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STATE v. HYDRITE CHEMICAL CO.

Nos. 00-3344, 01-0580.

280 Wis.2d 647 (2005)

2005 WI App 60

695 N.W.2d 816

STATE of Wisconsin, Plaintiff, v. HYDRITE CHEMICAL COMPANY a/k/a Avganic Industries, Inc., Defendant-Third-Party Plaintiff-Appellant-Cross-Respondent, v. TRAVELERS CASUALTY & SURETY COMPANY f/k/a Aetna Casualty & Surety Company, American Casualty Company of Reading, PA, Chicago Insurance Company, Continental Casualty Company, First State Insurance Company and First State Underwriters Agency of New England Reinsurance Corp. a/k/a New England Reinsurance Corp., Granite State Insurance Company, Great American Surplus Lines Ins. Co. a/k/a American Empire Surplus Lines Ins. Co., International Surplus Alliance Insurance Co. a/k/a International Insurance Co., Certain Underwriters at Lloyds of London a/k/a Certain London Insurers, Affiliated FM Insurance Company, Northbrook Excess & Surplus Insurance Company, as predecessor to Allstate Insurance Company, American Motorists Insurance Company, Home Indemnity Company and Home Insurance Company, Third-Party Defendants, UNITED STATES FIRE INSURANCE CO., Third-Party Defendant-Respondent-Cross-Appellant, INTERSTATE FIRE AND CASUALTY COMPANY, Fourth-Party Plaintiff, v. MARYLAND CASUALTY COMPANY, Fourth-Party Defendant. STATE of Wisconsin, Plaintiff, v. HYDRITE CHEMICAL COMPANY a/k/a Avganic Industries, Inc., Defendant-Third-Party Plaintiff-Appellant, v. TRAVELERS CASUALTY & SURETY COMPANY f/k/a Aetna Casualty & Surety Company, American Casualty Company of Reading, PA, Chicago Insurance Company, Continental Casualty Company, First State Insurance Company and First State Underwriters Agency of New England Reinsurance Corp. a/k/a New England Reinsurance Corp., Granite State Insurance Company, Great American Surplus Lines Ins. Co. a/k/a American Empire Surplus Lines Ins. Co., International Surplus Alliance Insurance Co. a/k/a International Insurance Co., Certain Underwriters at Lloyds of London A/K/A Certain London Insurers, Affiliated FM Insurance Company, Northbrook Excess & Surplus Insurance Company, as predecessor to Allstate Insurance Company, American Motorists Insurance Company, Home Indemnity Company and Home Insurance Company, Third-Party Defendants, UNITED STATES FIRE INSURANCE CO., Third-Party Defendant-Respondent, INTERSTATE FIRE AND CASUALTY COMPANY, Fourth-Party Plaintiff, v. MARYLAND CASUALTY COMPANY, Fourth-Party Defendant.

Court of Appeals of Wisconsin.

Decided March 17, 2005.

Attorney(s) appearing for the Case

On behalf of the appellant-cross-respondent Hydrite Chemical Co., the cause was submitted on the briefs of Raymond R. Krueger and Cynthia E. Smith of Michael Best & Friedrich LLP of Milwaukee.

On behalf of the respondents-cross-appellants American Motorist Ins. Co. and Northbrook Excess & Surplus Ins. Co., the cause was submitted on the brief of Robert Soderstrom and Michael W. Morrison of Tressler, Soderstrom, Maloney & Priess of Chicago, Illinois.

On behalf of the respondents-cross-appellants Home Indemnity Co. and Home Ins. Co., the cause was submitted on the brief of Alyssa M. Campbell and Mary A. Sliwinski of Williams Montgomery & John Ltd. of Chicago, Illinois, and Amy F. Scholl of Coyne, Niess, Schultz, Becker & Bauer of Madison.

On behalf of the respondent-cross-appellant United States Fire Ins. Co., the cause was submitted on the brief of Patrick J. Lubenow, Milwaukee, and Michael Resis and Timothy J. Fagen, Chicago, all of O'Hagen, Smith & Amundsen, LLC.

A nonparty brief was filed by State of Wisconsin Department of Justice by Peggy A. Lautenschlager, attorney general, and Philip Peterson, assistant attorney general, in support of Hydrite Chemical Co.

Before Deininger, P.J., Vergeront and Lundsten, JJ.

¶ 1. VERGERONT, J.

The primary issue on this appeal is whether the circuit court correctly determined that, based on the undisputed facts, the known loss doctrine precluded coverage for Hydrite Chemical Company under its excess liability policies for losses resulting from liability for groundwater contamination. We conclude that, when the insurance policy involved is an excess liability policy, the known loss doctrine...

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