Category: Editorials

Court Strikes Down Retroactive Application of Law Repealing “Risk-Contribution” Theory

Posted on by Hamilton

The U.S. Court of Appeals for the Seventh Circuit recently held unconstitutional a 2013 amendment, that applied retroactively 2011 Wisconsin Act 2’s language overturning the Thomas v. Mallet case involving the risk-contribution theory.

Background

In 2005, the Wisconsin Supreme Court issued a controversial decision, Thomas v. Mallet, 2005 WI 129, where Wisconsin became the first state in the nation to adopt the “risk-contribution” theory for lead pigment claims. In Thomas, the plaintiff argued that he could not identify which manufacturer made the white lead carbonate pigment that caused the injury and therefore sued numerous manufacturers. Under the risk-contribution theory adopted by the Court in Thomas, the plaintiff was relieved of the traditional requirement of having to prove that a specific manufacturer caused the plaintiff’s injury.

In 2011, Gov. Scott Walker called the Wisconsin Legislature into a special session and introduced comprehensive tort reform legislation that eventually became 2011 Wisconsin Act 2. Act 2 included language overturning the Thomas decision and eliminating the risk-contribution theory. (2011 Wisconsin Act 2 was codified as Wis. Stat. § 895.046). The language in Act 2 eliminating the risk-contribution theory applied prospectively and did not apply to cases pending or filed prior to the effective date of Act 2. Click here for more information about Act 2 and the language extinguishing the risk-contribution theory.

In 2013, the Wisconsin Legislature inserted language in the 2013-15 Budget Bill (2013 Wisconsin Act 20) that amended 2011 Wisconsin Act 2 by applying the law retroactively to cases filed prior to enactment of Act 2. That provision became s. 895.046(1g).

Gibson v. Cynamid Co. – 7th Circuit Court of Appeals Decision

On Thursday, July 24, the U.S. Court of Appeals for the Seventh Circuit issued its decision in Gibson v. American Cyanamid Co. (No. 10-3814) in which the defendant-manufacturers challenged the constitutionality of the Wisconsin Supreme Court’s Thomas decision adopting the risk-contribution theory of liability for lead pigment claims.

Similar to the plaintiff in Thomas, the plaintiff in this case brought negligence and strict liability claims against the pigment manufacturers. The plaintiff in Gibson similarly could not identify which manufacturer made the white lead carbonate pigment and therefore relied on the Thomas Court’s adoption of the risk-contribution theory in filing a lawsuit against numerous manufacturers. The lawsuit was filed before Act 2 went into effect. As the case was proceeding, the Wisconsin Legislature enacted 2013 Wisconsin Act 20, which applied the law removing the risk-contribution theory for cases filed on or before that law went into effect.

The manufacturers argued two things in this case:  1) that the Thomas v. Mallet case adopting the risk-contribution theory violated due process under the U.S. Constitution, and 2) that the Wisconsin Legislature amended 2011 Wisconsin Act 2 to apply the law retroactively, thereby extinguishing the risk-contribution theory in this case.

The 7th Circuit disagreed with the manufacturers. First, the Court held that retroactive application of 2011 Wisconsin Act 2 to cases filed before the effective date was unconstitutional. It’s important to note that the Court did not strike down all of the current statute removing the risk contribution theory. Instead, the Court narrowly held that the 2013 amendment to the law applying the language retroactively to cases filed prior to the law’s enactment was unconstitutional. Therefore, s. 895.046 still applies to cases filed on or after enactment of 2011 Wisconsin Act 2. The law does not apply to cases filed before its enactment.

Second, the 7th Circuit held that, for cases filed prior to enactment of 2011 Wisconsin Act 2, the Wisconsin Supreme Court’s decision in Thomas, establishing the risk-contribution theory, does not violate due process, takings, or interstate commerce clauses of the U.S. Constitution.

Conclusion

The Court’s decision does not strike down the language in 2011 Wisconsin Act 2 overturning the Thomas v. Mallet decision for cases filed on or after the effective date of Act 2. Instead, the  decision held that the subsequent law enacted by the Wisconsin Legislature retroactively applying Act 2’s language pertaining to risk-contribution to cases filed before the law went into effect was unconstitutional. Therefore, 2011 Wisconsin Act 2’s language extinguishing the risk-contribution theory will continue for cases filed on or after the effective date of 2011 Wisconsin Act 2.

Supreme Court: Court Can Compel Employee to Accept Settlement Offer under Worker’s Comp Law

Posted on by Hamilton

In a 5-2 decision authored by Justice Roggensack, joined by Justices Crooks, Prosser, Ziegler, and Gableman, the Wisconsin Supreme Court held that a circuit court may compel an employee to accept a settlement offer under Wisconsin’s worker’s compensation law (Wis. Stat. § 102.29(1)).

Justice Bradley authored a dissenting opinion and was joined by Chief Justice Abrahamson. The case is Adams v. Northland Equipment Co., Inc., 2014 WI 79.

Background

The case involved personal injuries sustained by Russell Adams during the course of employment with the Village of Fontana. As Adams was plowing the driveway to the Village Hall, the blade of his plow struck the lip of a sidewalk. According to Adams, when the plow made contact with the sidewalk, the truck stopped suddenly and threw him into the ceiling of the cab of the truck. The force caused injuries to his spine and back. Adams was not wearing a seatbelt.

Adams alleged that the plow was defective. Before the accident, Village had experienced problems with the plow and took it back to Northland Equipment Company to have two springs replaced. Northland explained that the plow’s springs were worn out and needed to be replaced. Northland did not have the exact brand replacement on hand and could not obtain them before the next snow. Northland and Village decided to replace the springs with another brand. The plow worked well for a year and half before the incident in this case.

The League of Wisconsin Municipalities Mutual Insurance Company was the worker’s compensation insurer for the Village and had paid Adams $148,332  in worker’s compensation benefits for medical expenses and disability.

Northland and its insurer (Cincinnati Insurance) moved for summary judgment arguing that Adams could not prove negligence or causation. The court denied the motion. Four days later the League of Wisconsin Municipalities Mutual Insurance Company (the “League Insurance”) received a settlement offer of $200,000 from Northland and Cincinnati Insurance. However, Adams refused to accept the offer.

The League Insurance then attempted to negotiate a resolution with Adams, to no avail. The League Insurance unilaterally accepted the settlement offer and moved the circuit court to compel Adams to accept it.

Circuit Court and Court of Appeals Decisions

The Circuit Court granted the League Insurance’s motion to compel settlement. The Court of Appeals affirmed.

Wisconsin Supreme Court Decision

On appeal, Adams argued that a worker’s compensation insurer cannot compel an employee to accept settlement of a third party tort claim. In addition, Adams argued that the Worker’s Compensation law cannot be interpreted to permit the circuit court to compel settlement because such an interpretation would violate his right to a jury trial under Art. I, Section 5 of the Wisconsin Constitution. Last, Adams argued that the Circuit Court’s order violates procedural due process.

The Wisconsin Supreme Court affirmed the Circuit Court’s decision and held that the court can compel an employee to accept settlement of the claim under the Worker’s Compensation statute (Wis. Stat. § 102.29(1)) created by the legislature.

The Court explained that the statute provides both the employee and the worker’s compensation insurer an “equal voice in the prosecution of the claim.” In addition, the Court noted that the Worker’s Compensation statute (Wis. Stat. § 102.29(1)(b)) prescribes how recovery from the claim is apportioned and that the circuit court is empowered to resolve any disputes arising between the employee and the worker’s compensation insurer during the prosecution of their claim, including disputes involving settlement.

The Supreme Court also dismissed Adams’s argument that the Circuit Court’s decision violated his right to a jury trial under the Wisconsin Constitution. The Court explained that it has interpreted Section 5 to mean that the right to jury trial is preserved for a statutory claim if: 1) the statute codified a cause of action that existed in 1848 when Wisconsin’s Constitution was adopted; and 2) the cause of action was an action at law rather than in equity. The Supreme Court determined that Worker’s Compensation did not fit under these two tests.

The Supreme Court similarly dismissed Adams’ argument that the Circuit Court’s decision violated due process.

 

 

Wrongful Death Statute Covers Minor Children of Deceased Father Who Leaves Behind Estranged Wife

Posted on by Hamilton

In a 4-3 decision authored by Chief Justice Abrahamson, joined by Justices Crooks, Bradley, and Prosser, the Wisconsin Supreme Court held that minor children can recover for the wrongful death of their father when the deceased father left behind an estranged spouse who is not eligible to recover. Justice Roggesanck authored a dissenting opinion and was joined by Justices Ziegler and Gableman. The case is Force v. American Family Mutual Ins. Co., 2014 WI 82.

Background

Billy Joe Force was killed in an automobile accident that was allegedly caused by the negligence of Jeffrey Brown (Brown). Mr. Brown’s vehicle was insured by American Family. At the time of Force’s death, he was married to Linda Force. Linda and Billy Joe Force were estranged and had not lived together since 1996. Mr. Force also did not provide any pecuniary support to Linda Force.

Linda Force brought a claim for wrongful death and sought damages for pecuniary loss and loss of society and companionship under Wisconsin’s wrongful death statute (Wis. Stat. § 895.04). The circuit court determined that Linda Force had no compensable damages and dismissed her claims. Linda Force did not appeal this decision.

Mr. Force also had three minor daughters. Linda Force was not the mother of any of the daughters. Each of the daughters attempted to assert claims for pecuniary loss and loss of society and companionship under the wrongful death statute.

Circuit Court Decision

The circuit court dismissed the daughters’ claims. The circuit court held that § 895.04 provides that Linda Force was the only proper plaintiff in the case and that the minor daughters did not have independent causes of action.  The minor daughters appealed the case to the court of appeals, which certified to the Wisconsin Supreme Court. The Wisconsin Supreme Court accepted the case.

The issue presented to the Wisconsin Supreme Court is whether, under the language of the wrongful death statute, can minor children recover for the wrongful death of their father when the deceased leaves behind a spouse who was estranged from the deceased and who is precluded from recovering for the wrongful death.

Wisconsin Supreme Court Decision

The Supreme Court reversed, holding that “that the phrase ‘surviving spouse’ in Wis. Stat. § 895.04(2) does not always simply mean any living spouse of the deceased.” According to the majority, the “meaning of the phrase ‘surviving spouse’ has been elucidated by scrutinizing unique fact situations to define ‘surviving spouse’ in accord with the legislative purposes of the wrongful death statutes, rather than considering only the literal meaning of the phrase ‘surviving spouse.’”

In this case, the majority concluded under the statute that the term “surviving spouse” did not include Linda Force (the deceased’s estranged spouse, who was barred from recovery). The majority opined that if Linda Force is not a “surviving spouse” under the statute, the minor children have a claim as lineal heirs.

The majority explains that to reach this conclusion, it had to “examine” the text of the wrongful death statute using various “interpretative aids.” The majority concluded that the “legislative purposes” of the statute is to “impose liability on the tortfeasor and allow recovery by the deceased’s relatives who would have recovered had the deceased lived.”

Using these “interpretative aids,” the majority held that the Court was to interpret the wrongful death statute to “apply to the unique fact situation presented by a case in order to meet the legislative purposes, rather than apply a strict literal interpretation of the phrase ‘surviving spouse.’”

Justice Prosser’s Concurring Opinion

Justice Prosser authored a lone concurring opinion in which he explains that courts “try to avoid absurd results, but courts are not eager to disregard the seemingly clear language of the statute.” Justice Prosser goes on to say that this “reluctance” is “salutary because it reflects the deference and respect of the judiciary for the policy choices of other branches of government.”

Justice Prosser proceeds to explain why he joins the majority in rewriting a clear statute. According to Justice Prosser, “[a]bsurd results are unexpected” and “produce hardship or unfairness that is quickly recognized and cannot be ignored.” Recognizing that the statute is clear on its face, Justice Prosser ends his concurrence by “implore[ing] the legislature to rewrite the statute.”

Dissenting Opinion

Justice Roggensack authored the dissenting opinion and was joined by Justices Ziegler and Gableman.

The dissent states that while “the majority opinion reaches an appealing result as it permits the minor children…to maintain a claim” for their father’s death, the majority’s opinion “is not based on statutory construction and will create considerable mischief in the future.”

The dissent explains that the majority should have affirmed the lower court’s decision and then “fully describe how unfair the current statute is to children who have suffered significant damages due to the wrongful death of a parent, but who have no claim when the surviving spouse has no recovery.” However, according to the dissent, “[i]nstead of acknowledging that a claim for wrongful death is purely statutory and that at common law no such claim existed,” the majority opinion “pretends” that it is construing the statute and in the process “creates a new claim.”

The dissent further notes that by “[s]aying that § 895.04(2) means whatever the majority wants it to mean will cause confusion and repetitive litigation.”

Supreme Court Rules that Federal Law Preempts State Negligence Claims Against Railroad Company

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In a 5-2 decision authored by Justice Prosser, joined by Justices Crooks, Roggensack, Ziegler, and Gableman, the Wisconsin Supreme Court held that a parade and resultant parade traffic leading to a train collision with a vehicle did not qualify as an exception to preemption under the Federal Railroad Safety Act (FRSA). Chief Justice Abrahamson authored a dissenting opinion and was joined by Justice Bradley. The case is Partenfelder v. Rhode, 2014 WI 80.

Background
This case involved a train colliding with a minivan that became stuck on a set of railroad tracks during a Memorial Day parade in Elm Grove, WI. Prior to the parade, the Elm Grove Police Department sent a letter to Steve Rhode, a member of Canadian Pacific Rail Police, notifying the company of the Memorial Day parade. The letter stated that the parade-related activities may increase pedestrian traffic. The letter asked Rhode to notify the conductors of potential hazards on the tracks. Rhode sent an email to the railroad dispatcher that Elm Grove was having the parade and asked that the train crews be notified.

On the day of the parade, Scott and Monica Ensley-Partenfelder took their three children to the parade and drove in separate vehicles. Monica followed Scott in their minivan. Monica had the couple’s 23-month-old son in her vehicle. When the couple’s vehicles approached the track Monica’s minivan became stuck as a train began to approach.

The train crew saw Monica’s minivan stuck on the tracks and began to apply the brakes. Meanwhile, police officer John Krahn helped Monica out of the vehicle. Monica informed Officer Krahn that her toddler was strapped in his car seat. Officer Krahn and Scott attempted to extract the toddler from the car seat, but were unable to do so before the train collided head on with the minivan. Amazingly, their son was unharmed, but Officer Krahn and Scott were both injured in the collision.

The plaintiffs, the Partenfelders and Officer Krahn, sued the Soo Line (which is a subsidiary of Canadian Pacific) and their employee, Rhode, alleging that their negligence caused the collision. In addition to their common law negligence claim, their complaint brought a safe place claim (Wis. Stat. § 101.11(1)) against Soo Line.

Soo Line asserted various affirmative defenses, one of which was that the Federal Railroad Safety Act preempted the plaintiffs’ claims.

Circuit Court Decision
The Circuit Court held that the parade itself did not qualify as an exception to preemption under the FRSA, but held that the van stuck on the tracks was a specific, individual hazard. Therefore, the court held that the claims based upon the railroad crew’s actions after spotting the minivan were exempt from preemption and denied the defendants’ motion for summary judgment. The decision was appealed.

Court of Appeals Decision
The Court of Appeals reversed the Circuit Court’s holding that the parade itself did not qualify as an exception to preemption under the FRSA. The Court of Appeals affirmed the Circuit Court’s determination that the claims based upon the railroad crew’s actions after spotting the train were exempt from preemption.

Wisconsin Supreme Court Decision
The issue before the Wisconsin Supreme Court was whether the Memorial Day parade falls under the “specific, individual hazard” exception to preemption under the FRSA.

The Supreme Court reversed the Court of Appeals and held that the Memorial Day parade “was not a ‘specific, individual hazard’ because the parade created only a generally dangerous traffic condition.” According to the majority, while “the parade traffic in general may have increased the likelihood of an accident, it did not create a specific hazard, nor did the mere increase in traffic present an imminent danger of a collision.”

In reaching its decision, the Supreme Court explained the FRSA was created “to promote safety in every area of railroad operations and reduce railroad-related accidents and incidents.” (49 U.S.C. § 20101). To provide uniformity throughout the country, the FRSA expressly preempts state law in areas covered by the FRSA.

The Supreme Court of the United States in CSX Transp., Inc. v. Easterwood, 507 U.S. 658 (1993) addressed the statute stating that the FRSA preemption applies to state common law claims as well as statutory claims. Although the FRSA expressly preempts state law in covered areas, the U.S. Supreme Court in Easterwood stated that there is an exception to preemption for state claims alleging that a railroad was negligent for failing to slow or stop a train in response to a “specific, individual hazard.”

As explained above, the Wisconsin Supreme Court determined that the parade itself was not a “specific, individual hazard,” and therefore the state negligence claims brought by the plaintiffs were preempted by the FRSA.

However, the Wisconsin Supreme Court held that the minivan stuck on the track constituted a “specific, individual hazard.” Therefore, the question whether the train crew was negligent in responding to the vehicle stuck on the track remained. The Court remanded the case back to the Circuit Court to determine whether the train crew was negligent when they spotted the vehicle on the track or whether the plaintiffs’ actions were the sole cause for their injuries.

Dissenting Opinion
Chief Justice Abrahamson, joined by Justice Bradley, dissented arguing that the FRSA “does not fully replace or supersede Wisconsin’s tort law, which protects the residents of the state from injury.” The dissenting opinion further argues that the “public safety of the resident of Wisconsin and our established tort law designed to promote public safety in Wisconsin do not necessarily conflict with federal standards under [FSRA]…”

Milwaukee Journal Sentinel Op-ed – “Vets Favor New State Asbestos Law”

Posted on by Hamilton

The Milwaukee Journal Sentinel on Sunday, July 20, published an op-ed by Wisconsin veterans Larry Kutschma and Steven Stefonik voicing their support for the new asbestos transparency law (2013 Wisconsin Act 154). The op-ed responded to a call by gubernatorial candidate Mary Burke to repeal the new law.  According to Kutschma and Stefonik:

As veterans, we empathize with those who suffer from mesothelioma, the asbestos-related disease. We were trained as veterans to never leave our fellow soldiers behind, and that is why we took the same position as the AMVETS Department of Wisconsin in supporting the asbestos legislation (2013 Wisconsin Act 154) passed by the Wisconsin Legislature and signed by Gov. Scott Walker. This new law will ensure that our brothers in arms are not left behind. Recently, Democratic gubernatorial candidate Mary Burke pledged to repeal the new law. Contrary to what has been claimed, Act 154 will not harm veterans. Instead, the law will help veterans by ensuring that valuable resources are not depleted.

…

Wisconsin’s new law provides transparency and fairness, and ensures that enough assets will be available for current and future veterans. That is why we, as veterans, fully support the new law and oppose any attempts to repeal it.

The Wisconsin Civil Justice Council actively supported Act 154 and were successful in helping the legislation be enacted into law. Wisconsin became the third state, behind Ohio and Oklahoma, to enact a law requiring plaintiffs’ attorneys to disclose any money received from trust funds when suing businesses in Wisconsin courts.

For more information about Act 154, click here.

Wisconsin Supreme Court Rules that Trial Court Erred by Giving “Absent Witness” Jury Instruction

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In a 4-3 decision authored by Justice Roggensack, joined by Justices Crooks, Gableman, and Ziegler, the Wisconsin Supreme Court held that the trial court’s decision to give the absent witness instruction was erroneous and remanded the case back to the circuit court for a new trial.

Justice Bradley authored a dissenting opinion that was joined by Chief Justice Abrahamson. Justice Prosser also authored a dissenting opinion. The case is Kochanski v. Speedway Super America, 2014 WI 72.

Background
The case involves a lawsuit brought by James Kochanski against Speedway when he suffered injuries resulting from a fall outside one of Speedway’s convenience stores. After filling his vehicle with gas, Kochanski walked to the store to pay. It was snowing that day and there was approximately two inches of snow on the ground. As Kochanski approached the curb on the walkway leading to the store entrance, which was painted yellow, he noticed snow covering a portion of the sidwalk. Kochanski did not see any yellow in front of him so he thought the curb had been cut out or was a wheelchair access point. However, the wheelchair access was four to five feet to the side of the entrance.

Kochanski tripped and fell on the curb, breaking his arm and injuring his wrist. This was all caught on Speedway’s surveillance video. Kochanski sued Speedway for negligence and for violation of Wisconsin’s Safe Place Statute (Wis. Stat. § 101.11).

As the case went to trial, Kochanski’s attorney offered into evidence Speedway’s interrogatory responses indicating that there were five Speedway employees working when Kochanski fell. Speedway did not call any witnesses at trial, but instead offered into evidence the store video surveillance.

Kochanski then requested the trial court to give a jury instruction (Wis JI—Civil 410), commonly referred to as the “absent-witness” instruction, to the jury. This injury instruction states:

If a party fails to call a material witness within (his) (her) control, or whom it would be more natural for that party to call than the opposing party, and the party fails to give a satisfactory explanation for not calling the witness, you may infer that the evidence which the witness would give would be unfavorable to the party who failed to call the witness.

During closing argument, Kochanski’s attorney commented that Speedway did not call any witnesses and suggested that it was withholding information from the jury.

The jury determined that Speedway was negligent in failing to maintain its premises and found that Kochanski was not negligent. Speedway appealed the decision.

Court of Appeals Decision
The Court of Appeals reversed the circuit court and held that the trial court erroneously gave the jury instruction. The court held that the plaintiff failed to show that the uncalled witnesses (Speedway’s former employees) were not material or within Speedway’s control. As a result, the Court of Appeals held that the trial court’s decision to give the jury instruction was prejudicial error.

Wisconsin Supreme Court Decision

The Wisconsin Supreme Court affirmed the Court of Appeals and held that the circuit court’s decision to give the absent witness instruction was erroneous. Specifically, the Supreme Court held:

there was no evidence in the record that the absent witnesses, former Speedway employees who had been on duty at the time of the accident, were material and within Speedway’s control or that it was more natural for Speedway, rather than [the plaintiff] to call them. Furthermore, Speedway’s decision not to call the former employees did not reasonably lead to the conclusion that it was unwilling to allow the jury to have “the full truth.”

In addition, the Supreme Court determined that the jury instruction was “prejudicial because without drawing a negative inference about Speedway’s snow removal methods and processes from Speedway’s decision not to call the former employees, the jury would not have found that [the plaintiff] satisfied the notice element of his safe-place claim that was necessary to liability.”

The Supreme Court remanded the case back to the circuit court for a new trial.

 

Wisconsin Supreme Court Rules “Lemon Law King” Not Entitled to Attorney’s Fees

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In a 5-1 decision authored by Justice Ziegler and joined by Justices Crooks, Bradley, Prosser, and Gableman (Chief Justice Abrahamson dissenting and Justice Roggensack not participating), the Wisconsin Supreme Court handed the self-proclaimed “Lemon Law King” a defeat by refusing to award him attorney’s fees in a lawsuit. The case is Betz v. Diamond Jim’s Auto Sales, 2014 WI 66.

Background

The plaintiff, Randy Betz, purchased a used vehicle from Diamond Jim’s Auto Sales. Betz experienced problems with the automobile and ultimately sued Diamond Jim’s. Betz hired plaintiff attorney Vince Megna, the self-proclaimed “Lemon Law King.” Under one of the statutes (Wis. Stat. § 100.18(11)) that Megna sued under allowed for attorney’s fees for the plaintiff (commonly referred to as a “fee-shifting” provision).

However, before the case went to trial, Betz and the general manager of Diamond Jim’s entered into a settlement agreement without their attorneys’ knowledge. The settlement agreement did not include attorney’s fees for Megna.

Megna intervened in the case as a plaintiff arguing that the right to cover attorney’s fees under the statute belonged to him as a lawyer, not the client. The circuit court dismissed Megna’s lawsuit. The court of appeals reversed.

Wisconsin Supreme Court Decision

The Court reversed the court of appeals and held that the plaintiff (Megna’s client) did not assign his right to recover the attorney’s fees under statute to Megna in the fee agreement between Megna and Betz. Therefore, the Court held that Megna could not seek the statutory attorney’s fees directly from Diamond Jim’s (the defendant).

In reaching its decision, the Court stated that there were two issues to be decided: 1) whether Betz assigned his statutory right to recover attorney’s fees to Megna under their fee agreement, and 2) whether Diamond Jim’s had notice of the assignment at the time of the settlement.

Looking at the language of the fee agreement between Megna and his client, the Court determined that the language could not “be fairly characterized as a written assignment of Betz’s statutory authority right to recover fees.”

The Court went out of its way to give attorneys advice in how to properly draft their contracts with plaintiffs. Specifically, the Court stated that “attorneys are cautioned to clearly draft a fee agreement so that it unambiguously assigns the client’s statutory right to recover attorney’s fees from the defendant.” According to the Court, a “more clearly drafted fee agreement [between Megna and his client (Betz)] … would have resolved the problem without the necessity of additional litigation.”

Wisconsin Supreme Court Holds Property Owner Can Be Held Liable for Actions of Independent Contractor When Activity is “Inherently Dangerous”

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In a 4-3 decision authored by Justice Crooks, joined by Justices Roggensack, Ziegler, and Gableman (Chief Justice Abrahamson concurring/dissenting, joined by Justices Bradley and Prosser) the Supreme Court held that a property owner may be held liable for damage caused by an independent contractor hired to perform work on his or her property. The case is Brandenburg v. Briarwood Forestry Services, LLC, 2014 WI 37.

Background

The facts in the case are straight forward. The defendant (Robert Leuthi) hired an independent contractor to spray herbicide on his property. The spraying drifted to the plaintiffs/neighbors’ property, damaging a number of trees. The plaintiffs sued the the property owners for the negligence of the independent contractor. The circuit court ruled in favor of the defendant/employer, while the court of appeals reversed holding that the act of spraying was “inherently dangerous” and thus was an exception to the rule exempting liability of the employer for the actions of an independent contractor.

Wisconsin Supreme Court Decision

The Supreme Court engaged in a lengthy analysis of Wisconsin’s law as it relates to the negligence of independent contractors and the “inherently dangerous” exception. The Court explained the general rule that a principal employer is not generally liable for an independent contractor’s negligence. However, the exception to that rule is that if the independent contractor was performing an “inherently dangerous” activity which caused harm to the plaintiff, the employer (the defendant in this case) could be liable for the independent contractor’s negligence. The Court further explained that the employer can still avoid liability depending on whether the employer exercised “ordinary care.” Therefore, the Court held in this case that the activity of spraying an herbicide could be considered an inherently dangerous activity, yet the employer could still not be liable for the independent contractor’s negligence if it is determined that the employer exercised “ordinary care.” The Court therefore remanded the decision back to the lower court to decide: 1) whether the employer failed to use ordinary care with regard to any danger inherent in the herbicide spraying that he know or had reason to know about, and 2) if so, whether any harm that occurred was caused by the spraying.

Concurring/Dissenting Opinion

The dissent agreed with the majority that the matter was to be remanded to the circuit court to determine whether the independent contractor was negligent in damaging the neighbor’s property. However, the dissent disagreed that the lower court was to decide whether the property owner failed to use “ordinary care” with regard to the activity of spraying the herbicide. Instead, the dissent argued that because it was already determined that the spraying of herbicide was inherently dangerous activity, there was no need to inquire into the property owner’s level of care. According to the dissent, the determination that the activity of spraying herbicide was inherently dangerous means that the employer was automatically liable for the independent contractor’s negligence.

Supreme Court Rules Plaintiff Cannot Seek UIM Coverage When Not Using Vehicle that Injured Her

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In an unanimous decision authored by Justice Patrick Crooks (Justice David Prosser not participating), the Wisconsin Supreme Court held that a sheriff deputy could not seek underinsured motorist coverage under her employer’s insurance policy when she was struck by a vehicle in a cross-walk. The case is Jackson v. Wisconsin County Mutual Ins. Corp., 2014 WI 36.

Background
The plaintiff, Rachelle Jackson, was working as a deputy sheriff for Milwaukee County at the Milwaukee airport. While on duty on a sidewalk, a motorist approached Jackson and asked her for directions.

After providing the driver with directions, Jackson directed the driver back out into the traffic. As Jackson walked in the crosswalk in front of the vehicle, the driver unexpectedly moved forward and hit Jackson, injuring her.

Jackson sued many parties, including her employer’s insurer, Wisconsin County Mutual Insurance Corporation, seeking underinsured motorist coverage (UIM).

The insurance company argued that Jackson was not “using an automobile” as required by the insurance policy. The district court agreed, holding that Jackson was not entitled to the UIM coverage. The Court of Appeals, District 1, reversed holding that Jackson “manipulated” the vehicle being driven by the motorist who struck her and thus was “using” the vehicle, entitling her to coverage under the policy.

Issue
Whether the plaintiff was “using” the vehicle being driven by the driver who struck the plaintiff, entitling her to underinsured motorist coverage under her employer’s insurance policy.

Supreme Court Decision
The Supreme Court reversed the court of appeals. The court began its analysis by noting that Jackson satisfied two out of the three requirements allowing her to obtain UIM coverage under her employer’s insurance policy: 1) she was within the scope of her employment, and 2) she was insured under the policy.

However, the court determined that Jackson did not meet the third requirement – she was not “using an automobile” as prescribed under the policy. The court looked to the definition of “using” under the policy, which included “driving, operating, manipulating, riding in and any other use.”

The court explained that the only way Jackson could possibly be covered under this definition is under the “manipulating” or “other use” provisions. The court proceeded to review a number of cases where a person not driving the vehicle was deemed to be using the vehicle. However, the court determined that the facts in this case did not arise to Jackson controlling or using the vehicle that ultimately hit and injured her.

According to the court, “[u]nlike the cases in which the person guiding or giving directions was ‘controlling’ and therefore deemed a user of the vehicle, Jackson did not exercise such control over the vehicle to the extent that she essentially became the user. She was not communicating with, signaling, or exercising active control over the vehicle at the time of the injury.”

The court therefore concluded that Jackson could not recover under the policy because her actions did not “constitute using a vehicle in any way that is consistent with interpretations of ‘use’ in Wisconsin case law or with those of cases from other jurisdictions.”

Huffington Post – Wisconsin Asbestos Trust Fund Transparency Law Helps Veterans

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The Huffington Post recently published a column by Sara Warner in which she praised Wisconsin’s recently enacted Asbestos Trust Fund Transparency law (2013 Wisconsin Act 154). The article was notable for a number of reasons.

First, the Huffington Post is a left-of-center publication that doesn’t normally side with businesses. Second, the column agreed with the Wisconsin Civil Justice Council’s position that the law is not only decidedly not harmful to veterans, but the law actually helps veterans by ensuring that unscrupulous plaintiffs’ attorneys do not deplete the trust funds through double-dipping.

Below is an excerpt from the article:

Two things make this a veterans’ issue:

First, while many trust fund claims were no doubt driven by lawyers, they were signed — under penalty of perjury — by veterans or their survivors. Of course, people just signed whatever the lawyer told them to sign. But, as the Garlock case showcased, companies have made it clear that clients, not just lawyers, are subject to questions, thus reopening some old cases.

Secondly, anybody actually “gaming” the system reduces the funding available for legitimate claims, meaning that veterans seeking trust fund compensation are paid less than they would have been otherwise.

To see how veterans’ groups are front-and-center, you only need look at Wisconsin, which passed a state FACT Act this year. Alerted by FACT opponents, groups like the Wisconsin VFW and the Wisconsin Military of the Purple Heart expressed concerns that vets face more hurdles for compensation.

Republicans, usually known for supporting military issues, found themselves accused of being anti-vet. But then the state AMVETS group supported the legislation, saying that “in short, this bill is about transparency and fairness to protect our veterans with an emphasis on availability on assets for our current and future veterans.”