Robert Bolger v. Massachusetts Bay Insurance Company

2024 WI APP 19

COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION

Case No.: 2022AP742

Complete Title of Case:

ROBERT BOLGER,

PLAINTIFF-RESPONDENT,

V.

MASSACHUSETTS BAY INSURANCE COMPANY,

DEFENDANT-APPELLANT,

HUDSON SPECIALTY INSURANCE COMPANY, ABC INSURANCE
COMPANY AND DEF INSURANCE COMPANY,

DEFENDANTS,

MOODY INSURANCE AGENCY, INC. OAP CHOICE PLAN, BY ITS
CLAIMS ADMINISTRATOR AND CIGNA HEALTH AND LIFE INSURANCE
COMPANY,

SUBROGATED DEFENDANTS,

BRADY ACHTENHAGEN AND AUTO-OWNERS INSURANCE COMPANY,

DEFENDANTS-THIRD-PARTY PLAINTIFFS,

V.

BLAKE CROSS,

THIRD-PARTY DEFENDANT.
Opinion Filed: March 26, 2024
Submitted on Briefs: February 22, 2023
Oral Argument:

JUDGES: Stark, P.J., Hruz and Gill, JJ.
Concurred:
Dissented:

Appellant
ATTORNEYS: On behalf of the defendant-appellant, the cause was submitted on the
briefs of Michael P. Crooks and Maria del Pizzo Sanders of
von Briesen & Roper, S.C., Madison.

Respondent
ATTORNEYS: On behalf of the plaintiff-respondent, the cause was submitted on the
brief of David S. Blinka of Habush Habush & Rottier, S.C., Madison.

2
2024 WI App 19

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
March 26, 2024
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10 and
RULE 809.62.

Appeal No. 2022AP742 Cir. Ct. No. 2019CV113

STATE OF WISCONSIN IN COURT OF APPEALS

ROBERT BOLGER,

PLAINTIFF-RESPONDENT,

V.

MASSACHUSETTS BAY INSURANCE COMPANY,

DEFENDANT-APPELLANT,

HUDSON SPECIALTY INSURANCE COMPANY, ABC INSURANCE
COMPANY AND DEF INSURANCE COMPANY,

DEFENDANTS,

MOODY INSURANCE AGENCY, INC. OAP CHOICE PLAN, BY ITS
CLAIMS ADMINISTRATOR AND CIGNA HEALTH AND LIFE INSURANCE
COMPANY,

SUBROGATED DEFENDANTS,

BRADY ACHTENHAGEN AND AUTO-OWNERS INSURANCE COMPANY,

DEFENDANTS-THIRD-PARTY PLAINTIFFS,

V.
No. 2022AP742

BLAKE CROSS,

THIRD-PARTY DEFENDANT.

APPEAL from an order of the circuit court for Vilas County:
MARTHA J. MILANOWSKI, Judge. Affirmed.

Before Stark, P.J., Hruz and Gill, JJ.

¶1 GILL, J. The dispute in this case surrounds a homeowner’s
insurance policy (hereinafter, “the policy”) issued by the Massachusetts Bay
Insurance Company (MBIC) to the insureds, Bret and Amy Achtenhagen, and
whether that policy provided them with coverage for “personal liability” and
“medical payments to others” following a utility terrain vehicle (UTV) accident
away from their primary residence. The policy excluded that coverage for the
ownership, maintenance, use, loading or unloading of the UTV. However, an
exception to that exclusion reinstated the coverage for lawsuits brought against the
Achtenhagens for bodily injury arising out of “[t]he ownership, maintenance, use,
loading or unloading of” a UTV “which is” “[u]sed to service an ‘insured’s’
residence.” The questions on appeal are whether the exception is fairly susceptible
to more than one reasonable construction and whether, under the policy, MBIC was
bound to defend and indemnify the Achtenhagens.

¶2 Although no Wisconsin appellate court has previously interpreted the
particular language used in the policy exception at issue, we conclude that the
exception, when properly read in the context of the policy’s other language, is
reasonably susceptible to more than one construction. Either the
exception: (1) reinstates liability coverage for an occurrence resulting in bodily

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No. 2022AP742

injury at the “‘insured’s’ residence” arising out of a conveyance that was servicing
that residence at the time of the occurrence; or (2) reinstates coverage for an
occurrence resulting in bodily injury at any location arising out of a conveyance that
serviced the “‘insured’s’ residence” at some point, but not necessarily at the time of
the injury. The complaint in this case adequately alleged facts that would require
MBIC to defend and indemnify the Achtenhagens under the second of these
reasonable interpretations. Accordingly, the circuit court properly concluded that
MBIC was obligated to defend and indemnify the Achtenhagens. We therefore
affirm.

BACKGROUND

¶3 MBIC issued a homeowner’s insurance policy to Bret and Amy
Achtenhagen covering the period from November 2018 to November 2019.
According to the policy’s declarations page, the policy covered the Achtenhagens’
primary home in Dousman, Wisconsin, where they and their son Brady1 lived. The
policy, which we describe in greater detail below, included a section titled “Liability
coverages,” which provided coverage for “personal liability” and “medical
payments to others.” The section also contained an exclusion (hereinafter,
“exclusion”) stating that those two coverages did not apply to “bodily injury” or
“property damage” “[a]rising out of” “[t]he ownership, maintenance, use, loading
or unloading of … motorized land conveyances … owned or operated by … an
‘insured.’” An exception (hereinafter, “Exception (4)(a)”) provided that the
exclusion did not apply to “[a] vehicle or conveyance not subject to motor vehicle
registration which is” “[u]sed to service an ‘insured’s’ residence.”

1
We refer to Brady using his first name to avoid any confusion.

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No. 2022AP742

¶4 In December 2018, Robert Bolger was a passenger on a UTV operated
by Brady near the Achtenhagens’ second home on South Turtle Lake in Winchester,
Wisconsin. While Brady was operating the UTV on the lake’s frozen surface, Brady
“lost control” of the UTV, which turned over on its side and crushed Bolger’s right
leg.

¶5 Bolger filed a lawsuit against Brady and numerous entities, including
MBIC. Bolger asserted that MBIC, as the Achtenhagens’ insurer, was liable to him
for his injuries and damages.2 MBIC filed an answer and affirmative defenses,
asserting that the policy did not provide “liability coverage for the losses alleged”
in Bolger’s complaint.

¶6 Another insurance company named in the lawsuit filed a motion to
bifurcate the issues of insurance coverage from the merits of the underlying action
and to stay all liability proceedings, which MBIC joined. The circuit court granted
the motion. Thereafter, MBIC filed a motion for declaratory judgment, arguing that
it had no duty to defend and indemnify the Achtenhagens because the policy did not
provide liability coverage to them. In particular, MBIC asserted that Exception
(4)(a) did not apply because Bolger’s injuries occurred “away from the insured
location.” That is, the accident occurred at the Achtenhagens’ second residence in
Winchester, not at their primary residence in Dousman.

¶7 The circuit court denied MBIC’s motion for declaratory judgment,
reasoning that Exception (4)(a) was ambiguous. The court therefore held that MBIC
was obligated to defend and indemnify the Achtenhagens.3 Prior to a scheduled jury

2
It is undisputed that Brady was an “insured” under the policy.
3
Following the circuit court’s order denying MBIC’s motion for declaratory judgment,
MBIC filed a petition for leave to appeal in this court. We denied that petition.

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No. 2022AP742

trial, MBIC stipulated to a judgment in the amount of $150,000 (conditioned on the
outcome of this appeal), and, pursuant to that stipulation, the court entered an order
awarding Bolger a judgment in that amount against MBIC. MBIC now appeals that
order, arguing that the policy unambiguously did not provide liability coverage to
the Achtenhagens for Bolger’s injury.

DISCUSSION

¶8 Where a circuit court’s denial of declaratory judgment turns upon its
interpretation of an insurance policy, a question of law is presented that we review
de novo. See Dostal v. Strand, 2023 WI 6, ¶18, 405 Wis. 2d 572, 984 N.W.2d 382.
Similarly, we independently interpret an insurance policy to determine whether
coverage is provided, id., ¶20, and whether any ambiguity exists, Varda v. Acuity,
2005 WI App 167, ¶8, 284 Wis. 2d 552, 702 N.W.2d 65.

¶9 “Contracts for insurance typically impose two main duties: the duty
to indemnify the insured against damages or losses, and the duty to defend against
claims for damages.” Olson v. Farrar, 2012 WI 3, ¶27, 338 Wis. 2d 215, 809
N.W.2d 1. “An insurer must indemnify an insured against losses that are covered
under the terms of the policy.” Id., ¶28. However, an “insurer is under an obligation
to defend only if it could be held bound to indemnify the insured, assuming that the
injured person proved the allegations of the complaint, regardless of the actual
outcome of the case.” Id., ¶29 (citation omitted). MBIC refused to provide a
defense to the Achtenhagens for Bolger’s lawsuit. Therefore, the question on this
appeal is whether MBIC had a duty to defend Achtenhagens under the policy
because it “could be held bound to indemnify” them. See id.

¶10 To answer this question, we apply the four-corners rule. See id., ¶33.
Under the four-corners rule, “[a]n insurer’s duty to defend an insured is determined
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No. 2022AP742

by comparing the allegations of the complaint to the terms of the insurance policy.”
Fireman’s Fund Ins. Co. of Wis. v. Bradley Corp., 2003 WI 33, ¶19, 261 Wis. 2d
4, 660 N.W.2d 666. The “rule prohibits a court from considering extrinsic evidence
when determining whether an insurer breached its duty to defend.” Water Well
Sols. Serv. Grp., Inc. v. Consolidated Ins. Co., 2016 WI 54, ¶15, 369 Wis. 2d 607,
881 N.W.2d 285. Furthermore, “a court must liberally construe the allegations
contained in the underlying complaint [and] assume all reasonable inferences from
the allegations made in the complaint.” Id.

¶11 The Wisconsin standard for determining whether an insurance policy
provides coverage is well settled, and it involves three steps of analysis.

[A] court first looks to the initial grant of coverage…. “If
the court determines that the initial grant of coverage does
cover the type of claim presented, the second step requires
the court to examine the policy’s exclusions to determine
whether coverage has been withdrawn by an exclusion.”
“[I]f coverage for the claim has been withdrawn by an
exclusion, the court examines any exceptions to that
exclusion that might reinstate coverage for the claim.”

Schinner v. Gundrum, 2013 WI 71, ¶37, 349 Wis. 2d 529, 833 N.W.2d 685 (second
alteration in original; citations omitted). “We interpret an insurance contract as it
would be understood by a reasonable person in the position of the insured,” and “we
seek to ‘give effect to the intent of the contracting parties.’” Id., ¶38 (citation
omitted). When interpreting an insurance policy, we give the words used in the
policy their common and ordinary meaning. Wadzinski v. Auto-Owners Ins. Co.,
2012 WI 75, ¶11, 342 Wis. 2d 311, 818 N.W.2d 819.

¶12 “Where ambiguity exists in a grant of coverage, we will construe the
policy against the drafter, and in favor of the reasonable expectations of the
insured.” Id. An insurance policy’s grant of coverage can present ambiguity in one

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No. 2022AP742

of two ways. First, the “[t]erms of an insurance policy may be inherently
ambiguous.” Frost ex rel. Anderson v. Whitbeck, 2002 WI 129, ¶18, 257 Wis. 2d
80, 654 N.W.2d 225. Second, and as relevant to the policy in this case, “a clear and
unambiguous provision may be found ambiguous in the context of the entire
policy.” Folkman v. Quamme, 2003 WI 116, ¶19, 264 Wis. 2d 617, 665 N.W.2d
857.

The test for determining whether contextual ambiguity exists
is the same as the test for ambiguity in any disputed term of
a policy. That is, are words or phrases of an insurance
contract, when read in the context of the policy’s other
language, reasonably or fairly susceptible to more than one
construction?

Id., ¶29. “[I]nconsistencies in the context of a policy must be material to the issue
in dispute and be of such a nature that a reasonable insured would find an alternative
meaning.” Id., ¶32.

¶13 Turning to the policy at issue in this case, we begin with the policy’s
declarations page, “which is ‘generally the portion of an insurance policy to which
the insured looks first,’ and ‘is the most crucial section of the policy for the typical
insured.’” See id., ¶37 (citations omitted). The declarations page stated that “the
premises covered by this policy is located at” a specified address in Dousman,
Wisconsin.

¶14 The parties agree that the policy provided an initial grant of liability
coverage for “personal liability” and “medical payments to others.”4 The parties
also agree that the initial grant of coverage was superseded—barring an applicable

4
The coverage for “medical payments to others” included coverage for bodily injury that
occurred “off the ‘insured location’” and was “caused by the activities of an ‘insured.’” The
coverage for “personal liability” similarly did not limit coverage to an “insured location.”

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No. 2022AP742

exception—by the exclusion, which states that the liability coverage did not apply
to bodily injury “[a]rising out of” “[t]he ownership, maintenance, use, loading or
unloading of … motorized land conveyances … owned or operated by … an
‘insured.’”5

¶15 We therefore turn to the policy’s various exceptions to that exclusion.
The policy states that the “exclusion does not apply to”:

(1) A trailer not towed by or carried on a motorized land
conveyance.

(2) A motorized land conveyance designed for recreational
use off public roads, not subject to motor vehicle registration
and:

(a) Not owned by an “insured”; or

(b) Owned by an “insured” and on an “insured
location”;

(3) A motorized golf cart when used to play golf on a golf
course;

(4) A vehicle or conveyance not subject to motor vehicle
registration[6] which is:

(a) Used to service an “insured’s” residence;

(b) Designed for assisting the handicapped; or

(c) In dead storage on an “insured location[.]”

5
The policy also includes an exclusion to coverage for “personal liability” and “medical
payments to others” for bodily injury “[a]rising out of a premises” “[o]wned by an insured” “that
is not an ‘insured location.’” MBIC does not argue that this particular exclusion applies, and we
will not consider it further.
6
MBIC does not contend that the UTV was not a “conveyance” or that it was “subject to
motor vehicle registration.”

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No. 2022AP742

“Insured location” was defined by the policy as, in relevant part, the “residence
premises,” which, in turn, was defined as the “one family dwelling, other structures,
and grounds” “where you reside and which is shown as the ‘residence premises’ in
the” declarations page (i.e., the Dousman residence).

¶16 The parties disagree whether Exception (4)(a) applies to the
“occurrence”7 in this case and, relatedly, whether its application is ambiguous.
According to MBIC, Exception (4)(a) applies only to a conveyance that was
servicing the Dousman residence at the time of the occurrence, and the complaint
contained “no allegations … that the injury arose out of the use of the UTV
servicing the insured premises in Dousman.” MBIC further asserts that the parties
“clearly” did not intend the policy to cover a “recreational” UTV accident at a
separate residence than the one declared in the policy.

¶17 Conversely, Bolger contends that Exceptions (1)-(4) “create a
textbook example of ambiguity.” Bolger argues that, in addition to MBIC’s
interpretation noted above, “a reasonable insured [c]ould also conclude that
[Exception (4)(a)] does not require the [UTV] to be in use servicing the insured’s
residence at the time of [the occurrence].” Bolger states a reasonable insured could
interpret Exception (4)(a) as requiring only that the UTV at one point serviced the
“‘insured’s’ residence,” and containing no geographic or use limitation beyond that.
Bolger also claims that because “an ‘insured’s’ residence” is not a defined term in
the policy, the Achtenhagens’ Winchester residence could fall within the meaning
of the term.

7
The policy defined an “occurrence” as an “accident … which results” in “[b]odily injury”
or “[p]roperty damage.” MBIC does not contend that the UTV accident did not constitute an
“occurrence.”

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No. 2022AP742

¶18 Although no Wisconsin appellate court has previously interpreted the
particular language used in the policy’s liability coverage section, we agree with
Bolger that Exception (4)(a) is ambiguous when considered within the context of
the entire policy. It is unclear from the exception’s language, “[u]sed to service,”
whether liability coverage exists only if the occurrence takes place while a
conveyance is servicing “an ‘insured’s’ residence,” or if coverage exists regardless
of where the occurrence takes place provided the conveyance at one point serviced
“an ‘insured’s’ residence.”8

¶19 Thus, there are two reasonable interpretations of Exception (4)(a).
Either the exception: (1) reinstates coverage for an occurrence resulting in bodily
injury at the “‘insured’s’ residence” arising out of a conveyance that was servicing
that residence at the time of the occurrence; or (2) reinstates coverage for an
occurrence resulting in bodily injury at any location arising out of a conveyance that
serviced the “‘insured’s’ residence” at some point, but not necessarily at the time of
the injury. Neither of these interpretations is unreasonable when the meaning of

8
We acknowledge that ambiguity may also exist with respect to Exception (4)(a)’s use of
the term “an ‘insured’s’ residence.” That term is not defined in the policy, unlike the terms
“[i]nsured location” and “[r]esidence premises.” However, because we find ambiguity in
Exception (4)(a)’s “[u]sed to service” language, which is dispositive of the coverage issue, we need
not address whether the undefined term “an ‘insured’s’ residence” creates additional ambiguity.
See Barrows v. American Fam. Ins. Co., 2014 WI App 11, ¶9, 352 Wis. 2d 436, 842 N.W.2d 508
(2013) (“An appellate court need not address every issue … when one issue is dispositive.”).

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No. 2022AP742

Exception (4)(a) is “ascertained with reference to the contract as a whole.” 9 See
Folkman, 264 Wis. 2d 617, ¶24 (citation omitted).

¶20 To explain, Exceptions (1)-(4) to the exclusion reinstate coverage for
“personal liability” and “medical payments to others” with varying degrees of
specificity as to conveyance use and the location of any injury. Exception (4)(c)
imposes a geographic and use limitation by limiting reinstated coverage to a bodily
injury arising out of a vehicle or conveyance “which is” “[i]n dead storage on an
‘insured location.’”10 (Emphasis added.) Conversely, Exception (4)(b) imposes no
geographic limitation or use limitation on the reinstatement of liability coverage. It
provides coverage for bodily injury arising out of a vehicle or conveyance
“[d]esigned for assisting the handicapped.” The exception does not geographically
limit the reinstatement of liability coverage by using language such as “on an

9
At least one other jurisdiction has interpreted similar policy language in a third manner.
See Cookson v. Liberty Mut. Fire Ins. Co., 34 A.3d 1156, 1159-60 (Me. 2012) (holding that
whether the exception applies depends on whether the average insured would “commonly employ”
the conveyance at issue to service his or her residence). We further note that a number of other
jurisdictions have also addressed similar, if not identical, policy language and have each concluded
that one of the two interpretations identified in this opinion unambiguously applies. See, e.g.,
Bumgardner v. Terra Nova Ins. Co., 806 So. 2d 945, 949 (La. Ct. App. 2002) (“We do not believe
that the exception to the exclusion can be so broadly construed to provide coverage for an accident
that did not occur on an insured location and that involved a vehicle or conveyance that is rarely, if
ever, used to service the insured’s residence simply because the insured may have used it at one
time to do so.”); Nationwide Mut. Ins. Co. v. Prevatte, 423 S.E.2d 90, 91, 93 (N.C. Ct. App. 1992)
(“The policy at issue provides that the ATV be used to service the insured’s residence, not that the
ATV be used to service the insured’s residence at the time of the accident.”); Balboa Ins. Co. v.
Rhymer, No. 11-3440, 2013 WL 12241444, at *3 (D.S.C. Jan. 11, 2013) (“Although Balboa
contends that the exception does not apply because the ATV was not being used to service the
insured’s residence at the time of the accident, the policy language does not so restrict the
exception.”). We do not find these cases persuasive, given the fact that they are from outside of
Wisconsin and did not consider the policy as a whole to determine whether the language used in
the relevant exception was contextually ambiguous. See Roy v. St. Lukes Med. Ctr., 2007 WI App
218, ¶15, 305 Wis. 2d 658, 741 N.W.2d 256 (“[C]ase law from outside jurisdictions is not
controlling in Wisconsin.”).
10
The emphasized language is also used in Exception (2), which limits coverage for bodily
injury arising out of a conveyance “[o]wned by an ‘insured’ and on an ‘insured location.’”
(Emphasis added.)

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No. 2022AP742

‘insured location’” or “[i]n dead storage.” The vehicle or conveyance must simply
be “[d]esigned for assisting the handicapped.”

¶21 Importantly, the exceptions to the exclusion for “personal liability”
and “medical payments to others” that impose a geographic limitation are not all
limited to the “insured location.” Exception (3) limits the reinstatement of liability
coverage to a specific location and to a specific vehicle or conveyance use, stating
that coverage exists for bodily injury arising out of a “motorized golf cart when used
to play golf on a golf course.” (Emphasis added.) Thus, a reasonable insured could
conclude that where the policy limits the reinstatement of liability coverage to a
geographic location, it states that the bodily injury must arise out of a vehicle or
conveyance “on” or “in” a particular location. Similarly, a reasonable insured could
conclude that where the policy limits the reinstatement of liability coverage to a
particular vehicle or conveyance use at the time of the injury, it states that the bodily
injury must arise out of the vehicle or conveyance “when used to” carry out the
activity.

¶22 Exception (4)(a) provides for the reinstatement of liability coverage
for a vehicle or conveyance “which is” “used to service” a location. However, it
does so using language that differs from that used to define limitations to the
reinstatement of coverage in other exceptions. Specifically, Exception (4)(a)
contains no geographically limiting language like Exceptions (2) (“on an ‘insured
location’”), (4)(c) (same), or (3) (“on a golf course”). (Emphasis added.) Nor does
Exception (4)(a) contain language limiting coverage to a particular use at the time
of the bodily injury like Exception (3) (“when used to”).

¶23 Without the language used in the other exceptions to limit the
reinstatement of liability coverage by a particular geographic location or by a

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No. 2022AP742

particular use at the time of the bodily injury, a reasonable insured could interpret
Exception (4)(a) to offer such coverage anywhere for any location or purpose, so
long as the conveyance was once “[u]sed to service an ‘insured’s’ residence.”
Further, an insured could reasonably conclude such coverage would be reinstated
for bodily injury occurring due to the use of a UTV only while servicing “an
‘insured’s’ residence.” Such an interpretation could be seen by a reasonable insured
as consistent with the declarations page and the parties’ intent. As Bolger argues
on appeal, “[b]ecause MBIC chose to use disparate phrases and definitions within
its various exceptions, a reasonable insured [c]ould conclude that such provisions
lacking particular geographic limitation are not so limited.”

¶24 MBIC repeatedly emphasizes that a reasonable insured would not
expect MBIC to provide liability coverage in this case because the policy was issued
to cover the Dousman residence.11 According to MBIC, a “homeowner’s insurance
policy is issued to cover a specific premises and activities that occur in conjunction
with that premises.”

¶25 As explained above, however, the policy undoubtedly extended
liability in some circumstances beyond the Dousman residence. For example,
Exception (3) provided coverage for injuries arising on a golf course; yet, the
complaint and the policy lacked any allegation or evidence that there was a golf
course at the Dousman residence. Furthermore, MBIC chose to specify that it would

11
MBIC further contends that had the Achtenhagens wanted coverage for an occurrence
resulting in bodily injury arising out of a conveyance “for any use, anywhere, so long as it had at
one time in the past been used to service the Dousman residence,” “an endorsement was available
to be added to the … policy which would have covered use of the UTV away from the insured
residence.” However, as Bolger asserts in his brief-in-chief, MBIC’s argument goes beyond the
proper standard of insurance policy interpretation under the four-corners rule, and we will not
consider any purported endorsements to the policy that were not included in the policy itself or in
the complaint. See Water Well Sols. Serv. Grp., Inc. v. Consolidated Ins. Co., 2016 WI 54, ¶15,
369 Wis. 2d 607, 881 N.W.2d 285.

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No. 2022AP742

cover medical payments to others if the bodily injury occurred “off the ‘insured
location’” and it was “caused by the activities of an ‘insured.’” It similarly did not
limit personal liability coverage to an “insured location.” While it is reasonable for
an insured to assume that coverage would typically only exist at the “insured
residence,” it is equally reasonable, given the foregoing context, for an insured to
interpret Exception (4)(a) as providing no such limitation.

¶26 MBIC additionally argues that this court’s decision in Varda supports
its position that Exception (4)(a) unambiguously provides liability coverage only if
the occurrence happens at, and while a conveyance is servicing, the Dousman
residence. In Varda, Acuity issued an insurance policy to the Quella family that
included an exclusion for “[t]he ownership, maintenance, use, loading or unloading
of motor vehicles or all other motorized land conveyances, including trailers, owned
or operated by or rented or loaned to an insured.” Varda, 284 Wis. 2d 552, ¶14 n.5
(alteration in original). The policy also included an exception to the exclusion “for
motorized land conveyances for vehicles ‘not subject to motor vehicle
registration … [u]sed to service an insured’s residence.’” Id., ¶20 (alteration in
original).

¶27 During the insurance coverage period in that case, an insured member
of the Quella family was cutting someone else’s lawn using a “riding mower” while
Varda was “walking through a neighbor’s yard adjacent to the yard being mowed.
A rock thrown up by the mower hit Varda in the eye, injuring her.” Id., ¶¶3-4.
Varda sued a number of individuals and entities, including Acuity. Id., ¶5. The
circuit court determined that the policy did not provide coverage for Varda’s injuries
because the exclusion for motor vehicles and motorized land conveyances
unambiguously applied to the riding mower used by the insured. Id., ¶14.

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No. 2022AP742

¶28 On appeal, Varda argued that the “phrase ‘motorized land
conveyance’ is ambiguous” and “that, in the absence of any definition within the
policy, an ordinary person in her position would not expect to have to buy separate
lawn mower insurance to protect her family.” Id. In interpreting the exclusion to
include a riding mower, we cited a Supreme Court of Iowa case and noted that the
policy provided to the Quellas

would … have provided coverage [under the exception] if
[the insured] had been mowing his own lawn when an
accident happened. But there would be no need for an
exception that restored coverage for riding lawn mowers that
service the insured’s residence unless the motorized land
conveyance exclusion applied to the larger class of riding
mowers.

Id., ¶20 (citing Gracey v. Heritage Mut. Ins. Co., 518 N.W.2d 372, 373-74 (Iowa
1994)).

¶29 According to MBIC, our interpretation of the exception in Varda “is
consistent with [its] interpretation in this matter” because the Varda court held that
“no coverage would exist if [the conveyance was] used at a different residence.”

¶30 We agree with Bolger that Varda is distinguishable from the facts in
this case. The Varda decision did not examine the policy as a whole to determine
whether the exception was ambiguous. Notably, in Varda, we did not closely
examine the exception in the policy—or the policy as a whole—because the relevant
issue was whether language used in the exclusion was ambiguous. We simply
discussed the exception to aid in our analysis of the exclusion, and we used that
particular situation (i.e., “if [the insured] had been mowing his own lawn when an
accident happened”) as an example for purposes of defining whether the lawn
mower was a motorized land conveyance. Varda did not argue that the exception

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No. 2022AP742

applied to the occurrence giving rise to her injury or that the exception was
ambiguous. See id., ¶2.

¶31 In other words, while the Varda decision correctly stated that
coverage would have been reinstated for injuries arising from the use of the lawn
mower if the injuries occurred at the insured residence, we did not consider or
address whether coverage could not be reinstated if the injuries occurred elsewhere,
provided that the lawn mower was used at some time to service the insured
residence. Thus, Varda cannot be relied upon as MBIC asserts—to dictate that the
UTV must have been used during the occurrence to service the Dousman residence
in order for Exception (4)(a) to apply and reinstate MBIC’s liability coverage in this
case.

¶32 In all, we conclude that Exception (4)(a), when read within the context
of the whole policy, has two reasonable interpretations. Either the
exception: (1) reinstates coverage for an occurrence resulting in bodily injury at “an
‘insured’s’ residence” arising out of a conveyance that was servicing that residence
at the time of the occurrence; or (2) reinstates coverage for an occurrence resulting
in bodily injury at any location arising out of a conveyance that serviced “an
‘insured’s’ residence” at some point, but not necessarily at the time of the injury.
Because the policy is ambiguous, we construe the policy against MBIC and in favor
of the reasonable expectations of the insured. See Wadzinski, 342 Wis. 2d 311, ¶11.

¶33 Under the second reasonable interpretation, MBIC does not argue that
Bolger’s complaint did not contain allegations that, if true, would require MBIC to
defend and indemnify the Achtenhagens. See Farrar, 338 Wis. 2d 215, ¶¶28-29.
We will not develop an argument on MBIC’s behalf. See Industrial Risk Insurers
v. American Eng’g Testing, Inc., 2009 WI App 62, ¶25, 318 Wis. 2d 148, 769

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No. 2022AP742

N.W.2d 82 (“[W]e will not abandon our neutrality to develop arguments.”).
Therefore, we conclude that MBIC had a duty to defend the Achtenhagens, and we
affirm the circuit court’s order.

By the Court.—Order affirmed.

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