A recent appellate court decision confirms that an insurance company is not obligated to defend or compensate a homeowner accused of deliberately erecting a fence to harm his neighbors, raising questions about what constitutes an insurable event under standard liability policies. The ruling could affect how property disputes involving intentional acts are handled when insurance coverage is sought.
The case began when Rudy Ruiz and Debra A. Ruiz filed a complaint in Milwaukee County against Patrick Atkinson, alleging that he intentionally built and maintained a fence between their properties after they declined to sell their property to him. Midwest Family Mutual Insurance Company, which provided Atkinson with a homeowner’s policy, was also named as a party in the litigation. On March 18, 2026, the Court of Appeals for District I affirmed the circuit court’s order granting declaratory judgment in favor of Midwest Family Mutual Insurance Company.
According to the complaint, the Ruizes claimed that Atkinson’s actions were done “intentionally” and “maliciously,” with the specific aim of annoying them. The filing states that the fence was “unreasonable, unnecessary and maliciously done with the sole purpose of annoying [the Ruizes].” They further alleged that this conduct interfered with their use and enjoyment of their property. As relief, they sought damages for both diminished property value and emotional harm, as well as an injunction requiring removal of the fence.
After being sued, Atkinson submitted the claim to Midwest Family Mutual Insurance under his homeowner’s policy, which covers personal liability for damages due to “bodily injury” or “property damage” caused by an “occurrence.” The policy defines an occurrence as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.”
Midwest Family Mutual Insurance initially defended Atkinson under a reservation of rights but later asked for a judicial declaration that it had no duty to defend or indemnify him in this matter. The circuit court agreed with Midwest’s position, finding that constructing a fence is an intentional act rather than an accident and thus falls outside policy coverage. Atkinson appealed this decision.
In its analysis, the Court of Appeals reiterated established Wisconsin law on insurance interpretation: whether there is coverage depends on whether the complaint alleges facts constituting an accident as defined by policy language. Citing previous cases such as American Family Mutual Insurance Company v. American Girl Inc., Estate of Sustache v. American Family Mutual Insurance Company, and Stuart v. Weisflog’s Showroom Gallery Inc., the court noted that Wisconsin courts define an accident as “an event which takes place without one’s foresight or expectation.”
The appellate opinion stated: “The complaint alleges that Atkinson intentionally erected and maintained the fence and that the conduct was malicious and done for the purpose of annoying the Ruizes… Building a fence is not an accident under the policy because it was an intentional act.” The court further clarified: “Wisconsin law… focuses not on the result of the intentional act, but on the nature of the causal event.” Therefore, even if any resulting harm was unintended by Atkinson, it did not transform his deliberate action into an accident under policy terms.
Additionally, even if initial coverage were assumed arguendo (for argument’s sake), another provision would exclude coverage for “‘bodily injury’ or ‘property damage’ which is expected or intended by an ‘insured.’” Because plaintiffs specifically alleged intent to annoy them—describing expected or intended harm—the exclusion would apply regardless.
Atkinson argued during appeal that evidence developed during discovery should have been considered beyond just what was alleged in plaintiffs’ complaint; however, both parties agreed during proceedings that construction of the fence was intentional. The appeals court concluded: “Where the alleged and undisputed conduct is intentional… there is no coverage as a matter of law.”
Ultimately, because only intentional conduct formed basis for liability claims against Atkinson—not accidental events—the court held Midwest Family Mutual Insurance had no duty either to defend him in litigation or pay any resulting damages related to these claims.
The order was affirmed by Chief Judge White along with Judges Donald and Geenen in case number 2024AP1485 before Milwaukee County Circuit Court Judge Glenn H. Yamahiro.
Source: 2024AP1485_Ruiz_v_Atkinson_Opinion_Wisconsin_Court_of_Appeals.pdf
