Wisconsin Legal Update: Case Law

WDC Journal Edition: Spring 2008
By: Bernard T. McCartan - American Family Mutual Insurance Co.

Case Law

CGL Coverage; Trademark Infringement Western Wisconsin Water, Inc. v. Quality Beverages of Wisconsin, Inc., 738 N.W.2d 114, 2007 WI App 188 (2007) Trademark infringement falls within the definition of “infringement of copyright, title or slogan” in a CGL policy and is a covered offense. The term “title” in the definition is broad enough to include a “trademark.”

Safe Place Statute – §101.11, Wis.Stats.; Structural Defect; Unsafe Condition of the Premises; Statute of Repose Rosario v. Acuity and Oliver Adjustment Co., Inc., 2007 WI App 194, 738 N.W.2d 608 (2007)
A three inch high step on a building that violated the state building code was a structural defect, not an unsafe condition of the premises, under the safe place statute, §101.11, Wis. Stats. Since the step had been in place and unchanged for more than ten years, an injury claim arising from a fall on the step was barred by the statute of repose. There was no proof of a failure of maintenance or other notice of the existence of an unsafe condition that would expose the owner to liability on that theory.

Offer of Judgment; Judgment; Accord and Satisfaction
Parsons ex rel. Cabaniss v. American Family Ins. Co., 2007 WI App 211, 740 N.W.2d 399 (2007)
An accepted offer of judgment results in a judgment, not a settlement within the meaning of §807.10, Wis. Stats., and does not require court approval if it involves a minor. Here, a liability insurer tendered a draft for its policy limits to discharge an accepted offer of judgment. The draft tendered stated that it was in full satisfaction of the liability of the insurer and its insureds even though the insureds were not named in the action at the time the offer of judgment was accepted. Acceptance and cashing of the draft constituted an accord and satisfaction of the plaintiff’s claim against the insurer and its insureds. The plaintiff, who reached the age of majority three months after the payment was made, ratified the settlement by her failure to take any steps to rescind the transaction after she reached the age of majority.

Good Samaritan Statute - §894.48, Wis. Stats.; Elements
Clayton v. American Family Mut. Ins. Co., 2007 WI App 228, 741 N.W.2d 297 (2007)
There are three elements that must be satisfied before the Good Samaritan Statute, §894.48, Wis. Stats., will apply to shield a person from liability:
(1) Emergency care must be rendered at the scene of the emergency;
(2) The care rendered must be emergency care; and
(3) Any emergency care must be rendered in good faith.


Snowmobile Speed Limit; Hours of Darkness
2007 WI Act 29 amended §350.10(1)(gm), Wis. Stats., to extend the expiration date of the 55 m.p.h. speed limit for snowmobiles during hours of darkness to 7/1/2010 from 7/1/2007. Note that the effective date of the legislation is 11/28/2007, meaning that from 7/1/2007 through 11/27/2007 the general nighttime speed limit for snowmobiles was governed by §350.10(1)(a), Wis. Stats., which prohibits snowmobiles from being operated “At a rate of speed that is unreasonable or improper under the circumstances.”