The Wisconsin Supreme Court held oral arguments this month on several notable cases, addressing issues including UIM coverage, subrogation waivers, and conditional use permits.

Cases of interest include:

 

Ann Cattau v. National Insurance Services of Wisconsin (negligence and breach of fiduciary duty) – March 18

The plaintiffs, former teachers and school administrators, claim negligence, breach of fiduciary duty, and misrepresentation against MidAmerica and NIS, which administered their retirement plans. The plans were noncompliant with federal law, and the plaintiffs ultimately owed several years of tax dollars back to the Internal Revenue Service. The plaintiffs claim they relied on MidAmerica and NIS as experts to administer a qualifying plan, and MidAmerica and NIS misrepresented the plan as federally compliant. The issues before the Supreme Court are whether the plaintiffs stated an adequate claim against defendants MidAmerica and NIS and whether the plaintiffs should be able to amend their complaint for a second time.

 

John Teske v. Wilson Mutual Insurance Co. (claim preclusion and UIM coverage) – March 18

The Supreme Court will decide whether previous litigation related to underinsured motorist (UIM) coverage precludes the instant tort claim alleging negligence by the driver insured by Wilson. The appeals court ruled the causes of action of the UIM action and the tort action differed, so claim preclusion should not apply. Wilson appealed to the Supreme Court, seeking to dismiss the tort action.

 

Rural Mutual Insurance Co. v. Lester Buildings, LLC (contractor subrogation waiver) – March 20

Jim Herman, Inc. and Lester Building entered into a contract to build a barn. The contract contained a subrogation waiver requiring both parties to waive all rights against each other and their subcontractors. Lester then contracted with a concrete provider in the building process. When a storm caused half of the barn to collapse due to improper installation of the concrete, Herman’s insurer Rural Mutual alleged breach of contract and negligence against Lester. Lester argued the claims were barred because of the subrogation wavier. Issues before the court include whether contractors may use such subrogation waivers to limit tort liability despite Wis. Stat. § 895.447, which provides that any provision to limit tort liability in a construction contract is against public policy and void.

 

Enbridge Energy Co., Inc. v. Dane County (conditional use permit) – March 26

Dane County issued Enbridge Energy a conditional use permit to expand the volume of oil pumped through a local Enbridge pipeline. The permit contained conditions requiring Enbridge to maintain two liability insurance policies. Shortly after Dane County issued the permit, the legislature passed in the 2015-16 state budget a provision precluding counties from requiring pipeline operators to obtain insurance if they already carry general liability insurance including coverage for sudden and accidental pollution liability. After the law change, Dane County retained the previous insurance conditions in Enbridge’s permit, but added language indicating that the new state law made the conditions unenforceable.

Enbridge filed the instant lawsuit asking the court to remove the unenforceable insurance conditions. Additionally, several Dane County property owners filed a lawsuit asserting that Enbridge was not in compliance with the new state law insurance requirements, so Dane County could enforce the conditions. The Supreme Court will address issues including whether counties can include unenforceable insurance permit conditions and whether property owners can bring citizen suits to enforce such conditions.