. Indeed, they say nothing about currency, payment, 

or anything else one might associate with money, much less a 

"sum certain." Leicht conceded this point at oral argument, and 

further admitted it would not have paid Pallet Central if it had 

presented nothing but a delivery ticket. The unavoidable 

conclusion, therefore, is that a delivery ticket——by itself——is 

not a direction to pay a sum certain in money. 
No. 2016AP2334 

 

11 

¶15 Nor does a delivery ticket become a direction to pay 

when bundled with a corresponding invoice. Leicht acknowledged 

that an invoice is a request for payment, not a direction to 

pay. So if the delivery ticket becomes a direction to pay when 

attached to an invoice, the combination must be capable of 

making the invoice package greater than the sum of its parts. 

But Leicht did not explain how combining the two would turn one 

of them (or both) into a direction to pay a sum certain in 

money. The best it could offer was this: "Without the signed 

ticket Pallet Central could not be paid. Indeed, that is why 

Pallet Central forged those tickets in the first place." That 

is likely so, and we accept Leicht's reasoning for the purpose 

of this analysis. But it cannot carry the weight of its 

argument. Leicht's explanation describes a document evidencing 

Pallet Central's satisfaction of a condition precedent to 

payment. Just because the signed delivery ticket is a 

prerequisite to payment, however, does not transform it (or the 

combined documents) into a direction to pay a sum certain in 

money. The delivery ticket does not affect the invoice's nature 

(it is still a request), and the invoice does not create terms 

in the delivery ticket that were not there before (it still 

directs no payment, much less a sum certain). Combined, the 

documents retain the same characteristics that defined them 

separately: A request for payment, and proof of delivery. 

Consequently, the delivery ticket——whether taken on its own 
No. 2016AP2334 

 

12 

terms or in conjunction with an invoice——is not a direction to 

pay a sum certain in money. 

¶16 That, however, does not address Leicht's position in 

full. A close examination of its arguments reveals that Leicht 

did not explicitly claim that a delivery ticket is a direction 

to pay. Instead, it said "the delivery ticket[s] represented a 

direction to pay," and that "the parties used these delivery 

tickets to direct payment from Leicht's finance department," and 

that the "tickets served as a written direction to Leicht's 

bursar to pay Pallet Central's invoices." That is to say, 

Leicht asserts that delivery tickets function as a direction to 

pay. 

¶17 The distinction is subtle, but no less real for that. 

And that distinction helps illustrate why there can be no 

coverage for the forged delivery tickets. It is a commonplace 

that what something "is" can differ from the function to which 

it is put. An object might be a chair, and at times function as 

a very short ladder. But that does not mean the chair is a 

ladder. And if an insurance policy insures only against the 

loss of ladders, the chair owner will be disappointed. Here, 

the Policy applies to forgery of "directions to pay a sum 

certain in Money." As discussed above, the delivery tickets are 

unquestionably not that. Therefore, there can be no coverage 

unless the Policy applies to writings that are not "directions 

to pay," but which are nonetheless used for that purpose. We 

see nothing in the Policy, however, that grants coverage to 
No. 2016AP2334 

 

13 

documents not covered by its terms, but which are used as 

functional proxies for documents that are covered by its terms. 

So when Leicht says "the delivery tickets functioned as a 

direction to make payment, just as the policies required," it is 

mistaken. The Policy required a direction to pay, not a standin for a direction to pay.7

* 

 

7 For a similar reason, the dissent's analysis cannot reach 

Leicht's preferred end. The author says: "Examining the policy 

language in light of the parties' habitual practice, and 

consistent with this court's precedent, I arrive at the opposite 

conclusion." Dissent, ¶22. The insurance policy, of course, 

does not insure against loss caused by "Forgery or alteration" 

of Leicht and Pallet Central's "habitual practice." It insures 

against loss from "Forgery or alteration" of specifically 

described documents, of which a delivery ticket is not one. 

The key explanation the dissent offers for its contrary 

conclusion is this: 

"[I]f it looks like a duck, swims like a duck, and quacks 

like a duck, then it probably is a duck." This test 

suggests that something can be identified by its habitual 

characteristics, i.e. how it routinely functions. 

Id., ¶34. 

The point of the "duck" exercise is not to equate two 

things that are not the same. It is to identify what something 

really is. That is, one does not build an animatronic duck, set 

it afloat in a puddle with a quack soundtrack, and conclude it 

is an actual member of the Anatidae family. But that is what 

the dissent proposes here. Leicht and Pallet Central may have a 

private understanding that they will act as though the delivery 

ticket is a direction to pay a sum certain. But that does not 

mean we (and Hiscox) must conclude it is such a document any 

more than an ornithologist must conclude the floating 

fabrication actually is a duck. 
No. 2016AP2334 

 

14 

¶18 If we had concluded that the delivery tickets, alone 

or in conjunction with corresponding invoices, constituted 

"directions to pay," we then would have needed to consider 

whether the Policy's insuring agreement covered only those 

"directions to pay" that are similar to the specifically 

identified documents (i.e., checks, drafts, promissory notes, 

convenience checks, or HELOC checks). We also would have needed 

to determine whether they had been "[m]ade or drawn by or drawn 

upon" Leicht, or were "[m]ade or drawn by one acting as 

[Leicht's] agent; or that [were] purported to have been so made 

or drawn." And finally, we would have needed to determine 

whether the payments induced by the forged delivery tickets 

comprised losses "resulting directly from" the forgery. But all 

of these issues are contingent on having discerned a "direction 

to pay" in the forged delivery tickets. Because we did not, we 

have no need to examine these additional issues. Am. Girl, 

Inc., 268 Wis. 2d 16, ¶24 ("If it is clear that the policy was 

not intended to cover the claim asserted, the analysis ends 

there."). The Policy's insuring agreement does not encompass the 

forged delivery tickets, and we may not add coverage for which 

the parties did not bargain. Id., ¶23 (citations omitted) 

("[W]e do not interpret insurance policies to provide coverage 

for risks that the insurer did not contemplate or underwrite and 

for which it has not received a premium."). Consequently, 

Leicht's quest for coverage must end. 

IV. CONCLUSION 
No. 2016AP2334 

 

15 

¶19 We conclude that the Policy unambiguously demonstrates 

that the delivery tickets at issue in this case, either alone or 

in combination with corresponding invoices, do not qualify as 

"written . . . directions to pay a sum certain in Money." 

Further, we conclude that the Policy does not provide coverage 

for forged documents that are not themselves "directions to 

pay," but which are used as proxies for such documents. Summary 

judgment for Hiscox was, therefore, appropriate. We affirm the 

court of appeals. 

By the Court.—The decision of the court of appeals is 

affirmed. 
No. 2016AP2334 

 

1
No. 2016AP2334 

 

2
No. 2016AP2334.awb 

1 

¶20 ANN WALSH BRADLEY, J. (dissenting). This case arose 

after Pallet Central Enterprises, Inc. submitted fraudulent 

invoices to Leicht Transfer & Storage Company for nonexistent 

pallets that were never delivered. Majority op., ¶3. Leicht 

purchased a crime insurance policy to protect itself against 

precisely this type of fraudulent activity. Nevertheless, the 

majority denies coverage, sticking Leicht with a half million 

dollar bill for losses that resulted from Pallet Central 

Enterprises, Inc.'s fraudulent scheme. 

¶21 The majority can reach its conclusion only by 

disregarding long-held principles of insurance policy 

interpretation——which we call precedent. It is firmly 

established that an insurance policy's terms are to be 

interpreted as they would be understood from the perspective of 

a reasonable person in the position of the insured. Shugarts v. 

Mohr, 2018 WI 27, ¶20, 380 Wis. 2d 512, 909 N.W.2d 402 (citation 

omitted). Likewise, it is well-settled that ambiguity in an 

insurance policy is construed in favor of an insured seeking 

coverage. Olson v. Farrar, 2012 WI 3, ¶42, 338 Wis. 2d 215, 809 

N.W.2d 1 (citation omitted). 

¶22 Casting these principles aside, the majority 

determines that Leicht is not entitled to insurance coverage for 

losses incurred due to the fraudulent actions of Pallet Central. 

Examining the policy language in light of the parties' habitual 

practice, and consistent with this court's precedent, I arrive 

at the opposite conclusion. 

¶23 Accordingly, I respectfully dissent. 
No. 2016AP2334.awb 

2 

I 

¶24 For a period of over two years, Leicht purchased 

pallets for its warehouse from Pallet Central. Majority op., 

¶2. As the majority accurately details, Leicht and Pallet 

Central "followed a standard practice for documenting these 

transactions for the purpose of inventory control and billing." 

Id. 

¶25 Pursuant to this practice, each time Pallet Central 

made a delivery of pallets, it would give to Leicht a delivery 

ticket. Id. The delivery ticket described the shipment of 

pallets, identified the number of pallets delivered, specified 

the delivery date, and provided the identification number of the 

trailer on which the pallets arrived. Id. A Leicht employee 

would then sign the delivery ticket, indicating the pallets had 

been received. Id. 

¶26 After the delivery ticket had been signed, Pallet 

Central would prepare an invoice package that included the 

signed delivery ticket. Id. Leicht would then pay Pallet 

Central for the delivery, but only if the invoice was 

accompanied by a signed delivery ticket. Id. 

¶27 When it came to light that Pallet Central submitted 

invoices to Leicht for nonexistent pallets that were never 

delivered, an investigation ensued. It revealed that Leicht 

employees' signatures on the delivery tickets had been forged. 

Id., ¶3. This caused Leicht to suffer a loss of approximately 

$505,000 from paying the fraudulent invoices. Id. 
No. 2016AP2334.awb 

3 

¶28 Leicht carried a crime insurance policy. As relevant 

here, the policy provides: 

(1) Checks 

We will pay for loss resulting directly from Forgery

or alteration of checks, drafts, promissory notes, 

convenience checks, HELOC checks, or similar written 

promises, orders or directions to pay a sum certain in 

Money that are: 

(i) Made or drawn by or drawn upon You; or 

(ii) Made or drawn by one acting as Your agent; 

or that are purported to have been so made or 

drawn. 

¶29 The majority determines that Leicht is not entitled to 

coverage under this provision of the policy. It concludes that 

a "delivery ticket——whether taken on its own terms or in 

conjunction with an invoice——is not a direction to pay a sum 

certain in money." Majority op., ¶15. In the majority's view, 

the delivery ticket contains no direction to pay and no 

reference to a sum certain. Id., ¶14. Further, it opines that 

coverage does not attach to a signed delivery ticket that 

functions as a direction to pay, but is not itself a direction 

to pay. Id., ¶¶16-17. 

II 

¶30 As I see it, the language of the policy creates 

several conditions that the signed delivery ticket at issue in 

this case must fulfill in order for coverage to attach. First, 

the signed delivery ticket must be a written promise, order or 

direction to pay a sum certain in money. Second, it must be 

similar to a check, draft, promissory note, convenience check, 
No. 2016AP2334.awb 

4 

or HELOC checks. Finally, as provided in the crime insurance 

policy, the signed delivery ticket must be "[m]ade or drawn by 

or drawn upon [Leicht], [m]ade or drawn by one acting as 

[Leicht's] agent; or [was] purported to have been so made or 

drawn."1

A 

¶31 I address first whether a signed delivery ticket is, 

as interpreted by reasonable person in the position of the 

insured, a "direction to pay" a sum certain in money. 

¶32 It is imperative that our review of the language of an 

insurance policy be through the lens of a reasonable insured. 

Shugarts, 380 Wis. 2d 512, ¶20. The insured, Leicht, was 

engaged in a repeated and specific process by which payment was 

directed by the submission of certain documents, namely a signed 

delivery ticket and invoice. 

¶33 Given the habitual practice the parties followed in 

their transactions, a reasonable insured in Leicht's position 

would understand that a signed delivery ticket serves as a 

"direction to pay." Indeed, the record reflects that an 

unsigned delivery ticket would not be paid, unlike a signed 

ticket that would be paid. Accompanying a signed delivery 

ticket is an invoice containing a sum certain for payment. The 

parties' habitual routine was that this package of documents 

would direct that payment be made. 

 

1 Because it determines that a signed delivery ticket is not 

a direction to pay a sum certain in money, the majority does not 

address the second and third issues I raise. 
No. 2016AP2334.awb 

5 

¶34 The majority departs from the language as viewed by a 

reasonable insured engaging in the habitual practice of these 

parties. Simply put, its technical and theoretical distinction 

between what a signed delivery ticket "is" and its "function" 

not only discards our precedent on insurance policy 

interpretation, but it also fails an elementary test. See 

majority op., ¶¶16-17. Namely, "if it looks like a duck, swims 

like a duck, and quacks like a duck, then it probably is a 

duck." This test suggests that something can be identified by 

its habitual characteristics, i.e. how it routinely functions. 

¶35 The bottom line is that the habitual practice of the 

parties established that a signed delivery ticket directed 

payment. It is from this perspective that we must examine the 

policy's language. Viewing the parties' habitual practice from 

Leicht's point of view, I determine that a signed delivery 

ticket fulfills the policy's requirement of a "direction to pay" 

a sum certain in money. 

B 

¶36 I turn next to address whether a signed delivery 

ticket is "similar" to the instruments listed in the policy: 

checks, drafts, promissory notes, convenience checks, or HELOC 

checks. 

¶37 In addressing this question, another maxim of 

insurance policy interpretation must be considered. Namely, 

ambiguous terms must be construed in favor of coverage, and 

against the drafter. Olson, 338 Wis. 2d 215, ¶42; see Maryland 
No. 2016AP2334.awb 

6 

Arms Ltd. P'ship v. Connell, 2010 WI 64, ¶44, 326 Wis. 2d 300, 

786 N.W.2d 15 (citation omitted). 

¶38 The policy uses the term "similar." Inherent in the 

term "similar" is a certain amount of ambiguity. It begs the 

question, how similar is similar enough? The text of the policy 

provides no guidance. 

¶39 As Leicht aptly argued in its brief, "[n]o 

policyholder can know with certainty what documents are similar 

to a check, to a draft, or to a promissory note, and conversely, 

no policyholder can surmise what written 'promises, orders, or 

directions for payment' are too dissimilar for coverage to 

apply." 

¶40 I agree with Leicht. As analyzed above, a reasonable 

insured would believe that a signed delivery ticket "directs 

payment" within the language of the policy. But under the 

language of this policy, a policyholder is left guessing whether 

such a "direction to pay" is covered if it is not explicitly 

listed. Construing the ambiguity in favor of coverage, as our 

precedent requires, I determine that a signed delivery ticket 

fulfills the policy's "similarity" requirement. 

C 

¶41 The next inquiry raised by the policy language is 

whether the signed delivery ticket is "[m]ade or drawn by or 

drawn upon [Leicht], [m]ade or drawn by one acting as [Leicht's] 

agent; or [was] purported to have been so made or drawn." 
No. 2016AP2334.awb 

7 

¶42 Leicht alleges that the signatures of Leicht employees 

on delivery tickets were forged. That is, the signatures were 

"purported to have been" made by Leicht employees. 

¶43 Further, the forged signatures were purportedly made 

by Leicht employees acting as Leicht's agents. "Agent" is not a 

defined term in the policy, meaning that we interpret it as it 

would be understood by a reasonable insured. Acuity v. Bagadia, 

2008 WI 62, ¶13, 310 Wis. 2d 197, 750 N.W.2d 817 (citation 

omitted). 

¶44 An employee acting on behalf of an employer is the 

employer's agent. See Romero v. West Bend Mut. Ins. Co., 2016 

WI App 59, ¶39, 371 Wis. 2d 478, 885 N.W.2d 591 (citation 

omitted). By forging signatures on delivery tickets, Pallet 

Central employees purported to be acting as Leicht employees, 

thereby confirming receipt of pallets that were never delivered 

and directing Leicht to pay for them. 

¶45 In sum, properly examining the policy as would a 

reasonable person in the position of the insured, I conclude 

that all conditions for coverage are fulfilled. Specifically, a 

forged signed delivery ticket is a similar written promise, 

order or direction to pay a sum certain that was purported to 

have been made by Leicht's agent. 

¶46 Accordingly, I respectfully dissent. 
No. 2016AP2334.awb 

1