Legal News & Articles

This certification ['Brethorst v. Allstate Property & Casualty Ins.' (2008AP2595)] asks the Supreme Court to review the required legal procedures involved in settling a dispute between an insurance company and a client over an uninsured motorist claim.

In ‘Cottonwood Financial v. Estes’ (2009AP760) the plaintiff sued the defendant in small claims court for an unpaid payday loan debt, and the defendant counterclaimed alleging violation of the Wisconsin Consumer Act. The plaintiff then moved for a stay of proceedings and an order compelling arbitration pursuant to an arbitration agreement that was part of every payday loan contract.

In a recent decision, the Wisconsin Supreme Court revisited the "ministerial duty" exception to governmental immunity. In 'Pries v. McMillon', 2010 WI 63, (2008AP89) a majority of the court found that a state employee was not entitled to immunity for negligently disassembling horse stalls at the Wisconsin State Fair Park. According to the dissent, however, the decision opens up a can of worms by finding a ministerial duty in part based on unwritten procedures.

In 'Pagoudis v. Korkos' (2008AP2965)k the plaintiff had sued the defendant for medical malpractice, alleging that the defendant failed to inform him of a final pathology report and failed to require follow-up care associated with his medical condition. The plaintiff had undergone medical treatment in the year 2000 and did not seek follow-up care, but he claimed that he was not told of the final pathology report or need for additional treatment.

In 'Anthony v. Erie Insurance' (2009AP259), the plaintiff had sued his landlord and a repairman for negligently repairing and maintaining the property he rented, and for violation of the Wisconsin Safe-Place Law, Wis. Stat. §101.11, alleging that he sustained injuries when a handrail gave way and caused him to fall down a stairwell. The defendants moved for summary judgment on the safe place claim, arguing that the rental duplex was not covered by the safe place statute.

"This appeal concerns a negligence claim by Watertown Tire Recyclers against an insurance agent for the agent's alleged failure to procure a policy that protected Watertown against a substantial and anticipated risk, a stockpile tire fire

In 'Zarder v. Acuity', 2010 WI 35, (2008AP919) the plaintiff sued the defendant for uninsured motorist (UM) coverage after he sustained injuries when he was struck by a car driven by an unidentified motorist while riding his bicycle. After striking the plaintiff, the three occupants of the vehicle got out of the car, approached the plaintiff, and asked him if he was all right. The plaintiff assured the occupants that he was all right and the occupants returned to their car and left. Later that night, the plaintiff's family contacted the police and reported the accident. The police investigated the accident but could not identify the vehicle owner. The investigation was not conducted as a hit-and-run accident.

Governor Jim Doyle signed into law 2009 Assembly Bill 496, effective December 1, 2010, which prohibits composing and sending a text message while driving and imposes a fine of between $20 and $400. The law provides exceptions for drivers of emergency vehicles, for drivers using global positioning devices, and for drivers who text via voice recognition equipment. Anyone outside of these exceptions may be ticketed solely for texting while driving. Wisconsin is the 25th state to pass such legislation.

In 'Siebert v. Wisconsin American Mutual Ins. Co.' (2009AP1422) the plaintiff sued the defendant for injuries sustained in a car accident. The defendant’s insured had loaned his car to his daughter who in turn loaned the car to a friend, Jesse Raddatz. Raddatz was given permission to run an errand, but instead picked up the plaintiff and was driving to a party when the car accident occurred. The plaintiff alleged that the defendant’s automobile liability policy covered Raddatz's negligence. Under the policy, Raddatz's negligence would be covered if he was an insured person which, in this case, would entail permission to operate the vehicle and not exceeding the scope of that permission. The case went to trial on a permissive use coverage question where a jury found that Raddatz had exceeded the scope of permission and there was no coverage.

The issue efore the Wisconsin Supreme Court in 'Johnson Controls Inc. v. London Market' (2007AP1868) was whether London Market, which issued an excess umbrella liability policy to Johnson Controls, had a duty to defend in response to an environmental pollution clean-up claim. The Wisconsin Supreme Court ruled that the insurer did have a duty to defend. Part of the significance of the ruling is that there was no explicit “duty to defend” provision in the London Market policy. Instead, the policy stated that it provided excess indemnity coverage after the exhaustion of underlying liability coverage. Nevertheless, the supreme court held that London Market had a duty to defend based on its policy’s “follow form” provision, which states “this policy is subject to the same terms, definitions, exclusions, and conditions (….except as otherwise provided herein) as are contained in [the underlying policies].”

In 'Braun v. City of Wauwatosa' (2009AP839) the plaintiff sued the defendants for false arrest and personal injuries from alleged use of excessive force during his arrest for trespass to land. The plaintiff also sought a declaratory judgment pursuant to Wis. Stat. §806.04(2) to "determine the extent and parameters" of the term "occupant" as used in §943.13, the criminal statute defining what constitutes trespass to land. The defendants moved to dismiss the declaratory judgment action on the grounds that characterizations of the plaintiff’s behavior would be determined in his pending appeal of the criminal violations, and that the civil suit was not the proper forum to provide clarification on past and future conduct. The circuit court agreed and dismissed the declaratory judgment action. The suit proceeded to a jury trial determining the remaining issues of false arrest and use of excessive force, and the plaintiff was precluded from admitting evidence concerning his opinion about his prior ban from the property by the property owners.

The Wisconsin Supreme Court’s ruling July 8, 2010 in 'Estate of Robert C. Parker v. Beverly Enterprises, Inc.', 2010 WI 71 (2008AP2440-LV), makes clear appellate courts have the ability to review orders compelling arbitration.

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.