Girard and Lindsay Jones, the mother and father of a family of six, appeal a judgment dismissing both state and federal disparate treatment housing discrimination claims against a landlord, John Baecker. The Joneses' race discrimination claims rest on Baecker's identification of Mr. Jones as "African American." The Joneses' family status discrimination claim mainly rests on Baecker's stated belief that the rental unit the Joneses' attempted to rent was too small to accommodate their family. The Joneses claim that the circuit court erred in granting summary judgment to Baecker when they found that no reasonable fact finder could conclude, on this record of facts, that the racial or familial status of the Joneses was a substantial factor in refusal to rent to the family. This case is Jones v. Baecker, No. 2015AP325, 2016 WL 7471577, (Wis. Ct. App. Dec. 28, 2016).

In the Summer of 2011, the Jones family attempted to obtain a rental property. Lindsay is white and Girard is African American. The couple is married and has two children together, while Girard has two children from previous relationships. Three of the children lived with the Joneses full time, while the fourth child had a visitation schedule for the weekends and the summer.

The Joneses were seeking rental property in an area that would allow their children to maintain their education at Putnam Heights Elementary School, and were looking for a three bedroom rental. Not many rentals were available that met those criteria, and although ten to twenty landlords were contacted the Joneses did not view any of those properties.

During a phone call between Lindsay Jones and Baecker, Lindsay stated that her family lived in a house that was being foreclosed on, and mentioned the location of the house. Baecker articulated three specific concerns about renting the property to the Joneses during the conversation: (1) his inability to accommodate a family the size of the Joneses, (2) his impression that the Joneses had failed to maintain and keep clean their previous rental, and (3) his repeated observations of toys strewn throughout the yard at their previous rental. Baecker admitted mentioning Girard's race during the conversation. Lindsay did not seek application or ask to view the property because of Baeckers statements during their phone call. The Joneses claim that they have been unlawfully denied housing because of their racial and familial status.

Baecker had a general business liability policy with West Bend effective during the time of this incident. In the Spring of 2014, Baecker's attorney sent a letter tendering defense of the Joneses' lawsuit to the insurer. About a month later the insurer filed a motion to intervene in the Joneses' action against their insured. The circuit court decided that West Bend had a duty to defend Baecker from that date forward, and also granted Baecker's summary judgment deciding that it was evident that Baecker "decided he was not interested in renting to [the Joneses] because of the number of children in the family."

Discriminatory intent does not need to be the sole reason for the housing decision, but the evidence must be sufficiently compelling to reasonably infer racial discrimination. The trier of fact must be able to make an evidence based inference that the decision was made because the plaintiff was a member of a protected class. The court stated that "nothing in Baecker's single use of the term "African American" would allow a reasonable fact finder to find a discriminatory motive without resorting to speculation. Consequently, there is no reasonable, unspeculative basis for a fact finder to reject Baeckers' contention that the phrase was used for identification purposes only. . .."

West Bend cross-appealed asserting that the circuit court erroneously declared it had a duty to defend Baecker in this case. West Bend argued that while the alleged discrimination was a volitional act on Baecker's part, the complaint failed to allege an "occurrence" that would trigger a duty to defend. The duty to defend is determined by the policy language. The policy in question defines an "occurrence" as "an accident." West Bend argues that nothing in the complaint alleges an "accident" because in the past The Supreme Court has repeatedly held that when coverage is contingent of an accident occurring, the insurer has no duty to defend against damages that, although unexpected, were brought about intentionally by the insureds volitional conduct.

It was undisputed that Baecker refused to rent to the Joneses, and the complaint alleged that he did so intentionally on the impermissible bases of racial and familial status. Such allegations are taken at face value for purposes of duty-to-defend decisions. Baeckers refusal can only be interpreted as evidencing "a degree of volition inconsistent with the term accident." Because of this, the court of appeals concluded that there was not an "occurrence" in the case and West Bend is entitled to the declaratory judgment that there is no duty to defend the insured.

Editor's Note: After much discussion of the alleged discrimination in the above case, it became clear to the appellate court that the circuit court erred in finding a duty to defend. All of the allegations, supported by evidence gathered and presented in discovery, the appellate court found that it was clear that the insureds was alleged to act intentionally, and as discussed above, an intentional volitional action is not considered to be an "occurrence" for duty to defend purposes.