The Wisconsin Supreme Court has released its calendar of oral arguments for February 2019. There will be several notable cases argued this month, addressing issues including medical malpractice, crime insurance, governmental immunity, and the federal Communications Decency Act.

Cases of interest include:

 

Leicht Transfer & Storage Co. v. Pallet Central Enterprises, Inc. (Crime Insurance Coverage)
Feb. 1

The issue before the court is whether amounts paid in response to forged invoices are covered losses under a crime insurance policy that covers forged checks.

The underlying claim in the case arose when Pallet Central forged invoices to Leicht. Leicht paid $505,000 in response to the forged invoices. When Leicht discovered the invoices were for pallets it had never ordered or received, it filed a claim for its losses to its insurer, Hiscox Insurance Company, under its forgery coverage policy.

The lower courts ruled that there was no coverage for the forged invoices because the policy covered only forged checks, and invoices themselves cannot be exchanged for money. Leicht argues that forged invoices should be considered a “direction to pay” under the covered losses in the Hiscox policy.

 

David Paynter v. ProAssurance Wisconsin Insurance Co. (Medical Malpractice)
Feb. 1

The issue before the court is whether an injury sustained in both Wisconsin and another state is a “foreign cause of action” under Wisconsin’s statute applying foreign statutes of limitation (Wis. Stat. § 893.07).

The underlying claim in the case arose when Dr. James Hamp, who operates offices in both Wisconsin and Michigan, misdiagnosed a growth on patient David Paynter, a Michigan resident. Paynter first saw Dr. Hamp in his Michigan office, but Dr. Hamp called Paynter with the misdiagnosis from his Wisconsin office. Paynter sued Dr. Hamp and both his Michigan and Wisconsin malpractice insurance policies.

The Supreme Court will decide whether Paynter’s injury arising in multiple states is a “foreign cause of action” under Wis. Stat. § 893.07, thus barring the claim under Michigan’s statute of limitations.

 

Security Finance v. Brian Kirsch (Wisconsin Consumer Act)
Feb. 1

The issue before the court is whether a consumer sued without first receiving a notice of right to cure default may sue a merchant for damages under the Wisconsin Consumer Act.

The underlying claim in this case arose when Security Finance sued Brian Kirsch for a default on a loan. Kirsch counterclaimed that Security Finance’s complaint failed to give him proper notice of right to cure the default. Security Finance ultimately voluntarily dismissed the case, but Kirsch wanted to maintain his counterclaims.

The Supreme Court will decide whether Kirsch can sue for damages under Ch. 427 of the Wisconsin Consumer Act because Security Finance failed to give proper notice of right to cure.

 

Alan Pinter v. Village of Stetsonville (Governmental Immunity)
Feb. 11

The issues before the court are 1) whether a village’s oral policy constitutes a ministerial duty, exempting it from governmental immunity protections and 2) whether expert testimony is required to prove a private nuisance.

The underlying claim in the case arose when the Village of Stetsonville failed to abide by its oral policy regarding removing excess wastewater during heavy rains. As a result, waste and sewage were deposited in Alan Pinter’s basement. Pinter filed the instant lawsuit, claiming negligence and private nuisance. The village argued it was protected under governmental immunity (Wis. Stat. § 891.80(4)).

Pinter argues that by not following the village’s oral policy, the village failed to perform a ministerial duty, exempting it from governmental immunity. The lower courts rejected Pinter’s argument and further dismissed Pinter’s claim for private nuisance because he failed to offer expert testimony.

 

Yasmeen Daniel v. Armslist, LLC (Communications Decency Act Liability)
Feb. 14

The issue before the court is whether the federal Communications Decency Act (CDA) allows a website to be held liable under Wisconsin law for publishing a third-party’s information.

The underlying claim is against Armslist.com, which connects arms buyers and sellers with each other. Radcliffe Haughton, who had been legally prohibited from gun ownership, obtained a gun via Armslist and used it to kill four people. The daughter of one of the victims filed several tort claims against Armslist based on the CDA.

The Supreme Court will decide whether Armslist is immune under the CDA because it only passively displays third-party sellers’ information.