Archive for the ‘Editorials’ Category
Democratic lawmakers held a press conference last week to announce legislation they plan to propose in the 2014-15 legislative session that would repeal portions of Wisconsin’s recently enacted asbestos transparency law (2013 Wisconsin Act 154). Joining the Democrats at the press conference was asbestos plaintiff attorney lobbyist, Jason Johns. The law was one of WCJC’s top priorities and major wins for 2013-14 and was opposed heavily by out-of-state asbestos plaintiffs’ attorneys.
The Democratic lawmakers continue to claim that veterans oppose the bill, when the much of the opposite is true. The AMVETs Department of Wisconsin supported the transparency law. Also, a recent op-ed published in the Milwaukee Journal Sentinel by former VFW State Commander Larry Kutschma and American Legion member Steven Stefonik explains how the law benefits veterans and all victims, while also protecting businesses from unscrupulous trial attorneys.
Earlier this summer, Democratic gubernatorial candidate Mary Burke announced that she would repeal the law if she were elected governor.
Click here to learn more about Wisconsin’s asbestos transparency law.
National Public Radio recently ran a story discussing a court ruling (In re Garlock Sealing Technologies) issued earlier this year in which the judge found a “startling pattern of misrepresentation” and extensive abuse by plaintiffs’ attorneys in asbestos cases. Specifically, the judge uncovered plaintiffs’ attorneys withholding evidence in asbestos lawsuits which resulted in “unfairly inflating recoveries.”
Harold Kim, Executive Vice President of the U.S. Chamber Institute for Legal Reform, who is interviewed in the story, explained that the court decision played a key role in helping pass the asbestos transparency law (2013 Wisconsin Act 154) in Wisconsin.
According to Kim, “After the Garlock decision came out, it really helped build momentum for the Wisconsin law that was passed and signed in the spring of this year.”
The NPR story noted that Wisconsin’s “law requires asbestos plaintiffs to disclose if they’ve filed claims with bankrupt companies,” and that a similar law has been introduced in Congress.
Former Delaware judge, Peggy Ableman, was also interviewed. Judge Ableman testified on AB 19/SB 13 before the Wisconsin Senate Judiciary Committee to provide her first-hand experience with shenanigans she witnessed in asbestos lawsuits in her court. According to Judge Ableman, the court order should be “required reading for judges overseeing asbestos cases.”
Wisconsin became the third state in the nation to pass such a law, following Ohio and Oklahoma. Click here to learn more about Wisconsin’s asbestos transparency law.
The Wisconsin Civil Justice Council recently filed an amicus curiae brief with the Wisconsin Court of Appeals, Dist. II in an important case involving the Wisconsin Fair Employment Act (WFEA). The issue is whether the employer (Chrysler) violated the WFEA by placing an employee on paid leave who admitted to drinking excessively prior to coming to work. The case is Chrysler Group LLC v. Labor and Industry Review Commission (Case No. 2014AP0083).
Chrysler Group LLC (Chrysler) placed an employee on “layoff/no work available status” due to the employee’s excessive drinking.
Chrysler’s physicians examined the employee and determined it was not prudent to approve the employee’s return to work based on her admissions of excessively drinking prior to coming to work.
By placing the employee on layoff/no work available status, the employee was still eligible for Supplemental Unemployment Benefit pay, which meant she could collect 95 percent of her net pay (or about 65 percent of her gross pay).
Despite this, the employee filed an employment discrimination complaint under the WFEA against Chrysler, claiming discrimination on the basis of disability. The employee sought the difference between the Supplemental Unemployment Benefit pay and the amount she would have earned had she been returned to active duty.
Labor and Industry Review Commission and Circuit Court Decision
The Labor and Industry Review Commission ruled in favor of the employee. The Commission ruled that Chrysler had discriminated against the employee and had failed to show that the employee’s pre-work drinking posed a safety risk. The circuit court affirmed.
WCJC Amicus Curiae Brief
WCJC argues in its brief that if the decisions by LIRC and the circuit court are upheld, it would have broad and sweeping implications for employers throughout the state. The brief also explains that it would prevent employers from being able to protect the safety of their employees.
Legal Arguments by Chrysler
Chrysler’s legal briefs contained the following arguments:
- Chrysler argues that the Wisconsin Fair Employment Act (WFEA) states that it is “not employment discrimination because of disability…if the [employee’s] disability is reasonably related to the individual’s ability to adequately undertake the job-related responsibilities of that individual’s employment.” Wis. Stat. § 111.34(2)(a).
- Chrysler explains that the legislature has expressly provided that employers may take into account the “present and future safety of the individual, of the individual’s co-workers and, if applicable, of the general public” when determining whether the employee is capable of adequately performing a job. Wis. Stat. § 111.34(2)(b).
- The Wisconsin Supreme Court has held that the WFEA must be construed to permit employers to address safety risks in the workplace. Chi. & N.W. R.R. v. Labor & Indus. Review Comm’n, 98 Wis. 2d 592, 297, N.W. 819 (Wis. 1980).
- To be entitled to the workplace safety defense, the employer doesn’t need to show an absolute certainty that an employee poses a safety threat; rather, the employer need only to show a reasonable probability of such a risk. Dairy Equip. Co. v. Dep’t of Indus., Labor & Human Relations, 95 Wis. 2d 319, 290 N.W. 2d 330 (Wis. 1980).
- Its decision to continue the employee on leave was justified on safety grounds given her history of drinking before work.
- It was justified on the alternative basis that the employee was incapable of performing the physically demanding job of a picker/packer.
- Chrysler accommodated her disability by placing her on paid leave and ensuring she obtained generous Supplemental Unemployment Benefit payments while she sought medical help and treatment.
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.
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.
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.
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.
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.
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.
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.”
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.”
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.
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.
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]…”
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.
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.
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.
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.
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.”