In Thompson v. State Farm Fire & Casualty Co. (2019AP1182), the Court of Appeals District III held that the plaintiff’s injury occurred after the expiration of the insurer’s policy period, so there was no coverage for the plaintiff’s claims.

The Thompsons were visiting a home in Weyerhauser, Wis., in July 2016 when a deck railing collapsed and Richard Thompson fell off the deck. Previous homeowners William and Susan Carroll had built the deck. Seeking compensation for Richard’s injury, the Thompsons sued various persons, including the Carrolls and their homeowners insurer for the Weyerhauser house, Wilson Mutual. The Carrolls’ policies with Wilson mutual expired in August 2013, a few months after they sold the house.

The Wilson Mutual policy provided coverage for liability of the insured “because of bodily injury or property damage caused by an occurrence,” defining “occurrence” as “an accident…that results in ‘bodily injury’ or ‘property damage’ during the policy period.” The policy further states that “This policy only covers losses, ‘bodily injury,’ and ‘property damage’ that occur during the policy period.”

The court found that Wilson Mutual did not cover the Thompsons’ claims because the “occurrence” of “bodily injury” to Richard Thompson occurred in 2016, after the expiration of the Wilson Mutual policy period in 2013.

In Welter v. LIRC (2018AP1940), the Court of Appeals District III held that the plaintiff’s surgery was not compensable under Worker’s Compensation because her workplace injury had healed before the surgery.

Plaintiff Susan Welter served as a school bus monitor for Student Transit – Eau Claire. Welter had a knee replacement in 2003. In 2013, she experienced some knee pain but declined to undergo a second knee replacement at that time. In 2014, she slipped and fell on ice at work, and doctors said the work injury could have exacerbated her preexisting knee condition. Welter had a second knee replacement surgery in March 2014. Welter’s doctor said that the workplace injury caused her to undergo the knee replacement earlier than she would have had to otherwise.

A doctor hired by Student Transit opined that the injury caused by the workplace accident had healed by February 2014. The need for knee replacement was not caused by the slip and fall. In fact, the knee replacement had been recommended in 2013, before the fall.

Welter and Student Transit entered into an agreement on most of Welter’s Worker’s Compensation claims, but Welter later filed a Worker’s Compensation claim for medical expenses for costs related to her second knee replacement.

The Labor and Industry Review Commission agreed with Student Transit’s doctor that the workplace injury had healed before Welter’s second knee replacement surgery, so the surgery was not compensable under Worker’s Compensation. The appeals court found there was credible and substantial evidence in the doctor’s testimony to support the Commission’s finding. Therefore, Student Transit and its insurer were not liable for medical expenses related to Welter’s knee replacement surgery.

*This case is recommended for publication.

In Pennell v. American Family Mutual Insurance Co. (2019AP170), the Court of Appeals District II held that the jury in this personal injury case did not receive proper instructions on causation and pre-existing conditions and awarded the plaintiff a new trial.

Monica Pennell was injured in a car accident. Pennell alleged that another person in the accident, Carmella Covelli, was a cause of the accident, and that accident caused Pennell’s injuries. After receiving no damages for future pain and suffering at the circuit court trial, Pennell appealed on the grounds that the circuit court erroneously denied her requested jury instructions.

The appeals court agreed with Pennell that the jury should have been instructed according to WIS JI—CIVIL 1500 because the case involved disputes about what caused the accident and what caused Pennell’s injury. At trial, the jury was only instructed to determine whether Covelli caused the accident, and the instructions did not reference whether the accident caused Pennell’s injuries. Instructions in WIS JI—CIVIL 1500 would have taken into account both causation of the accident and causation of the injury.

The appeals court also agreed that the jury should have been given instructions related to consideration of aggravation of pre-existing conditions when assessing damages (WIS JI—CIVIL 1720). In this case, there was a dispute between the parties as to whether Pennell’s headaches were a pre-existing condition or whether they were aggravated by the accident. The appeals court said this issue was a question that the jury should have decided and about which the jury should have received instruction.  

Overall, the court said the outcome of the trial could have been different if the jury had received the proper instructions, so Pennell was awarded a new trial.

In Whittlesey v. LIRC (2018AP2164), the Court of Appeals District IV held that the plaintiff was eligible for unemployment benefits because he had good cause to terminate his employment.

Plaintiff Whittlesey worked for a restaurant for approximately two years before he terminated his employment because he “believed the work environment was hostile and insensitive to his race.” Incidents described in Whittlesey’s testimony included other employees using offensive racist language toward him. Whittlesey believed management did not sufficiently address these incidents, so he eventually terminated his employment and filed for unemployment benefits.

Wisconsin’s unemployment insurance statutes generally prohibit employees who voluntarily terminate their employment from receiving benefits. However, Wis. Stat. § 108.04(7)(b) does provide an exception if the employee terminates his employment “with good cause attributable to the employing unit.”

The appeals court determined that Whittlesey had good cause attributable to his employer to terminate his employment, so he was eligible for unemployment insurance under Wis. Stat. § 108.04(7)(b). Whittlesey did not need to prove that had pursued reasonable alternatives short of quitting to resolve his employment issue. Furthermore, some of the racist remarks were attributable to the employer; the employer failed to specifically prohibit the offensive language; and the incidents were not effectively addressed by the employer. The cumulative effects of racist remarks by employees at the restaurant were good cause for Whittlesey to terminate his employment; therefore, Whittlesey was entitled to unemployment benefits.