Kevin John Kobylarczyk v. Tyler J. Huckstorf

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.
May 28, 2025
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. 2023AP1861 Cir. Ct. No. 2021CV45

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

KEVIN JOHN KOBYLARCZYK AND MELINDA KOBYLARCZYK,

PLAINTIFFS-APPELLANTS,

V.

TYLER J. HUCKSTORF AND JEFFREY M. HUCKSTORF,

DEFENDANTS,

COUNTRY MUTUAL INSURANCE COMPANY,

DEFENDANT-RESPONDENT.

APPEAL from an order of the circuit court for Florence County:
LEON D. STENZ, Judge. Affirmed.

Before Stark, P.J., Hruz, and Gill, 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).
No. 2023AP1861

¶1 PER CURIAM. Kevin and Melinda Kobylarczyk appeal from the
circuit court’s order granting Country Mutual Insurance Company’s motion for
summary judgment and dismissing Country Mutual from the instant case. The
court concluded that the Kobylarczyks’ allegations in the lawsuit were insufficient
to show that Kevin’s injuries were caused by an “occurrence” to which coverage
applies. As a result, there was no initial grant of coverage for any of the
Kobylarczyks’ claims against the Huckstorfs, and Country Mutual had no duty to
defend or indemnify its insureds, Jeffrey and Tyler Huckstorf. We affirm. 1

BACKGROUND

¶2 The Kobylarczyks sued Jeffrey and Tyler Huckstorf, father and son
respectively, following an altercation at a bar. Specifically, the Kobylarczyks
alleged claims for battery against Jeffrey and Tyler, negligent
entrustment/supervision against Jeffrey, and Melinda alleged a claim for loss of
consortium against both Jeffrey and Tyler. According to the Kobylarczyks’
complaint, while Kevin and the Huckstorfs were at the bar, “a discussion arose
between” Jeffrey and Kevin “in the vicinity of the bar’s pool table.” Jeffrey then
“shoved and punched” Kevin “in the face.” The Kobylarczyks further alleged
that, during the altercation, Tyler “made efforts to prevent others from coming to”

1
Both parties’ briefings on appeal violate the Rules of Appellate Procedure. At times,
the Kobylarczyks improperly cite only to their appendix in support of factual assertions in their
briefs. See WIS. STAT. RULE 809.19(1)(d)-(e) (2023-24); United Rentals, Inc. v. City of
Madison, 2007 WI App 131, ¶1 n.2, 302 Wis. 2d 245, 733 N.W.2d 322 (stating that the appendix
is not the record). Country Mutual cites an unpublished opinion issued by this court before July
2009, in violation of WIS. STAT. RULE 809.23(3)(b) (2023-24). As a high-volume, appellate
court, we are entitled to expect briefing to follow the basic Rules of Appellate Procedure. We
caution both the Kobylarczyks’ and Country Mutual’s counsel that future violations of the Rules
of Appellate Procedure may result in sanctions. See WIS. STAT. RULE 809.83(2) (2023-24).

All references to the Wisconsin Statutes are to the 2023-24 version.

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No. 2023AP1861

Kevin’s aid, and Tyler “kicked” Kevin. After the altercation, Tyler “launched an
unprovoked and unexpected strike, punching” Kevin “directly in the face, causing
him to lose consciousness.” The Kobylarczyks alleged that Tyler had not yet
reached the legal drinking age at the time of the incident, yet he was “consuming
intoxicating alcoholic beverages provided to him by and under the supervision of
his father, Jeffrey.”

¶3 At the time of the incident, the Huckstorfs were covered by a
homeowners insurance policy issued by Country Mutual. The policy states that
“[i]f a claim is made or a suit is brought against an ‘insured’ for damages because
of ‘bodily injury’ … caused by an ‘occurrence’ to which this coverage applies,”
Country Mutual will provide a defense and “[p]ay up to ‘our’ limit of liability for
damages for which an ‘insured’ is legally liable.” The policy defines “occurrence”
as “an accident … which results” in “[b]odily injury.” The policy expressly
excludes from coverage both bodily injury “that may reasonably be expected or
intended to result from the intentional acts of an ‘insured’” and bodily injury
“arising from any criminal act.”

¶4 The Huckstorfs notified Country Mutual that the Kobylarczyks had
sued them. Upon investigation, Country Mutual notified the Huckstorfs that “the
allegations contained in the Kobylarczyks’ complaint [were] not covered by” the
policy. Therefore, Country Mutual denied coverage, including providing a
defense to the Huckstorfs, and did not intervene in the action.

¶5 Upon learning that Country Mutual was the Huckstorfs’ insurer, the
Kobylarczyks filed an amended complaint adding Country Mutual as a defendant
and alleging that the policy between Country Mutual and the Huckstorfs “was in
full force and effect at the time of, and provides coverage for, the facts and claims

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asserted herein.” The remaining factual allegations in the amended complaint
mirrored those alleged in the original complaint.

¶6 Country Mutual moved for summary judgment, seeking dismissal
from the lawsuit. Country Mutual argued that there was no coverage under the
policy because: there was no “occurrence,” as Jeffrey and Tyler’s actions resulting
in Kevin’s bodily injuries were not “accidental” and as Jeffrey’s act of providing
Tyler with alcohol was intentional, not accidental. Country Mutual further
asserted that even if there had been an “occurrence,” the policy precluded
coverage for Kevin’s bodily injuries because Jeffrey and Tyler’s actions were
intentional and/or criminal acts. In addition, Country Mutual argued that any
alleged negligent supervision by Jeffrey was not accidental because it “was merely
a continuation of intentional acts” and that the Kobylarczyks had failed to allege
that “Jeffrey committed any independent negligent act that accidentally caused”
Kevin’s bodily injuries. Finally, Country Mutual contended that the
Kobylarczyks’ loss of consortium claim was not covered under the policy because
it was a claim for damages, not an independent claim for personal injury.

¶7 The Kobylarczyks opposed Country Mutual’s motion for summary
judgment, without submission of a supporting affidavit, arguing that “Country
Mutual is responsible for providing liability coverage due to Jeffrey’s negligence
and is a proper party for this suit.” According to the Kobylarczyks, “[f]rom the
standpoint of … Jeffrey, Tyler’s punch and the injuries to Kevin were accidental”
because “Jeffrey did not expect or intend Tyler to … cause injury to Kevin” after
Jeffrey provided alcohol to Tyler. The Kobylarczyks further argued that “Jeffrey’s
failure to maintain supervision and control” of Tyler was “not a continuation of
later intentional acts.” The Huckstorfs joined the Kobylarczyks’ arguments “with
respect to coverage.”
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¶8 The circuit court granted Country Mutual’s motion for summary
judgment after determining that the “allegations contained in … [the] amended
complaint do not constitute an ‘occurrence’ pursuant to” the policy, and, therefore,
there was no initial grant of coverage for any of the Kobylarczyks’ claims against
the Huckstorfs. The court stated that there was no “accident” because Jeffrey
intentionally provided alcohol to Tyler and that the altercations and Jeffrey’s
supervision were “one incident.” The court therefore dismissed the Kobylarczyks’
claims against Country Mutual.

¶9 The Kobylarczyks now appeal.

DISCUSSION

¶10 We review an order for summary judgment de novo, using the same
methodology as the circuit court. Yahnke v. Carson, 2000 WI 74, ¶10, 236
Wis. 2d 257, 613 N.W.2d 102. Summary judgment shall be awarded if “there is
no genuine issue as to any material fact and … the moving party is entitled to a
judgment as a matter of law.” WIS. STAT. § 802.08(2).

¶11 This case also requires us to interpret an insurance policy, which we
review de novo. See Water Well Sols. Serv. Grp., Inc. v. Consolidated Ins. Co.,
2016 WI 54, ¶12, 369 Wis. 2d 607, 881 N.W.2d 285. We interpret insurance
policies to “give effect to the intent of the contracting parties.” American Fam.
Mut. Ins. Co. v. American Girl, Inc., 2004 WI 2, ¶23, 268 Wis. 2d 16, 673
N.W.2d 65. In doing so, “[w]e construe policy language as a reasonable person in
the position of the insured would understand such language.” Water Well Sols.,
369 Wis. 2d 607, ¶14. “However, we 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.” American Girl, 268 Wis. 2d 16, ¶23.
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¶12 “Insurance policies are contracts that generally establish an insurer’s
‘duty to indemnify the insured against damages or losses, and the duty to defend
against claims for damages.’” Water Well Sols., 369 Wis. 2d 607, ¶14 (citation
omitted). It is well established that an insurer’s duty to defend its insured is
broader than its duty to indemnify because 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., ¶17 (citation omitted).

¶13 The parties disagree if we are reviewing whether Country Mutual
has a duty to defend or a duty to indemnify. The Kobylarczyks contend that the
issue before this court is whether the amended complaint “stated a claim which
triggered Country Mutual’s duty to defend” the Huckstorfs. Conversely, Country
Mutual argues that its duty to defend was never litigated before the circuit court
and that the issue addressed by the circuit court was whether there was an
“occurrence” for purposes of coverage under the policy—i.e., “whether Country
Mutual owe[s] a duty to indemnify” the Huckstorfs. Further, Country Mutual
asserts that the Kobylarczyks “abandoned” the indemnity issue by instead briefing
on appeal only whether Country Mutual has a duty to defend.

¶14 The confusion stems largely from Country Mutual’s decision in this
case not to “follow one of” the “strongly encourage[d]” and “judicially-preferred
approaches” to disputing coverage. See id., ¶27; Talley v. Mustafa, 2018 WI 47,
¶24, 381 Wis. 2d 393, 911 N.W.2d 55. For example, Country Mutual did not
“provide an initial defense” to the Huckstorfs “and seek a declaratory judgment on
coverage.” See Water Well Sols., 369 Wis. 2d 607, ¶27. Nor did Country Mutual
“request a bifurcated trial on the issue of coverage and move to stay all
proceedings on liability until a coverage determination [was] made.” See id.
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Rather, Country Mutual made “a unilateral determination to refuse to defend” the
Huckstorfs. See id. An insurer who chooses this option “does so at its own peril.”
Id., ¶28. However, if the insurer is ultimately correct—and no coverage exists
under a policy—then the insurer faces no adverse consequences. See Marks v.
Houston Cas. Co., 2016 WI 53, ¶¶2, 38, 47, 369 Wis. 2d 547, 881 N.W.2d 309.

¶15 We conclude that the issue before this court is whether Country
Mutual has a duty to indemnify the Huckstorfs given the terms of coverage in the
policy. Although Country Mutual unilaterally refused to provide a defense to the
Huckstorfs, and the Huckstorfs—Country Mutual’s insured in this case—did not
assert a claim for coverage, the Kobylarczyks ultimately added Country Mutual as
a party to the lawsuit. Once Country Mutual filed its motion for summary
judgment, the issue became one of whether liability coverage to the Huckstorfs
existed for the Kobylarczyks’ tort claims against them because Country Mutual
had already refused to provide a defense to the Huckstorfs, which the Huckstorfs
did not dispute. Accordingly, our review is not limited to the four-corners rule.
See Water Well Sols., 369 Wis. 2d 607, ¶15.

¶16 This context does not mean that the Kobylarczyks “abandoned” the
issue for appeal. As the Kobylarczyks argue, the issue before the circuit court was
whether the Huckstorfs’ policy provided coverage for the Kobylarczyks’ claims.
Although the Kobylarczyks frame the issue as a duty to defend on appeal—i.e.,
they apply the four-corners rule—the question remains whether there was an
“occurrence” for purposes of coverage.

¶17 We must also address which claims the Kobylarczyks argue that the
policy covers. As they did in the circuit court, the Kobylarczyks on appeal do not

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appear to argue that the policy independently provides coverage for their battery or
loss of consortium claims. Thus, we will limit our review accordingly.

¶18 “There is an established framework for determining whether
coverage is provided under the terms of an insurance policy.” Olson v. Farrar,
2012 WI 3, ¶40, 338 Wis. 2d 215, 809 N.W.2d 1. Only the first step of the
framework need be addressed here to determine whether Kevin’s injuries were
caused by an “occurrence.” That is, we examine whether the policy makes an
initial grant of coverage. Id., ¶41; Schinner v. Gundrum, 2013 WI 71, ¶37, 349
Wis. 2d 529, 833 N.W.2d 685 (“[I]f the court determines that the policy was not
intended to cover the asserted claims, it is not necessary to examine the policy’s
exclusions.”). “To determine if coverage exists, we first compare the allegations
in the plaintiff’s complaint, as supplemented by the extrinsic evidence submitted,
with the language of the policy to decide whether the facts allege an occurrence.”
Talley, 381 Wis. 2d 393, ¶25.

¶19 To reiterate, the policy defines “occurrence” as “an
accident … which results” in “[b]odily injury.” The policy excludes from
coverage bodily injury “that may reasonably be expected or intended to result
from the intentional acts of an ‘insured.’” “The word ‘accident,’ in accident
policies, means an event which takes place without one’s foresight or
expectation.” American Girl, 268 Wis. 2d 16, ¶37 (citation omitted). “A result,
though unexpected, is not an accident; the means or cause must be accidental.” Id.
(formatting altered; citation omitted). Stated differently, an “accident” is “[a]n
unintended and unforeseen injurious occurrence; something that does not occur in
the usual course of events or that could not be reasonably anticipated.” Schinner,
349 Wis. 2d 529, ¶60 (alteration in original; citation omitted).

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¶20 On appeal, the Kobylarczyks appear to concede that Tyler intended
to hit Kevin. Still, they broadly argue that “just because some acts are intentional
does not mean they cannot spawn negligent or accidental acts.” The Kobylarczyks
support their position by citing the following allegation contained in the amended
complaint: Jeffrey “did negligently provide [Tyler] with intoxicating alcoholic
beverages while Tyler was under the legal drinking age, and thereafter [Jeffrey]
did negligently supervise [Tyler] making it more likely that [Tyler] would conduct
himself in a manner as to create an unreasonable risk of harm to others.” They
further argue that “[t]here is nothing which suggests that Jeffrey had the foresight
or expectation that his son would punch Kevin.”

¶21 We agree with the Kobylarczyks’ general assertion that a negligent
supervision claim may precipitate insurance coverage under a policy similar to the
one present here when a plaintiff alleges facts independent from an intentional act
giving rise to an injury. See Talley, 381 Wis. 2d 393, ¶30. However, “[m]erely
inserting negligence into a complaint that alleges only injuries caused by an
intentional assault and battery will not create an occurrence (defined as an
accident) under an insurance policy.” Id., ¶32. “Our focus is ‘on the incident or
injury that gives rise to the claim, not the [Kobylarczyks’] theory of liability.’”
See id., ¶27 (citation omitted). In other words, “we consider whether [the
Kobylarczyks] alleged facts against [Jeffrey] that show [Kevin’s] bodily injury
was caused by an accident, which would be an ‘occurrence.’” See id.

¶22 Here, the allegations pertinent to the negligent supervision claim
pled with any specificity are entirely dependent upon the intentional acts giving
rise to Kevin’s injury—namely, Tyler intentionally punching Kevin. See id., ¶29.
Essentially, the Kobylarczyks alleged in the amended complaint that Jeffrey and
Tyler were at a bar, that Jeffrey negligently provided alcohol to Tyler, that Jeffrey
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No. 2023AP1861

somehow negligently supervised Tyler, and that Tyler eventually punched Kevin
after Jeffrey had punched Kevin.

¶23 These allegations, even if proven to be true, are insufficient to
establish an “occurrence” because Tyler punching Kevin does not amount to
accidental conduct, and the Kobylarczyks failed to allege how Jeffrey negligently
provided alcohol to or supervised Tyler. Aside from their amended complaint, the
Kobylarczyks failed to add any other significant facts in response to Country
Mutual’s motion for summary judgment.2 Put differently, the Kobylarczyks did
not allege how Jeffrey’s acts of providing alcohol to Tyler and, thereafter,
somehow failing to supervise Tyler caused an “accident” that led to Kevin’s
injuries. Cf. Talley, 381 Wis. 2d 393, ¶30 (citing favorably a case in which an
appellate court in another jurisdiction ruled that a plaintiff sufficiently provided
facts showing an “occurrence” by alleging that an “employer was negligent in
failing to properly train its bouncer employees on how to safely evict unruly
patrons from the club and how to render first aid”).

¶24 On appeal, the Kobylarczyks contend that there are genuine issues of
material fact “surrounding the duty to supervise and control Tyler” that preclude
summary judgment, including: whether Tyler was in fact supervised or if he was
“out of control”; at what point Jeffrey’s supervision and control began and when it
ended; whether Jeffrey failed to properly supervise and maintain control of Tyler;

2
Jeffrey testified in his deposition that he was in the “back corner of the bar” “looking
for [his] phone” when Tyler hit Kevin. On appeal, the Kobylarczyks do not argue that this fact
would create an “occurrence” under the policy, and we will not consider it further in our analysis.
See Industrial Risk Insurers v. American Eng’g Testing, Inc., 2009 WI App 62, ¶25, 318
Wis. 2d 148, 769 N.W.2d 82 (stating that we will not abandon our neutrality to develop
arguments on behalf of a party).

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No. 2023AP1861

and whether any failure to supervise and control Tyler was a substantial factor in
bringing about Kevin’s injuries. None of these questions, however, create an issue
of material fact over liability coverage under the policy. Once Country Mutual
demonstrated that the factual allegations in pleadings, even if true, made clear that
the policy would not provide coverage, the Kobylarczyks bore the burden of
putting forth sufficient facts showing that coverage may still exist.
See Baumeister v. Automated Prods., Inc., 2004 WI 148, ¶12, 277 Wis. 2d 21,
690 N.W.2d 1 (“If a moving party has established a prima facie case, the opposing
party must then establish that there are disputed material facts, or undisputed
material facts from which reasonable alternative inferences could be drawn, that
entitle such a party to a trial.”).

¶25 The factual issues asserted by the Kobylarczyks above are precisely
the type of information lacking in the record, and which the Kobylarczyks failed to
provide in response to Country Mutual’s motion for summary judgment. In fact,
the Kobylarczyks failed to submit any affidavits or attached exhibits when
opposing Country Mutual’s motion. See WIS. STAT. § 802.08(3) (“When a motion
for summary judgment is made and supported as provided in this section, an
adverse party may not rest upon the mere allegations or denials of the pleadings
but the adverse party’s response, by affidavits or as otherwise provided in this
section, must set forth specific facts showing that there is a genuine issue for
trial.”). To the extent these questions remain and could have been material to a
coverage determination, the Kobylarczyks’ failure to make a record in that regard
cannot inure to their benefit so as to defeat an otherwise proper summary
judgment.

¶26 The Kobylarczyks further argue that we should consider in our
coverage analysis the liability statutes surrounding underage drinking with a
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No. 2023AP1861

parent, as well as the “substantial factor” and “proximate cause” analyses
applicable to negligence claims. However, neither the liability statutes nor general
negligence principles negate the requirement for the Kobylarczyks to provide facts
showing an “occurrence” in order for there to be coverage under the policy.
See Smith v. State Farm Fire & Cas. Co., 192 Wis. 2d 322, 333, 531 N.W.2d 376
(Ct. App. 1995) (“[T]he substantial factor test does not define the risks for which
coverage is afforded.”). Again, to sufficiently demonstrate that Country Mutual
had a duty to provide liability coverage, the Kobylarczyks were required to allege
sufficient facts showing “a separate basis for [Jeffrey’s] negligence—any
independent act by [Jeffrey] that accidentally caused [Kevin’s] injur[ies].”
See Talley, 381 Wis. 2d 393, ¶30. “Simply inserting the word ‘negligence’ into a
complaint”—essentially what the Kobylarczyks did here—“does not create
coverage if the complaint fails to allege specific facts to establish an occurrence.”
See id., ¶27.

¶27 Moreover, the Kobylarczyks’ failure to adequately allege facts
sufficient to show that coverage would apply under the policy is not forgiven by
their assertion that Jeffrey’s and Tyler’s deposition testimony shows that they each
acted in self-defense, which the Kobylarczyks argue is an exception in the policy
to the intentional acts exclusion. “If there is no occurrence, our analysis ends
because no coverage exists; the claims do not fall within the initial grant of
coverage.” Talley, 381 Wis. 2d 393, ¶25. In other words, we cannot determine
whether an exception applies to an exclusion because we have concluded that

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there is no initial grant of coverage under the policy for the Kobylarczyks’ claims
against the Huckstorfs.3

¶28 Because the circuit court correctly determined that the Kobylarczyks
failed to present facts that, if true, would constitute an occurrence under Country
Mutual’s policy, no initial grant of coverage has been established and, therefore,
Country Mutual has no duty to indemnify the Huckstorfs for any liability they may
have regarding the Kobylarczyks’ claims against them. Accordingly, we affirm
the circuit court’s decision granting Country Mutual summary judgment and
dismissing it from the lawsuit.

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

3
The Kobylarczyks raise several other issues related to the self-defense exception, none
of which we consider because the issues and arguments were raised for the first time on appeal in
the Kobylarczyks’ reply brief. See A.O. Smith Corp. v. Allstate Ins. Cos., 222 Wis. 2d 475, 492,
588 N.W.2d 285 (Ct. App. 1998) (“It is inherently unfair for an appellant to withhold an
argument from its main brief and argue it in its reply brief because such conduct would prevent
any response from the opposing party.”).

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