In Jones Sign Co. v. Consensus Consulting & Construction, Inc. (2019AP002189), the Court of Appeals gave a per curiam opinion which upheld a forum selection clause in a contract.
Author: Hamilton
Loren Imhoff Homebuilder, Inc. v. Taylor
In Loren Imhoff Homebuilder, Inc. v. Taylor (2019AP002205), an arbitrator fell asleep during an evidentiary hearing so the circuit court vacated his final decision, the court of appeals reversed.
Ebert v. Village of Gresham (Statutory Notice Requirement)
In Ebert v. Village of Gresham (2019AP002178), the Court affirmed a circuit court dismissal of a trespass claim that failed to timely comply with the a notice of claim statute.
Nelson v. Loessin (Involuntary Plaintiffs)
In Nelson v. Loessin (2018AP002448), the Court reversed the circuit court’s decision to deny involuntary plaintiff’s dismissal motion.
Rural Mutual Insurance Co. v. Kuhn North American, Inc. (Failure to Meet Ordered Deadline)
In Rural Mutual Insurance Co. v. Kuhn North American, Inc. (2019AP001907), the Court affirmed a decision of summary judgement against Rural after they had failed to meet the deadline for disclosing lay witnesses.
COVID-19 Premises Liability Legislation Circulating in Wisconsin Legislature
Sen. Chris Kapenga (R-Delafield), Rep. Mark Born (R-Beaver Dam), and Rep. Dan Knodl (R-Germantown) are circulating legislation to shield Wisconsin businesses, schools, universities, and other entities from the threat of lawsuits alleging liability for COVID-19 exposures. Such protections would only apply to those who take adequate precautions to keep their premises safe.
On September 9, a broad coalition of over 60 groups, including the Wisconsin Civil Justice Council, Wisconsin Manufacturers & Commerce, the National Federation of Independent Businesses – Wisconsin, the Wisconsin Association of School Boards, the Wisconsin Builders Association, the Wisconsin Restaurant Association, the Midwest Food Products Association, Associated Builders and Contractors of Wisconsin, and many local chamber of commerce sent a memo urging legislators to co-sponsor and act on the bill.
The Legislature likely will not re-convene until January. When the Legislature reconvenes, enactment of these protections will be a major initiative of the Wisconsin Civil Justice Council.
Jasen Dane Ranch, LLC v. Nelson Hardwood Lumber Company, Inc. (Punitive Damages)
In Jasen Dane Ranch, LLC v. Nelson Hardwood Lumber Company, Inc. (2019AP1774), the Wisconsin Court of Appeals upheld a circuit court decision denying punitive damages under Wisconsin’s punitive damages statute.
Facts
J. Nelson Hardwood Lumber Company, Inc., mismarked a property boundary line and, as a result, erroneously harvested trees from a parcel that belonged to Jasen Dane Ranch, Inc. The sole legal question before the Court of Appeals was whether Jasen Dane Ranch, Inc. was entitled to punitive damages. (In other words, not just to the cost of the harvested trees, but extra money because of particularly malicious behavior.) The circuit court held they were not.
Decision
On appeal, Jasen Dane Ranch, Inc. brought two arguments: first, a claim that the circuit court applied the wrong standard of proof when it made its decision. And second, that Nelson Hardwood’s conduct satisfied the standard of conduct set forth in WIS. STAT. § 895.043(3) (Wisconsin’s punitive damages statute).
After an in-depth analysis of the relevant case law, the Court of Appeals upheld the trial court decision, determining that under the appropriate standard “a reasonable jury could not find by clear and convincing evidence that Nelson Hardwood was ‘aware’ that its conduct was ‘substantially certain to result in the [Jasen Dane Ranch, Inc’s] rights being disregarded.'” No punitive damages were warranted.
Scott Dhein v. Frankenmuth Mutual Insurance Company (Indemnification)
In Scott Dhein v. Frankenmuth Mutual Insurance Company (2019AP531) District II of the Wisconsin Court of Appeals reversed a summary judgement finding on multiple grounds, including finding that there is a genuine issue of material fact. Additionally, the court denied City Centre the use of the direct action statute.
Facts
City Centre, LLC and Frankenmuth Mutual Insurance Company appealed the summary judgment dismissal of City Centre’s claim for coverage against ACE American Insurance Company. City Centre is the owner of large parcel of land that it portions and leases out to multiple tenants. ACE is the CGL carrier for Broadwind, one of City Centre’s commercial tenants. “City Centre is an additional insured on the ACE policy pursuant to its lease with Broadwind. The lease provided contractual indemnification, requiring Broadwind to hold City Centre harmless for any injury caused in whole or in part by Broadwind’s negligence. City Centre was sued by Scott Dhein, an employee of Broadwind, following an accident on September 9, 2013. The accident occurred on property owned by City Centre but used by Broadwind on a daily basis in the course of its business. City Centre tendered coverage to ACE. ACE refused to provide a defense or coverage to City Centre.”
Decision
The court concluded that the additional insured endorsement provides coverage to City Centre for liability incurred for bodily injury caused by Broadwind’s “acts or omissions,” regardless of whether Broadwind is legally negligent. Additionally, “a genuine issue of material fact exists as to Broadwind’s causal negligence so as to trigger coverage for any resulting liability under the additional insured endorsement to the extent, upon further appeal, negligence is deemed a required element for coverage under the endorsement. Moreover, Broadwind has coverage under the same policy for certain contractual indemnification obligations it may owe to City Centre as a result of Broadwind’s negligence.” Finally, City Centre cannot invoke the direct action statute to enforce Broadwind’s rights to that coverage as the direct action statute only permits an action against a liability insurer to recover insurance proceeds attributable to a negligence action, where here Broadwind’s liability could only come from contractual indemnity.
Fond du Lac County v. Paul Meixensperger (Evictions)
In Fond du Lac County v. Paul Meixensperger (2019AP002195), the Wisconsin Court of Appeals ruled that Meixensperger had sufficient notice even though the complaint did not specify nonpayment of rent as a specific basis for eviction because he learned of it in the case and had opportunity to brief it.
Facts
Meixensperger rented an airplane hanger from Fond du Lac County. He failed to pay rent and the county filed suit to evict him. Prior to the start of trial, during argument on motions, counsel for Meixensperger acknowledged that Meixensperger had not paid the annual lump-sum rent for the year 2019, as required by the lease agreement. Based upon this, the county moved for judgment and the trial court ruled in the county’s favor.
Decision
On appeal, Meixensperger raised procedural issues, primarily that the complaint did not identify nonpayment of rent as a specific basis for eviction and that the county did not file a written motion seeking judgment on this basis in advance of trial. The county responded that any potential errors were harmless, pointing out that if Meixensperger was unduly surprised by the motion on the day of the scheduled court trial, that surprise was remedied when the court afforded the parties a full opportunity to address the issues upon Meixensperger’s motion for reconsideration.
The Court of Appeals agreed and upheld the decision.
Village of Chenequa v. Jill Dahlquist (City Parking Ordinances)
In Village of Chenequa v. Jill Dahlquist (2019AP001145), the Wisconsin Court of Appeals upheld a village parking ordinance.
Facts
The Village of Chenequa has a parking ordinance that generally prohibits parking on all Village highways and street. Jill Dahlquist drove into town to do some fishing, saw no “no parking” signs, and parked her car on a city street. She got a parking ticket. She appealed the ticket on the grounds that the parking ordinance violated state law.
Decision
The Court of Appeals began by noting that an ordinance receives every presumption in favor of its validity. Dahlquist argued that the ordinance’s regulation—essentially barring all highway and street parking—exceeds the enabling authority granted by the legislature, making the ordinance invalid and unenforceable.
The court found that to the contrary, “Under WIS. STAT. § 349.13(1e)(a), ‘local authorities’ are empowered to regulate parking by ‘prohibit[ing], limit[ing] the time of or otherwise restrict[ing]’ it. Therefore, the Village is expressly and specifically authorized to prohibit parking on Village highways and streets.”