Month: March 2016

New MU Law Poll: Cruz leads; Bradley gains on Kloppenburg; Walker’s approval rating improves

Posted on by Hamilton

The nation’s politicos are buzzing after the Marquette Law School Poll found Ted Cruz is up with a ten-point lead over Donald Trump in the April 5 Wisconsin presidential primary. If Trump loses in Wisconsin, the GOP is one step closer to a brokered or contested convention.

Among the Republican candidates, Trump has led in the polls in Wisconsin since September, except for a short blip when Ben Carson led in November. This week’s poll is good news for Cruz, who has recently been campaigning heavily in the state. The poll found that 40 percent of potential GOP primary voters supported Cruz, followed by 30 percent for Trump and 21 percent for John Kasich.

In Wisconsin GOP delegates are allocated by congressional district and popular vote. Candidates receive three delegates for every congressional district they win and the candidate who receives the most votes statewide will receive an additional 18 delegates. In total, there are 42 delegates available.

Joe Handrick, a Wisconsin poll expert, released the chart below to illustrate the likely breakdown of the congressional district GOP winners. The chart shows that Cruz has the advantage on the eastern side of the state, with strong advantages in the 4th and 5th Congressional Districts and a leading advantage in the 1st, 6th and 8th Congressional Districts. Kasich has the advantage in the 2nd Congressional District (Dane and other south-central counties). The only districts where Trump has the lead are in the 3rd Congressional District (western counties) and the 7th Congressional District (northern counties). However, Trump’s one point advantage in these districts makes them a toss-up.

In the Democratic primary, the Marquette Law School Poll found the gap between Bernie Sanders and Hillary Clinton is widening. Sanders leads 49 percent to 45 percent over Clinton among potential Democratic primary voters. In February, Sanders only led by one percent. All delegates in the Democratic primary are allocated proportionally.

The poll also found that in the Wisconsin Supreme Court election on April 5 Justice Rebecca Bradley leads Judge Joanne Kloppenburg 41 to 36 percent, with 18 percent still undecided. In a February poll, Bradley only led Kloppenburg 37 to 36 percent.

In other state news, the poll found Governor Scott Walker’s approval rating is improving. Currently, 43 percent of Wisconsinites approve of the job he’s doing, while 53 percent disapprove. This is the first time the governor topped above a 40 percent approval rating since he entered the presidential race last July.

The Marquette Law School Poll is the last major poll to be conducted in Wisconsin before the April 5 primary next week.

WCJC Hails Civil Litigation Reform Successes — Some Offense, Some Defense

Posted on by Hamilton

The Wisconsin Civil Justice Council continued to advance civil litigation reforms this past session, albeit without the sweeping reforms seen in the prior two sessions. WCJC recently released their end of session report noting the following enacted reforms:

  • Repeal of “False Claims for Medical Assistance Act” – Signed into Law (Act 55)
  • Adult Sponsor of Minor Driver Liability Reform – Signed into Law (Act 202)
  • Liability Limitations under Wisconsin’s Dog Bite Law – Signed into Law (Act 112)
  • Liability Limits for Ski Area Operators – Signed into Law (Act 168)
  • Immunity for Private Campgrounds – Awaiting Governor’s Signature

A top priority for WCJC was repealing Wisconsin’s false claims act, which was done in the budget. The act allowed individuals unaffiliated with the government to sue private businesses alleging fraud against the state’s medical assistance program. The person/lawyer who files the false claim, also known as a qui tamlawsuit, may be awarded up to 30 percent of the proceeds, in addition to costs and attorney fees. This bounty hunter aspect encourages litigation, needless, according to WCJC, given the active Medical Assistance Fraud Unit within the Department of Justice.

Wisconsin’s “dog bite” statute was a real liability bite for homeowners. Dog bites and other dog-related injuries accounted for more than one-third of all liability claim dollars paid out by homeowner’s insurance companies in 2014. Under prior law, a dog could cause minor property damage, which would count as the first bite, and then cause physical damage to an individual on the second bite. The owner would be liable for double damages for the second incident despite the innocuous nature of the “first bite.” Under 2015 Wisconsin Act 112, both bites must break the skin and cause permanent scarring or disfigurement and the owner must have known of the first bite.

Another sensible enactment was 2015 Wisconsin Act 202 which limits the liability of a parent or other adult sponsoring a minor obtaining a driver’s license. Wisconsin law requires a minor have an adult sponsor as a condition to obtaining a driver’s license. Well enough. But a separate law provided that the parents or adult sponsors have unlimited liability for that minor’s driving. Act 202 protects otherwise innocent sponsors by limiting the liability imputed to a parent or other adult sponsor to the greater of $300,000 or the limits of any insurance coverage.

Other enactments protect ski area and private campground owners and operators. Both laws, 2015 Wisconsin Act 168, relating to ski hills, and enrolled AB 174 (awaiting the Governor’s signature), relating to campgrounds, limit liability in light of the inherent risks associated with ski hill and campground activities.

In addition, bills aimed at repealing past reforms failed to pass. For example, one of WCJC’s top priorities last session, asbestos trust reforms, would have been undone by AB  862 (Rep. Wachs-D) and SB 723(Sen. Vinehout-D). Both bills died in committee. While these and other bills opposed by WCJC never gained momentum given the current makeup of the legislature, they will return with more political strength if the majorities flip.

For more information on these and other civil justice initiatives, go to the Wisconsin Civil Justice Council’s end of session report.

Signed into Law: Statutes of Limitation on Claims Involving Property Damage or Motor Vehicle Accident

Posted on by Hamilton

Governor Walker signed AB 223 into law as 2015 Wisconsin Act 133 on February 4, 2016. Assembly Bill 223 introduced by Rep. Spiros (R-Marshfield) and Sen. Lasee (R-De Pere).

Under current law, the time limit for initiating a civil action on a contract or obligation, including an insurance policy, is generally six years after the cause of action accrues. In those cases in which the contract is a motor vehicle insurance policy, Act 133 changes the time limit to three yearsfrom the date that the cause of action accrues. For uninsured and underinsured motorist claims, this act specifically defines the date of accrual of the cause of action as the date that “there is final resolution of the underlying cause of action by the injured party against the tortfeasor.”

In addition, Act 133 changes from six years to the three years the statute of limitations for claims for damage to real or personal property arising from a motor vehicle accident. The act retains the six-year statute of limitations for claims for damage to real or personal property not arising from a motor vehicle accident.

Finally, Act 133 changes from three years to two years the statute of limitations for actions to recover damages for death caused by the wrongful act, neglect, or default of another arising from an accident involving a motor vehicle. The three-year statute of limitations is retained for such claims arising from circumstances not involving motor vehicle accidents.

The above changes apply prospectively, to accidents that occur on or after the legislation’s effective date, February 6, 2016[1].

See Wisconsin Legislative Council Act 133 memo for additional background on Act 133.

Dies in Committee: Loss-of-Use Liability for Rental Motor Vehicles

Posted on by Hamilton

Under Assembly Bill 672/Senate Bill 495, introduced by Rep. Nancy VanderMeer (R-Tomah) and Sen. Chris Kapenga (R-Delafield), a rental company may hold a renter or driver of a rental car liable for loss of use that results from an accident if the renter or driver is cited or charged with inattentive or reckless driving or other violations of law. Little action was taken on these bills this session. SB 495 only received a public hearing before dying in the Senate, and there was no hearing or committee action on AB 672.

Dies in Committee: Reviver Statute — Statute of Limitations for Sexual Contact with a Child

Posted on by Hamilton

Under current law, the time a person has to bring an action for an injury resulting from being sexually assaulted or subject to incest as a child, or from being subject to sexual contact by a member of the clergy as a child, is any time before the injured party reaches the age of 35. Sen. Julie Lassa (D-Stevens Point) and Rep. Evan Goyke (D-Milwaukee) introduced Senate Bill 262/Assembly Bill 348 which would provide a three-year reviver window for plaintiffs to file childhood sexual abuse claims, regardless of the previous expiration of the statute of limitations.

The legislation had bipartisan support, with Republican Reps. Horlacher, A. Ott, Neylon, Rohrkaste, and Sen. Olsen signing on as co-authors. But both bills died in committee.

For over 100 years, the Wisconsin Supreme Court has consistently rejected reviver statutes as unconstitutional. The court subscribes to the view that the expiration of a statute of limitations vests a property right in a defendant. The resurrection of a time-barred claim therefore amounts to a taking of property without due process of law.

For more on the constitutional issues arising from reviver statutes, see this legal memo provided in the context of prior Wisconsin reviver legislation.

Awaiting Governor’s Signature: Immunity for Private Campgrounds

Posted on by Hamilton

Assembly Bill 174/Senate Bill 131, introduced by Rep. Joel Kitchens (R-Sturgeon Bay) and Sen. Devin LeMahieu (R-Oostburg), as amended, would create immunity from civil liability for a private campground in certain circumstances. The legislation passed the Assembly on February 16, 2016, and the Senate on March 16. The enrolled legislation now awaits gubernatorial approval.

Under the legislation, as amended by substitute amendments, a private campground owner, operator or employee is immune from civil liability if a person is injured or killed, or property is damaged, as a result of an inherent risk of camping. “Inherent risk of camping” means a danger or condition that is an integral part of camping, including dangers posed by any of the following:

  • Features of the natural world, such as trees, tree stumps, roots, brush, rocks, mud, sand, and soil
  • Uneven or unpredictable terrain
  • Natural bodies of water
  • Another camper or visitor at the private campground acting in a negligent manner
  • A lack of lighting, including lighting at campsites
  • Campfires in a fire pit or enclosure provided by the campground
  • Weather
  • Insects, birds, and other wildlife
The legislation would not provide immunity if the person seeking immunity does any of the following:
  • Intentionally causes the injury, death, or property damage.
  • Acts with a willful or wanton disregard for the safety of the party or the property damaged. “Willful or wanton disregard” means conduct committed with an intentional or reckless disregard for the safety of others.
  • Fails to conspicuously post warning signs of a dangerous inconspicuous condition known to him or her on the property that he or she owns, leases, rents, or is otherwise in lawful control of or possession.

Signed into Law: Liability Limits for Ski Area Operators

Posted on by Hamilton

Governor Scott Walker signed Assembly Bill 596/Senate Bill 463 into law as 2015 Wisconsin Act 168 on March 1, 2016. The new statute, introduced by Rep. Adam Jarchow (R-Balsam Lake) and Sen. Duey Stroebel (R-Saukville), changes the term “snow sport” to “alpine sport” and adds “biking” to the list of activities included in the term.

Previous law imposed proportional liability for an injury or death resulting from participation in a “recreational activity,” including riding a bicycle, on a premises that is open to the public for such purposes. However, under certain circumstances, ski area operators have immunity from liability for injury or death resulting from participation in a “snow sport” within a ski area. Among other changes, the new law reconciles these requirements for bicycling within ski areas.

An individual who participates in a recreational activity assumes the “risks inherent in the recreational activity of which the ordinary prudent person is or should be aware” and must satisfy certain behavioral duties. [s. 895.525, Stats.] If a participant is injured or killed, the owner of the premises may be liable, but the damages that may be collected from the owner are reduced in proportion to the amount of negligence attributable to the participant.

An individual who participates in a snow sport within a ski area assumes certain risks and must satisfy certain duties. Likewise, ski area operators must satisfy certain duties related to safety and to give notice of assumed risks. A ski area operator that satisfies all of the required duties owes no further duty of care to a participant and is immune from liability for an injury or death sustained by a participant that results from the assumed risks of participation in a snow sport.

The act removes biking from the definition of “recreational activity,” defines the risks assumed by individuals who participate in biking, and establishes the duties participants must satisfy. It also establishes the duties of ski area operators related to biking. Under the act, a ski area operator that satisfies all of the required duties owes no further duty of care to a participant who engages in biking and is immune from liability for an injury or death sustained by a participant that results from the assumed risks of participation in an alpine sport.

Attempts to Repeal Asbestos Trust Reforms Die in Committee

Posted on by Hamilton

Assembly Bill 862, authored by Rep. Dana Wachs (D-Eau Claire), and Senate Bill 723, authored by Sen. Kathleen Vinehout (D-Alma), would have reversed a major liability reform priority from last session relating to fraud in asbestos lawsuits involving personal injury trusts.

On March 27, 2014, Gov. Scott Walker signed 2013 AB 19 into law as 2013 Wisconsin Act 154. The act provides for greater transparency by:

  • Requiring asbestos plaintiffs to disclose any and all claims that they have filed or will file with asbestos trust funds, along with all of the documents and information that support the trust claims.
  • Requiring judges to admit trust claims and supporting materials into evidence at trial; prohibiting plaintiffs from spuriously alleging that trust claims and their supporting documents are privileged.
  • Providing defendants with a powerful tool to ensure that plaintiffs file and disclose all possible claims with asbestos trusts. Act 154 authorizes defendants to identify trust claims that the plaintiff could and should file. If a judge agrees, the case is stayed until that claim is filed and disclosed.

For more information on this issue go to the Wisconsin Civil Justice Council’s page on Limiting Double-Dipping in Personal Injury Cases.

Dies in Committee: Medical Malpractice Claims Relating to an Adult Child’s Death

Posted on by Hamilton

Under current law, as stated in Estate of Wells v. Mt. Sinai Medical Center, 183 Wis. 2d 677 (1994), a parent does not have the right to recover for the loss of society and companionship of an adult child who dies as the result of medical malpractice. Sen. Nikiya Harris Dodd (D-Milwaukee) and Rep. Dana Wachs (D-Eau Claire) introduced Senate Bill 378/Assembly Bill 498 which would provide that a parent has the right to recover for loss of society and companionship if the parent’s adult child dies as the result of medical malpractice, and the adult child had not reached the age of 27 when he or she died.

Senate Bill 378 was referred to the Senate Committee on Judiciary and Public Safety and Assembly Bill 498 was referred to the Assembly Committee on Judiciary. No committee action was taken and both bills died in committee. WDC opposed this legislation.

Changes to Interest Rates on Small Claims Judgments Legislation Passes Assembly, Dies in Senate

Posted on by Hamilton

Assembly Bill 95, authored by Rep. Jeremy Thiesfeldt (R-Fond du Lac), and Senate Bill 76, authored by Sen. Stephen Nass (R-Whitewater), sought to change the interest rate for pre- and post- judgment interest for verdicts in small claims court. AB 95, as introduced, would revise the formula created in 2011 Wisconsin Act 69 back to the pre-Act 69 rate of 12 percent per year.

WDC opposed the legislation as it would partially repeal a top priority, namely 2011 Wisconsin Act 69. The bill died in the Senate, but we anticipate proponents will push this partial repeal of Act 69 again next session.

While introduced in March 2015, the Assembly Committee on Judiciary passed AB 95 on a 5-4 vote in January 2016. The Assembly passed the legislation via a voice vote in February with an amendment changing the rate to 8 percent. Though a Senate hearing was held on the bill, no further action occurred in the Senate.

Under current Wisconsin law, plaintiffs who win favorable verdicts are usually entitled to recover interest on the monetary judgments awarded to them. There are two types of interest. There is post-judgment interest, which is meant to compensate the plaintiff for loss of the use of the money while a defendant appeals an unfavorable judgment. Post-judgment interest accrues from the time the judgment is made until the time the judgment is paid. There is also pre-judgment interest, which accrues from the time the plaintiff makes an offer of settlement until the settlement is paid, provided the judgment amount is not less than the settlement amount.

Prior to 2011, pre- and post- judgment interest rates were set at 12 percent. Because appeals or settlement agreements and payment can take time, plaintiffs could receive a significant windfall due to the high interest rate. 2011 Senate Bill 14 signed into law as 2011 Act 69 changed the interest formula from 12 percent to the prime rate set by the Federal Reserve Board plus one percent. This ensures that plaintiffs do not receive a windfall while also ensuring that defendants pay a reasonable interest rate.