The Wisconsin Supreme Court recently accepted several new cases. Cases of note include:
Chris Hinrichs v. DOW Chemical Company (2017AP2361) – Fraudulent Misrepresentation
In this case, Hinrichs’s company used a malfunctioning DOW Chemical adhesive, which negatively affected the company’s sales. Hinrichs filed misrepresentation claims, which the court of appeals dismissed on the basis of the economic loss doctrine. The economic loss doctrine provides that plaintiffs cannot sue to recover solely economic losses from the nonperformance of a contract. The appeals court declined to determine whether the plaintiffs might be considered “the public” for the purposes of bringing forth a fraudulent representation claim under Wis. Stat. § 100.18.
The Supreme Court will determine whether the “particular relationship test” used in previous cases to determine whether plaintiffs are members of the public is consistent with the statutes and review whether the plaintiffs in this case should be considered “the public” despite their commercial relationship to DOW. Furthermore, the court will review whether the economic loss doctrine claim can apply to the plaintiffs’ § 100.18 claims.
Roger Choinsky v. Germantown School District Board of Education (2018AP116) – Duty to Defend
In this case, a group of retired teachers filed a lawsuit against their school district for breach of contract following the enactment of 2011 Act 10. The district tendered its defense to its insurers, Employers Insurance Company of Wausau and Wausau Business Insurance Company. The circuit court agreed to bifurcate the coverage and merits issues of the case but denied the motion to stay the merits case, citing the need for urgency in resolving the underlying employee benefits issue. The insurers agreed to meanwhile provide defense to the district on the merits case – including retroactive fees – until the court decided the coverage issue. The school district sought attorney fees for the coverage issue under Elliot v. Donahue because the insurers did not immediately accept its defense.
The Supreme Court will review the court of appeals decision holding that the insurers did not breach their duty to defend when they did not immediately accept the defense of the insured.