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2000 WI 85

Vogel v. Russo

Wisconsin Supreme Court

Decided July 7, 2000

Wisconsin Supreme Court · decided 2000-07-07

Good law ✅— No negative treatment on recordhow we know

Decided 2000-07-07

How this case has been cited

Cited by 32 later decisions — most recently June 2023 · most notably American Family Mutual Insurance v. American Girl, Inc. (2004), Insurance Co. of North America v. Cease Electric Inc. (2004)

2 federal appellate · 23 state decisions

180200020102020decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE

¶1¶ 30. (dissenting). The majority opinion determines that diminution in value of the Vogels' home is not covered by the West Bend comprehensive general liability insurance policy because the damages do not constitute "property damage" or "loss of use" and are excluded under the business risk exclusion of the policy. Majority op. ¶¶ 19-21, 26.1 disagree.

¶2¶ 31. I agree with the circuit court and court of appeals that there was physical injury to tangible property other than Limbach's work product, namely the entire home, and that this injury constitutes property damage covered by the West Bend policy. The damage to the Vogels' home extended beyond damaged woodwork, flooring and carpeting. According to the engineering consultant, the walls could collapse and the ventilation was inadequate to keep the brick and wood frame dry. Majority op. ¶ 7. These problems have in turn affected and reduced the structural integrity of the home. Such a defective home can constitute "loss of use," which is explicitly defined in the policy as property damage.

¶3¶ 32. The diminished value of the home reflects the fact that the home was beyond repair, that it was not saleable, and, therefore, was essentially useless. Diminution of value is merely a means of measuring *520the damages sustained as a result of the property damage.

¶4¶ 33. The business liability or business risk exclusion denying coverage for repair or replacement expenses associated with the insured's faulty workmanship or property damage to the insured's own work or work product does not come into play in this case. The property damage here is to the entire home caused by the faulty workmanship of the insured; thus, it falls outside the exclusion and is properly the subject of the policy.

¶5¶ 34. For the reasons stated, I dissent.

¶6¶ 35. I am authorized to state that Justice WILLIAM A. BABLITCH joins this dissent.

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