WCJC Blog

In a 6-1 decision authored by Justice Annette Ziegler, the Wisconsin Supreme Court held that if an owner’s property is destroyed by a forest fire that is caused by negligence of another person, then the property owner automatically is entitled to double damages. Chief Justice Abrahamson, along with Justices Crooks, Prosser, Roggensack, and Gableman joined the majority. Justice Bradley dissented from the majority decision. The case is Heritage Farms v. Markel Ins. Co., 2012 WI 26.

Facts

The case involved a forest fire that extensively damaged nearby property owned by Heritage Farms, Inc. The fire started by the defendant was extinguished, but weeks later flared up and escaped the defendant’s property and entered onto Heritage Farms’ property.

Heritage Farms’ owners were awarded $568,422 in compensatory damages in a previous decision after it was determined that the defendant’s negligence led to the forest fire.  Heritage Farms then brought a separate motion against the defendant seeking double damages, along with costs for legal representation.

Decisions by the Trial Court and Court of Appeals

The issue before the trial court was whether Heritage Farms was automatically entitled to double damages, or whether the statute grants the court discretion when deciding whether to award double damages.

The statute states that an owner “whose property is injured or destroyed by forest fires, may recover, in a civil action, double the amount of damages suffered, if the firest occurred through willfulness, malice or negligence.” (Wis. Stat. § 26.21(1)).

The trial court held that the statute allowed the court to exercise discretion in deciding whether to award double damages. The trial court decided that the defendant’s conduct did not warrant punishment, and therefore did not grant Heritage Farms double damages.

The court of appeals upheld the lower court, ruling that the decision to award double damages under the statute is subject to the circuit court’s discretion. The court noted that the legislature used the permissive word “may” in the statute in describing the property owner’s right to recover double damages in the event that a forest fire result from willfulness, malice, or negligence.

Wisconsin Supreme Court Decision – Statute Mandates Double Damages

The Wisconsin Supreme Court reversed, holding that property owners are entitled to double damages. The court reasoned that, “once it is determined that the forest fire occurred through willfulness, malice, or negligence, the property owner is entitled to double damages as a matter of course.”

The court further held that their ruling should apply retroactively, not prospectively, thereby ensuring that Heritage Farms received the full double damages.

Interest on Judgments

The court further held that the plaintiff was entitled to interest on the double damages from the date of the jury’s verdict (October 13, 2006). At the time the lawsuit was brought, the interest on judgments was 12 percent.

The defendant argued that the 12 percent interest was unconstitutional because the high interest rate is so severe and so far removed from the national prime lending rate that it tends to “chill” defendants from properly defending their claims on appeal.

The court rejected this claim and said that the legislature was the proper branch of government to determine the proper interest rate. The court noted that the legislature this session in fact changed the interest on judgments from 12 percent to the federal reserve prime rate, plus one percent. This law, 2011 Wisconsin Act 69, was championed by the Wisconsin Civil Justice Council and was introduced by Gov. Walker as part of his numerous civil justice reforms.

Dissent

Justice Bradley dissented, arguing that the legislature did not intend that the award of double damages in these types of cases be mandatory. Instead, the legislature’s use of the word “may” signaled its intent that the courts are to exercise discretion when deciding whether to award double damages.

This week, the Wisconsin Assembly passed Senate Bill 388, which expands the “assumption of risk” doctrine to protect ski operators who follow certain safety protocols from lawsuits. The bill will now be sent to the Governor for his signature.

The assumption of risk doctrine provides that when an individual engages in a potentially dangerous activity, that person does so with the knowledge that the activity contains the possibility of injury.

Current law provides that one who has assumed a risk and sustained injury or death from the activity may still recover damages from the responsible party even if the injured party failed to follow prescribed protocols.

Under SB 388, if a ski area operator follows certain safety precautions, the operator will not be responsible for any injuries an individual may suffer while skiing on the operator’s ski hill.

Below are just a few of the duties a ski operator must comply with to obtain liability protection:

• Provide a notice on the ticket or hill pass that the ski hill operator is not liable for any injuries.
• Post signs containing warnings reminding participants of the dangers of skiing. Signs must be at least 10 feet inside the area where tickets are sold, and on slopes, tubing areas, trails, and terrains.
• Provide copies of trail and ski area maps in the ticketing area.

If the ski operator follows these and other requirements, then he or she is not responsible for any injuries sustained by an individual who has assumed the risk of skiing. WCJC supported SB 388.

This week, the Wisconsin Senate passed Senate Bill 388 on a voice vote, expanding the “assumption of risk” doctrine to protect ski operators who follow certain safety protocols from lawsuits. The bill will now be sent to the Assembly for a vote.

The assumption of risk doctrine provides that when an individual engages in a potentially dangerous activity, that person does so with the knowledge that the activity contains the possibility of injury.

Current law provides that one who has assumed a risk and sustained injury or death from the activity may still recover damages from the responsible party even if the injured party failed to follow prescribed protocols.

Under SB 388, if a ski area operator follows certain safety precautions, the operator will not be responsible for any injuries an individual may suffer while skiing on the operator’s ski hill. Senate Bill 388 provides that the operator must comply with the following duties to obtain liability protection:

• Provide a notice on the ticket or hill pass that the ski hill operator is not liable for any injuries.
• Post signs containing warnings reminding participants of the dangers of skiing. Signs must be at least 10 feet inside the area where tickets are sold, and on slopes, tubing areas, trails, and terrains.
• Provide copies of trail and ski area maps in the ticketing area.

If the ski operator follows these requirements, then he or she is not responsible for any injuries sustained by an individual who has assumed the risk of skiing.

This post was authored by Hamilton intern Andrew Bassan, a 2L at the University of Wisconsin Law School.

An article by attorney Saul Glazer in the Wisconsin Bar Journal explains how a bill (SB 202) championed by the Wisconsin Civil Justice Council will help employers. The article also dispels the myth that SB 202 somehow negatively affects women.

Opponents of Senate Bill 202, which eliminates punitive and compensatory damages under the Wisconsin Fair Employment Act (WFEA), have attempted to paint the bill as negatively affecting a woman’s right to equal pay.

The argument goes something like this: Because SB 202 removes the ability of a person alleging workplace discrimination to seek punitive and compensatory damages, women are no longer entitled to equal pay. This is a rather dubious claim, but one that has been touted by the opponents of SB 202 nonetheless.

The Wisconsin Bar Journal article dispels this myth. The author explains that women will still be entitled to equal pay under the law. According the article, after SB 202’s repeal of punitive and compensatory damages:

“Discrimination claims for equal pay are still actionable under the WFEA. The repeal has no impact on whether a woman may file a discrimination claim based on unequal pay.”

SB 202 takes the law back to 2009, before 2009 Wisconsin Act 20 went into effect. Act 20 for the first time allowed a person to seek punitive and compensatory damages under WFEA.

As further explained in the Wisconsin Bar Journal article, plaintiffs still have plenty of recourse under current law. They can seek reinstatement, back pay up to two years, and be awarded considerable attorney fees and court costs.

The Wisconsin Bar Journal article nicely explains what a victory SB 202 is for WCJC’s members:

“On balance, the repeal of the compensatory and punitive damages is a win for innocent Wisconsin employers, although employers who engage in most forms of illegal discrimination will most likely suffer the same fate as before in front of a federal jury.”

Senate Bill 202 has passed both the Senate and the Assembly, and is expected to be signed into law by Gov. Walker.

On Wednesday, March 7, the Wisconsin Supreme Court issued an opinion adding to the line of cases involving the collateral source rule.

Specifically, the court held that the collateral source rule applies to cases involving underinsured motorist claims. Therefore, the court held that the plaintiff is entitled to the full amount of past medical expenses, even those amounts that were written off by the medical providers as a result of a contractual agreement between the medical provider and health insurer.

These expenses are often referred to as “phantom damages,” because no one ever paid the medical expenses, yet the plaintiff receives the full sticker price.

Typically, the plaintiff’s insurer has negotiated rates with the the health care provider. The health care provider submits a bill for the full price, but due to these contractual rates, the health insurer pays less than the full price. Yet, as the court held in this case and numerous other decisions, the defendant has to pay the full sticker price even though this was not the amount actually paid.

Facts

The plaintiff (Linda Orlowski) was injured in an automobile accident caused by an underinsured driver. Orlowski recovered damages up to the limits of the underinsured driver’s insurance. Orlowski also had health insurance coverage which paid a portion of her medical expenses. In addition, Orlowski had an automobile insurance policy with State Farm, including underinsured motorist (UIM) coverage.

Orlowski submitted a claim to State Farm to recover under her UIM coverage. An arbitration panel awarded Orlowski $11,498.55 for the medical service provided to her as a result of the accident. This amount ($11,498.55) was the amount that was actually paid to the health care provider, rather than the full amount billed by the medical provider ($72,985.94).

The arbitration panel did not include in its award to the amount of Orlowski’s medical expenses that had been written off by her medical provider because of discounts through her health insurance coverage with United Healthcare. The amount that was written off by the medical provider was $61,487.39. No one paid this amount, yet the plaintiff was seeking the full value of the medical expenses.

Orlowski appealed the arbitration panel’s decision to the Milwaukee County Circuit Court, which modified the award. The judge awarded the plaintiff the full amount billed by the medical provider ($72,985.94), instead of the amount actually paid ($11,498.55). As a result, the plaintiff was awarded $61,487.39 in damages that was written off and never paid to the medical provider.

Wisconsin Supreme Court Decision

The case was appealed to the court of appeals, which certified the case to the Wisconsin Supreme Court. In a 7-0 decision authored by Justice Patrick Crooks, the court upheld the trial court’s decision and awarded Orlowski the full amount billed by the medical provider rather than the amount actually paid; therefore, handing the plaintiff a windfall of $61,487.39 in damages that neither she nor anyone else paid to the medical provider.

The court cited its previous decisions, all of which have held that the plaintiff is entitled to the full amount of medical expenses, even those amounts that were written off by the medical provider.

According to the court:

“We reaffirm what our prior precedent has clearly established: an injured party is entitled to recover the reasonable value of medical services, which, under the operation of the collateral source rule, includes written-off medical expenses.”

The case is Orlowski v. State Farm Auto. Ins. Co., 2012 WI 21.

On Tuesday, March 6, the Wisconsin Supreme Court held (5-2) that an insurance policy’s “pollution exclusion” clause excluded coverage for the loss of the plaintiff’s home that resulted from the accumulation of bat guano, or bat waste.

The plaintiff, a lawyer representing himself in the case, sued Auto-Owners Insurance Company for breach of contract and bad faith. The plaintiff alleged that his vacation home became uninhabitable and therefore was unable to sell the home due to accumulation of bat guano in the house’s siding and walls. As a result, the plaintiff argued that the insurance company was liable for the total loss of the home.

The trial court ruled in favor of the insurance company. The court of appeals reversed the trial court. The Wisconsin Supreme Court reversed the court of appeals and held in favor of the insurance company.

The specific issue was whether the insurance company’s pollution exclusion clause excluded coverage of the loss of the plaintiff’s home due to the bat guano.

The pollution exclusion clause excluded from coverage any “loss resulting directly or indirectly from: … discharge, release, escape, seepage, migration or dispersal of pollutants…” The policy further defined “pollutants” as “any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot fumes, acids, alkalis, chemicals, liquids, gases and waste.”

First, the court held that the bat guano fell within the policy of pollutant. Second, the court held that the damage to the plaintiff’s house was in fact caused by the “discharge, release, escape, seepage, migration or dispersal” of the bat guano. Therefore, the court held that bat guano fell within the policy’s “pollution exclusion” absolving the insurance company for the loss of the home.

The case is Hirschhorn v. Auto-Owners Insurance Co., 2012 WI 20. Justice Annette Ziegler authored the opinion and was joined by Justices Patrick Crooks, Patience Roggensack, David Prosser, Jr., and Michael Gableman. Chief Justice Shirley Abrahamson authored a dissenting opinion, and was joined by Justice Ann Bradley.

On Wednesday, the U.S. Supreme Court issued an opinion (Kurns v. Railroad Friction Products Corp.) in which the Court held that a widow’s state-law claims against the manufacturers and distributors of locomotive products containing asbestos causing her husband’s death were preempted by federal law.

To read more about the case, click here and here.

On February 21, 2012 the Wisconsin Assembly passed SB 202, which repeals punitive and compensatory damages under the Wisconsin Fair Employment Act. The bill is a significant victory for the Wisconsin Civil Justice Council and the entire business community.

By repealing punitive and compensatory damages and removing an incentive for plaintiff attorneys to sue so-called deep pockets, Wisconsin businesses will face fewer meritless lawsuits.

Moreover, businesses will see smaller damages claims now that the threat of being hit with punitive damages is removed. Businesses have reported that plaintiff attorneys seeking higher damages claims in employment discrimination cases use the threat of punitive damages as a hammer. This in turn has forced businesses to enter into settlements for higher amounts instead of risking going to trial and facing the possibility of paying huge damage awards, even if no discrimination actually occurred.

The bill leaves in place existing protections for employees who allege workplace discrimination, including back pay for up to two years, reinstatement, and reimbursing the employee for his or her plaintiff’s fees and court costs. Employees can still seek punitive and compensatory damages under federal law.

SB 202 was supported by the Wisconsin Civil Justice Council and the major business associations. The bill repeals 2009 Wisconsin Act 20, which was enacted last session and signed into law by then Gov. Jim Doyle. The business community vigorously opposed the legislation in 2009 and made passage of SB 202 a top priority for the 2011-12 legislative session.

For more information about SB 202, please visit the WCJC’s website.

The Wisconsin Legislature is considering two proposals that would change the way the Chief Justice of the Wisconsin Supreme Court is selected.

The process for designating the chief justice is currently contained in Art. VII, Sec. 4 of the Wisconsin Constitution, which provides, “The justice having been longest a continuous member of said court, or in case 2 or more such justices shall have served for the same length of time, the justice whose term first expires, shall be the chief justice.” Current Chief Justice Shirley Abrahamson has served in that capacity since 1996, as she is the longest serving justice, having been appointed to the court in 1976.

Assembly Joint Resolution 49 and Senate Joint Resolution 36 would allow justices on the state’s high court to elect their chief justice. These identical proposals would require the justices to hold an election each time a justice is elected or reelected to the court.

The proposals are joint resolutions instead of regular bills since a change would require an amendment to the state constitution. To be successful, joint resolutions must be passed in two consecutive sessions of the legislature and approved in a statewide referendum.

Public hearings have been held on each proposal, and video of each hearing is available on Wisconsin Eye: Feb. 1, 2012 hearing on 2011 SJR 36, Dec. 15, 2011 hearing on 2011 AJR 49.

Justice Michael Gableman on Friday denied motions by attorneys in three separate cases asking the Justice to recuse himself from pending cases. The parties sought his removal after it was determined that Justice Gableman received contingency fee representation from an attorney with a law firm that had cases pending before the Court. The three cases are Adams v. State, Ozanne v. Fitzgerald, and Clinard v. Brennan.

In denying the motions, Justice Gableman explained that under Wisconsin law a Justice must recuse him or herself if they cannot “act in a fair and impartial manner” and by participating in the case they would “give the appearance that they were not able to act in a fair and impartial manner.”

Wisconsin law also provides that only the Justice him or herself can determine whether to decide whether to participate in the case and that other Justices on the bench cannot remove another Justice from a case.

Justice Gableman also cited U.S. Supreme Court Chief Justice John Roberts from an end of the year report on the judiciary in which the Chief Justice addresses recusal matters:

A “Justice…cannot withdraw from a case as a matter of convenience or simply to avoid controversy. Rather, each Justice has an obligation to the Court to be sure of the need to recuse before deciding to withdraw from a case.”[i]

Chief Justice Roberts further noted in the report that a judge “should not be swayed by partisan demands, public clamor or considerations of personal popularity or notoriety, nor be apprehensive of unjust criticism. Such concerns have no role to play in deciding a question of recusal.”

Justice Gableman determined that based on the law and the motions by the parties that “recusal is neither justified nor warranted.”