author: SNYDER, PJ.

text:
    Anita Roberts, Dean Anhalt, David Korinek, Lynn Korinek and Citizens Opposing Windturbine Sites, Plaintiffs-Appellants, v. Manitowoc County Board of Adjustment and Navitas Energy, Inc., Defendants-Respondents.
    Court of Appeals

      No. 2005AP2111.

      Submitted on briefs April 6, 2006.

      Decided July 5, 2006.

    2006 WI App 169
    (Also reported in 721 N.W.2d 499.)

      On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Mark B. Hazelbaker of Hazelbaker & Associates, S.C. of Madison.
    On behalf of the defendant-respondent Manitowoc County Board of Adjustment, the cause was submitted on the brief of Susan E. Lovern of von Briesen & Roper, S.C. of Milwaukee.
    On behalf of the defendant-respondent Navitas Energy, Inc., the cause was submitted on the brief of Eric M. McLeod and Michael A. Hughes of Michael Best & Friedrich LLP of Madison.
    Before Snyder, RJ., Brown and Anderson, JJ.
   SNYDER, PJ.

¶ 1. Anita Roberts, Dean Anhalt, David Korinek, Lynn Korinek and Citizens Opposing Windturbine Sites (together, Roberts) appeal from an order dismissing their claims and affirming the Mani-towoc County Board of Adjustment's decision to issue a conditional use permit to Navitas Energy, Inc. to build a forty-nine-turbine wind energy park. Following the decision of the Board, Roberts sought certiorari review in circuit court. The circuit court held that the Board properly granted the conditional use permit to Navitas. On appeal, Roberts contends that the Board applied the wrong legal standard, employed unfair time limits to minimize public input, and made a decision unsupported by the evidence. We disagree and affirm.

BACKGROUND

¶ 2. On October 27, 2004, Navitas applied to the Board for a conditional use permit to construct Twin Creeks Wind Park, which includes forty-nine proposed wind turbines. By ordinance, the Board was required to conduct a hearing on the application within sixty days of receiving it and to provide a class two notice of the hearing. See Manitowoc County, Wis., Code § 24.09(2) (2005). A class two notice requires that two insertions be published prior to the hearing. Wis. Stat. § 985.07(2) (2003-04).

¶ 3. Navitas'application was placed on the agenda for the Board's December 20, 2004 meeting. The Board published the public hearing notice in the Manitowoc Herald-Times-Reporter on December 8 and December 13. The notice stated, in relevant part:

[Navitas] wishes to construct and operate a 49 turbine wind farm in A-3, Agriculture zoned districts. The turbines are proposed to be located on the following properties ... [affected property owners listed].
Interested persons are urged to attend this meeting. Those wishing to submit written testimony may do so up to and including the time of said hearing.

In addition to publishing the official notice, the Board sent notice of the meeting to "adjacent property owners" by courtesy copy of a letter addressed to Jerrid Anderson of Navitas. The letter confirmed the date, location, and Navitas agenda topic for the meeting and included the following text: "{Any group, individual, or local unit of government that makes application to the Board of Adjustment is requested to make a special effort to contact all property owners affected, as well as all adjacent property owners in order that they may be aware of its importance.)"

¶ 4. On December 20, the Board chair, Orville Bonde, opened the hearing by inviting attendees to speak in favor of or against the Navitas application but asked that speakers limit their remarks to five minutes. The first to speak was Anderson, who gave a presentation on Navitas and the proposed wind energy park. He explained that, in addition to seeking a conditional use permit from the county, Navitas would require approval or clearance from several different agencies such as the Federal Aviation Administration, the Wisconsin Department of Natural Resources, and the Wisconsin State Historical Preservation Office. He also advised the Board that Navitas had entered twenty-year lease agreements, with two five-year extensions, with the owners of the farms that made up the proposed wind energy park site.

¶ 5. Following Anderson's remarks, the Board invited others to speak. Several local residents spoke against the proposed wind energy park. They reiterated concerns about the project's impact on their quality of life, health, and safety. Many also shared the opinion that they had received inadequate notice of the proposed project and of the hearing.

¶ 6. After all who wished to speak were finished, Matt Payette, senior planner, and Peter Tarnowski, code administrator, presented the Manitowoc County Planning and Park Commission Staff Report to the Board. Relevant excerpts from the report are as follows:

[Payette:] Manitowoc County drafted an ordinance within the last couple of months called the Manitowoc County Wind Energy System Ordinance.... [T]he ordinance states that the Board will grant a conditional use permit if it is determined that the requirements of the ordinance are met and that the granting of the permit will not unreasonably interfere with the orderly land use and development plans of the county. The Board may include conditions in the permit if those conditions preserve the public health and safety and do not significantly increase the cost of the system or significantly decrease its efficiency or allow for an alternative system of comparable costs or efficiency ....
In review of the application at hand, it appears that [Navitas] meets the minimum standards that are required in the . . . Ordinance. Worth noting on page . .. six and seven you'll notice that there are sites that need variances. All the sites identified are within the wind project area and are participating owners. And those variances include variances to participating lot lines and participating residences.
There's been a lot of testimony tonight on different factors of the project. And if the Board feels that it needs to apply additional conditions to this it can apply conditions that are listed throughout the staff report.

¶ 7. After the staff report, Board member Jim Aasen questioned Payette about the reference to variances. Tarnowski responded that the term variance as used in the ordinance was part of the conditional use process.

¶ 8. The Board took a break off the record and upon returning, it proceeded with a vote on the Navitas application. Board member Laurel Vondrachek moved to approve the "conditional use and variances for the turbines." Vondrachek added that Navitas had to "get all their federal permits," "find [out] if there is any problem with any historical things there," obtain "financial assurance," "have the lowest amount of light intensity possible which would meet the FAA minimum requirements," and "[g]et a road use permit from the town." Aasen contested the Board's ability to consider the variances and suggested that the Board table the matter and request a legal opinion on its power to take them up. Ultimately, Bonde seconded Vondrachek's motion, and it passed on a vote of three to one.

¶ 9. Roberts sought certiorari review of the Board's decision pursuant to Wis. Stat. § 59.694(10), and Navitas intervened to protect its interests in the conditional use permit. The circuit court, in a comprehensive and detailed oral decision, affirmed the Board's decision and dismissed the plaintiffs' claims with prejudice. Roberts appeals.

DISCUSSION

¶ 10. On appeal, we review the Board's decision, not the decision of the circuit court. Board of Regents v. Dane County Bd. of Adjustment, 2000 WI App 211, ¶ 10, 238 Wis. 2d 810, 618 N.W.2d 537. The decision to grant a conditional use permit is discretionary; we hesitate to interfere with administrative decisions and we will not substitute our discretion for that of the Board. See Snyder v. Waukesha County Zoning Bd. of Adjustment, 74 Wis. 2d 468, 476, 247 N.W.2d 98 (1976). We accord the decision of the Board a presumption of correctness, and here, Roberts has the burden of overcoming that presumption. See Miswald v. Waukesha County Bd. of Adjustment, 202 Wis. 2d 401, 411, 550 N.W.2d 434 (Ct. App. 1996).

¶ 11. When a case is before the court on certiorari review, the inquiry is limited to the following four factors: (1) did the Board keep within its jurisdiction; (2) did the Board proceed on the correct theory of law; (3) was the action of the Board arbitrary, oppressive, or unreasonable, and did it represent the will of the Board rather than its judgment; and (4) was the evidence such that the Board could have reasonably reached the determination under review. See id., at 410-11.

¶ 12. We quickly dispense with the first factor, because no party disputes that the conditional use permit application was properly before the Board. Rather, Roberts argues that the Board failed to apply the law of zoning variances to the setback requirements referenced in the Wind Energy System Ordinance, that the five-minute time limit for presentations imposed by the board was arbitrarily conceived and implemented, and that the evidence presented was insufficient to support the Board's determination. We take each issue in the order presented.

Variances in the Conditional Use Permit Process

¶ 13. We first turn to the Wind Energy System Ordinance, specifically the provision relating to setbacks, which states in relevant part:

(2) Set Backs....
(b) The wind tower in a large wind system and each wind tower in a wind farm system must be set back:
1. from the property line of the parcel on which the wind tower is located by a distance equal to 1.1 times the height of the wind tower, but the Board of Adjustment may grant a variance if the property line is shared with an adjacent parcel within the same wind farm system.
2. from any residence or business that is on an adjacent parcel by a distance of 1,000 feet, but the Board of Adjustment may grant a variance if the adjacent parcel is located within the same wind farm system.

Manitowoc County, Wis., Code § 24.06(2). Roberts advocates a technical interpretation of the term "variance," which by statute requires the applicant to establish an unnecessary hardship. See Wis. Stat. § 59.694(7)(c).

¶ 14. Navitas and the Board both contend that a technical interpretation of the term "variance" is not appropriate here. They contend that, although Manitowoc's ordinance uses the term "variance" to describe an exception to the setback standard, it does not have the technical legal meaning commonly used in a zoning context. Rather, under the terms of this ordinance, a variance may be granted as part of the conditional use permit process, not as a separate determination based on the demonstration of a hardship.

¶ 15. At the hearing, board member Aasen questioned the Board's power to address variances at the meeting. Following the staff report, Aasen stated:

You made reference to all these sites needing a variance. If that's the case, that is the case, based on the county ordinance. This meeting was not published as a variance, but as a conditional use. So in fact we can't deal with these variances tonight even if we wanted to because they weren't published. There was no legal notice given. And if we were to consider the variances when that issue comes up, then I think each one has to be an individual variance.

In response, Tarnowski explained:

That wasn't... the way we had understood [the] ordinance to be written, because those are to participating property lines and written under the same section as the setback requirements. And the Board can consider those. So, whether you feel that the variance like all variances should be stated ... if that's the way you want to consider it. We did not. We felt it was part of the conditional use process. Integral to the actual setbacks .... That's the way it was written and the way we understood it.

¶ 16. It is not the Board's duty to convince us that its interpretation of its own ordinance is correct, but rather it is Roberts' duty to convince us that the Board's interpretation is incorrect. See State ex rel. Beidler v. Zoning Bd. of Appeals, 167 Wis. 2d 308, 311, 481 N.W.2d 669 (Ct. App. 1992). Boards of Adjustment are entitled to a degree of deference in the interpretation and application of a county zoning ordinance. See Marris v. City of Cedarburg, 176 Wis. 2d 14, 33, 498 N.W.2d 842 (1993).

¶ 17. Here, the Board's interpretation is consistent with the State's decision to promote renewable energy resources, including wind power. Wisconsin Stat. § 66.0401 states in part:

No county ... may place any restriction, either directly or in effect, on the installation or use of a. . . wind energy system . .. unless the restriction satisfies one of the following conditions:
(a) Serves to preserve or protect the public health or safety.
ft») Does not significantly increase the cost of the system or significantly decrease its efficiency.
(c) Allows for an alternative system of comparable cost and efficiency.

Roberts' preferred interpretation of the Wind Energy System Ordinance, which would require Navitas to demonstrate unnecessary hardship in order to obtain individual variances for each wind tower in the system, is inconsistent with the express terms of Wisconsin's renewable energy policy. See id.

¶ 18. Also, Roberts concedes that a conditional use permit allows a property owner to put property to a use that the ordinance expressly permits if certain conditions have been met; in contrast, a variance authorizes a property owner to use property in a manner the ordinance prohibits when doing otherwise would create a hardship. See City of Waukesha v. Town Bd., 198 Wis. 2d 592, 603, 543 N.W.2d 515 (Ct. App. 1995). Applying that principle to the Wind Energy System Ordinance supports the Board's interpretation. Under the terms of Manitowoc County, Wis., Code § 24.06(2), a setback from the property line of less than 1.1 times the wind tower's height or 1000 feet from a residence or business on an adjacent parcel is not prohibited; on the contrary, the Board is expressly empowered to approve a lesser setback when certain conditions are met. Because an alternate setback distance is permitted - not prohibited - by the terms of the ordinance, the setback is properly part of the conditional use permit application.

¶ 19. We conclude that the term "variance" as used in the Wind Energy System Ordinance does not implicate the technical legal meaning typically employed in a zoning analysis. The drafters of the Wind Energy System Ordinance would have done well to choose a different word, as the term variance introduces some confusion; however, it is clear from the context of the ordinance, the State's express renewable energy policy, and the permissive rather than prohibitive language, that the Board's interpretation of the term "variance" and application of the ordinance were reasonable.

¶ 20. We acknowledge that Roberts also challenges the Board's legal notice, claiming it was inadequate because it did not put property owners on notice that variances would be considered at the meeting. Had we agreed with Roberts that the technical legal meaning of the term "variance" should be employed here, we would review the adequacy of the published notice. However, because we have concluded that the Board properly considered the setback modifications as part of the conditional use permit process, no separate notice regarding variances was required.

Hearing Procedure and Due Process

¶ 21. Roberts challenges the manner in which the Board conducted the hearing. In particular, Roberts takes offense at the five-minute time limit on the individual presentations to the Board. Calling the hearing process "arbitrary and capricious," Roberts asserts that the Board was not the "slightest bit interested" in the information or arguments of those opposed to the wind energy park.

¶ 22. First, Roberts argues that the Board unfairly applied the time limit because Anderson, who presented on behalf of Navitas, was afforded much more than five minutes to present information in favor of the wind energy park. The record confirms that Anderson did indeed speak for longer than five minutes; however, his prepared remarks provided the context for the entire debate about the wind energy park. Also, much of his time was used to answer questions from the Board or from other presenters. The Board's decision to extend his time limit is understandable and helped facilitate the subsequent discussion. We have located no law, and Roberts offers none, to show that the Board exceeded its authority in allowing the primary proponent of the conditional use permit additional time to present to the Board.

¶ 23. Second, Roberts states, "given the time constraints that the Board had imposed on the total length of the proceedings, the Board's limitations made it impossible for anyone meaningfully to be heard." The record, however, does not support Roberts' contention. When the Board invited members of the public to speak, at least sixteen took the opportunity. They participated by asking additional questions, voicing opinions and concerns about the project, and registering their opposition.

¶ 24. One presenter, Jeff Roberts, had collected information about Navitas and wind turbines in general and offered his packet of information to the Board. He stated that his research uncovered "[s]everal common issues" with wind-turbine systems in Europe, specifically, "[n]oise, light flicker, loss of countryside views, electrical interference of TV and radio broadcasts, and physical safety." Before all of these issues could be addressed individually, the Board chair indicated that the five-minute time limit was over. Jeff Roberts then gave a copy of his information to the Board.

¶ 25. Other presenters raised questions about noise levels, access roads, property values and quality of life. Of all the people who spoke in opposition to the wind energy park, only Jeff Roberts was asked to stop when he exceeded the time limit. Two others were advised that their time limit was approaching, and they ended their remarks on time. No other speakers required a time-limit warning. Finally, after many took the opportunity to speak, the Board asked, "Anyone else want to speak against this [wind energy park]." No one responded.

¶ 26. Clearly, all who wished to speak had the opportunity to do so. Our review of the hearing transcript reveals nothing unreasonable about the time limit or how it was applied. Roberts' contention that it was "impossible for anyone meaningfully to be heard" is simply unsupported in the record.

Sufficiency of the Evidence

¶ 27. Roberts argues that there is insufficient evidence in the record to support the Board's decision granting a conditional use permit. Roberts first contends that the Board should have made a determination as to each parcel of property affected by the proposed wind energy park. Roberts asserts, "Because of the very nature of conditional uses, permits must necessarily be site-specific." The Board's finding, Roberts asserts, was "obviously defective" because "the Board did not make a site-by-site evaluation of the impact of each of the 49 towers." Roberts offers no legal argument in support of this contention, and we need not give it any further consideration. We do, however, note that the Wind Energy System Ordinance does, by its express terms, contemplate conditional use permits that relate to a wind farm system as a whole, not individual tower sites within that system.

¶ 28. Roberts also contends that evidence presented in opposition to the wind energy park was disregarded by the board. Roberts laments, "Had the Board been willing to show even the least bit of open-mindedness or curiosity, they would have discovered substantial concerns, supported by evidence in the Record which clouded the purported virtues of wind power[.]" However, it is not "substantial concerns" that will overcome the Board's decision, but rather the absence of substantial supporting evidence. The Board must make its decision based on substantial evidence, which is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Stacy v. Ashland County Dep't. of Public Welfare, 39 Wis. 2d 595, 603, 159 N.W.2d 630 (1968) (citations omitted).

¶ 29. Roberts specifically contends that the Board did not consider the hazards of ice fling, the impact of ambient noise and shadow flicker, or the dangers to wildlife. Our review of the record indicates otherwise.

¶ 30. Following Anderson's presentation, the Board engaged him in an extended question-and-answer dialogue wherein the Board sought information about lighting on the turbines, the lifespan of a turbine tower, the location of power cables, the ability to continue farming around the turbines, potential ice buildup on the blades or tower collapse, and the impact on surrounding property values. The Board explored with Anderson the size and visibility of the turbines and their energy output. Anderson also answered questions about environmental impact, particularly on wildlife, and potential noise pollution. The Board also considered the staff report, which recommended approval of the permit with certain conditions attached.

¶ 31. With regard to Roberts' specific concerns, Anderson explained that turbines will not throw ice from the blades because "they ice up and they have no lift and they slow down. The control system, the machine watchers, sense that and shut it down as well." He also explained that for shadow flicker to occur, "the sun has to go in step and ... the rotor has to between you and the sun .... [T]he wind has to be blowing in that direction, because the rotor will actually spin .... [S]o not only does the sun have to be going this way, the wind has to be blowing this way, and so the rotor is perpendicular to face to you and the sun." A dialogue about ambient noise and decibel levels ensued for four pages of hearing transcript, and concerns about wildlife were taken up in the context of Navitas' communication with the U.S. Fish and Wildlife Agency staff and planned consultation with Wisconsin's State Historic Preservation Office. Thus, Roberts' claim that such hazards were not considered is without merit.

¶ 32. Finally, Roberts' assertion that substantial evidence dispels the "purported virtues of wind power" is irrelevant if substantial evidence also supports the Board's decision to grant a conditional use permit. It is the Board, not this court, that determines the weight to be given the evidence of record. See Sills v. Walworth County Land Mgmt. Comm., 2002 WI App 111, ¶ 11, 254 Wis. 2d 538, 648 N.W.2d 878. We will uphold the Board's decision where, as here, it is supported by substantial evidence, even if there is also substantial evidence to support the opposite conclusion. Id.

Other Issues

¶ 33. Roberts presents several other complaints that are peripheral to the primary issues addressed above. For example, Roberts complains that the letters sent by the Board to notify adjacent property owners of the meeting did not arrive soon enough. Yet there is no dispute that the Board published the required class two notice. The Board exceeded its duty by sending a courtesy copy of the hearing-confirmation letter to adjacent property owners.

¶ 34. Also, Roberts complains that Payette and Tarnowski, county staff members, considered all of the Navitas information in advance of the meeting in order to prepare the staff report but that the Board did not take equal time to consider written materials submitted by Jeff Roberts at the hearing. However, it is the responsibility of the staff to review the application and related materials, to ensure the application is complete, to administer the ordinance, and to report to the Board. See Manitowoc County, Wis., Code § 24.09(1). Furthermore, the public was invited to submit written testimony to the Board for review in advance of the hearing.

¶ 35. We appreciate that we have not addressed all of the nuances and subtleties associated with Roberts' characterization of the issues, particularly those intended to demonstrate a devious motive underlying the Board's actions. However, "[a]n appellate court is not a performing bear, required to dance to each and every tune played on an appeal." State v. Waste Mgmt. of Wis., Inc., 81 Wis. 2d 555, 564, 261 N.W.2d 147 (1978). To the extent we have not addressed arguments raised in this appeal, the arguments are deemed rejected.

CONCLUSION

¶ 36. We conclude that the Board's decision to grant a conditional use permit to Navitas for the construction of a forty-nine-turbine wind energy park was made according to law and is supported by substantial evidence. The Board afforded proper notice to the public, allowed adequate time for the public to be heard at the December 20 hearing, and employed a reasonable interpretation of the Wind Energy System Ordinance. Accordingly, we affirm the order of the circuit court sustaining the Board's determination.

By the Court. — Order affirmed.

       MaNitowoc County, Wis., Code ch. 24, known as the Wind Energy System Ordinance, ended on April 30, 2006. Effective May 1, a revised chapter 24, known as the Large Wind Energy System Ordinance, went into effect. All references to chapter 24 in this opinion are to the Wind Energy System Ordinance in effect prior to May 1, 2006 unless otherwise indicated.

       All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise indicated.

       The Board of Adjustment has the power "[t]o authorize upon appeal in specific cases variances from the terms of the ordinance that will not be contrary to the public interest, where, owing to special conditions, a literal enforcement of the provisions of the ordinance will result in unnecessary hardship, and so that the spirit of the ordinance shall be observed and substantial justice done." Wis. Stat. § 59.694(7) (c).

       We observe that some counties have codified the five-minute time limit for presentations. See, e.g., DANE County, Wis., Code § 7.63(6) (2006) (no registrant will be allowed to speak for more than five minutes); La CROSse County, Wis., Code § 2.03(5)(a) (2005) ("There shall be a 5-minute limit on presentations unless the Board allows more time.").


source: Caselaw Access Project

author: NETTESHEIM, J.

license: Public Domain

text:
    In re the Marriage of: Marcus P. Paulhe, Petitioner-Respondent, v. Monica M. Riley, p/k/a Monica M. Paulhe, Respondent-Appellant.

    Court of Appeals

      No. 2005AP2487.

      Submitted on briefs June 8, 2006.

      Decided July 5, 2006.

    2006 WI App 171
    (Also reported in 722 N.W.2d 155.)

      On behalf of the respondent-appellant, the cause was submitted on the brief of William W. Moir III of Hopp, Neumann, Humke, LLP, of Sheboygan.
    On behalf of the petitioner-respondent, the cause was submitted on the brief of William H. Holbrook of Holbrook, Wurtz, Roth, Basler & Brock, LLP, of She-boygan.
    An amicus curiae brief was submitted by American Academy of Matrimonial Lawyers-Wisconsin Chapter, Margaret W. Hickey, President, and by Marygold S. Melli, and Carlton D. Stansbury.

      Before Brown, Nettesheim and Anderson, JJ. ,

       Petition to review denied 10/10/06.

   ¶ 1. The Social Security Administration determined that Marcus E Paulhe was disabled and therefore paid social security disability benefits to Marcus' former wife, Monica M. Riley, on behalf of the parties' minor child, Abbe. Based on these disability payments, Marcus sought credit against child support payments he had previously made. The family court granted Marcus' request and entered a postjudgment order directing Monica to reimburse Marcus for a portion of the child support payments. Monica appeals.

¶ 2. Monica contends that the order constitutes a retroactive revision of support contrary to Wis. Stat. § 767.32(lm) (2003-04). Monica further contends that the exception set out in § 767.32(lr)(d), which permits retroactive revision of child support based on social security disability benefits in instances of unpaid support, does not apply since Marcus had made all of his support payments in a timely fashion. Monica argues that the statute represents the only instance in which credit is allowed.

¶ 3. On a threshold basis, the family court ruled that the order granting Marcus credit did not constitute a revision of the child support order under Wis. Stat. § 767.32(lm). In addition, the court agreed with Monica that § 767.32(lr)(d) was limited to instances of "unpaid support." However, the court noted the illogic and unfairness produced by allowing a credit under § 767.32(lr)(d) to a payor who had failed to make child support payments, but denying such relief to a payor like Marcus who had made all required child support payments. Thus, the court granted Marcus credit against his previously paid support payments for the period of time covered by the social security disability benefits paid to Monica on Abbe's behalf.

¶ 4. We agree that the family court's grant of credit to Marcus did not constitute a revision of the child support order. We also hold, on grounds of both public policy and fairness, that Wis. Stat. § 767.32(lr)(d) should not be construed to bar credit in a situation where a child support payor has made all requisite support payments. Our holding avoids an interpretation of § 767.32(lr)(d) which likely would create an equal protection violation. As the result of our decision, Wisconsin joins the majority of other jurisdictions that have addressed the issue before us.

Amicus Curiae Brief of the American Academy of Matrimonial Lawyers — Wisconsin Chapter

¶ 5. At the outset, we express our appreciation to the Wisconsin chapter of the American Academy of Matrimonial Lawyers for its participation in this appeal as amicus curiae. In particular, we thank Attorneys Margaret W Hickey, Marygold S. Melli and Carlton D. Stansbury, members of the Academy and coauthors of the amicus brief, who have provided us with a cogent analysis of the appellate issue. We borrow liberally from the amicus brief in this opinion.

Facts

¶ 6. The facts of this case are straightforward and undisputed. Monica and Marcus were divorced in September 1989. Monica was awarded custody of the parties' then three minor children, and Marcus was ordered to pay support. Over time, the two eldest children attained majority, resulting in an October 2004 stipulated child support order directing Marcus to pay $513.45 per month as child support for Abbe, the remaining minor child.

¶ 7. In February 2005, Marcus filed a motion to revise support based on the fact that he had become totally disabled as of November 2003 and, as a result, Monica had received social security disability benefits on Abbe's behalf. Although Marcus' motion was to "revise" the child support, his actual request was that the family court "credit" the social security disability payments received by Monica against the child support Marcus had previously paid, measured from the date of his disability.

¶ 8. The evidence at the hearing on the motion established that Marcus, although not employed because of his disability, had income from two sources: (1) his own social security disability benefits in the amount of $1569 per month; and (2) supplemental benefits from a separate disability insurance policy in the amount of $1502.50 per month. In addition, Marcus had received lump-sum social security disability payments in the amount of $13,683 for past-due disability benefits. Similarly, Monica had received a past-due disability lump-sum payment on behalf of Abbe in the amount of $7642 based on Marcus' disability. In addition, Monica was receiving monthly social security disability benefits on behalf of Abbe in the amount of $784. The evidence also established that Marcus had remained current in all of his support payments despite being unemployed.

¶ 9. At the close of the evidence, Monica agreed that Marcus' current support obligation could have been suspended effective February 2005 because the current level of social security disability payments in the amount of $784 per month exceeded Marcus' monthly support obligation. Thus, the issue narrowed to whether Marcus was entitled to credit against his previously paid child support based on the social security disability payments received by Monica on Abbe's behalf for the period from November 2003 to January 2005.

¶ 10. In opposing Marcus' motion, Monica argued that Wis. Stat. § 767.32(lm) bars retroactive revision of a child support order prior to the date that notice of the application is given. However, this rule is subject to the exception set out in § 767.32(lr)(d), which permits retroactive revision of a child support order based on social security disability payments in instances of "unpaid support." Since Marcus had always been current in his child support payments, Monica argued that this exception did not apply.

¶ 11. The family court first ruled that the order granting Marcus' request for credit against his previous support payments did not constitute a revision of the judgment. In addition, the court agreed with Monica that this was not a case of "unpaid support" under Wis. Stat. § 767.32(lr)(d). Nonetheless, the court granted Marcus' request for credit against his previously paid child support on grounds of fairness. As explanation, the court noted the incongruity of Monica's argument, which would allow a credit to a child support payor who had failed to make support payments but deny a credit to a payor who had made support payments despite the disability. Monica appeals.

Discussion

¶ 12. We begin with two very important observations that we will restate a number of times during our discussion. First, social security disability payments are not gratuitous benefits conferred by a benevolent governmental policy. In re Marriage of Henry, 622 N.E.2d 803, 808 (Ill. 1993); see also Potts v. Potts, 240 N.W.2d 680, 681 (Iowa 1976). To the contrary, such payments are more properly characterized as a substitute for the disabled parent's earnings, funded by the parent's payment of social security taxes. Henry, 622 N.E.2d at 808-09; see also Williams v. Williams, 727 N.E.2d 895, 897 (Ohio 2000); Potts, 240 N.W.2d at 681. Second, Marcus was current in all of his child support obligations. With these concepts prominently in mind, we turn to the analysis of the issue.

¶ 13. We first state our agreement with the family court's ruling that the order granting credit to Marcus did not constitute a revision of the standing child support order. Although Marcus titled his motion as one to "revise" support, his actual claim for relief was for "credit" against the support he had already paid. In granting that relief, the court did not disturb the standing order for child support. Instead, the court merely recognized that the child support for the period in question had been "double paid" — once via Marcus' direct payments and again via the social security disability benefits paid to Monica on Abbe's behalf based on social security payments Marcus previously had made though his earnings. Going into the hearing, Marcus’ child support obligation stood at $513.45 per month; coming out of the hearing, the obligation, although suspended, remained the same.

¶ 14. Next, we address Monica’s argument that the grant of credit is barred by Wis. Stat. § 767.32(lr)(d). As noted, this statute permits social security disability payments paid on behalf of a child to be credited against a payor's child support obligation in instances of "unpaid support." Monica argues that this statute represents the sole instance in which credit is permitted and, since Marcus was current in his child support payments and therefore there was no "unpaid support," Marcus was not entitled to any credit.

¶ 15. Monica relies on Burger v. Burger, 144 Wis. 2d 514, 424 N.W.2d 691 (1988), where the supreme court held that a payor was entitled to credit for a lump-sum payment on arrears accumulated during a period of disability. Id. at 527. Monica reasons that had the court intended to also allow credit in a situation where, as here, the payor was not in arrears, it would have said so. Monica makes the same argument regarding the legislature's later enactment of Wis. Stat. 767.32(1r)(d), which codified the Burger holding.

¶ 16. We disagree that Burger, or its codification in Wis. Stat. § 767.32(lr)(d), applies in the situation before us. In Burger, the supreme court addressed only whether a payor who was in arrearsnot one who was currentwas entitled to a credit. Moreover, we see nothing in the language or reasoning of Burger that speaks to, or bears on, the different situation presented in this case. Unless an appellate decision says otherwise, we abide by the ancient principle that the decision is controlled and limited by the facts of the particular case. Murphy v. Chicago & Nw. Ry. Co., 45 Wis. 222, 226, 30 Am. Rep. 721 (1878). And since Wis. Stat. § 767.32(lr)(d) codifies Burger by speaking only to instances of "unpaid support," we construe the statute in the same limited fashion.

¶ 17. We find support for our holding in certain basic precepts of social security disability law. Every dependent child of an individual who is entitled to social security disability benefits is entitled to the child's insurance benefits conferred by the act. 42 U.S.C. § 402(d)(1) (2004). The benefit amount is based upon the disabled worker's earnings record and the number of other dependents receiving benefits on the worker's earnings record. CaRlton D. Stansbury, The Family Law Practitioner's Guide to Social Security 40 (American Bar Association 1995, 2nd printing). The benefits are not paid directly to the child, but rather to the child's representative payee, here Monica. See 20 C.F.R. § 404.2035 (2006). The benefits are to be applied to the child's current support and reasonably foreseeable needs. See id. at 404.2040 (2006).

¶ 18. The process of applying for and obtaining social security disability benefits can be long and complex. See, e.g., Pacana v. State, 941 P.2d 1263, 1267 (Alaska 1997). If the process is drawn out and the application is ultimately approved, the delayed benefits are paid on a retroactive basis. Id. at 1265-67. That is what occurred in this case. Monica received a lump-sum benefit on Abbe's behalf retroactive to the November 2003 effective date of Marcus' disability. Thereafter, the monthly disability benefits continued.

¶ 19. The overwhelming majority of jurisdictions that have addressed the credit question before us hold that a child support payor is entitled to credit against a child support obligation for the amount of social security disability benefits the child receives based upon the payor's earnings record and disability. The core rationale of these cases is well stated in Henry:

[T]he right to social security benefits is earned.... Thus, social security dependent disability benefits are not gratuitous, but are generated by the noncustodial parent through his [or her] labor and earnings.
The sole and express purpose of social security dependent benefits is to support dependent children .... Social security dependent disability benefits replace support the child loses upon the disability of the wage earner responsible for the child's support, and such benefits substitute for a parent's loss of earning power and obligation to support his [or her] dependents. Thus, the source and the purpose of social security dependent benefits are identical to the source and purpose of child support — both come from a noncustodial parent's wages or assets and both provide for the needs of the dependent child, and, for our purposes, "no principal distinction exists between social security benefits and child support payments."
[B]ecause social security dependent disability benefits are earned by the noncustodial parent, made on behalf of such parent, and, in fact, paid at least in part with contributions from the noncustodial's own earnings, payment of social security dependent disability benefits satisfies a noncustodial parent's child support obligation.

Henry, 622 N.E.2d at 808-09 (citations omitted; emphasis added).

¶ 20. The mechanics of the Wisconsin Child Support Percentage of Income Standard guidelines reflect this same thinking. Wisconsin Admin. Code § DWD 40.03(5) (Dec. 2003) provides that social security disability benefits paid to a child are added to the payor's gross income prior to calculating the payor's support obligation. The benefit amount is then subtracted from the payor's support obligation to determine the amount of child support for which the payor is actually responsible.

¶ 21. If we were to agree with Monica that Marcus is not entitled to credit, Marcus would be paying his child support obligation twice: first, by his initial support payments paid directly to Monica, and second, by the subsequent social security disability benefits paid to Monica on Abbe's behalf, funded by Marcus' earnings when he was employed.

¶ 22. We also base our holding on public policy grounds. The paramount goal of child support is to promote the best interests of children and to avoid financial hardship to children of divorced parents. Ondrasek v. Tenneson, 158 Wis. 2d 690, 695, 462 N.W.2d 915 (Ct. App. 1990). If we were to limit a payor's credit entitlement to only situations of "unpaid support," we would encourage disabled payors who nonetheless have the ability to pay support, to terminate child support payments in anticipation that potential future social security disability payments will eventually make up the shortfall. That would leave the child without child support during this interim, a result clearly contrary to the public policy underpinning child support. To his credit, Marcus did not take this route. Instead, he honored his child support obligations. As a result, he is now rightfully entitled to credit against those payments based on the social security disability payments that he funded by his earnings while working.

¶ 23. Our holding also avoids a potential constitutional equal protection violation. See Plumbers Local No. 75 v. Coughlin, 166 Wis. 2d 971, 994, 481 N.W.2d 297 (Ct. App. 1992) ("[W]e have a duty to construe a statute to avoid potential constitutional violation."). We have already noted the incongruity of Monica's argument that would grant credit to a child support payor in arrears, but deny it to a payor who is current. In its simplest terms, equal protection requires that those who are similarly situated must be similarly treated. See State v. Miller, 2004 WI App 117, ¶ 14, 274 Wis. 2d 471, 683 N.W.2d 485, review denied, 2004 WI 123, 275 Wis. 2d 296, 687 N.W.2d 523. When the legislation at issue does not involve a suspect classification or fundamental interest, we examine the statute to determine if it is rationally related to a legitimate governmental interest. See Nankin v. Village of Shorewood, 2001 WI 92, ¶ 11, 245 Wis. 2d 86, 630 N.W.2d 141. A statute violates equal protection when the legislature has made an irrational or arbitrary classification, that is, one that has no reasonable purpose or relationship to the facts or a proper state policy. Id.

¶ 24. If, as Monica contends, the legislature truly intended Wis. Stat. § 767.32(lr)(d) to bar a credit to those payors who are current in their child support payments, we candidly state that we are unable to discern any rational basis to support such a distinction from those who are in arrears and are clearly entitled to the credit under the statute. Such a distinction would be patently unreasonable and arbitrary on its face and would serve no public purpose. Although the family court was not speaking in constitutional terms, it struggled with this same concern when it wondered aloud whether Monica's construction of the statute bordered on the absurd. And the court's ultimate ruling, grounded in notions of fairness, avoided such a result. Moreover, the court's reasoning echoed that expressed by the majority of courts that have ruled similarly on this issue: "Under these circumstances, it is equitable to treat dependency benefits as a substitute for child support for the period during which such benefits are paid." Potts, 240 N.W.2d at 681 (emphasis added).

Conclusion

¶ 25. We hold that the family court's grant of credit to Marcus did not constitute a revision of the standing child support order under Wis. Stat. § 767.32(lm). In addition, based on public policy, constitutional, and equitable grounds, we also hold that § 767.32(lr)(d), which allows for a credit in instances of "unpaid support," does not bar credit in a case where the child support payor has made all required support payments.

By the Court. — Order affirmed.

       All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

       The Academy joined in this appeal as amicus curiae at our invitation.

       Marcus also asked that a portion of the social security disability payments be credited against his outstanding obligation to Monica for certain prior medical expenses Monica had incurred on Abbe's behalf. The family court authorized Monica to deduct these expenses from the credit due Marcus. This provision of the order is not before us.

        Burger v. Burger, 144 Wis. 2d 514, 424 N.W.2d 691 (1988), predated the enactment of both Wis. Stat. §§ 767.32(lm) and 767.43(lr)(d). See Lucy Cooper and Carlton D. Stansbury, The Pendulum Swings Again: Credit for Child Support Arrears Now Allowed in Limited Scenarios, 19 Wis. J. of Fam. L. 40 (1999).

        See, e.g., Children and Youth Servs. of Allegheny County v. Chorgo, 491 A.2d 1374 (Pa. 1985); Williams v. Williams, 727 N.E.2d 895 (Ohio 2000); Pontbriand v. Pontbriand, 622 A.2d 482 (R.I. 1993); Harbison v. Harbison, 688 So. 2d 876 (Ala. Ct. App. 1997); Miller v. Miller, 890 P.2d 574 (Alaska 1995); Jenkins v. Jenkins, 704 A.2d 231 (Conn. 1998); Sealander v. Sealander, 789 So. 2d 401 (Fla. Dist. Ct. App. 2001); Poynter v. Poynter, 590 N.E.2d 150 (Ind. Ct. App. 1992); McCloud v. McCloud, 544 So. 2d 764 (La. Ct. App. 1989); Frens v. Frens, 478 N.W.2d 750 (Mich. Ct. App. 1991); Romero v. Romero, 682 P.2d 201 (N.M. Ct. App. 1984); Farley v. Farley, 412 S.E.2d 261 (W.Va. 1991).

       This thinking is also reflected by the rule that a payor is not entitled to credit for social security payments received by a child based on the earnings record of the custodial parent or other third party. See In re Marriage of Foley, 501 N.W.2d 497, 499 (Iowa 1993).

       The amicus observes that in only one limited situation is a payee not required to reimburse a payor for a portion of the child's social security disability benefits: when the social security disability benefit paid on behalf of the child exceeds the child support obligation, the amount of the excess is not subject to reimbursement. See, e.g., Weaks v. Weaks, 821 S.W.2d 503, 507 (Mo. 1991); Andler v. Andler, 538 P.2d 649, 654 (Kan. 1975); Bowden v. Bowden, 426 So. 2d 448 (Ala. Ct. App. 1983); Potts v. Potts, 240 N.W.2d at 680, 681 (Iowa 1976).

       We caution that the credit is limited to the extent of child support previously paid. Any excess is retained and preserved for the benefit of the child. See, e.g., Weaks, 821 S.W.2d at 507; Andler, 538 P.2d at 654.


author: VERGERONT, J.

text:
    Glendenning's Limestone & Ready-Mix Company, Inc., Plaintiff, v. Michael A. Reimer, Defendant, Henk Kenkhuis and Linda Kenkhuis, Defendants-Third-Party Plaintiffs-Appellants, West Bend Mutual Insurance Company, Intervenor-Third-Party Defendant-Respondent.
    Court of Appeals

      No. 2005AP1092.

      Submitted on briefs November 4, 2005.

      Decided July 13, 2006.

    2006 WI App 161
    (Also reported in 721 N.W.2d 704.)

      On behalf of the defendants-third-party plaintiffs-appellants, the cause was submitted on the briefs of Margery Mebane Tibbetts, Clarence F. Asmus, and Duffy Dillon, of Brennan, Steil & Bastings, S.C., Janesville.
    On behalf of the intervenor-third-party defendant-respondent, the cause was submitted on the brief of Rick J. Mundt and Laure Rakvic-Farr, of Winner, Wixson & Pernitz, Madison.
    Before Vergeront, Deininger and Higginbotham, JJ.
   VERGERONT, J.

¶ 1. This appeal arises out of a dispute between the Kenkhuises and the general contractor hired to make improvements to the dairy facility they lease. Henk and Linda Kenkhuis appeal the circuit court's order granting summary judgment in favor of the general contractor's insurer, West Bend Mutual Insurance Company. The circuit court concluded that the commercial general liability policy (CGL) issued to the general contractor did not provide coverage for the Kenkhuises' claims against him.

¶ 2. The primary issue on this appeal is whether the Kenkhuises' claims of breach of contract and implied warranty against the general contractor allege an "occurrence" within the meaning of the CGL policy. We conclude that faulty workmanship in itself does not constitute an "occurrence" within the meaning of this CGL policy. However, we also conclude that the factual circumstances alleged for the breach of contract and implied warranty claims against the general contractor do contain at least one instance of an "occurrence" that causes property damage within the meaning of the policy. Therefore, West Bend is not entitled to summary judgment dismissing the Kenkhuises' cross-claims of breach of contract and implied warranty and third-party claim against West Bend based on a lack of an "occurrence." Because West Bend concedes the ground on which the circuit court granted summary judgment on these claims was in error and offers no other basis on which to affirm the circuit court, we conclude the circuit court erred in granting summary judgment in favor of West Bend on the breach of contract and implied warranty cross-claims and the third-party claim. Accordingly, we reverse and remand for further proceedings.

¶ 3. In addition, we address two claims of procedural error and conclude that any error did not affect the Kenkhuises' substantial rights.

BACKGROUND

¶ 4. The Kenkhuises own a dairy herd on a farm they lease from Jeffrey Petry. The Kenkhuises and Petry hired Michael Reimer to make certain improvements to the dairy facility. Disputes arose between the Kenkhuises and Reimer about the adequacy of the work and payment, including payment of the subcontractors. When the concrete supplier, Glendenning's Limestone & Ready-Mix Company, Inc., was not paid by Reimer, it sued Reimer and the Kenkhuises. Glendenning's obtained a judgment against Reimer, and its claims against the Kenkhuises were dismissed. Meanwhile, Reimer and the Kenkhuises filed cross-claims against each other. The Kenkhuises' cross-complaint alleged that Reimer negligently performed the construction of the improvements, breached the contract with the Kenkhuises and breached implied warranties. Proceedings on the cross-claims were stayed when Reimer filed for bankruptcy.

¶ 5. The dispute over insurance coverage that is the heart of this appeal began when West Bend, Reimer's CGL insurer, moved to intervene and to bifurcate the issues so as to decide first its obligation to defend and indemnify Reimer. The court granted the motion. West Bend moved for a summary judgment declaring that it had no duty either to defend or indemnify Reimer based on the Kenkhuises' claims against him. Along with its motion for summary judgment, West Bend filed the affidavit of its attorney averring that the policy attached was a true and correct copy of the policy issued to Reimer. West Bend asserted that the economic loss doctrine barred the negligence claim against Reimer, that a number of exclusions in the policy barred coverage for the negligence and breach of implied warranty claims, and that a breach of contract is not an "occurrence" under the policy.

¶ 6. After West Bend filed its motion, the Ken-khuises amended their cross-complaint by stipulation. They added West Bend as a defendant to their cross-claims and added a third-party claim directly against West Bend for "the property damage resulting from the mistakes and carelessness of Defendant Reimer as general contractor and/or the subcontractors hired by him and which caused accidental damage to the subject dairy facility and the Kenkhuises' property." The Ken-khuises also added these factual allegations to support their claims:

9. The subcontractors selected, retained and paid by Reimer to perform the construction of the improvements to the Petry dairy facility were negligent in completing their work as follows: the concrete subcontractor poured and finished concrete for approximately 1,450 cow stalls such that the stalls have an inadequate slope; and said subcontractors failed to pour the concrete for the cow stalls over the top of a preexisting eight inch cement curb.
10. The negligence of the subcontractors hired by Reimer in performing their work caused accidental damage to the Kenkhuis' property, to wit: (a) The cow stalls are damaged in that they were not constructed per their specifications and must be repaired; (b) As a result of the inadequate slope, urine and manure gathers in puddles in the cow stalls and flows backwards rather than flowing to the designated drainage area; (c) As a result of the improper installation of rubber mats by Reimer and/or his subcontractors, the scraper which cleans manure has damaged the rubber mats; (d) The stall loops were irregularly and inconsistently installed by the subcontractors throughout the building; and (d) [sic] The neck bars for the cows are loose and irregular and not attached to either end of the barn.
11. Another consequence of the negligence of Re-imer and/or the subcontractors Reimer selected, retained and paid, the Kenkhuis' dairy cows' flanks and udders are dirty creating potential for disease transmission and this has required Kenkhuis to engage extra labor at extra expense to clean the cows' utters [sic] prior to milking.

¶ 7. Although West Bend's motion sought a determination that it did not have an obligation to either defend or indemnify Reimer, the proceedings on the Kenkhuises claims against Reimer had been stayed because of his bankruptcy filing, and Reimer did not respond to the motion. The Kenkhuises opposed the motion. They, too, argued in terms of the insurer's duty to defend the insured. However, it is apparent that they, like West Bend and the circuit court, understood that the pertinent issue raised by the motion was whether they had any claim against West Bend and also understood that this issue, like the issue of West Bend's duties to Reimer, depended upon the coverage afforded by the policy.

¶ 8. In opposing West Bend's summary judgment motion, the Kenkhuises conceded that the negligence claim was barred by the economic loss doctrine but argued that there was coverage for the breach of contract and implied warranty claims. The Kenkhuises submitted their affidavits, which included averments essentially tracking the allegations in the amended pleading quoted above.

¶ 9. The Kenkhuises also argued that West Bend's submission containing the insurance policy did not comply with Wis. Stat. § 802.08(3) and should be denied on that basis. At the hearing on the motion, the circuit court ascertained that the Kenkhuises had not offered an affidavit disputing that the policy submitted was the correct one and did not have any knowledge that the policy was not the correct one. The circuit court stated that it would accept the submission.

¶ 10. The circuit court then granted summary judgment in West Bend's favor and dismissed all claims against it. It agreed with the Kenkhuises that, regarding the breach of contract and implied warranty claims, there was an "occurrence" under the policy under American Family Mutual Insurance Co. v. American Girl, Inc., 2004 WI 2, 268 Wis. 2d 16, 673 N.W.2d 65. However, the court concluded that subparagraphs 5 and 6 of the "Damage to Property" exclusion applied, although this was not an exclusion that West Bend had raised.

Analysis

¶ 11. On appeal, the Kenkhuises make two procedural challenges to the circuit court's decision — that it erred in sua sponte considering the "Damage to Property" exclusion and it erred in accepting West Bend's submission containing the insurance policy. The Ken-khuises also challenge the applicability of that exclusion as well as certain of the other grounds on which West Bend relied in the circuit court to argue that there was no coverage for the breach of contract and implied warranty claims. We first address the two procedural challenges and then address the only ground on which West Bend now contends there is no coverage: that there is no "occurrence" under the policy.

I. Circuit Court's Sua Sponte Consideration of "Damage to Property" Exclusion

¶ 12. On appeal the Kenkhuises contend the circuit court erred in sua sponte considering the "Damage to Property" exclusion because West Bend did not raise that exclusion and, thus, did not present factual submissions showing it was applicable. In addition, the Kenkhuises assert, there is an exception to the "Damage to Property" subparagraph 6 exclusion that is applicable, and they were deprived of an opportunity to establish that this exception to the exclusion applies. West Bend responds that it "concurs with Kenkhuis' analysis of this exclusion, and does not contest Ken-khuis' position that this exclusion does not bar coverage in this case." However, West Bend argues, we should affirm on the alternative ground that the Kenkhuises' cross-claims do not present an "occurrence" under the policy, notwithstanding the circuit court's ruling on this point.

¶ 13. Despite West Bend's concession that the "Damage to Property" exclusion does not apply, the Kenkhuises argue in their reply brief that we should nevertheless reverse because the circuit court did not have the authority to sua sponte consider an exclusion not raised by West Bend without giving them notice it was considering the issue and an opportunity to be heard. See State v. Holmes, 106 Wis. 2d 31, 40-41, 315 N.W.2d 703 (1982). Assuming without deciding that the court erred in not giving the Kenkhuises notice and an opportunity to be heard, it does not follow that the failure to do so is reversible error. We do not reverse a judgment for an error unless the error "has affected the substantial rights of the party seeking to reverse ...." Wis. Stat. § 805.18(2); Evelyn C.R. v. Tykila S., 2001 WI 110, ¶ 28, 246 Wis. 2d 1, 629 N.W.2d 768.

¶ 14. The Kenkhuises do not explain how their substantial rights have been affected by the circuit court's sua sponte consideration of the "Damage to Property" exclusion without first providing them an opportunity to be heard, given that West Bend is conceding that exclusion is inapplicable. The only ground that West Bend advances on appeal for lack of coverage is the lack of an "occurrence" under the policy, and this is an issue West Bend did raise in the circuit court. Indeed, even if West Bend had not raised this issue in the circuit court, we may affirm the circuit court on an alternative ground as long as the record is adequate and the parties have the opportunity to brief the issue on appeal. Doe v. Gen. Motors Acceptance Corp., 2001 WI App 199, ¶ 7, 247 Wis. 2d 564, 635 N.W.2d 7. We therefore conclude that the Kenkhuises have not established that they are entitled to a reversal of the summary judgment solely because the circuit court sua sponte considered the Damage to Property exclusion without giving them notice and an opportunity to be heard.

II. Propriety of the Insurance Policy Submission

¶ 15. The Kenkhuises contend the circuit court erred in accepting the policy attached to West Bend's counsel's affidavit because it did not comply with Wis. Stat. § 802.08(3). Without this submission, the Ken-khuises assert, there was no basis on which to grant summary judgment in favor of West Bend.

¶ 16. We agree with the Kenkhuises that West Bend's counsel's affidavit does not show that it is based "on personal knowledge" and for that reason it does not "set forth such evidentiary facts as would [make the insurance policy] admissible in evidence." Wis. Stat. § 802.08(3). It was therefore not a proper submission.

¶ 17. However, we agree with West Bend that the Kenkhuises have not shown that the circuit court's error in admitting this submission affected their substantial rights. West Bend points out that the Ken-khuises conceded in the circuit court that they did not have a basis for disputing that this policy is the correct one. We also observe that the Kenkhuises do not suggest that the circuit court could not, within the proper exercise of its discretion, have given West Bend the opportunity to submit an affidavit complying with Wis. Stat. § 802.08(3), or that West Bend could not have complied if given that opportunity. The Kenkhuises do not reply to West Bend's argument that the error was harmless. We therefore conclude the Kenkhuises are not entitled to a reversal on this ground.

III. Coverage — Is There an "Occurrence"?

¶ 18. As noted above, West Bend's position on appeal is that we should affirm the summary judgment in its favor because the Kenkhuises' contract and implied warranty claims against Reimer do not allege an "occurrence" under the policy. According to West Bend, the amended cross-complaint alleges only negligent conduct and that is not "accidental" conduct, which is required by the policy definition. The Kenkhuises' position is that the circuit court correctly read American Girl, 268 Wis. 2d 16, and, under that case, a subcontractor's faulty workmanship or negligent work that is the basis for a contract or warranty claim against the general contractor is an "occurrence" under the policy. When "occurrence" is given this meaning, the Kenkhuises assert, their amended cross-claims and thirty-party claim allege an "occurrence."

¶ 19. We review the grant or denial of a summary judgment de novo, applying the same methodology as the circuit court. American Girl, 268 Wis. 2d 16, ¶ 22. Summary judgment is proper if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Id. This appeal involves the interpretation of an insurance contract and thus presents a question of law, which we review de novo. Id., ¶ 23.

¶ 20. We will first address the meaning of "occurrence" under the policy as applied in American Girl and other relevant cases. We will then examine the factual allegations in the amended pleading to determine whether they allege an "occurrence" under the policy.

A. Meaning of "occurrence" under the policy

¶ 21. The "insuring agreement" portion of the policy provides that West Bend "will pay those sums that the insured becomes legally obligated to pay as damages because of 'bodily injury' or 'property damage' to which this insurance applies"; and "[t]his insurance applies ... only if: the 'bodily injury' or 'property damage' is caused by an 'occurrence'. . . ." The policy defined "property damage" as "[pjhysical injury to tangible property, including all resulting loss of use of that property." An "occurrence" is defined in the policy as "an accident, including continuous or repeated exposure to substantially the same general harmful conditions."

¶ 22. We begin with a discussion of American Girl, which is central to a resolution of the dispute over the meaning of "occurrence." In American Girl, the Pleasant Company entered into a contract with the Renschler Company for the design and construction of a large warehouse. 268 Wis. 2d 16, ¶ 11. Renschler hired a soil engineer to conduct an analysis of the soil conditions at the site. Id., ¶ 12. The soil engineer concluded the soil conditions were poor and recommended that a process called "rolling surcharging" be used to prepare the soil. Id. The surcharging was done according to the soil engineer's advice and the building was completed. Id., ¶ 13. After Pleasant Company took occupancy, the building began to sink and there were damages to the building as a result of the settlement. Id., ¶¶ 13-14.

¶ 23. Pleasant Company claimed that the soil engineer's negligence caused the damages to the building and Renschler thereby breached its contract with Pleasant Company. Id., ¶ 17. American Family had issued a CGL policy to Renschler and contended that there was not an "occurrence" under the policy. Id., ¶¶ 14, 39. American Family's CGL policy contained the same language in the insuring agreement that we have cited above in paragraph 21, with the same definition of "property damage" and "occurrence." Id., ¶¶ 31-32, 33. The supreme court stated:

No one seriously contends that the property damage to the [warehouse] was anything but accidental (it was clearly not intentional), nor does anyone argue that it was anticipated by the parties. The damage to the [warehouse] occurred as a result of the continuous, substantial, and harmful settlement of the soil underneath the building. The soil engineer's inadequate site-preparation advice was a cause of this exposure to harm. Neither the cause nor the harm was intended, anticipated, or expected. We conclude that the circumstances of this claim fall within the policy's definition of "occurrence."

Id., ¶ 38 (footnote omitted).

¶ 24. American Family argued that because Pleasant Company's "claim [was] for breach of contract/hreach of warranty" it could not be an "occurrence" because the CGL policy was "not intended to cover contract claims arising out of the insured's defective work or product." Id., ¶ 39,The court rejected this argument explaining:

We agree that CGL policies generally do not cover contract claims arising out of the insured's defective work or product, but this is by operation of the CGL's business risk exclusions, not because a loss actionable only in contract can never be the result of an "occurrence" within the meaning of the CGL's initial grant of coverage. This distinction is sometimes overlooked, and has resulted in some regrettably overbroad generalizations about CGL policies in our case law.
[TJhere is nothing in the basic coverage language of the current CGL policy to support any definitive tort/contract line of demarcation for purposes of determining whether a loss is covered by the CGL's initial grant of coverage. "Occurrence" is not defined by reference to the legal category of the claim. The term "tort" does not appear in the CGL policy.

Id., ¶¶ 39, 41 (footnote omitted).

¶ 25. Thus, American Girl clearly establishes that the circumstances giving rise to a breach of contract or breach of warranty claim may be an "occurrence" within the meaning of a CGL policy: the analysis focuses on the factual basis for the claim and not on the theory of liability. See 1325N. Van Buren, LLC v. T-3 Group, Ltd., 2006 WI 94, ¶¶ 58-62, 293 Wis. 2d 410, 716 N.W.2d 822. To the extent West Bend's position is based on a disagreement with this principle, we are bound by this holding of American Girl. See, e.g., Cook v. Cook, 208 Wis. 2d 166, 189-90, 560 N.W.2d 246 (1997). Similarly, we do not consider West Bend's argument that prior case law—namely, Wausau Tile, Inc. v. County Concrete Corp., 226 Wis. 2d 235, 267, 593 N.W.2d 445 (1999), and Vogel v. Russo, 2000 WI 85, ¶¶ 17-18, 236 Wis. 2d 504, 613 N.W.2d 177—is inconsistent with this holding: the court in American Girl plainly considered and rejected these same arguments. See 268 Wis. 2d 16, ¶¶ 40-46.

¶ 26. The more difficult question for purposes of this appeal is how to interpret American Girl's analysis of "occurrence." The Kenkhuises argue that, just as in American Girl, their property damage was accidental in that it was not intended or anticipated by the subcontractor. However, the Kenkhuises overlook the fact that the court in American Girl considered the "occurrence" to be the soil settlement under the completed building, not the faulty advice of the soil engineer. We see this most clearly in the court's summary of its holding on this issue:

The threshold question is whether the claim at issue here is for "property damage" caused by an "occurrence" within the meaning of the CGL policies' general grant of coverage. We hold that it is. The CGL policies define "property damage" as "physical injury to tangible property." The sinking, buckling, and cracking of the warehouse was plainly "physical injury to tangible property." An "occurrence" is defined as "an accident, including continuous or repeated exposure to substantially the same general harmful condition." The damage to the warehouse was caused by substantial soil settlement underneath the completed building, which occurred because of the faulty site-preparation advice of the soil engineering subcontractor. It was accidental, not intentional or anticipated, and it involved the "continuous or repeated exposure" to the "same general harmful condition." Accordingly, there was "property damage" caused by an "occurrence" within the meaning of the CGL policies.

Id., ¶ 5.

¶ 27. The Kenkhuises apparently focus on the following language, quoted in paragraph 23 of this opinion: "[The soil engineer's] inadequate site-preparation advice was a cause of this exposure to harm. Neither the cause nor the harm was intended, anticipated or expected." Id., ¶ 38. However, when we read this language in the context of the entire paragraph 38 of American Girl, and in light of paragraph 5 of American Girl, we conclude it does not hold that the inadequate advice was the "occurrence." Rather, we think the court was saying that the inadequate advice was a cause of the "occurrence" — the soil settlement beneath the building. Thus, we do not read American Girl to hold that the faulty advice was in itself an "occurrence" within the meaning of the policy.

¶ 28. The Kenkhuises also find support for their position in Kalchthaler v. Keller Construction Co., 224 Wis. 2d 387, 591 N.W.2d 169 (Ct. App. 1999),.a decision of this court that the American Girl court cited approvingly. In Kalchthaler, the policy had practically the same definition of "occurrence" as does this policy. Id. at 394. The facts were that the subcontractors' negligent performance in constructing a residential facility resulted in windows that leaked, which caused water damage to the interior; and it was stipulated that the contractor was 50% liable for the damages based on its vicarious liability for the subcontractor's negligence and on negligent supervision of their work. Id. at 391, 392 n.2. We stated:

The policy applies to property damage caused by an occurrence. Property damage, as defined by the policy, means physical injury to tangible property. Here, water entering leaky windows wrecked drapery and wallpaper. This is physical injury to tangible property. An occurrence, as defined by the policy, is an accident. An accident is an "event or change occurring without intent or volition through carelessness, unawareness, ignorance, or a combination of causes and producing an unfortunate result." WebsteR's Third New INTERNATIONAL Dictionaey 11 (1993). Here, the parties have stipulated that fifty percent of the damages were due to Keller's negligence. Furthermore, there is no question that an event occurred: the windows leaked. This is an accident. So we have property damage caused by an occurrence and the policy applies.

Id. at 397.

¶ 29. Under this analysis in Kalchthaler, the "occurrence" was the leaking of the windows; it was not the faulty workmanship. The American Girl court's discussion of Kalchthaler appears to recognize and preserve this distinction:

The court of appeals has previously recognized that the faulty workmanship of a subcontractor can give rise to property damage caused by an "occurrence" within the meaning of a CGL policy. In Kalchthaler v. Keller Construction Co., 224 Wis. 2d 387, 395, 591 N.W.2d 169 (Ct. App. 1999), a general contractor subcontracted out all the work on a construction project; the completed building subsequently leaked, causing over $500,000 in water damage. The court of appeals noted that the CGL defined "occurrence" as "an accident," and further noted that "[a]n accident is an 'event or change occurring without intention or volition through carelessness, unawareness, ignorance, or a combination of causes and producing an unfortunate result.'" Id. at 397, 591 N.W.2d 169 (quoting WebsteR's TmRD New INTERNATIONAL DICTIONARY 11 (1993)). The court of appeals concluded that the leakage was an accident and therefore an occurrence for purposes of the CGL's coverage grant. Id.

American Girl, 268 Wis. 2d 16, ¶ 48 (emphasis added).

¶ 30. The American Girl court does not say in the first sentence quoted above that faulty workmanship can he the "occurrence" that gives rise to property damage, but says instead that faulty workmanship "can give rise to property damage caused by an 'occurrence'. ..." Id. (emphasis added). We understand this to mean that faulty workmanship may cause, or be a cause of, an "occurrence," such as the leaking of windows or the settling of soil under a building; we do not read it to say that faulty workmanship in itself is an "occurrence."

¶ 31. Our decision in 1325 North Van Buren, LLC v. T-3 Group, Ltd., 2005 WI App 121, 284 Wis. 2d 387, 701 N.W.2d 13, rev'd in part, aff'd in part on other grounds, 2006 WI 94, 293 Wis. 2d 410, 716 N.W.2d 822, which we issued after the circuit court's ruling in this case, is consistent with this view. In 1325 North Van Buren, 284 Wis. 2d 387, the plaintiff alleged the following occurred during a renovation project:

"a concrete slab smashed into an existing ceiling that was not being modified as part of the renovation and then punched through a newly completed shear wall on the next floor of the building, rendering it useless"; "subcontractor demolishing an existing staircase on the west side of the building failed to adequately brace the second floor opening created by the removal, causing the reinforced concrete at the north side of the opening to sag and require structural bracing"; damage to already-installed work of other subcontractors; fabricated steel pieces run over by construction equipment; "demolition subcontractor .. . used a piece of equipment with a hammer attachment that did not stop at breaking out of the top layer of concrete, and instead broke completely through the reinforced concrete leaving holes completely through the slab in flooring that was otherwise not to be altered by the construction of the project"....

Id., ¶ 27.

¶ 32. The CGL policy in 1325 North Van Buren had the same requirement that the property damage must be caused by an "occurrence" as does West Bend's policy, and it defined "occurrence" in the same way. Id., ¶ 26. We concluded that the property damage alleged was caused by an "occurrence." See id., ¶ 28. Citing American Girl's reference to Black's Law Dictionary's definition of "accident," we stated that 1325 North Van Buren was seeking coverage for "accidentally caused property damage." Id. Although we did not further discuss what the "occurrence" or accident was, each of the alleged items of property damage was caused by an event that was not an expected part of performing the subcontractor's work, such as smashing an existing ceiling that was not supposed to be modified. Indeed, the plaintiff in 1325 North Van Buren emphasized in its argument that it was seeking coverage "only for. . . specific ... accidentally-caused property damage [,]" and not "for every subcontractor failure . . . ." Id., ¶ 23.

¶ 33. In short, in neither American Girl as we read it, nor Kalchthaler, nor 1325 North Van Buren, 284 Wis. 2d 387, was faulty workmanship in itself the "occurrence." We recognize, however, that there is some support for the Kenkhuises' position in another case, Doyle v. Engelke, 219 Wis. 2d 277, 580 N.W.2d 245 (1998).

¶ 34. In Doyle, the supreme court concluded that the negligent supervision of employees was an "event" under that insurance policy, an "event" being defined in that policy as " 'an accident, including continuous or repeated exposure to substantially the same general harmful conditions.'" Id. at 289.

¶ 35. The Doyle court first referred to the American Heritage Dictionary definition of "accident" — " 'an unexpected, undesirable event' or 'an unforeseen incident' which is characterized by a 'lack of intent.'" Id. The court then referred to the definition of "negligence" as "failure to exercise the degree of care considered reasonable under the circumstances, resulting in an unintended injury to another party." Id. at 289-90 (citation omitted). The court reasoned:

It is significant that both definitions center on an unintentional occurrence leading to undesirable re-suits. As we have recognized in the past, comprehensive general liability policies are "designed to protect an insured against liability for negligent acts resulting in damage to third-parties." General Cas. Co. of Wisconsin v. Hills, 209 Wis. 2d 167, 183-84, 561 N.W.2d 718 (1997) (quoting Arnold P. Anderson, Wisconsin Insurance Law § 5.14, at 136 (3rd ed. 1990 & Supp. 1997)). Accordingly, we have little trouble concluding that a reasonable insured would expect the Policy provision defining "event" to include negligent acts.

Id. at 290.

¶ 36. Doyle was discussed by the court in American Girl, although not in the context of explaining what the "occurrence" was in American Girl, but in the context of rejecting the argument that an "occurrence" means only torts. American Girl, 268 Wis. 2d 16, ¶¶ 41, 44-45. After quoting the same Doyle passage we have quoted in the preceding paragraph, the American Girl court stated: "Doyle did not, however, equate the term 'accident,' as used in the CGL policy, with negligence as a form of legal liability; we simply held that negligent acts were 'accidental' within the meaning of the CGL’s definition of 'event.'" American Girl, 268 Wis. 2d 16, ¶ 45.

¶ 37. Since, as American Girl establishes, we are to look at the factual circumstances of the claim to decide whether there is an "occurrence" under the policy and since, under Doyle, a negligent act is accidental within a policy's definition of "event" that is the same definition as "occurrence" in West Bend's policy, then it may reasonably be argued that a subcontractor's negligence, which forms the basis for a breach of contract claim against the contractor, is an "occurrence." Under this reasoning, the "occurrence" is the faulty or negligent workmanship itself, and there is no requirement that the faulty or negligent workmanship must cause an event that constitutes the "occurrence."

¶ 38. Ultimately, we are persuaded that we should not adopt this reasoning in this case for the following reasons. First, although Doyle may seem to establish a rule that all negligent acts are "accidents" for purposes of CGL policies that define "occurrence" or "event" as an "accident," the supreme court has more recently declined to apply its reasoning in Doyle to negligent misrepresentation, thus indicating this reasoning is not uniformly applicable to all acts that are characterized as negligent. Everson v. Lorenz, 2005 WI 51, ¶¶ 15-20, 280 Wis. 2d 1, 695 N.W.2d 298. Second, and more significant, although the court in American Girl discussed Doyle for other purposes, it did not rely on its reasoning in Doyle to conclude that the "occurrence" was the soil engineer's negligence. Instead, as we have explained above, it concluded that the "occurrence" was the soil settling beneath the building. Because the supreme court's opinion in American Girl is that court's most recent decision analyzing the meaning of "occurrence" under a CGL policy where the basis for the contractor's liability is the subcontractor's negligence, we conclude we should apply the analysis used in that case. We also take into account that our decisions in Kalchthaler and 1325 North Van Buren are consistent with the American Girl analysis and do not provide support for adopting the approach of Doyle.

¶ 39. We therefore conclude that faulty workmanship in itself is not an "occurrence" — that is, "an accident" — within the meaning of the CGL policy. An "accident" may be caused by faulty workmanship, but every failure to adequately perform a job, even if that failure may be characterized as negligence, is not an "accident," and thus not an "occurrence" under the policy.

¶ 40. We recognize that there are other approaches that are supported by a different reading of American Girl and by other case law. This court, circuit courts, insurance companies, insureds, and other litigants would benefit from clarification by the supreme court on this point.

B. Analysis of factual allegations

¶ 41. We now examine the facts of this case to determine whether there was an "occurrence." The Kenkhuises and West Bend appear to agree that for this purpose we take the factual allegations in the Ken-khuises' amended pleading as true. They both on occasion refer to the Kenkhuises1 affidavits, but without clarifying how the affidavits relate to the proper analysis of the factual allegations in the amended pleading. Because of this, and because we see no significant difference for purposes of this appeal between the allegations of the amended pleading and the Ken-khuises' affidavits, we confine our analysis to the factual allegations in the amended pleading. We will liberally construe those allegations in favor of coverage, as we do when we determine if an insurer has a duty to defend the insured. See Doyle, 219 Wis. 2d at 284.

¶ 42. We conclude the amended pleading liberally construed does allege property damage caused by an "occurrence" as the factual circumstances for the breach of contract and implied warranty claims. The pleading alleges that the rubber mats the subcontractor improperly installed were damaged by the scraper that cleans the manure from them. The damage to the mats is "physical damage to tangible property." The damage was caused by an accident in that the damage was not intended or anticipated and it also was not intended or anticipated that using the scraper to clean the manure off the mats would damage the mats.

¶ 43. Because the amended pleading alleges factual circumstances underlying the breach of contract and implied warranty claims that constitute an "occurrence" causing "property damage," West Bend is not entitled to dismissal of the claims against it based on the lack of an "occurrence." While our analysis could end here, we comment on some of the other allegations that the parties have addressed in their arguments. We agree with West Bend that, based on the allegations of the amended pleading, the stalls not being built according to specifications, the irregularly installed stall loops and the loose, irregular and unattached neck bars were not caused by an "occurrence." The only cause alleged for these is the negligent work of the subcontractors and that, as we have held above, does not, in itself, constitute an "occurrence." On the other hand, we conclude that the puddling and backward flow of the urine and manure is an "occurrence": it is an accident in that this result was not intended or anticipated and the cause — the inadequate slope — was not intended or anticipated. However, liberally construing the amended pleading, there is no allegation that this "occurrence" caused "property damage" within the meaning of the policy. There is no allegation that the puddling and backward flow of urine and manure caused physical damage to the facility; and the damage alleged with respect to the cows is not physical damage to them, but economic loss to the Kenkhuises because of the extra work required to keep the cows healthy.

CONCLUSION

¶ 44. We conclude that faulty workmanship in itself does not constitute an "occurrence" within the meaning of this CGL policy. However, we also conclude that the factual circumstances alleged for the breach of contract and implied warranty claims against Reimer do contain at least one item of "property damage" caused by an "occurrence" within the meaning of the policy. Therefore, West Bend is not entitled to summary judgment dismissing the Kenkhuises' cross-claims of breach of contract and implied warranty and third-party claim against West Bend based on a lack of an "occurrence." Because West Bend concedes the circuit court erred in granting summary judgment on the ground it did and offers no other basis on which to affirm the circuit court, we conclude the circuit court erred in granting summary judgment in favor of West Bend on the breach of contract and implied warranty cross-claims and the third-party claim.

By the Court. — Order reversed and cause remanded.

       The circuit court viewed West Bend's motion as directed to the Kenkhuises' amended pleading and on appeal both parties do the same. We take this same approach.
      We are uncertain why the Kenkhuises both amended their cross-claims to add West Bend as a party and filed a thirty-party complaint against West Bend. On this appeal neither party appears to attach any significance to the distinction between the cross-claims against West Bend, on the one hand, and the third-party claim against West Bend on the other hand. Therefore, we use "claims against West Bend" to mean both the cross-claims and the third-party claim and we do not distinguish between them.

       Wisconsin Stat. § 802.08(3) provides:
      (3) Supporting papers. Supporting and opposing affidavits shall be made on personal knowledge and shall set forth such evidentiary facts as would be admissible in evidence. Copies of all papers or parts thereof referred to in an affidavit shall he attached thereto and served therewith, if not already of record. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this section, an adverse party may not rest upon the mere allegations or denials of the pleadings but the adverse party's response, by affidavits or as otherwise provided in this section, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against such party.
      All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

       The two exclusions determined applicable by the court are:
      (5) That particular part of real property on which you or any contractors or subcontractors working directly or indirectly on your behalf are performing operations, if the "property damage" arises out of those operations; or
      (6) That particular part of any property that must be restored, repaired or replaced because "your work" was incorrectly performed on it.

        Commercial General Liability Coverage Form Section I(2)(j)(5) and (6).

       We do not understand the Kenkhuises to be appealing the circuit court's dismissal of their cross-claim for negligence against West Bend. Therefore our reversal does not affect the dismissal of that claim.

       The parties appear to assume that "faulty" workmanship means work or conduct that is "negligent," and they use the terms interchangeably. For purposes of this appeal, we will make the same assumption and will use the terms interchangeably.

       We certified this issue to the supreme court in Glendenning's Limestone & Ready-Mix Co. v. Reimer, No. 05-1092, 2006 WL 300476 (Wis. Ct. App. Feb. 9, 2006). Certification was denied on March 15, 2006.

       Regarding Vogel v. Russo, 2000 WI 85, ¶¶ 17-18, 236 Wis. 2d 504, 512-13, 613 N.W.2d 177, the American Girl court stated that the no coverage determination there
      rested on the business risk exclusion, not on any inherent limitation in the initial grant of coverage. Accordingly, we caution that neither [Bulen v. West Bend Mut. Ins. Co., 125 Wis. 2d 259, 371 N.W.2d 392 (Ct. App. 1985)], nor Vogel should be read for the conclusion that a loss actionable in contract rather than tort can never constitute a covered 'occurrence' under a CGL policy.

        American Family Mut. Ins. Co. v. American Girl, Inc., 2004 WI 2, ¶ 43, 268 Wis. 2d 16, 673 N.W.2d 65. Regarding Wausau Tile, Inc. v. County Concrete Corp., 226 Wis. 2d 235, 267, 593 N.W.2d 445 (1999), the American Girl court noted that there "the issue of whether the alleged breach of contract or warranty was a covered 'occurrence' under the insurer's policy was 'undisputed.' Here, unlike in Wausau Tile, the issue is disputed." 268 Wis. 2d 16, ¶ 46 (citation omitted).

       West Bend, like the Kenkhuises, apparently reads American Girl as concluding that the "occurrence" was the faulty advice, and attempts to distinguish American Girl factually in two ways. Neither of these distinctions are persuasive. First, West Bend argues that the soil engineer's advice was "an error of omission," whereas, the concrete subcontractor's conduct in this case was "affirmative" and "volitional." West Bend views this distinction as significant because, it asserts, "omissions are regularly and properly considered 'negligence' or 'accidents' by the law," citing to the definition of "omission" in Black's Law Dictionary as "the neglect to perform what the law requires. The intentional or unintentional failure to act...." However, the soil engineer in American Girl did give advice about how to prepare the soil and the soil was prepared according to his advice. American Girl, 268 Wis. 2d 16, ¶ 13. His conduct in giving the advice was no less "affirmative" or "volitional" than the subcontractor's conduct here in pouring concrete and designing and installing improvements. The soil engineer's conduct was an act of "omission" only in the sense that he "omitted" the correct advice and gave incorrect advice instead. Moreover, whether an "omission" is "negligent" is irrelevant under the analysis of American Girl because the court there makes very clear that the distinction between a tort and a contract claim does not determine whether there is an "occurrence" within the meaning of a CGL policy. Id., ¶¶ 41-48.
      West Bend's second basis for distinguishing American Girl is the complexity of the contracts. West Bend points out that the contract between Pleasant Company and Renschler was complicated and contained significant warranties and promises to repair and replace defective components and resulting damages, see id., ¶ 11; in contrast, West Bend asserts, here there is only a one and one-half page contract, and although it provides that "[a]ll work shall be done in accordance with the attached drawings, specifications and catalog cuts," none are attached. We do not see what the complexity or completeness of the contracts between the general contractor and the property owner have to do with whether there is an "occurrence" under the CGL policy. American Girl's explanation for why the circumstances of that claim fell within the policy's definition of "occurrence" does not depend upon these characteristics of the contract between Pleasant Company and Renschler. American Girl, ¶ 38, quoted above at paragraph 23.