In McCormick v. Auto Club Insurance Association (2018AP753), the Court of Appeals District I held that the doctrine of accord and satisfaction applied when the plaintiff cashed a check that the defendant insurer intended to settle the claim.

After David McCormick was injured in an automobile accident with an uninsured driver, McCormick sought his full uninsured motorist coverage policy limit of $300,000 from his insurer Auto Club Insurance Association (AAA). AAA disputed McCormick’s $300,000 claim, and instead offered a settlement of $20,000. In a letter, AAA included a check for $20,000 and a release form. McCormick cashed the check but did not sign the release form.

McCormick filed the instant lawsuit seeking the full policy limit plus damages for loss of companionship on behalf of his son. AAA pled the affirmative defense that the doctrine of accord and satisfaction barred McCormick’s claim because he cashed the $20,000 check.

The court agreed that the doctrine of accord and satisfaction barred McCormick’s claim. The accord and satisfaction doctrine requires a dispute, offer, acceptance, and consideration in order to bar future claims. In this case, the plaintiff and defendant disagreed over whether AAA had presented an offer to McCormick. The court found the $20,000 check that McCormick cashed constituted an offer because the language of the attached letter and notes on the check and check stub provided “reasonable notice” that the check was an offer to settle McCormick’s claims.

The court also found that McCormick’s failure to sign the release did not prevent the application of the defense of accord and satisfaction. McCormick’s cashing the check was enough to constitute accord and satisfaction, a separate defense than the defense of release.

In Beedle v. Wisconsin Mutual Insurance Co. (2018AP2147), the Court of Appeals District IV held that an insurance policy’s business exclusion applied when the insured was engaging in a side job, barring coverage for an injury caused by the insured’s negligence on the job.

Plaintiff Jacob Beedle was injured while helping the insured construct a pole barn. Beedle filed this lawsuit against the insured and his insurer IMT Insurance Co., alleging the insured’s negligence caused Beedle’s injury. The insured’s homeowner’s policy included an exclusion for losses from business, defining business as “a trade, profession, or occupation engaged in on a full-time, part-time, or occasional basis.”

The insured was primarily employed by a company that constructs pole barns, but the project where Beedle was injured was a side job outside of the insured’s primary employment. The issue in this case was whether the side job constituted “business” under the IMT policy, barring coverage for Beedle’s injuries.

The court found that the insured’s work on the side job was unambiguously a “trade” that he engaged in on an “occasional basis.” Using the “continuity-profit motive” test established in Bertler v. Employer Ins. of Wausau (1978), the court found that the side job was a continuation of the insured’s primary employment constructing pole barns. The court found the insured had a profit motive because he was ultimately paid $3,000 for work on the side job. By meeting both the continuity and profit motive standards, the side job would have fallen under the policy’s business exclusion according to Bertler.

The court rejected Beedle’s argument that the side job would not fall under the business exclusion because it was not the insured’s primary employment. Therefore, the policy’s business exclusion applied, barring coverage for Beedle’s injuries.

In State of Wisconsin ex rel. Collison v. City of Milwaukee Board of Review (2018AP669), the Court of Appeals District I upheld the tax assessment of a property with environmental pollution.

Property owner Ronald Collison appealed a $31,800 tax valuation of his property, arguing the property’s fair market value is zero dollars due to environmental pollution. However, the court upheld the assessor’s decision to derive market value by potential income generated from the property. The assessor was aware that there was contamination but had no information regarding the extent or cleanup costs. In reaching the $31,800 valuation, the assessor found that the property could generate income as a parking lot regardless of contamination. The court found that the assessor properly used the income assessment approach because it represented the highest and best use of the property.

Collison further challenged the legality of the City of Milwaukee Environmental Contamination Standards (CMECS), which he argued conflict with a requirement in Wis. Stat. § 70.32(1m) requiring assessors to consider impairment value from environmental pollution. CMECS prohibit assessors from valuing property as contaminated unless an audit has substantiated the contamination. The court rejected Collison’s argument because the assessor took into account impairment from environmental pollution even though the property had not undergone an audit.

Finally, Collison argued that the income approach in the Wisconsin Property Assessment Manual conflicts with § 70.32(1m). The court held that the assessor’s use of the income approach was compatible with the statutory requirements to take environmental pollution into account.

In Chapp v. Colgate-Palmolive Co. (2018AP937), the Court of Appeals District I held that the plaintiff presented insufficient evidence that Colgate talcum powder caused his wife’s cancer and therefore upheld summary judgment in favor of Colgate.

Ruth Chapp used Colgate’s Cashmere Bouquet talcum powder daily. Her husband Dale Chapp, who worked in an occupation where asbestos was present, acknowledged his wife was also regularly exposed to asbestos from being around his products, machinery, and work clothes. After Ruth died from mesothelioma, Chapp filed this lawsuit against Colgate, alleging its Cashmere Bouquet talcum powder contained asbestos that was a contributing cause to her cancer.

Chapp contended that the talc deposits where Colgate obtained its supply also contained asbestos. Some tests showed asbestos in the Colgate talc products, including the type of talcum powder that Ruth used, but Colgate’s expert challenged those tests, stating they were based on unreliable methodologies that are no longer used today. The actual product Ruth used was never tested for asbestos.

The court found that the probability of whether or not Ruth used Cashmere Bouquet talcum powder containing asbestos was speculative, so summary judgment by the court, not a jury trial, was appropriate. Any inference that the talc mines Colgate used contained asbestos and that the Cashmere Bouquet talcum powder Ruth used actually contained asbestos would be based on speculation or conjecture.

Furthermore, the court held that the exception in Wis. Stat. § 907.03 allowing experts to rely on inadmissible evidence did not apply in this case. Chapp presented expert testimony from two doctors, who each opined that Cashmere Bouquet contained asbestos which caused Ruth’s cancer. The court determined that these experts could not use § 907.03 to bring in the otherwise inadmissible hearsay that the Cashmere Bouquet talcum powder contained asbestos because that opinion was outside of their expertise as physicians.

Because Chapp did not present sufficient evidence to establish causation between the Colgate product and his wife’s cancer, the court upheld summary judgment dismissing the lawsuit against Colgate.