Recent Case Update. VOL. XXIV, NO. 2 Summer 2015

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1 Recent Case Update VOL. XXIV, NO. 2 Summer 2015 Wrongful Death Survival Claims Statute of Limitations Christ v. Exxon Mobil Corporation, (Wisconsin Supreme Court, 12 AP 1493, June 23, 2015) The estates and beneficiaries of decedents brought suit for the deaths and injuries of employees of a tire manufacturing plant on the basis that exposure to benzene in the workplace caused the deaths and injuries. Defendants moved for and were granted summary judgment by the circuit court against several plaintiffs on the basis that the claims were not timely Christ v. Exxon Mobil Corporation Pettis v. Progressive Universal Insurance Company Smith v. Patton 2 Seifert v. Balink 3 Teske v. Wilson Mutual Insurance Company Water Well Solutions Service Group Inc. v. Consolidated Insurance Company filed. Specifically, defendants contended that the claims were not filed before the expiration of the three-year statute of limitations set forth in Wis. Stat (2) and that plaintiffs claims could not have accrued later than the deaths of the decedents because the discovery rule in wrongful death and survival claims did not extend to third parties. Plaintiffs argued that their claims did not accrue until they had reason to believe that defendants were responsible for the deaths giving rise to their claims and, therefore, the discovery rule applied to both survival and wrongful death claims if discovery of the claim after the decedent s death was reasonable. The circuit court granted defendants motion. The Court of Appeals reversed, holding that the discovery rule provides that the statute of limitations begins to run when the plaintiff discovers or should have discovered the injury and that the injury may have been caused by defendant. Defendants moved for reconsideration on the basis that the circuit court had already applied the discovery rule, but the Court of Appeals denied the motion. Defendants then petitioned the Wisconsin Supreme Court for review. The Wisconsin Supreme Court agreed with plaintiffs and held that the discovery rule permitted the accrual of both survival and wrongful death claims after the date of the decedent s death and it applied to third parties, i.e., beneficiaries, bringing those claims. The Court concluded that, under the circumstances of the case, the applicable statute of limitations began to run when the survival and wrongful death claims were discovered, provided that plaintiffs were able to show that they exercised reasonable diligence in investigating and discovering their claims. The Court affirmed the Court of Appeals and remanded the case to the circuit court for a determination as to whether the plaintiffs satisfied the statute of limitations under the accrual rule

2 Judgments Satisfaction Joint and Several Liability Insurance Pettis v. Progressive Universal Insurance Company, (Wisconsin Court of Appeals, 14 AP 2323, July 21, 2015) (unpublished) Plaintiff was injured by a hit-and-run driver and she and her husband commenced an action against the negligent driver and its insurer. The insurer admitted the existence of the insurance policy, but asserted coverage under the policy was subject to the terms, conditions and limitations set forth therein, including a limitation as to the amount recoverable for injuries. It is undisputed that at trial insurer introduced a certified copy of the insurance policy, which included an applicable policy limit of $150,000. The jury ultimately awarded plaintiffs a total of $330,000 in damages. The insurer and its insured filed a motion to set aside the verdict on the bases that it awarded excessive damages and was not in the interests of justice. The motion was denied. Insurer did not file a post-verdict motion seeking to limit its liability to the $150,000 policy limit, nor did it object to language in the judgment that purported to impose joint and several liability on insurer and its insured. Insurer paid plaintiffs the $150,000 policy limits and made an additional payment of $24, for statutory costs and interest. Plaintiff then filed a garnishment action seeking to garnish the remainder of the judgment from insurer. Insurer filed a motion seeking relief from the garnishment. The circuit court agreed with insurer and granted its motion, finding that the insurer was not required to assert its policy limits defense in any post-verdict proceedings when the insurer had already properly pleaded its policy limits in its Answer and proved those limits by introducing the insurance policy into evidence at trial. The plaintiffs appealed. The Court of Appeals affirmed concluding that the circuit court properly ordered the judgment satisfied as to insurer because there was no basis in law or fact for the judgment s imposition of joint and several liability beyond the insurer s limits of liability in the applicable policy. Under existing law, the extent of an insurer s liability in a direct-action claim corresponds to the limits of coverage established by the underlying policy if the insurer pleads and proves those limits, which insurer did in the case. Insurance Summary Judgment Coverage Smith v. Patton, (Wisconsin Court of Appeals, 14 AP 2280, July 22, 2015) (unpublished) Defendant arranged through Craigslist to purchase a Samsung tablet from plaintiff. Defendant intended to and did steal the tablet from plaintiff by having plaintiff meet defendant and an accomplice at defendant s car in a store parking lot and then driving away without paying for the item. Plaintiff was seriously injured during the robbery and was run over by defendant s car. Defendant and his accomplice were convicted on criminal charges. Plaintiff subsequently sued defendant and his insurer for injuries. The insurer disputed coverage on the basis that the injuries did not stem from an auto accident and moved for summary judgment. The circuit court denied the motion and the insurer appealed. 2

3 The Court of Appeals reversed, concluding that an auto accident did not occur within the meaning of the insurer s policy. The Court also cited public policy considerations for its holding, noting that, if defendant were provided coverage for his actions, it would relieve him of the financial consequences of purposefully using his car to facilitate a robbery. No reasonable insured would expect automobile liability coverage for bodily injury resulting from the purposeful use of a car to rob someone. Medical Malpractice Daubert Expert Testimony Seifert v. Balink, (Wisconsin Court of Appeals, 14 AP 195, July 30, 2015) Plaintiff suffered nerve damage at birth that resulted in the permanent impairment of his left arm. Plaintiff brought suit against defendant, the doctor that delivered him, and the doctor s insurer alleging negligence and lack of informed consent. At various points throughout the litigation, defendant sought to exclude certain testimony of Dr. Wener, plaintiff s standard of care expert witness. Dr. Wener was prepared to testify that defendant s conduct fell below the requisite standard of care because she (1) failed to utilize an ultrasound to estimate fetal weight just prior to birth, (2) failed to order a three-hour glucose test for gestational diabetes, and (3) should not have performed a vacuum assisted delivery. Defendant argued that Dr. Wener s testimony failed to meet the Daubert standard and that his testimony was inadmissible because it was not the product of reliable principles or methods as required by Wis. Stat (1), the Daubert standard. The circuit court denied those motions, concluding that Dr. Wener s opinions were based on a reliable medical methodology looking at recognized factors of the standard of care. The court found that Dr. Wener used a holistic methodology to evaluate the risk factors present in the pregnancy and delivery. It further found that medical methodology is a little less susceptible to precise definition due to vagaries of medical treatment and diagnosis. At trial, the jury found defendant negligent in the prenatal and delivery care of plaintiff, but did not find in favor of plaintiff regarding the issue of informed consent. Defendant renewed her challenges to Dr. Wener s testimony both during trial and postverdict. Defendant appealed the court s denial of her motions to exclude Dr. Wener s testimony. The Court of Appeals affirmed the circuit court s denial of defendant s motions to exclude Dr. Wener s testimony, keeping in mind the broad leeway that is to be accorded to the circuit court both as to how to assess the reliability of expert opinion testimony as well as to its final determination of reliability. The Court noted, as the circuit court explained, that Dr. Wener s opinion may have been debatable, but it was reliable because of his qualifications and experience, and because it was based on known and recognized factors and on his holistic methodology of considering these factors together, taking into account the individualized facts of the case. The Court of Appeals concluded by noting that it was satisfied that the circuit court s conclusion that Dr. Wener s methodology and his opinion were reliable was in keeping with the principles and standards of Daubert, Kumho, and federal court decisions specifically addressing expert testimony of physicians. 3

4 Personal Injury Insurance UIM Reducing Clause Teske v. Wilson Mutual Insurance Company, (Wisconsin Court of Appeals, 15 AP 208, August 19, 2015) (unpublished) Plaintiffs were seriously injured when, while stopped to make a left-hand turn, a vehicle driven by Srock rear-ended their vehicle at a high rate of speed. The impact propelled plaintiffs vehicle into the opposite lane where it was struck broadside by an approaching car. The driver of that car also was injured. Plaintiffs medical bills alone amounted to $700,000. Srock had bodily injury liability coverage limits of $100,000 per person and $300,000 per accident. Srock s insurer tendered its $300,000 per-accident limit. The other injured driver received $45,000; the $255,000 balance was apportioned among plaintiffs. Plaintiffs then looked to their insurer, Wilson, for additional coverage under their policy s $500,000 per-person/$500,000 per-accident UIM coverage. Pursuant to a reducing clause, Wilson paid plaintiffs $245, the $500,000 per-accident limit reduced by the $255,000 that Srock s insurer paid on Srock s behalf so that, altogether, plaintiffs received the full $500,000 per-accident limit. Plaintiffs accepted the payment while reserving their right to seek an additional $255,000 from Wilson. Plaintiffs filed suit against Wilson alleging that Wilson breached its contract by refusing to pay the full $500,000 per-accident limit. Wilson contended its per-accident limit was $500,000 less payment from other sources. On cross-motions for declaratory judgment, the circuit court concluded that the Wilson policy and its reducing clause were unambiguous and comported with the requirements of Wis. Stat (5)(i)1. Plaintiffs appealed. The Court of Appeals affirmed noting that adopting plaintiffs view would commit Wilson to pay the maximum limits of its per-accident liability to the exclusion of other relevant provisions of the policy -- the reducing provision. Plaintiffs policy unequivocally stated that the limit of liability shown in the declarations was Wilson s maximum limit of liability for all bodily injury damages resulting from any one accident, and that that was the most Wilson would pay regardless of the number of insureds. The reducing clause expressly provided that the limit of liability was to be reduced by all sums paid because of bodily injury by or on behalf of a legally responsible entity. There was no language in either the limit of liability provision or the reducing clause that limited application of the reducing clause to the per-person limit to the exclusion of the per-accident limit, or vice versa. Reading the policy as a whole, a reasonable insured would not expect a maximum UIM payment after collecting from the tortfeasor. Negligence Insurance Duty to Defend Indemnity Water Well Solutions Service Group Inc. v. Consolidated Insurance Company, (Wisconsin Court of Appeals, 14 AP 2484, September 9, 2015) This is an insurance coverage dispute arising out of the allegedly negligent installation of a water pump in a municipal well. In the underlying complaint, the subrogated insurer of the municipal utility sued the water well contractor, alleging negligent work. The water well contractor tendered its defense and indemnity to its commercial general liability insurer, which denied any duty to defend or indemnify. The underlying case settled. The water well contractor then 4

5 brought an action against its insurer, alleging breach of the duty to defend and bad faith. The water well contractor requested the court look outside the four corners of the complaint to find coverage. The circuit court granted summary judgment to the insurer, finding that the underlying complaint did not allege a covered claim because certain business risk exclusions applied. The Court of Appeals affirmed and declined the invitation to depart from the well-established Wisconsin rule that the allegations in the complaint are what to look at to determine whether there is a duty to defend. The Court also noted that the water well contractor s request to ignore the exclusions in the policy when determining the duty to defend departed from established Wisconsin law. 5

6 Peterson, Johnson & Murray, S.C. All unpublished decisions are marked as unpublished in this Update. The full text of these and other Wisconsin cases can be found on the State Bar s Web site at Further information can be provided by any member of the firm by phone or (enter first letter of first name, followed by last Questions can be directed to Recent Case Update editor Kevin Fetherston by phone or at Milwaukee Madison Suite 500 Ninth Floor 788 N. Jefferson St. 3 South Pinckney Milwaukee, WI Madison, WI (414) (608) Kenosha Manitowoc Suite 102A Suite Corporate Drive 4400 Calumet Avenue Pleasant Prairie, WI Manitowoc, WI (262) (920) Chicago Floor South Wacker Drive Chicago, IL (312)

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