Wisconsin Legal Update

WDC Journal Edition: Spring 2007
By: Bernard T. McCartan, Esq. - American Family Mutual Insurance Co.

Case Law

Landlord-Tenant; Safe Place; Tort Damages; Contract Damages
Raymaker v. American Family
2006 WI App 117, 718 N.W.2d 154 (App. 2006)

A tenant of one unit in a duplex was injured when an attic access ladder failed. The duplex was not a “public building” under §101.11, Wis. Stats., the Wisconsin Safe Place Law. The landlord’s violation of statutory obligations under §704.07, Wis. Stats., to make necessary repairs did not give rise to strict liability under the statute. The exclusive remedy is rent abatement. The tenant could not recover tort damages for his bodily injury in the form of consequential damages for landlord’s breach of the lease obligation to make repairs.

CGL; Late Notice of Claim; Prejudice
Kreckel v. Walbridge Aldinger Company
2006 WI App 168, 721 N.W.2d 508

A general contractor sought coverage under a subcontractor’s CGL policy for a negligence claim against the general by an employee of a subcontractor. However, where the general did not give the subcontractor’s CGL insurer notice of the loss until 26 months after it occurred, the late notice was found to be prejudicial to the CGL insurer. Accordingly, the general was not entitled to liability coverage or a defense under the subcontractor’s CGL policy.

UIM Coverage; Notice; Omnibus Statute
Stone v. Acuity
2006 WI App 205, 723 N.W.2d 766

Where an umbrella carrier failed to give notice of the availability of UIM coverage under its policy as required by §632.32(4m), Wis. Stats., the umbrella carrier was required to provide UIM coverage retroactive to the time when it should have given the notice if (a) it is proved that the insureds would have purchased the UIM endorsement and (b) if the insureds pay the premium for the UIM endorsement.

Note: By order dated September 15, 2006, the Wisconsin insurance commissioner issued an emergency rule exempting commercial and personal lines umbrella policies from the UIM notice of availability requirement under §632.32(4m), Wis. Stats. See Wis. Adm. Code INS §6.77. The rule is expected to be made permanent, but may be challenged in the legislature or the courts. Additionally, the rule may not be effective for policies issued before its effective date. Check with your legal department if an issue regarding alleged failure to give notice of the availability of UIM coverage under an umbrella policy exists on a file.

UIM Coverage; Reducing Clause; Contextual Ambiguity
Gresens v. State Farm Mutual Automobile Ins. Co.
2006 WI App 233, --- N.W.2d ----

An injured automobile passenger’s damages were assessed at $263,100 by a jury, which also allocated the negligence between the two drivers. The passenger recovered $50,000 from one driver, who was underinsured, and $105,240 from her host driver’s liability insurer. She was then allowed to make a UIM claim against her host’s policy for $50,000, representing the $100,000 UIM limit reduced by the amount paid on behalf of the underinsured driver, only. The UIM reducing clause was found to be ambiguous with respect to whether the UIM limit could be reduced by the liability payment made on behalf of the host driver under the same policy, and it was not enforced with respect to the latter payment.

Note: Check with the legal department regarding the applicability of this case to American Family’s auto policy in a situation such as this.

UM Coverage; Exclusion; Vehicles Designed Mainly for Use Off Public Roads
MT Insurance Co. v. Schleusner
2006 WI App 240, --- N.W.2d ----

An automobile modified for use in a demolition derby was “designed for use mainly off public roads” and, therefore, excluded from the injured claimant’s UM policy. Accordingly, the claimant, a flagman injured at a demolition derby when struck by a participating auto, could not make UM claim under his policy. The fact that the vehicle was originally designed by the manufacturer for use on public roads did not matter in light of the modifications made to the vehicle to enable its use in the demolition derby.

Auto Liability Coverage; Newly Acquired Vehicle; Known Loss
American Family Mut. Ins. Co. v. Bateman
2006 WI App 251, 726 N.W.2d 678

A mother insured by American Family under an auto policy bought a car for her minor daughter, who lived with her, and registered the car in the daughter’s name. American Family was not notified of the acquisition of the additional vehicle at that time. Nearly three months later, the daughter was involved in a collision while driving the additional vehicle. After the accident, the mother called American Family and obtained a policy on the additional vehicle without disclosing the accident. Under those circumstances, the additional vehicle was not covered under the mother’s policy because it was owned by a resident relative in the mother’s household (the daughter). Further, the known loss doctrine precluded coverage under the policy issued on the additional vehicle after the accident.

Note: The newly acquired vehicle coverage was not at issue because the company was not notified of the acquisition of the additional vehicle within the 30-day window established by the policy.

Contributory Negligence; Baseball Rule; Football Coach
Shain v. Racine Raiders Football Club
2006 WI App 257, 726 N.W.2d 346

Contributory negligence of a football coach standing on the sidelines with his team and injured when struck by players from a game on an adjoining field was greater than any negligence of any other party to the occurrence. As an experienced coach, the plaintiff knew the other game was going on and accepted the risks inherent in his coaching activity. The unusual orientation of the fields where the injury occurred did not matter.

Workers Compensation; Exclusive Remedy; Temporary Help Service; Master Servant
Warr v. QPS Companies, Inc
2007 WI App 14, --- N.W.2d ----

Where an employee of one temporary help service was injured by the employee of another temporary help service while both were serving the same client, the exclusive remedy provision of the workers compensation statute did not bar a negligence claim by the injured worker because the two temporary workers were employed by different employers. There was an issue of fact as to whether the doctrine of respondeat superior applied to make the negligent worker’s employer liable to the injured worker. For the doctrine to apply there must be a master/servant relationship between the employer and the employee. Among other things it requires that the employer control the details of the work. Here a question of fact existed as to whether the details of the work were controlled by the client rather than the employer.

Homeowners Policy; Valued Policy Law; Multiple Insurers; Pro-rata Coverage
Wegner v. West Bend Mutual Ins. Co.
2007 WI App 18--- N.W.2d ----

Where two homeowners insurers covered a home totally destroyed by a tornado, the valued policy statute, §632.05(2), Wis. Stats., was modified by §631.43(1), Wis. Stats., such that each insurer owed only its pro-rata share of the total loss. The insured could not collect full policy limits from each where the replacement cost of the house was less than the combined policy limits.

Wrongful Death; Stillborn Child; Paternity
In Re Paternity of C.A.V.M.
2007 WI 29, ___ N.W.2d. ___

A man claiming to the be father of a child stillborn as the result of injuries from an automobile collision could establish his paternity in a pending wrongful death action by motion under § 885.23, Wis. Stats. Wisconsin recognizes a claim for the wrongful death of a viable fetus under Kwaterski v. State Farm Mutual Auto. Ins. Co., 34 Wis.2d 14, 148 N.W.2d 107 (1967).

Governmental Immunity; Exception; Known & Present Danger
Voss v. Elkhorn Area School District
2006 WI App 234, 724 N.W.2d 420

Section 893.80(4), Wis. Stats., confers immunity from tort liability on units of local government and their employees for actions requiring discretion and judgment, subject to certain exceptions. The exceptions involve (a) performance of ministerial duties and (b) “known and compelling dangers” that give rise to ministerial duties under the circumstances. Ministerial duties are those that are certain and can be performed without exercise of judgment or discretion. Under the “known danger” exception, the need to address a dangerous situation must be so clear as to make it a ministerial duty. In this case, a teacher was using “fatal vision” goggles to teach students the effects of alcohol on balance and depth perception. He allowed their use in a classroom where students could fall against desks, chairs and other hard objects if they lost their balance. The court held that the “known danger” exception applied and that the teacher and school district could be held liable for dental injuries suffered by a student who fell onto a desk while using the goggles in class.

Administrative Rule - Medical Record Copy Fees
Effective Date: April 1, 2007.
Created under Wis. Adm. Code Ch HFS 117.
Applies to record requests made under §146.83(1)(b) or (c) or §908.03(6m), Wis. Stats.
Applies to all record requests except those specifically covered by another statute or rule. (E.g. medical record requests in workers comp cases are covered under §102.13(2)(b), Stats.)
Applies whether or not legal action has been commenced.
New Fee Schedule (Wis. Adm. Code HFS 117.05):
(a) Requests by the patient, or the patient’s personal representative as defined in 45 CFR 164.502(g):
$0.31 per page, and $5.25 per x-ray copy, plus
Actual costs of postage or other means of delivering the records, plus
Sales tax, if applicable.

b) Requests by all others:
For uncertified copies:
$12.50 retrieval fee per request for requests of 1 to 4 pages, or
$15.00 retrieval fee per request for requests of 5 pages or more, plus
$0.31 per page and $5.25 per x-ray copy, plus
Actual costs of postage or other means of delivering the records, plus
Sales tax, if applicable.

Additional fee for certification of copies:
$5.00 per request for 1 to 4 pages of records.
$7.50 per request for 5 or more pages of records.