Legal News & Articles

In one of the few published insurance cases so far this year, 'Fischer v. Steffen', 2010 WI App 68 (2009AP1669), the court of appeals revisited the interplay between two recurring issues in insurance law: subrogation and the collateral source rule.

From 'Swan & Associates v. American Safety Casualty' (2009AP531) ¶7 In general, Wisconsin courts will enforce parties' express agreement that the law of a particular jurisdiction shall control their contractual relations. 'Bush v. National Sch. Studios, Inc.', 139 Wis. 2d 635, 642, 407 N.W.2d 883 (1987). Allowing parties some degree of autonomy to stipulate controlling law "promotes certainty and predictability in contractual relations ." Id. (citing WILLIS L. M. REESE, Choice of Law in Torts and Contracts and Directions for the Future, 16 COLUM. J. TRANSNAT'L L. 1, 22-24 (1977)). The right is not unqualified, however; parties are not permitted, through their contractual selection of applicable law, to disregard the "important public policies of a state whose law would be applicable if the parties choice of law provision were disregarded." Id.

In 'Day v. Allstate Indemnity Company' (2008AP2929) the plaintiff Wendy Day sued Holly Day, her ex-husband’s current wife, who was an insured under a homeowners' insurance policy with the defendant, for wrongful death and survivorship claims alleging that Holly’s negligent supervision caused the plaintiff's daughter’s death. The defendant asserted that the family member exclusion clause in the homeowners' liability policy precluded coverage for the plaintiff's wrongful death and survivorship claims. The family member exclusion limited coverage by excluding losses for a “bodily injury to an insured person whenever any benefit of this coverage would accrue directly or indirectly to an insured person.” Under the policy, the plaintiff’s daughter, the plaintiff’s ex-husband and his wife Holly Day were considered “insured persons,” while the plaintiff herself was not. The defendant moved for summary judgment on the coverage issue, and the circuit court denied the motion. The defendant appealed.

The Wisconsin Supreme Court today issued a couple of notable decisions. The first was a highly anticipated case deciding the constitutionality of the Wisconsin Legislature’s transfer of $200 million from the Injured Patients and Families Compensation Fund. The second case involved an important negligence case deciding whether a principal employer is liable in tort for the injuries sustained by an independent contractor’s employee while he or she is performing the contracted work. Below is a summary of both cases.

The Wisconsin Supreme Court has granted the petition for review of the Court of Appeals decision in the consolidated cases 'Casper v. American International South Insurance Co.' (2006AP1229), 'Casper v. National Union Fire Ins. Co. of Pittsburgh, PA' (2006AP2512), and 'Casper v. National Union Fire Ins. Co. of Pittsburgh, PA' (2007AP369), 2010 WI App 2, 323 Wis.2d 80, 779 N.W.2d 444, on the issues, "For 'excusable neglect,' is it necessary to have evidence of the actions that caused the neglect or of the reasons why a "carefully structured process to respond to complaints" did not work if the party failed to timely respond? -- OR Did failure to answer the complaint in a timely manner constitute excusable neglect?

Wisconsin has a long history of promoting tourism and outdoor activities. One of the great joys of living in Wisconsin is the number of recreational opportunities available, including a large number of well-kept bicycle trails. These trails are developed and maintained by the cooperation of local and state governments, and a number of bicycle clubs with dedicated members who volunteer their time and energy to making Wisconsin a bicycle friendly state. Wisconsin’s Recreational Immunity Statute, Wis. Stat. sec 895.52, is intended to promote recreational activity in Wisconsin by making certain organizations and individuals immune from liability for injuries or death caused while a person is engaged in recreational activities. Although the statute does not directly refer to “bicycle clubs,” it is likely that some bicycle clubs and organizations fall within the umbrella of protection provided by the law.

From 'Ash Park, L.L.C. v. Alexander & Bishop, Ltd.' (2008AP1735) We conclude that the circuit court did not erroneously exercise its discretion when it ordered specific performance of this contract. The contract provides that specific performance is an available remedy, and neither the contract nor Wisconsin law requires Ash Park to demonstrate that a legal remedy would be inadequate as a precondition to relief. Further, although impossibility is a defense to specific performance, Alexander & Bishop failed to present evidence that performance would be impossible in the proceedings before the circuit court.

The Wisconsin Supreme Court has ruled that a plaintiff is not entitled to punitive damages in cases where the plaintiff seeks equitable damages and where no compensatory damages are awarded.

In Casper v. American International South Insurance Co. (2006AP1229), the plaintiffs sustained serious injuries when the defendant rear-ended a minivan at about 40-45 MPH. At the time of the accident, the defendant driver was operating a truck on a route approved by the CEO of the trucking company. The court of appeals found that the CEO of the trucking company could be personally liable in negligence for approving the route which was being traveled at the time of the accident.

On April 28, 2010, the Court of Appeals released Fischer v. Steffen (2009AP1669) [recommended for publication], a case involving a plaintiff’s effort to collect medical expenses paid by her auto insurer. The court ruled against the plaintiff and held that an arbitration ruling (which was unfavorable to the plaintiff’s auto insurer) precluded the plaintiff from recovering the medical expenses.

In Racine County v. Oracular Milwaukee, Inc., 2010 WI 25 (2007AP2861), the defendant contracted with the plaintiff to supply off-the-shelf computer software and provide plaintiff's employees with training on its usage. After the defendant allegedly failed to complete the project in a timely manner or provide training, the plaintiff filed suit for breach of contract and statutory misrepresentation under Wis. Stat. §100.18. The plaintiff did not retain an expert to testify as to the standard of care owed by computer consultants, and the defendant moved for summary judgment, arguing that the contract was one for professional services and that the plaintiff was required to prove professional negligence in order to recover.

In Pawlowski v. American Family Mut. Ins. Co., 2009 WI 105 (2007AP2651), the issue before the Wisconsin Supreme Court was whether the defendant homeowner was statutorily liable as a person who either “harbors” or “keeps” a dog even though the actual owner of the dog was the person who had control of the dog at the time of the bite. Just before the bite, the owner allowed his two dogs to go out the front door of the house. The circuit court had found that the defendant homeowner was not liable. The court of appeals reversed. Wisconsin's high court affirmed the decision.

In Hach v. American Family Mut. Ins. Co. (2008AP1510), the plaintiff moved for a directed verdict regarding past medical expenses. The plaintiff’s argument relied upon the language of Hanson v. American Family Mut. Ins. Co., 2006 WI 97, which states that if a plaintiff is injured and the plaintiff used reasonable and ordinary care in selecting his physicians, then the plaintiff is entitled, as a matter of law, to the amount his past medical expenses. The trial court granted the motion. The court of appeals reversed the trial court. The appellate court found that the defendant’s experts had disputed the full extent of the past medical expenses.

The 2009-2010 legislative update provided by WDC Lobbyist, Andrew Cook.

A word of caution, if the scheduling order requires that a party participate in person at a mediation, the insurer must send a person to the mediation.

While the Governor's latest budget contained many sweeping changes, a small change in one hearsay exception will have a broad impact on litigation. The newest exception creates a presumption concerning medical bills under the existing exception to healthcare provider records.

The teacher did not heed her own advice in any of the three classes that followed. Nor did she change her general lab safety instructions. She continued to conduct the classes as if the injuries had never occurred.

In order to proceed with a safe place claim, the plaintiff must show that (1) there was an unsafe condition associated with the structure, (2) the unsafe condition caused the plaintiff's injury, and (3) the defendants had either actual or constructive notice of the unsafe condition before the injury occurred.

Should the court consider whether the defendant's actions constituted a breach of the duty of ordinary care? Or, should it evaluate whether the defendant had a duty under the circumstances of the case?

John came home from work and fell asleep. Without permission, Bryan took the Mercury and went out with friends. Bryan lost control of the Mercury and hit a building. One of the passengers was killed.

The Wisconsin Supreme Court found that a father's business auto policy did not provide underinsured motorist (UIM) coverage for his son.