September 21, 2021

Volume XI, Number 264


September 20, 2021

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Employee Throws A Punch? Wisconsin Supreme Court Throws Away Employer’s Shot At Coverage

An employee punches a customer, and the customer sues the employer for negligent supervision/training. Is there insurance coverage for the negligence claim? No, the Wisconsin Supreme Court answered in Talley v. Mustafa, 2018 WI 47.

The issue raised in the case was whether a negligent supervision/training claim based on an employee’s intentional tort constituted an “occurrence” under the employer’s commercial general liability insurance policy. “This is the first time we have been asked to decide whether coverage exists based on an allegation that the employer should have trained the employee not to punch a customer in the face,” the Court dryly began its analysis. No insurance coverage existed for this claim, the Court explained, because there simply was no “accident”:

Intentionally punching someone in the face two times is not an accident under any definition. Accordingly, the negligent supervision claim against [the employer] can qualify as an occurrence only if facts exist showing that [the employer’s] own conduct accidentally caused [the customer’s] injuries. Because there are no facts in [the customer’s] complaint (or in any extrinsic evidence) alleging any specific separate acts by [the employer] that caused [the customer’s] injuries, there is no occurrence triggering coverage for the negligent supervision claim. The only specific assertion [the customer] made in this regard is that [the employee] should have trained [the employer] not to hit people. We hold that when a negligent supervision claim is based entirely on an allegation that an employer should have trained an employee not to intentionally punch a customer in the face, no coverage exists.

The Court was clear that an attenuated negligent supervision claim tacked on to an obviously intentional tort is insufficient to invoke coverage: “When a negligent supervision claims rests solely on an employee’s intentional act of assault and battery without any separate basis for a negligence claims against the employer, no coverage exists.” 

Copyright © 2021 Godfrey & Kahn S.C.National Law Review, Volume VIII, Number 136

About this Author

Mark Hancock, Litigation Attorney, Godfrey Kahn Law Firm

Mark Hancock is an associate in the Litigation Practice Group in the firm’s Madison office. He has litigated numerous complex commercial disputes in federal and state courts throughout the country, and in doing so he has addressed a wide variety of substantive legal areas, including contracts, business torts, insurance, bankruptcy, and intellectual property. Mark is also active in the firm’s pro bono practice.

Prior to joining Godfrey & Kahn, Mark clerked for the Honorable Barry G. Silverman of the U.S. Court of Appeals for the Ninth Circuit...