Published: April 9, 2012
Author: Timothy Fenner
Over the last few weeks, there have been numerous articles in the newspaper, as well as on television, dealing
with the shooting death of a young man in Florida and another one in West Bend, Wisconsin. In both cases, the
shooters have claimed that the actions were justified on the basis of “self-defense.” I do not know the law in the
State of Florida relative to this issue, but Wisconsin recently enacted a statute which has been referred to as the
“Castle Doctrine” law. The reference is to the effect that a man’s home is his castle, and he can do anything to
protect his home.
On December 20, 2011, Section 895.62, Wis. Stats. became effective. The statute is entitled “Use of Force in
Response to Unlawful and Forcible Entry Into a Dwelling, Motor Vehicle, or Place Of Business; Civil Immunity.”
An “actor” is a person who uses force that is intended or likely to cause death or great bodily harm to another
person. The general rule is that an actor “…is immune from civil liability arising out of his or her use of force
that is intended or likely to cause death or great bodily harm if the actor reasonably believed that the force
was necessary to prevent imminent death or bodily harm to himself or herself or to another person and either
of the following applies: (a) the person against whom the force was used was in the process of unlawfully and
forcibly entering the actor’s dwelling, motor vehicle, or place of business, the actor was on his or her property
or present in the dwelling, motor vehicle, or place of business, and the actor knew or had reason to believe
that an unlawful and forcible entry was occurring” of “…(b) the person against whom the force was used was in
the actor’s dwelling, motor vehicle, or place of business after unlawfully and forcibly entering it…” The statute
allows the use of deadly force if the person has illegally entered a home, vehicle or place of business and the
owner (i.e., the actor) reasonably believed the force was necessary to prevent imminent death or great bodily
harm. There are some exceptions to the grant of immunity. For example, if a public safety worker enters
the actor’s dwelling, motor vehicle or place of business in the performance of his or her official duties and is
properly identified, the grant of immunity is not necessarily extended. Please note that the statute grants civil
immunity only if the actor “reasonably” believes that force was necessary to prevent imminent death or bodily
harm. This means that the issue of whether or not the statute is applicable in any particular case may be the
subject of a judicial determination as to what is “reasonable.” There can be circumstances where civil immunity
is not granted because it was unreasonable, given the facts and circumstances of a particular case, for the actor
to have shot the intruder.
An article appeared in one of the newspapers addressing the issue of insurance coverage in the event
someone were to assert a claim that the response of the actor, in a given factual situation, was “not reasonable”
under the statute; and, therefore, immunity was not extended. If a lawsuit to this effect is commenced, the
first question is whether or not there is any type of insurance coverage. If we assume the incident occurred in
a private residence, then the homeowner’s policy will potentially come into play. Virtually every homeowner’s
policy provides for an “intentional acts” exclusion from coverage. If the particular event causing the injury is
an “intentional act,” then the carrier in question is not obligated to provide a defense to the claim, nor pay any
judgment that may be entered. The news article reported that many carriers who write homeowner’s policies are silent as to whether or not their particular policies will provide coverage in the foregoing circumstance.
The article noted that some carriers are writing coverage, either as an endorsement to a policy, or a new policy
that will provide some degree of coverage for such claims, perhaps only to the extent of the cost of defense.
Whether or not these policies will also cover any damage award will be dependent upon the terms of the
policy. Lurking in the background, however, is a fundamental legal concept: Our public policy has always
been to the effect that you cannot insure against an intentional and wrongful act. This is a public policy that
is imbedded in law. To provide such coverage would be to relieve the actor of the consequences of his or her
intentional, wrongful act. By denying such coverage, the assumption is that this will act as a deterrent against
Therefore, the question becomes whether or not the standard homeowner’s policy is going to provide coverage.
I think in Wisconsin this will be a question of first impression, given the language of the statute. Although the
shooting of the victim is an intentional act, I can think of situations where a cause of action can be framed in
such a manner that the actor was “negligent” in the manner in which he or she responded to the unlawful entry.
Keep in mind that the statute requires the actor to have a “reasonable” belief that force is necessary to prevent
imminent death or bodily harm. If a jury determines that the actor’s response was reasonable, then there is no
liability because of the grant of civil immunity contained in the statute. If the jury determines that there was
not a reasonable belief, arguably the next question is whether or not the actor was “negligent” in arriving at his
or her particular belief in the circumstance presented. If negligence can be alleged and proven, then I think an
argument exists that the claim was based upon ordinary negligence (as opposed to intentional act), and thereby
covered by the applicable policy. Otherwise the intentional act exclusion would apply.
The enactment of the statute, as well as the shootings that have occurred, set the stage for future litigation.
There could be a court action that would specifically address the application of the statute and its relationship
to insurance coverage. Alternatively, the insurance industry can respond. Initial indications are that the
industry is responding to some degree by providing either an endorsement or special policies to provide for
coverage, at least insofar as the cost of defense is concerned. I suspect some carriers will be drafting specific
exclusions so that situations like the foregoing are not covered. However, this opens the door to whether or
not other incidents involving the use of weapons will be covered.
Whether or not you support the public policies embodied in the Castle Doctrine law is not my focus. Rather,
the focus is upon whether or not there is insurance coverage for the actor who may be subject to the
application of the statute. In this circumstance, coverage is problematic at best.
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