# Johnson Controls, Inc. v. Employers Insurance of Wausau

> Wisconsin Supreme Court · July 11, 2003 · 264 Wis. 2d 60

URL: https://www.frixlaw.com/law-library/cases/9703381

## Case

- **Full name:** Johnson Controls, Inc., Plaintiff-Appellant-Petitioner, v. Employers Insurance of Wausau, a Mutual Company (f/N/A Employers Mutual Liability Insurance Company of Wisconsin), Affiliated FM Insurance Company, AIU Insurance Company, Allstate Insurance Company (As Successor to Northbrook Excess and Surplus Insurance Company), American Employers' Insurance Company, American Home Assurance Company, American Motorists Insurance Company, Central National Insurance Company of Omaha, Employers Mutual Casualty Company, Employers Reinsurance Corporation, Federal Insurance Company, First State Insurance Company, Granite State Insurance Company, Highlands Insurance Company, Landmark Insurance Company, London Market (Certain Underwriters at Lloyd's London and London Market Insurance Companies), National Union Fire Insurance Company of Pittsburgh, PA, Northbrook Excess and Surplus Insurance Company (As Predecessor to Allstate Insurance Company), Puritan Insurance Company (f/N/A Manhattan Fire and Marine Insurance Company), Stonewall Insurance Company, Transamerica Premier Insurance Company, Travelers Indemnity Company, United National Insurance Company, Zurich Insurance Company, International Insurance Company, and Westchester Fire Insurance Company, Defendants-Respondents, Allianz Underwriters Insurance Company, American Centennial Insurance Company, American Insurance Company, Associated International Insurance Company, California Union Insurance Company, Continental Insurance Company, Fireman's Fund Insurance Company, Harbor Insurance Company, North Star Reinsurance Corporation, and Republic Insurance Company, Defendants
- **Court:** Wisconsin Supreme Court
- **Decided:** July 11, 2003
- **Citations:** 264 Wis. 2d 60; 665 N.W.2d 257; 57 ERC (BNA) 1073; 2003 WI 108; 2003 Wisc. LEXIS 484
- **Precedential status:** Published
- **Opinion:** Dissent by Wilcox
- **Judges:** Prosser, Crooks, Wilcox, Bradley
- **Cited by:** 128 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9703381

## How later opinions describe it (automated extraction)

- reasoning that a decision from this court could not be upheld under stare decisis principles where the decision could not "be reconciled [with other Wisconsin precedent] without generating . . . arbitrary and illogical distinctions"
- explaining that departing from precedent is warranted when "changes or developments in the law have undermined the rationale behind a decision" and when "the precedent has become detrimental to coherence and consistency in the law"
- discussing that departure from stare decisis occurs when a "prior decision is unsound in principle" and "may turn on whether the prior case was correctly decided" (first citing State v. Outagamie Cty. Bd., 2001 WI 78, ¶30 , 244 Wis. 2d 613 , 628 N.W.2d 376 ; then citing Planne…
- stating that precedents should never be overruled “‘casually’” (quoting State v. Stevens, 181 Wis. 2d 410, 442 , 511 N.W.2d 591 (1994) (Abrahamson, J., concurring))
- stating that an actual notice trigger discourages the insurer from defaulting in the performance of its duty to defend

## Opinion text

JON E WILCOX, J.
¶ 133. (dissenting). I disagree with the majority opinion, which regretfully overturns *140 this court's decision in City of Edgerton v. General Casualty Company of Wisconsin, 184 Wis. 2d 750 , 617 N.W.2d 463 (1994), rendered nearly a decade ago, and relied upon both by courts and numerous private parties. Because the majority fails to seriously consider several factors that support adherence to the doctrine of stare decisis in this case, I respectfully dissent from the majority opinion.
¶ 134. This case originated in 1989. After the circuit court in the original action dismissed Johnson Controls' claims regarding insurance coverage in 1995, this case came before us on a bypass petition. After holding the petition in abeyance until our decision in General Casualty Company of Wisconsin v. Hills, 209 Wis. 2d 167 , 561 N.W.2d 718 (1997), was rendered, this court, on June 10, 1997, unanimously denied Johnson Controls' petition, which made many of the same arguments presented now. Since the time Edgerton was decided, this court has been presented with numerous opportunities and requests to overturn the decision. Until today, this court has consistently refused to do so.
¶ 135. More importantly, nothing of legal consequence has changed since Edgerton. The insurance policy language before us has not changed. The applicable federal law, the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), has not changed. This case does not present us with a wholly new set of facts. The only thing that has changed is the personnel of this court and this court's view as to the proper definitions of "damages" and "suit." Overruling an established body of cases in this context raises serious questions about whether the court is "implementing 'principles . . . founded in the law rather than in the proclivities of individuals.'" Payne v. Tennessee, 501 U.S. 808, 853 (1991) (Marshall, J., dissenting) *141 (citation omitted). "\S\tare decisis is important not merely because individuals rely on precedent to structure their commercial activity but because fidelity to precedent is part and parcel of a conception of the 'judiciary as a source of impersonal and reasoned judgments.' " Id. at 852 (Marshall, J., dissenting) (citation omitted). 1
¶ 136. Although the majority opinion offers a lengthy presentation of the doctrine of stare decisis, by overruling an established body of Wisconsin law simply because it feels Edgerton was wrongly decided, the majority, in effect, fails to do justice to a doctrine that forms one of the foundational pillars of our judicial system.
¶ 137. Because Edgerton is well-established precedent in Wisconsin, the question is not who has the better argument regarding the applicable policy language, but "whether today's majority has come forward with the type of extraordinary showing that this [cjourt has historically demanded before overruling one of its precedents." Payne, 501 U.S. at 848 (Marshall, J., dissenting). 2 Thus, rather than offering a fervent repudia *142 tion of the majority's rationale and rehashing an argument previously settled, I merely explain why the court should adhere to the doctrine of stare decisis in the matter before us.
¶ 138. "Stare decisis is the motto of courts of justice." Ableman v. Booth, 11 Wis. 498 (1859). Adherence to stare decisis is crucial because "[rjespect for precedent 'promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.'" State v. Outagamie County Bd. of Adjustment, 244 Wis. 2d 613 , 628 N.W.2d 376 (2001).
Fidelity to precedent, the doctrine of stare decisis "stand by things decided", is fundamental to "a society governed by the rule of law." When legal standards "are open to revision in every case, deciding cases becomes a mere exercise of judicial will, with arbitrary and unpredictable results."
No change in the law is justified by "a change in the membership of the court or a case with more egregious facts."
State v. Stevens, 181 Wis. 2d 410, 441-42 , 511 N.W.2d 591 (1994) (Abrahamson, J., concurring).
¶ 139. In addition to the plain dictates of the doctrine, there are several overriding reliance factors present in this context that the majority opinion fails to address, which demand an adherence to stare decisis. Thus:
We should accord weight to this continued acceptance of our earlier holding. Stare decisis has added force when the legislature, in the public sphere, and citizens, *143 in the private realm, have acted in reliance on a previous decision, for in this instance overruling the decision would dislodge settled rights and expectations or require an extensive legislative response.
Hilton v. South Carolina Pub. Rys. Comm'n, 502 U.S. 197, 202 (1991).
¶ 140. Most, if not all, of these reliance factors are present in this case. First, the insurance industry is one of the most heavily regulated business sectors in the state. The legislature has, in the past, enacted specific legislation in response to our construction of policy language. 3 Considerations of stare decisis are stronger where the legislative prerogative to overturn our decisions is involved. See Hilton, 502 U.S. at 202 (Scalia, J., concurring) (" 'Considerations of stare decisis have special force [where] the legislative power is implicated, and Congress remains free to alter what we have done.'") (internal citation omitted). Thus, adherence to stare decisis is especially appropriate because in Wisconsin, the legislature has the final say over regulation of the insurance industry and it could possibly act to change the rule of Edgerton. 4
*144 ¶ 141. Moreover, "Considerations in favor of stare decisis are at their acme in cases involving property and contract rights, where reliance interests are involved." Payne, 501 U.S. at 828 . 5
[W]e have made it clear that this court, in general, would depart from stare decisis only where unintentional conduct was involved and then only when there were compelling reasons for altering a court-made rule. [We also recently] pointed out our reluctance to deviate from precedent where rules of contract or property were involved.
Antoniewicz v. Reszcynski, 70 Wis. 2d 836, 869 , 236 N.W.2d 1 (1975) (emphasis in original) (internal citations and quotations omitted); see also Gottlieb v. City of Milwaukee, 33 Wis. 2d 408, 431 , 147 N.W.2d 633 (1967) (accord).
¶ 142. The majority opinion attempts to avoid this consideration by characterizing the decision as one involving unintentional tort-like conduct. See majority op., ¶¶ 113-15. While this may be true insofar as the underlying conduct giving rise to the policy dispute is concerned, the majority decision today abrogates a rule regarding contract interpretation. The court alters the rights and expectations of parties to a contract; it does not merely create a new rule governing standards of behavior. The determination of whether to purchase *145 certain types of insurance coverage and the drafting of language within insurance policies certainly constitutes intentional conduct.
¶ 143. Further, stare decisis concerns are particularly strong where substantial reliance in the affected business community occurs. Thus, where a "rule . . . has become part of the basic framework of a sizeable industry!,] [t]he 'interest in stability and orderly development of the law' that undergirds the doctrine of stare decisis . . . counsels adherence to settled precedent." Quill Corp. v. North Dakota, 504 U.S. 298, 317 (1992) (internal citations omitted). There is no doubt that the insurance industry constitutes a "sizeable industry." Furthermore, the number of litigants who have been subjected to the Edgerton and Hills definition of "damages" and "suit" demonstrate that the Edgerton and Hills decisions have become part of the basic framework of the insurance industry. 6 Edgerton itself has *146 been cited 242 times since it was decided. 7 While obviously not all of these authorities agree with the Edgerton holding, the number of citations itself demonstrates how entrenched Edgerton has become in this area of the law. In addition to the large number of litigants subjected to the Edgerton and Hills rule of law, it is very probable that a substantial number of businesses, relying on Edgerton, refrained from litigating CERCLA related disputes with their insurers.
¶ 144. The majority asserts that "[m]ost, if not all, CGL polices executed today will not be governed by either this decision or by Edgerton." Majority op., ¶ 117 (emphasis in majority). The majority then proceeds to argue that this fact supports their refusal to adhere to stare decisis. Regardless of the applicability of today's decision to current insurance policies, the fact remains that a substantial group of similarly situated insureds, with policy language identical to Johnson Controls' insurance policy, have been subjected to the Edgerton and Hills rule of law. Having determined in Hills that the principles of Edgerton were still controlling in the CERCLA context, and through our subsequent assurances of the validity of Edgerton by rejecting multiple requests to overturn Edgerton in the past, "we ought not visit economic hardship upon those who took us at our word." Quill Corp., 504 U.S at 321 (Scalia, J., concurring) (citation omitted).
¶ 145. The practical effect of overruling Edgerton now, after nearly a decade of vitality, is to subject a *147 group of similarly situated litigants to two different rules of law based merely upon the time they litigated their dispute. This result runs contrary to the basic principles of justice in a free society. 8
¶ 146. Moreover, the fact that since Edgerton, insureds have purchased additional forms of insurance to cover pollution cleanup expenses demonstrates that there has been substantial reliance on Edgerton in the insurance community. The majority asserts that the change in policy language and development of new forms of coverage does not evidence reliance on Edger-ton, but rather:
shows that insurers have, since the issuance of the CGL policies at issue in this case, realized that the scope of former CGL polices included these response costs, that the insurers did not want to cover such costly property damages, and that they revised the CGL policies to expressly eliminate such coverage.
Majority op., ¶ 117 n.49.
¶ 147. However, after Edgerton, Wisconsin was among a distinct minority of jurisdictions that held that "damages" in CGL policies did not include CERCLA response costs. Thus, while the majority's rationale may hold true regarding the mass of jurisdictions adopting the contrary rule, it is more probable that in Wisconsin, other forms of pollution insurance were purchased specifically because this court found that a standard CGL policy did not cover these expenses.
¶ 148. Although the majority purports to be "mindful of the reliance interests of businesses . . . that have arisen due to this court's holding in Edgerton[,Y *148 majority op., ¶ 116, it then proceeds to assert: "To be sure, insurers and insureds may have assessed their respective expected costs and obligations in situations governed by Edgerton and have accounted accordingly. However, this ancillary reliance is not the type of conduct modification upon which the merit of stare decisis is predicated." Majority op., ¶ 117 n.49.
¶ 149. Quite the contrary, one of the fundamental justifications for the rule of stare decisis is to provide a consistent predictable rule of law upon which society, particularly businesses, may properly order their affairs, i.e., engage in rational business decision-making, without the continuous ominous threat of the legal bases for those decisions being changed. See, e.g., James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 551-52 (1991) (O'Connor, J., dissenting) ("At its core, stare decisis allows those affected by the law to order their affairs without fear that the established law upon which they rely will suddenly be pulled out from under them."); Khan v. State Oil Co., 93 F.3d 1358, 1367 (7th Cir. 1996) (Ripple, J., concurring) ("[W]e ought to ensure, through strict application of the doctrine of stare decisis and precedent, that the law is sufficiently predictable and certain to permit businesses to order their affairs with a clear understanding of what the law requires."); Smith v. Brennan, 157 A.2d 497, 501 (N.J. 1960) ("Stare decisis . . . applies primarily to decisions . . . , which invite reliance and on the basis of which men order their affairs, e.g., in the field of contract or property rights.").
¶ 150. While the majority is correct when it notes that a standard CGL policy covers all known and unknown losses, majority op., ¶ 115, since Edgerton and Hills , insurers have rationally concluded that they have no liability for environmental response costs when *149 the costs are incurred as a result of administrative proceedings, as opposed to certain third party lawsuits. Thus, while their policies, in general, covered all known and unknown losses, after Edgerton, this court made known to insurers that certain categories of losses would not be covered. Regardless of whether insurers originally expected their CGL policies to cover CERCLA-like costs, what is important is that this court specifically told them in Edgerton that their policies did not cover these costs. The .majority, by overturning Edgerton today, defeats those expectations, and frustrates the business decisions and predictions made in reliance on Edgerton and Hills . "The original risk assessment [made after Edgerton] becomes a nullity if the language of the policy is redefined in order to expand coverage beyond what was planned for by the insurer in the contract of insurance." Edgerton, 184 Wis. 2d at 779 n.26. As a result of today's decision, insurers are now at risk for liabilities they did not anticipate, and consequently, for which they did not collect premiums.
¶ 151. Finally, refusing to adhere to stare decisis in this case sends a precarious message to litigants suffering adversely from our decisions. The solidity of the judiciary depends upon non-prevailing litigants accepting our decisions and adjusting their behavior accordingly. By overturning established precedent today, after repeatedly refusing to do so in the past, the court tells litigants with the means to do so that they are better served through constant expostulations and challenges to adverse decisions than by acknowledging the validity of the state's law, even if reluctantly, and abiding by it. Now, due to its persistence and this court's newfound change of heart as to the validity of Edgerton, Johnson Controls has finally gotten its way.
*150 ¶ 152. Without adherence to stare decisis, "courts would not be making any 'law1; they would just be resolving the particular dispute before them." Antonin Scalia, "Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws", in A Matter of Interpretation, Federal Courts and the Law 3, 7 (1997). If the resolution of each dispute before this court is open to reassessment based merely on the perseverance of the litigants and the grace of the court, the foundation of an impartial judiciary crumbles, and our beacon of judicial light becomes an erratic reflection, with no discernible course.
¶ 153. The majority does offer some justifications for disregarding stare decisis. The majority first concludes that our decision in Hills undercuts and destroys the rationale of Edgerton, such that the two cannot be reconciled. Majority op., ¶¶ 102-05. 9 Interestingly, the Hills decision itself recognizes that the two decisions can co-exist on the same intellectual plane:
[T]he nature of the relief being sought by Arrowhead is different than that sought by the DNR in Edgerton. We therefore reject General Casualty's assertion that we must overrule Edgerton in order to hold that the suit in this case seeks "damages." Edger-ton continues to. stand for the proposition that receipt of a letter from the EPA or DNR requesting a party to propose a remediation plan does not constitute a "suit seeking damages."
Hills, 209 Wis. 2d at 182 (emphasis added). Yet, despite this rationale, the majority asserts: "Hills did not conclude that the nature of the relief sought changes *151 based on the identity of the party bringing the action. The opinion merely concluded that the DNR and EPA, when parties in a CERCLA cost recovery action, are somehow different from other parties." Majority op., ¶ 107. The dispositive factor in Hills was not, as the majority suggests, the identity of the parties; rather, it was "the type of relief sought and the posture of the party seeking relief." Amcast Indus. Corp. v. Affiliated FM Ins. Co., 221 Wis.2d 145, 160 , 584 N.W.2d 218 (Ct. App. 1998) (emphasis in original).
¶ 154. In fact, Hills relied on the definition of "damages" adopted by Shorewood and Edgerton: "Thus, under the definition set forth and applied in Shorewood and Edgerton, Arrowhead is seeking 'damages' from Hills as that word is used in the insurance policies at issue." Hills, 209 Wis. 2d at 181 . Then applying this same definition, Hills concluded that while the governmental action in Edgerton did not fall within this definition of damages, the action before it did. Id. at 180-81 . Therefore, the difference in result between Edgerton and Hills is not one based on logically inconsistent rationales, but rather a factual distinction based upon the same underlying reasoning. Id.
¶ 155. The majority identifies its own inconsistency because it focuses on the nature of the derivative conduct giving rise to CERCLA liability and the results in each case, rather than on the nature of the action for which the insured seeks policy coverage. The distinction between Edgerton and Hills is not, as the majority asserts, based on "the fortuity of whether the insured had ever been contacted in some manner by the government." Majority op., ¶ 62. Rather, this distinction centers on Hills' conclusion that the type of relief sought by a third party is different than the type of *152 relief sought by the government in CERCLA proceedings. Hills, 209 Wis. 2d at 182 .
¶ 156. There is only conflict between Edgerton and Hills because the majority has eviscerated the underlying rationale of Edgerton and then focused on the result reached in both cases. Although Edgerton appears inconsistent with Hills if one adopts the majority's view of "damages" in the CERCLA context, that is not the point. The point is that Edgerton and Hills were consistent under the rationale employed by the court when those decisions were rendered. In essence, the majority disagrees with Edgerton's logic, concludes it has the better argument, and then judges the continued co-existence of the two cases by retrospectively applying its new paradigm to them. This is not a justifiable basis for refusing to adhere to precedent.
¶ 157. To further widen the artificial intellectual chasm between Edgerton and Hills , the majority points to the fact that the Edgerton court did not take into account the reasonable expectations of the insured, while the Hills court did. Majority op., ¶ 104. However, taking into account the reasonable expectations of the insured when construing the language of an insurance policy does not ipso facto mean construing the policy to bear a pro-insured result.
In the case of an insurance contract, the words are to be construed in accordance with the principle that the test is . .. what a reasonable person in the position of the insured would have understood the words to mean. Whatever ambiguity exists in a contract of insurance is resolved in favor of the insured... .
. . . However, when the terms of the policy are unambiguous and plain on their face, the policy should not be *153 rewritten to include insurance coverage not agreed to by the parties and for which it was not paid.
Sch. Dist. of Shorewood v. Wausau Ins. Cos., 170 Wis. 2d 347, 367 , 488 N.W.2d 82 (1992) (internal citations omitted).
¶ 158. The court in Shorewood, having determined that " '[damages' as used in these insurance policies unambiguously means legal damagest,]" id. at 368 , the Edgerton court in construing the same phrase was not required to discern the reasonable expectation of the insured, as the precise language they were interpreting had already been determined to be unambiguous. Edgerton itself recognized this: "[A]n insured's expectations may not be satisfied in contradiction to policy language which clearly identifies the scope of the insured's coverage." Edgerton, 184 Wis. 2d at 780 . The mere fact that the context of Edgerton was different than the factual context of Shorewood does not justify a reinterpretation of that phrase:
[A]ppellate courts are not bound to reexamine a determination of a phrase in an insurance policy with each differing fact situation. . . . When difficulty comes in applying the plain meaning of the phrase to a particular fact situation, an otherwise unambiguous provision is not made ambiguous simply because it is difficult to apply to the facts of a particular case.
Quinlan v. Coombs, 105 Wis. 2d 330, 334-35 , 314 N.W.2d 125 (Ct. App. 1981). Thus, the fact that a rule or interpretation may generate hard questions in the *154 future, see majority op., ¶ 109, is not a reason to abandon that rule once it has been firmly rooted in this state's jurisprudence. 10
¶ 159. The majority next suggests that stare de-cisis need not be followed in this case because Edgerton has failed to provide "suitable direction and consistency to this area of the law." Majority op., ¶ 106. However, the majority's determination that a PRP letter is a "functional equivalent" of a "suit" such that "insurers have a duty to defend an insured who receives a PRP letter from the EPA or an equivalent state agency seeking remediation or remediation costs . . . [,]" majority op., ¶ 92, while purporting to establish a bright line rule, fails to adequately rationalize under what circumstances a PRP letter will trigger a duty to defend.
¶ 160. Not all PRP letters contain a demand for pecuniary remuneration. Edgerton, 184 Wis. 2d at 775 (noting that the letters from the EPA and DNR in that case merely sought information and asked for voluntary compliance). Are all PRP letters to be considered a "suit"? If a recipient of a PRP letter merely provides information, or does act voluntarily, what is there to defend against? What precise language in a PRP letter is necessary to assume a sufficient adversarial posture? Must an insurer provide a "defense" simply because a PRP letter has been received by an insured, without any regard to the contents, tenor, or requests contained therein? What, if any, circumstances would permit an insurer to refuse to defend, once a PRP letter has been received by an insured, without being liable for bad *155 faith breach of contract? 11 A rule that leaves unanswered so many significant questions can hardly be characterized as promoting consistent and logical results.
¶ 161. Conversely, Edgerton did provide suitable direction and consistency in this regard: " 'Suit' denotes court proceedings, not a 'functional equivalent.' . . . Either there is a suit or there is not. When there is no suit, there is no duty to defend." Edgerton, 184 Wis. 2d at 781 . This was a clear, workable rule, based upon an unambiguous legal definition, which has produced consistent results. Furthermore, this previous construction of "suit" was based on a commonsense, everyday understanding of the term. Johnson Controls *156 did not contract to be defended when it faced the "functional equivalent of a suit"; it contracted to be defended from "suits."
¶ 162. In sum, I dissent because the majority failed to consider several important reliance interests that further buttress adherence to stare decisis in this context. Further, I do not find any of the majority's reasons for departing from stare decisis in this case to be persuasive. Finally, regardless of who has the better argument as to the meaning of "damages" in a CGL policy in the context of CERCLA, I do not believe that Edgerton and Hills were based upon fundamentally different rationales, such that their continued coexistence is impossible to reconcile.
¶ 163. For these reasons, I am of the opinion that there is no need or justification to overrule Edgerton today; therefore, I am compelled to dissent.
¶ 164. I am authorized to state that Justice ANN WALSH BRADLEY joins this dissent.
Wisconsin's stare decisis jurisprudence is akin to that of the federal courts. See, e.g., Linville v. City of Janesville, 174 Wis. 2d 571, 591-92 , 497 N.W.2d 465 (Ct. App. 1993) ("[T]he principle that stare decisis is a substantial disincentive to change is applicable to any court.") (citing Planned Parenthood of Southern Pa. v. Casey, 505 U.S. 833 (1992); State v. Stevens, 181 Wis. 2d 410, 441-42 , 511 N.W.2d 591 (1994) (Abrahamson, J., concurring) (quoting Akron v. Akron Ctr. for Reprod. Health, Inc., 462 U.S. 416, 420 (1983)).
"Adhering to precedent 'is usually the wise policy, because in most matters, it is more important that the applicable rule of law be settled than it be settled right.1" Payne v. Tennessee, 501 U.S. 808, 827 (1991).
See, e.g., Wis. Stat. § 632.32 (5)(f) (1995-96), permitting an insurer to add a clause to an automobile policy that prohibits "stacking" of policy benefits; Blazekovic v. City of Milwaukee, 2000 WI 41, ¶ 20 , 234 Wis.2d 587 , 610 N.W.2d 467 (noting Wis. Stat. § 632.32 (5) (f) "validades] such clauses to avoid the duplication of benefits permitted under prior case law"). Cf. Wis. Stat § 103.465 (1995-96), abrogating the judicial blue-pencil announced in Fullerton Lumber Co. v. Torborg, 270 Wis. 133 , 70 N.W.2d 585 (1955).
As the Supreme Court has said in a slightly different context: "Congress has the final say over regulation of interstate commerce and it can change the rule of Bellas Hess by simply saying so. We have long recognized that the doctrine of stare *144 decisis has 'special force' where 'Congress remains free to alter what we have done.'" Quill Corp. v. North Dakota, 504 U.S 298, 320 (1992) (Scalia, J., concurring) (citation omitted).
See also Quill Corp., 504 U.S. at 320 ("Moreover, the demands of the doctrine are 'at their acme . . . where reliance interests are involved.'") (citations omitted).
See, e.g., State v. Hydrite Chem. Co., 2002 WI App 222 , 257 Wis. 2d 554 , 652 N.W.2d 828 ; Nor-Lake, Inc. v. Aetna Cas. & Sun Co., 2000 WI App. 94, 234 Wis. 2d 526 , 611 N.W.2d 471 , rev. denied, 2000 WI 88 , 237 Wis. 2d 253 , 616 N.W.2d 115 ; Amcast Indus. Corp. v. Affiliated FM Ins. Co., 221 Wis. 2d 145 , 584 N.W.2d 218 (Ct. App. 1998), rev. denied, 221 Wis. 2d 654 , 588 N.W.2d 631 (1998); Hydrite Chem. Co. v. Aetna Cas. & Sur. Co., 220 Wis. 2d 26 , 582 N.W.2d 423 (Ct. App. 1998), rev. denied, 220 Wis. 2d 363 , 585 N.W.2d 156 (1998); Robert E. Lee & Assoc., Inc. v. Peters, 206 Wis. 2d 509 , 557 N.W.2d 457 (Ct. App. 1996), rev. denied, 211 Wis. 2d 531 , 568 N.W.2d 298 (1997); Spic and Span, Inc., v. Cont't Cas. Co., 203 Wis. 2d 118 , 552 N.W.2d 435 (Ct. App 1996), rev. denied, 211 Wis. 2d 530 , 568 N.W.2d 297 (1997); Sauk County v. Employers Ins. of Wausau, 202 Wis. 2d 433 , 550 N.W.2d 439 (Ct. App. 1996), rev. denied, 211 Wis. 2d 530 , 568 N.W.2d 297 (1997); Regent Ins. Co. v. City of Manitowoc, 205 *146 Wis. 2d 450 , 556 N.W.2d 405 (Ct. App. 1996), rev. denied, 211 Wis. 2d 530 , 568 N.W.2d 297 (1997). The majority concedes this point. See majority op., ¶ 118.
This list includes 86 cases, one administrative decision, and numerous secondary sources, including several practice guides, specialty reporters, and insurance treatises.
See People v. Jones, 350 N.E.2d 913, 915 (N.Y. 1976) (Breitel, C.J., dissenting) (citing Aristotle, Ethica Nicomachea, book V, ¶¶ 1129a, 1131a (Ross ed.)).
"[I]f we do not remove or limit the force of Edgerton, we must remove or limit the force of Hills." Majority op., ¶ 105.
"[It is important] that we retain our ability— [and] . . . public confidence in our ability — sometimes to adopt new principles for the resolution of new issues without abandoning clear holdings of the past that those principles contradict." Quill Corp., 504 U.S at 320-21 (citation omitted).
The willingness of many courts to give an expansive interpretation to "suit" has presented practical difficulties in applying traditional rules that have governed the duty to defend in such states.
The mere fact that a PRP letter may he deemed to be a "suit" does not automatically require an insurer to defend. As with actual lawsuits, the allegations set forth in these claims must be compared against the insurer's policy to determine whether there is any potential for coverage.
Unfortunately, the determination of whether a PRP letter triggers a duty to defend is made more difficult by the fact that such notices rarely contain substantive factual allegations and are typically silent as to when or how pollution occurred. Although a growing number of states permit the consideration of extrinsic facts, both to create and to refute a duty to defend, many states continue to adhere to the traditional view that an insurer may not look beyond the "four corners" of the underlying complaint in considering whether it has a duty to defend.
David L. Leitner et al., Law and Practice of Insurance Coverage Litigation § 44.3, The Duty to Defend Pollution Claims (2001).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9703381. Public record. Not legal advice.