wisconsin civil trial journal - wdc online · jeffrey leavell jeffrey leavell, s.c....
TRANSCRIPT
Summer 2013 • Volume 11 • Number 2
Wisconsin Civil Trial Journal
Also In This IssuePresident’s Message: Update on Collateral Source Legislation & Thank You’s Rollin E. Krafft
Who’s Liable For The Fall?: A Primer on “Natural” Versus “Artificial” Accumulations of Snow and Ice on Public Areas Laura McFarlane
Wisconsin Supreme Court Rules That Hospitals May File Liens on Injury Settlements of Medicaid Recipients John P. Loringer
Acuity v. Society: A Missed Opportunity Ryan M. Wiesner
The Negligent Maintenance and Inspection Exception to the Builders’ Statute of Repose Justin F. Wallace
Protecting the Attorney-Client Privilege for Corporate Clients
Patrick J. Fiedler & Tyler K. Wilkinson
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Officers
Presidentrollin Krafft
West Bend Mutual Insurance Companies [email protected]
President electArthur simpson
Simpson & Deardorff, [email protected]
secretAry/treAsurerKara Burgos
Moen Sheehan Meyer, [email protected]
PAst PresidentMike Gill
Hale, Skemp, Hanson, Skemp & [email protected]
PrOGrAM chAir Jeffrey leavell
Jeffrey Leavell, [email protected]
directOrs
Mark BudzinskiCorneille Law Group, [email protected]
spencer davczyk Davczyk & Varline, LLC [email protected]
tom devineHostak, Henzl & Bichler, [email protected]
Amy Goyette West Bend Mutual Insurance Companies [email protected]
Michael happe Ryberg & [email protected]
laura lyonsBell, Moore & Richter, [email protected]
Mary richardsAmerican Family Mutual Insurance [email protected]
todd smithGodfrey & Kahn, [email protected]
fred strampe Borgelt, Powell, Peterson & Frauen, S.C. [email protected]
Brian WeberJohns, Flaherty & [email protected]
Committee Chairs
Amicus curiae chair Beth Hanan
Gass Weber Mullins, LLC [email protected]
dri representative Matthew Yde
Strasser & Yde, SC [email protected]
General tort & negligence chair Catherine Rottier
Boardman & Clark LLP [email protected]
insurance coverage chair Terry Booth
Piper & Schmidt [email protected]
legislative chair Bernard McCartan
American Family Mutual Insurance Co. [email protected]
Worker’s compensation & employment law
Kurt Anderson Anderson Kramer, S.C.
executive director Jane Svinicki, CAE [email protected]
Account executive Jenni Rodriguez
Account coordinator Beth Riefe
legislative Advisors Andy Cook
Hamilton Consulting [email protected]
Jim Hough Hamilton Consulting
Columnists
editor
Andrew hebl Boardman & Clark LLP
Patrick J. fiedler Axley Brynelson, LLP
rollin e. Krafft Wisconsin Defense Counsel President
John P. loringer O’Connell, Tivin, Miller & Burns, L.L.C.
laura Mcfarlane Bell Moore & Richter, S.C.
Justin f. Wallace Nash, Spindler, Grimstad & McCracken
ryan M. Wiesner McCoy Leavitt Laskey LLC
tyler K. Wilkinson Axley Brynelson, LLP
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in this issue…
Journal PolicyWDC Members and other readers are encouraged to submit articles for possible publication in the Civil Trial Journal, particularly articles of use to defense trial attorneys. No compensation is made for articles published and all articles may be subjected to editing.
Statements or expression of opinions in this publication are those of the authors and not necessarily those of the WDC or Editor. Letters to the Editor are encouraged and should be sent to the WDC office at 6737 W. Washington St., Suite 1300, Milwaukee, WI 53214. The Editor reserves the right to publish and edit all such letters received and to reply to them.
President’s Message: update on collateral source legislation & thank you’s by: Rollin E. Krafft, President, Wisconsin Defense Counsel ..............................................4
Protecting the Attorney-client Privilege for corporate clients by: Patrick J. Fiedler and Tyler K. Wilkinson, Axley Brynelson, LLP ................................6
Who’s liable for the fall?: A Primer on “natural” Versus “Artificial” Accumulations of snow and ice on Public Areas by: Laura McFarlane, Bell Moore & Richter, S.C. ..........................................................17
Wisconsin supreme court rules that hospitals May file liens on injury settlements of Medicaid recipients by: John P. Loringer, O’Connell, Tivin, Miller & Burns, L.L.C. ....................................... 23
Acuity v. Society: A Missed Opportunity by: Ryan M. Wiesner, McCoy Leavitt Laskey LLC ...........................................................30
the negligent Maintenance and inspection exception to the Builders’ statute of repose by: Justin F. Wallace, Nash, Spindler, Grimstad & McCracken .......................................36
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President’s Message: update on collateral source legislation & thank you’sby: Rollin E. Krafft, President, Wisconsin Defense Counsel
For a number of years we have supported change to Wisconsin Collateral Source Law which currently allows the recovery of “phan-
tom damages.” The Collateral Source Rule Legisla-tion received a public hearing in April. Andy Cook spearheaded the effort, with WDC President-Elect Art Simpson and Attorneys Tom Goss and James Friedman testifying in support of the bill. Notwith-standing their best efforts, the bill is stuck in com-mittee because of health insurers’ objections. Ac-cordingly, it is not likely that the bill will be voted out of committee in time for a June vote. WDC will continue to support the legislation and attempt to get the bill voted out of committee and sent to the floor, most likely in the fall.
It has truly been an honor to serve as President of Wisconsin Defense Counsel. I have enjoyed working with an excellent Board of Directors which provides this organization experienced leadership and service. Thank you.
I would like to thank a number of others for their outstanding work this year. This year’s program chair, Jeff Leavell, deserves recognition for his hard work and great programs. I am proud of the quality of CLE programming put on by our organization over the last several years. I am sure that Jeff will put together another great program for our annual conference August 1 and 2, 2013 at the Kalahari in Wisconsin Dells. Thanks Jeff!
Andrew Hebl continues to do a great job editing and marshalling articles for the Wisconsin Civil Trial Journal. The Journal continues to be viewed as an excellent source of academic quality articles on
various legal topics of interest to the membership. Thanks Andrew!
Once again, Andy Cook of Hamilton Consulting has done a great job dealing with legislative issues. The legislative process can be frustrating at times and Andy is always able to stay above the fray. I have enjoyed working with him. Thank you Andy! I also want to thank the people at Svinicki Association Management, Inc., for their hard work during the past year. They have served as Executive Director for the WDC for many years. In particular, Jane Svinicki, Jenni Rodriguez, and Beth Riefe are the people who operate this organization on a day-to-day basis. We could not function as an organization without their strong and capable effort. Thank you!
Finally, I would like to thank all of our sponsors for their continued support:
Brown & Jones Reporting, Inc.CED Investigative Technologies, Inc.
CTLGroupExponent, Inc.
Minnesota Lawyers Mutual Insurance Co. Proulx Professional Research, Inc.Safety Engineering Associates, Inc.
SEA, Ltd.Skogen EngineeringStellpflug Law, SC
Visual Advantage, Inc.
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West Bend Mutual Insurance CompanyWisconsin Law Journal
Woodlake Medical Management
Please support them as they continue to support our organization. I look forward to seeing many of you at the Kalahari for our annual conference. Thank you all for the opportunity to serve.
Rollin E. Krafft is a Senior Attorney with West Bend Mutual Insurance Company, where he manages complex litigation. He was in a civil defense practice in Racine from 1981 until 1985 and has been practicing with West Bend since 1986. In addition to serving as President of the WDC, Rollin is currently a member of the DRI and Washington County Bar Association. Rollin received a BA from Valparaiso University in 1978 and JD from Valparaiso University Law School in 1981.
Visit www.wdc-online.org for the latest information on the Wisconsin Defense Counsel including: meeting announcements,
journal archives, conference speaker outlines, and more!
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Protecting the Attorney-client Privilege for corporate clientsby: Patrick J. Fiedler and Tyler K. Wilkinson, Axley Brynelson, LLP
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We recently represented a national
corporation and one of its regional subsidiaries in complex litigation. Once per week, a “Liti-gation Team” convened conference calls to dis-cuss and coordinate
case strategy. The Litigation Team was made up of the national corporation’s in-house counsel, two in-house attorneys from the regional subsidiary, adjusters from the corporation’s insurer, attorneys from our office, and, from-time-to-time, third-party consultants. Early in the process, we had questions about whether these conference calls and the work performed by our third-party consultants were priv-ileged and confidential.
We were surprised to find that no court has square-ly addressed whether this type of team approach is covered by the veil of attorney-client and work product privilege. This was surprising because our situation was the natural outgrowth of two develop-ments in the legal profession. First, in-house cor-porate counsel are a given at most large corpora-tions. Second, as litigation becomes more complex, this type of team approach—a mix of in-house and outside counsel working with third-party consul-tants—seems to be on the rise. The absence of on-point case law on this approach was unsettling.
Despite this dearth of case law, we concluded that the traditional rules of attorney-client privilege and work product privilege applied with equal force in
this “new” situation. We identified some steps at-torneys for corporate clients can take to protect and preserve their privileged information. This article outlines our analysis and lays out some recommen-dations for others who find themselves in a team-based approach to complex litigation.
i. the Attorney-client Privilege
The attorney-client privilege protects communica-tions between attorneys and clients from compelled disclosure.1 The purpose of the privilege is to en-courage clients to make “full and frank” disclosures to their attorneys, who are then better able to pro-vide candid advice to their clients.2 “Open com-munication assists lawyers in rendering legal ad-vice, not only to represent their clients in ongoing litigation, but also to prevent litigation by advising clients to conform their conduct to the law and by addressing legal concerns that may inhibit clients from engaging in otherwise lawful and socially beneficial activities.”3
Wisconsin’s attorney-client privilege, codified in Wis. Stat. § 905.03, applies to confidential com-munications between the client, the lawyer, and, if applicable, the lawyer’s representative. Sec-tion 905.03(1)(d) defines a “confidential com-munication” as a communication “not intended to be disclosed to 3rd persons other than those to whom disclosure is in furtherance of the rendi-tion of professional legal services to the client or those reasonably necessary for the transmission of the communication.” Section 905.03(1)(c) defines “representative of the lawyer” as “one employed to assist the lawyer in the rendition of professional
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services.” Wisconsin Stat. § 905.03(2) outlines the scope of the lawyer-client privilege:
A client has a privilege to refuse to dis-close and to prevent any other person from disclosing communications made for the purpose of facilitating the rendition of professional legal services to the client:
• [B]etween the client or the client’s representative and the client’s law-yer or the lawyer’s representative; or
• [B]etween the client’s lawyer and the lawyer’s representative; or
• [B]y the client or the client’s lawyer to a lawyer representing another in a matter of common interest; or
• [B]etween representatives of the cli-ent or between the client and a rep-resentative of the client; or
• [B]etween lawyers representing the client.4
Recognizing the inherent tension between the broad scope of the attorney-client privilege outlined above and the courts’ right to every person’s evidence, the courts have articulated the following principles to guide attorney-client privilege determinations:
• The privilege will be construed to apply only where it is necessary to achieve its purposes.
• Only those communications which re-flect the lawyer’s thinking or are made for the purpose of eliciting the law-yer’s professional advice or other le-gal assistance fall within the privilege.
• Because one of the objectives of the privilege is assisting clients in con-forming their conduct to the law, liti-gation need not be pending for the communication to be made in connec-tion to the provision of legal services.
• Because the privilege is in derogation of the search for truth, the application of the attorney-client privilege must be strictly confined.5
The attorney-client privilege is an absolute privi-lege and gives way only when the client voluntarily waives its application.6 In most circumstances, disclosing an otherwise privileged communication to a third-party waives the privilege.7 In limited circumstances, detailed in Section III.C below, the attorney-client privilege may extend to third par-ties retained “to assist the lawyer in the rendition of professional legal services.”8 The absolute nature of this privilege, however, extends only to “com-munications; it does not protect disclosure of the underlying facts by those who communicated with the attorney.”9
ii. the Work Product Privilege
“The work-product doctrine protects the enter-prise—either analytical or entrepreneurial—by a party or by the party’s agent.”10 The work product privilege applies to work “prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative (including an attorney, consultant, surety, indemnitor, insurer or agent).”11 The “litigation” need not have been com-menced at the time the documents were prepared.12 Moreover, the “litigation” need not be the proceed-ing in which the doctrine is asserted.13
The Wisconsin Supreme Court has recognized that attorney work product “consists of the information [the lawyer] has assembled and the mental impres-sions, the legal theories and strategies that he has pursued or adopted as derived from interviews, statements, memoranda, correspondence, briefs, legal and factual research, mental impressions, personal beliefs, and other tangible and intangible means.”14 Work product can also include materi-als, information, mental impressions, and strategies of others that attorneys assimilate as part of their own work product.15 Before a document or item can be classified as attorney work product, it must have been obtained at the attorney’s direction and in anticipation of litigation.16
As opposed to the absolute, yet narrow, attorney-client privilege, the work product privilege is quali-fied due to its expansive scope. The privilege gives way “upon a showing that the party seeking dis-
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covery has substantial need of the materials in the preparation of the case and that the party seeking discovery is unable without undue hardship to ob-tain the substantial equivalent of the materials by other means.”17 Like the attorney-client privilege, the client may claim and assert the privilege and is the only person able to voluntarily waive the privi-lege.
iii. the corporate client and Privilege
A. the co-client or Joint client Privilege
In the case we worked on above, we had three sepa-rate clients: the national corporation, its regional subsidiary, and the insurance company. In all re-spects, these three were separate entities, and in many respects, were separate clients for purposes of a privilege analysis. “As common-law courts developed the privilege in an age in which clients were almost exclusively natural persons, more modern courts sought to adapt it to the now ubiq-uitous corporate client.”18 Modern courts have at-tempted to respect the corporate form by treating corporate parents, subsidiaries, and their insurers as separate entities.19
Our Litigation Team included three distinct groups of attorneys, each representing a separate client. The national corporation’s in-house counsel rep-resented the national interests of the corporation. The in-house counsel from the regional subsidiary represented the national corporation as a whole, but was tied directly to the regional subsidiary. “Rec-ognizing that any other result would wreak havoc on corporate counsel offices, courts almost uni-versally hold that intra-group information sharing does not implicate the [attorney-client] disclosure rule.”20 “This [approach] reflects both the separate-ness of each entity and the reality that they are all represented by the same in-house counsel (whether that counsel typically takes up office with the parent or with a subsidiary).”21
Our firm, on the other hand, was explicitly retained to represent the regional subsidiary and its insurer in the litigation. In doing so, we represented the
national corporation’s interests so long as those interests coincided with that of the regional sub-sidiary and its insurer.22 In effect, we assumed a joint-representation of all three separate clients. “When co-clients and their common attorneys com-municate with one another, those communications are ‘in confidence’ for privilege purposes.”23 This co-client or joint privilege manifests when co-cli-ents convey their desire for representation and the lawyer consents.24 Parties seeking to assert the co-client privilege before a court must demonstrate their intention to create a joint-client relationship.25 Courts will typically look for indicia of intent, “par-ticularly how the parties interact with the joint at-torneys and each other.”26
B. the corporation’s employees
As noted above, the attorney-client and work prod-uct privileges were developed at a time in which clients were individual, natural persons. Because corporations act through their human agents, the question of whose communications with the cor-poration’s attorneys are entitled to protection often comes up. In the seminal case of Upjohn v. United States, the United States Supreme Court rejected a more narrow view of the attorney-corporate client privilege—the so-called “control group theory,” whereby only communications between high-level managers and corporate attorneys merited protec-tion—and opted for a broader view of a corporate client.27 The court held that when a corporation’s managers require its employees to give informa-tion to its attorneys in the course of providing le-gal advice, those communications are privileged.28 The court justified this broader protection on the grounds that lawyers need to be able to commu-nicate freely with corporate employees in order to carry out their professional obligations and to guide their corporate clients to legal compliance.29
Pursuant to Upjohn, communications between corporate employees and attorneys are privileged when: (1) the information helps the attorney pro-vide legal advice; (2) the communications relate to the employees’ corporate duties; (3) the employees are aware that they are being questioned; and (4) the
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communications are considered and kept confiden-tial.30 This nuanced analysis potentially provides a corporate-client and its employees with very broad protection against compelled disclosure of com-munications with attorneys. This broad scope of protection was important in our case because of the large number of corporate employee-witnesses. As outside counsel, we were able to interview all wit-nesses behind the shield of attorney-client privilege.
c. third-Party Agents
Generally, the attorney-client privilege is waived when the client voluntarily discloses an otherwise confidential communication to a third-party. The exception to this general disclosure rule is when the third-party is an agent assisting the lawyer in ren-dering professional legal services.31
This agency exception stems from U.S. v. Koval, in which the Second Circuit Court of Appeals applied the attorney-client privilege between a lawyer, a cli-ent, and an accountant employed by the lawyer.32 The court reasoned that attorneys often have to seek help from other professionals in order to advise clients, and concluded that communications with third-party agents should be protected when they are needed to accomplish the attorney’s work.33 Af-ter Koval, the law has taken an expansive view of this agency theory and extends the attorney-client privilege to anyone retained to assist an attorney in the rendering of professional legal services.34
The third-party agents we retained in this case also had the benefit of the work product privilege. As noted above, the work product privilege extends to work “prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative.”35
iV. Application
This section is meant to be a guide to help determine whether a particular communication or document is privileged. Below are check-lists for analyzing a statement or document under either privilege:
Next, below are some common examples of communications and potential work product that may give rise to a discovery dispute. These examples are meant to demonstrate the privilege analysis.
Litigation Team Conference Calls. Our Litigation Team had weekly conference calls with third-party consultants to discuss and coordinate case strategy.
Attorney-Client Privilege•Is the information sought to be protected a
communication?•If so, who made the communication? If it was
an attorney, the client or an employee, or a third-party agent, it may be privileged.
•Who was the communication made to? If it was an attorney, the client or an employee, or a third-party agent, it may be privileged.
•Was the communication disclosed to a third-party who is not acting as a representative of the lawyers?
•What was the purpose behind the communi-cation? If the communication was connected with the provision of legal services, it is privi-leged.
Work Product Privilege•What is the information sought to be protected?•Who created this information? If it was an at-
torney or a third-party agent, it may be privi-leged. If the client or an employee created the information, it may be subject to disclosure un-der the discovery rules.
•Who directed the person to create this informa-tion?
•For what purpose was this information cre-ated?
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The information sought to be protected was the oral communications between members of the Litigation Team and the third-party consultants. Our third-party consultant was retained as a representative of the lawyers for the purpose of rendering professional legal services. These communications were made in connection with the provision of legal services and were, under our analysis, privileged under the attorney-client privilege.
Third-Party Consultant Notes, Memoranda, and Communications. Our third-party consultants were retained to investigate and collect information about the case. In doing so, they took notes and drafted memoranda to inform the Litigation Team of their activities. These notes and memoranda were created by parties retained to assist the lawyers in the rendition of professional legal services and were created at the direction of the Litigation Team. These notes and memoranda were privileged under the work-product privilege. We also concluded that when the third-party investigators e-mailed or otherwise transmitted these documents to the Litigation Team, the documents were privileged under the attorney-client privilege since they were confidential communications.
Facts Known to Corporate Employees. The Litigation Team discovered the facts underlying the case through the factual recounts of corporate employees. The specific interviews and any notes, memoranda, or reports created by the Litigation Team or its agents related to these factual recounts were privileged under both the attorney-client and work product privileges. We concluded, however, that the specific facts and evidence which were the basis for these interviews were not privileged.
V. recommendations for Working with a corporate client
We were fortunate that we did not have to test our analysis in court so as to protect our privileged in-formation. In anticipation of a dispute over this privileged information, we took precautionary steps
to help show a court that the information was privi-leged:
1. We drafted and executed a joint representa-tion agreement between the clients and the attorneys.
2. We drafted and executed engagement agree-ments with all third-party agents preserving both the attorney-client and work product privileges by indicating that the agents were being retained for the purpose of assisting the lawyers in providing professional legal ser-vices, that all of their communications were to be considered highly confidential, and that all work was to be performed at the direction of the attorneys.
3. We inserted document footers onto all work created by third-party agents which indicat-ed that “This document is considered work product and was created at the direction of and in concert with the attorneys on the Liti-gation Team.”
4. We drafted a witness interview form that tracked the Upjohn requirements to have all corporate employees review and sign prior to interviews. Though this may have been a “belt-and-suspenders” approach, we felt that it would alleviate the need for foundational testimony from the employees or the attor-neys in case of a discovery dispute.
Conclusion
Litigation today is increasingly complex and often requires a team approach. Corporations rely on both in-house counsel and outside law firms to work to-gether toward resolving lawsuits. These attorneys often rely on third-party consultants in order to pro-vide fully informed, competent legal advice and ser-vices. We found that traditional attorney-client and work product privilege rules should apply equally to both this new team-based approach and to the historical situation of attorney and individual client.
Patrick J. Fiedler is a partner in the firm and mem-ber of the Litigation Practice Group. During his ca-reer, he has tried over 60 cases to a jury as well as numerous trials to the court. His practice areas fo-cus on civil litigation including insurance defense, professional malpractice defense and business liti-gation, as well as alternative dispute resolution in civil and family law matters.
Prior to joining the Axley firm, Mr. Fiedler was a Dane County Circuit Judge for 18 years. During his time on the bench, he handled thousands of civil cases in all types of areas and presided over more than 150 jury trials as well as numerous court tri-als.
Mr. Fiedler is admitted to practice law in the state courts of Wisconsin, the United States District Courts for the Eastern and Western Districts of Wis-consin, and the United States Court of Appeals for the Seventh Circuit. He is a member of the Litiga-tion Section and the Alternative Dispute Resolution Section of the State Bar of Wisconsin. Mr. Fiedler is a past associate dean of the Wisconsin Judicial College and is a frequent presenter on various le-gal topics including evidence. He is also the current president of the State Bar of Wisconsin.
Tyler Wilkinson is a member of Axley Brynelson, LLP’s Litigation Team and practices primarily in medical malpractice defense, insurance defense, and criminal defense.
References1 State ex rel. Dudek v. Circuit Court for Milwaukee County,
34 Wis. 2d 559, 578, 150 N.W.2d 387 (1967). 2 Upjohn Co. v. United States, 449 U.S. 383, 389 (1981); see
also Dudek, 34 Wis. 2d at 578-79. 3 U.S. v. BDO Seidman, LLP, 492 F.3d 806, 815 (7th Cir.
2007).4 Wis. Stat. § 905.03(2) (bullet points added to assist the
reader).5 BDO Seidman, LLP, 492 F.3d at 815; see also Lane v.
Sharp Packaging Systems, Inc., 2002 WI 28, ¶¶ 21, 40, 251 Wis. 2d 68, 640 N.W.2d 788.
6 Harold Sampson Children’s Trust v. The Linda Gale Samp-son 1979 Trust, 2004 WI 57, ¶¶ 16-27, 271 Wis. 2d 610, 679 N.W.2d 794.
7 In re Supoena of Steckbauer, 228 Wis. 2d 459, 596 N.W.2d 496 (Ct. App. 1999).
8 Wis. Stat. § 905.03(1)(c). 9 Upjohn, 383 U.S. at 396; see also Dudek, 34 Wis. 2d at 580
(“[T]he courts have noted that a party cannot conceal a fact merely be revealing it to his lawyer.”).
10 Ranft v. Lyons, 163 Wis. 2d 282, 297, 471 N.W.2d 254 (Ct. App. 1991) (citing Dudek, 34 Wis. 2d at 590-91).
11 Wis. Stat. § 804.01(2)(c).12 Borgwardt v. Redlin, 196 Wis. 2d 342, 354, 538 N.W.2d
581 (Ct. App. 1995). 13 Id. (citing Federal Trade Comm’n v. Grolier Inc., 462 U.S.
19, 25-26 (1983)).14 Dudek, 34 Wis. 2d at 589. 15 See State ex rel. Shelby Mut. Ins. Co. v. Circuit Court, 67
Wis. 2d 469, 475, 228 N.W.2d 161 (1975). 16 Dudek, 34 Wis. 2d at 594-95; see also Ranft, 163 Wis. 2d at
301 (“A lawyer’s strategic decision to invest a client’s re-sources on photographic or video surveillance is protected work product.”).
17 Wis. Stat. § 804.01(2)(c). 18 In re Teleglobe Communications Corp., 493 F.3d 345, 360
(3rd Cir. 2007); see also DeStefano-Beardslee, The Cor-porate Attorney-Client Privilege: Third Rate Doctrine for Third-Party Consultants, 62 S.M.U. L. Rev. 727 (Spring 2009).
19 See Teleglobe, 493 F.3d at 371.20 Id. at 369. 21 Id. at 372.22 See S.C.R. 20:1.7 Conflicts of interests current clients,
Notes 29-33.23 Teleglobe, 493 F.3d at 363; see also Wis. Stat. § 905.03(4)
(e).24 Teleglobe, 493 F.3d at 362. 25 Id. 26 Id. 27 449 U.S. at 392. 28 Id. at 396. 29 Id. at 390-92. 30 Id. at 394-95. 31 See Wis. Stat. § 905.03(1)(c). 32 296 F.2d 918, 920 (2d Cir. 1961). 33 Id. at 922. 34 See Wis. Stat. § 905.03(2); see also, e.g., United States v.
McPartlin, 595 F.2d 1321, 1335 (7th Cir. 1979) (holding that client statements made to a private investigator em-ployed by an attorney are privileged).
35 Wis. Stat. § 804.01(2)(c)1.
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Who’s liable for the fall?: A Primer on “natural” Versus “Artificial” Accumulations of snow and ice on Public Areasby: Laura McFarlane, Bell Moore & Richter, S.C.
The winter of 2012-13 may now seem like a distant memory as summer is in full effect. To the personal injury defense attorneys
among us, however, this past winter is sure to live on through pending and future slip and fall cases.
Compared to the winter of 2011-2012 where, for example, Madison and Milwaukee recorded their warmest Marches in history,1 the winter of 2012-2013 proved to be an-all-too-rude reminder of what Wisconsin winters can be like. From the State of Emergency issued in response to the blizzard of December 20, 2012,2 to the May snow storm that landed Ashland with 16 inches of snow,3 the winter of 2012-2013 was wet, icy, snowy, and cold. All that snow was great for those concerned with the lingering drought problems in the state,4 but it is sure to have attributed, in part, to a number of personal injury accidents.
In Wisconsin, injured plaintiffs who have slipped and fallen on public walkways are commonly confused as to whether they can sue the owner of abutting property.5 It is especially confusing for the plaintiff when the owner or tenant of the abutting property takes an active role in snow and ice removal. Even seasoned defense attorneys, especially those who regularly handle private property slip and fall cases, may forget that most liability does not rest with the owner or tenant of the abutting property. In most instances, the liability rests with the municipality, which has immunity from liability for three weeks after the accumulation. However, the owner or tenant of the abutting property, and even the municipality, may be liable if the accumulation of snow or ice is artificially rather than naturally created.
Municipal Liability
Many municipalities across Wisconsin impose some duty on abutting landowners to clear or maintain public ways.6 However, many municipal ordinances may not delegate the municipality’s duty to abutting landowners to maintain public sidewalks in a reasonably safe condition.7 Ordinances that require property owners to clear abutting public sidewalks from snow and ice are limited to protecting the interests of the community, not its individual members.8 When there are such ordinances in place, the only liability of owners whose properties abut public sidewalks is to pay the penalty (usually a fine) prescribed by the ordinance.9
If the accumulation at issue is “natural,” then the ultimate liability for any injury rests with the municipality, which has immunity if the accumulation is less than three weeks old.10 If, on the other hand, the accumulation is affirmatively created by the acts of some entity (such as a landlord), and is therefore “artificial,” that entity may be liable for any injury caused by such accumulation.11 Understanding the distinction between “artificial” and “natural” accumulations of snow or ice is therefore essential to a successful defense, especially because the distinction between “natural” and “artificial” accumulations is a question of law able to be decided on summary judgment.12
“Natural” Versus “Artificial” Accumulations
As anyone who has spent a winter in Wisconsin knows, the accumulation of ice and snow is a natural incident of Wisconsin winters.13 Not only is
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the accumulation of ice and snow a natural incident, but so too are most of the after effects of efforts to clear that ice and snow. For an accumulation to be considered “artificial,” and for liability to then potentially attach, there must be evidence of (1) something man-made and (2) a defect in the man-made product that diverted the water that caused the condition.14 Wisconsin case law is rich with examples of what accumulations are “natural” versus “artificial.”
Cases Finding “Natural” Accumulations
This section summarizes Wisconsin cases finding the defendant or defendants not liable because the accumulations in question were “natural,” rather than “artificial.” The first case is the Wisconsin Supreme Court’s 1956 decision in Walley v. Patake.15 In Walley, the plaintiff fell and was injured while walking on a public sidewalk adjacent to the defendants’ apartment building. One of the defendants, Patake, was the caretaker and janitor of the building. Plaintiff claimed that Patake negligently permitted a heavy accumulation of snow and ice to gather for three to four weeks prior to her fall and had also been negligent in partially clearing a small path through the snow. The Wisconsin Supreme Court held that the defendants were not negligent in “permitting the natural accumulation of ice and snow on the sidewalk,” as it was the City’s obligation to clear the walk.16 In addition, the “‘rough, uneven and slippery’ condition of the ice and snow on the walk was not an artificial accumulation.”17
That was not the end of it, however. The case subsequently returned to the Supreme Court on the Walleys’ amended complaint. In its second decision, issued in 1957, the Supreme Court explained how “thawing and freezing” is a natural condition, and that is what caused the snow to become rough, uneven, and slippery.18 The court further noted the important public policy behind not holding persons liable for injuries resulting from natural ice and snow accumulations:
The law is well settled that if the owner or occupant of property
does nothing in so far as snowfall is concerned he is not liable to a pedestrian who is injured because thereof. Plaintiffs seek to penalize the good citizens who make an attempt to improve the situation. Their efforts against this common enemy in Wisconsin should be encouraged. Snowfall, with its attendant discomfort, is a small price to pay for the many advantages we enjoy as residents of this state. The only thing we can say with authority about Wisconsin weather is that it changes frequently. As a result, we will have many slippery conditions on sidewalks. Every pedestrian must be conscious of that fact and take due care for his own protection.19
In Corpron v. Safer Foods, Inc.,20 a 1964 decision, the defendants maintained a parking lot at the rear end of their store. Customers who parked in the lot used the public sidewalk on the south wall of the building to reach the store’s entrance. Attached to the south wall was a canopy or ledge that was about 11 feet above the sidewalk and extended out from the wall about two and a half feet. The sidewalk had become slippery with the accumulation of snow and ice, in part because of water dripping down onto the sidewalk from the overhanging canopy. On the day of the incident, plaintiffs had parked in the lot and were on their way to the store entrance. They were on the public sidewalk and beneath the east end of the canopy when they fell and suffered the injuries for which they brought suit.21 The case went to trial and the jury found that the defendants were negligent. After verdict, however, the circuit court changed the jury’s answers as to defendants’ negligence from “Yes” to “No” and ordered dismissal of the complaint.22 The plaintiffs appealed to the Supreme Court.
On appeal, the plaintiffs argued that the accumulation that had caused them to fall was “artificial” rather than “natural” due to water dripping down from the overhanging canopy, and that the store owners
19
20
could therefore be held liable. The Supreme Court disagreed. Although the canopy was constructed to accumulate and discharge water onto the sidewalk, there was no proof of defective maintenance of the canopy or drain.23 The court held that it was most likely the large amount of snow that was the culprit for the water dripping over the edge of the canopy,24 and that defective maintenance could not be “inferred from the mere fact that the water dripped.”25
In Kobelinski v. Milwaukee & Suburban Transport Corp.,26 a 1972 decision, the plaintiff was a passenger on a Milwaukee & Suburban Transport Corporation bus. At the bus stop, the City had cleared the first thirty to forty feet of the sidewalk in the bus zone. Beyond that zone, there was a mound of ice and snow, and that is where the plaintiff got off the bus and fell, suffering the injuries giving rise to the lawsuit. Because there was no evidence that the snow and ice accumulation was there for more than three weeks, the City was not automatically liable. Instead, the question of liability turned on whether the accumulation was “natural” or had been artificially created by the actions of the City.
Relying on Walley, the Supreme Court held that the mound, as it was formed, did not constitute an “artificial” accumulation.27 The City therefore “met its duty to use reasonable care under all circumstances to maintain its sidewalks safe for pedestrian travel” as a matter of law.28 Of note, the Kobelinski court spent considerable time emphasizing how “municipalities should be encouraged to make every reasonable attempt to clear [their] sidewalks of ice and snow.”29 If clearing part of the walkway could have opened the City up to liability, it would have created a perverse disincentive to clear sidewalks, in that those who attempted to clear sidewalks could be found liable while those who did nothing would have immunity.30
Gruber v. Village of North Fond Du Lac31 is a fairly recent decision addressing whether a drainage system created an “artificial” accumulation. In Gruber, the plaintiff slipped and fell on a patch of ice near the driveway/sidewalk area adjacent
to a private residence. Over the years, there was evidence of water/snow runoff coming from the adjacent alley and ending up on the sidewalk where it would pool and freeze. The Grubers, on appeal, argued that: (1) the alleyway was part of a drainage design system that was flawed; and (2) even if there was no drainage design system in place, the Village should have known that the elevations and pitches of the streets and alleys created a hazardous condition that needed to be addressed.32 The court of appeals dismissed the Grubers’ claims, holding that there was no record of any man-made drainage system and that the Village was not “duty bound” to provide a proper drainage remedy as “grading, by itself, does not create an artificial condition.”33
Cases Finding “Artificial” Accumulations
This section summarizes Wisconsin cases finding the defendant or defendants liable because the accumulations in question were “artificial,” rather than “natural.” The first case is Laffey v. City of Milwaukee,34 a 1958 decision of the Wisconsin Supreme Court. In Laffey, the plaintiff was injured after a fall on an icy sidewalk. The complaint stated that city firemen, in the scope of their employment, had caused water to be discharged on the sidewalk and that the same water then froze. The Supreme Court held that the accumulation was created by the firemen who poured the water on the sidewalk and that the dangerous condition existed when the freezing water was allowed to remain by those in charge of the sidewalks. The plaintiff’s claim was therefore allowed to go forward.35
The second case is the Wisconsin Supreme Court’s 1975 decision in Sambs v. City of Brookfield.36 Sambs is one of the seminal cases on the question of what constitutes an “artificial” accumulation. In Sambs, the plaintiff was injured in an automobile accident. Plaintiff sued the City of Brookfield for negligence in the maintenance and repair of the street in question. At trial, evidence was introduced to suggest that the culverts under the driveways along the street were inadequate to handle the flow of water to be expected in the watershed area. The culverts could then be blocked, frozen, and lead to
21
the situation in which water would be prevented from going under the road.37 Based upon this evidence, the Supreme Court held that the accumulation was “artificial” because the City failed to provide an adequate drainage system and failed to remedy the defect.38 Thus, the plaintiff’s claims were allowed to go forward.
A final example of an “artificial” accumulation was dealt with by the Wisconsin Supreme Court in 1953 in Smith v. Congregation of St. Rose. In that case, the court held that an “artificial” condition for which the defendant could be liable was present when defective gutters on a roof caused an accumulation of snow in one spot, which led to it overflowing into a gutter and forming ice on the sidewalk below.39
Conclusion
In summary, in most instances an accumulation of snow or ice on a public area will be considered a “natural” accumulation, absolving potential defendants from liability for any injuries that result (except for municipalities that fail to address the accumulation within three weeks). The instances where liability could result are generally limited to when a defective man-made drainage system has created the accumulation, thus resulting in an “artificial” accumulation. The Wisconsin defense practitioner defending slip-and-fall cases will be well-served to recognize the legal distinction between “artificial” and “natural” accumulations of snow and ice, as this distinction presents a question of law that can be decided on summary judgment potentially leading to early dismissal of such claims.
Laura E. McFarlane is an associate at Bell, Moore & Richter, S.C., Madison, where she practices in civil litigation, civil appeals, insurance defense, civil rights defense, and family law. She received her B.A. degree (magna cum laude, Phi Beta Kappa) from Boston University and her J.D. degree from the University of Wisconsin Law School (cum laude). Ms. McFarlane is a member of the American Bar Association, State Bar of Wisconsin, Dane County Bar Association, James E. Doyle Inns of Court, and Wisconsin Defense Counsel. She is admitted to
practice in Wisconsin and before the U.S. District Court for the Western District of Wisconsin.
References1 Andrew Freedman, March Heat Wave Shatters Monthly
Records, Climate Central (Apr. 3, 2012), available at http://www.climatecentral.org/blogs/march-heat-wave-shatters-monthly-records.
2 Bill Novak, Some schools already closing as state of emer-gency declared, The Capital Times (Dec. 19, 2012, 7:30 p.m.), available at http://host.madison.com/news/local/education/local_schools/some-schools-already-closing-as-state-of-emergency-declared/article_eef715bc-4a00-11e2-a456-0019bb2963f4.html.
3 Steve Karnowski, Upper Midwest Schoolchildren Get Rare May Snow Day, AP (May 2, 2013, 7:28 p.m.), available at http://bigstory.ap.org/article/upper-midwest-schoolchil-dren-get-rare-may-snow-day.
4 Drought over in southern Wisconsin: National Weather Service expects sufficient moisture for growing season, Channel 3000 (Mar. 22, 2013, 10:07 a.m.), available at http://www.channel3000.com/weather/Drought-over-in-southern-Wisconsin/-/1636/19424628/-/2oo7iz/-/index.html.
5 Holschbach v. Washington Park Manor, 2005 WI App 55, ¶ 1, 280 Wis. 2d 264, 694 N.W.2d 492.
6 See, e.g., Madison Ordinance 10.28(1); Milwaukee Ordi-nance 116-8.
7 Hagerty v. Village of Bruce, 82 Wis. 2d 208, 218, 262 N.W.2d 102 (1978).
8 Id.9 Walley v. Patake, 271 Wis. 530, 535, 74 N.W.2d 130 (1956).10 Wis. Stat. § 893.83. 11 See Corpron v. Safer Foods, Inc., 22 Wis. 2d 478, 484, 126
N.W.2d 14 (1964). 12 Gruber v. Village of North Fond Du Lac, 2003 WI App
217, ¶ 3, 267 Wis. 2d 368, 671 N.W.2d 692. 13 Stippich v. City of Milwaukee, 34 Wis. 2d 260, 268-69, 149
N.W.2d 618 (1967). 14 Gruber, 267 Wis. 2d 368, ¶ 20. 15 271 Wis. 530.16 Id. at 541. 17 Id.18 Walley v. Patake, 274 Wis. 580, 585, 80 N.W.2d 916 (1957).19 Id. at 585.20 22 Wis. 2d 478, 126 N.W.2d 14 (1964).21 Id.22 Id. at 480.23 Id. at 485.24 Id.25 Id.26 56 Wis. 2d 504, 202 N.W.2d 415 (1972).27 Id. at 515.28 Id. at 516-17.29 Id. at 515.
Who’s Liable For The Fall? continued on page 28
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23
Wisconsin supreme court rules that hospitals May file liens on injury settlements of Medicaid recipientsby: John P. Loringer, O’Connell, Tivin, Miller & Burns,
L.L.C.
The Wisconsin Supreme Court recently issued a decision in Gister v. American Family In-surance Company1 holding that charitable
hospitals can pursue payment for medical care pro-vided to a Medicaid-eligible patient by filing a lien against a personal injury settlement between the pa-tient and the tortfeasor’s insurance company. This ruling allows a hospital treating the injured Medic-aid beneficiary/plaintiff to forego billing Medicaid and to instead claim a statutory lien against the pro-ceeds of the settlement.
Gister v. American Family Insurance Company
Gister involved a motor vehicle accident wherein a driver negligently ran a stop sign and crashed into a car occupied by Jaymie Gister and her two sons (“the Gisters”). The vehicle that struck the Gisters belonged to Jonathon and Mabel Harms, who had it insured with American Family Mutual Insurance Company (“American Family”). The applicable policy with American Family provided coverage of up to $250,000 for each injured individual, with a total cap of $500,000 for each accident.
The Gisters suffered injuries and were treated at St. Joseph’s Hospital. St. Joseph’s calculated the total cost of the medical care received by the Gisters at $182,799.61. The Gisters were all eligible for Medicaid at the time of the accident and were covered by Badger Care—the Wisconsin Medicaid Program which provides health care for Wisconsin’s low- to moderate-income families. St. Joseph’s proceeded to file liens in the amount of the calculated charges pursuant to Wis. Stat. § 779.80 against the proceeds of any future settlement between the Gisters and American Family.
Following the filing of the liens, the parties sought declaratory relief in circuit court—St. Joseph’s seeking an order declaring the liens valid and the Gisters seeking one declaring them unenforceable. The circuit court ruled in favor of St. Joseph’s and held the liens valid. In ruling in favor of the hospital, the court reasoned that St. Joseph’s was authorized by Wis. Admin. Code § DHS 106.03(8) to either file the liens or bill Medicaid. The relevant portion of Wis. Admin. Code § DHS 106.03(8) states:
If a provider treats a recipient for injuries or illness sustained in an event for which liability may be contested or during the course of employment, the provider may elect to bill MA [Medicaid] for services provided without regard to the possible liability of another party or the employer. The provider may alternatively elect to seek payment by joining in the recipient›s personal injury claim or workers compensation claim, but in no event may the provider seek payment from both MA [Medicaid] and a personal injury or workers compensation claim. Once a provider accepts the MA [Medicaid] payment for services provided to the recipient, the provider shall not seek or accept payment from the recipient›s personal injury or workers compensation claim.
The Gisters appealed this decision and the court of appeals reversed and remanded.2
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The court of appeals primarily relied upon the holding in Dorr v. Sacred Heart Hospital,3 a case where the injured patient was insured by a health maintenance organization (HMO) that had a contract with the treating charitable hospital. The court in Dorr held that when a contract between an HMO and a hospital contains a hold harmless provision, the hospital may not file a lien against the HMO patient’s property because the HMO patient is not indebted to the hospital for the medical services provided.4
The court of appeals rejected St. Joseph’s argument that Wis. Admin. Code § DHS 106.03(8) provided authority for the liens.5 Specifically, the court held that § DHS 106.03(8) said nothing about seeking payment from third-party settlements, nor did St. Joseph’s demonstrate that the Gisters owed a debt to the hospital and, therefore, the court concluded that the provision had no bearing on the validity of St. Joseph’s liens.6
Following the reversal by the court of appeals, the Wisconsin Supreme Court granted St. Joseph’s petition for review. In concluding that hospitals could place liens on the personal injury settlements of Medicaid-eligible patients, the Wisconsin Supreme Court examined the applicable state and federal framework surrounding Medicaid and, in particular, Wis. Stat. § 779.80 (“the hospital lien statute”). Section 779.80 provides that a charitable hospital “shall have a lien for services rendered…to any person who has sustained personal injuries as a result of…any tort of any other person.” The lien “shall attach to” the patient’s settlement against the tortfeasor.7 The court’s analysis began with the premise that the liens filed by St. Joseph’s were properly filed under the hospital lien statute and that the contention was solely “whether they were barred by some other authority.”8
The Gisters raised two arguments in support of their position that the hospital liens were improper: (1) that Wis. Stat. § 49.49(3m)(a) barred St. Joseph’s liens because they constituted “direct charges” imposed by a hospital on Medicaid-eligible patients; and (2) that pursuant to the holding in Dorr, the Gisters’
eligibility for Medicaid prevented the hospital from billing the Gisters directly and, therefore, they owed no debt to the hospital for their medical care. The court found neither contention persuasive.
Wisconsin Stat. § 49.49(3m) Did Not Bar the Hospital’s Liens.
Wisconsin Stat. § 49.49(3m)(a) provides in relevant part that “[n]o provider may knowingly impose upon a recipient charges in addition to payments received for services under [Medicaid] or knowingly impose direct charges upon a recipient in lieu of obtaining payment under [Medicaid]” except under specific enumerated conditions. In arriving at the conclusion that the liens filed by the hospital were permissible and did not constitute “direct billing” of the Medicaid-eligible patients, the Supreme Court examined the state and federal legal framework of the Wisconsin Medicaid program to “best harmonize the provision with related regulations.”9
First, the court discussed federal regulations and relevant caselaw concerning third party liability, including 42 U.S.C. § 1396a(25)(c), which states that hospitals such as St. Joseph’s may not seek to collect money from Medicaid-eligible individuals where third parties are obliged to pay an amount at least equal to the amount that would be paid by Medicaid for the service.10 The court concluded that St. Joseph’s liens were an effort to “collect from” the patients and, therefore, subject to the federal limits as described in § 1396a(25)(c).
The court found that this interpretation was also supported by Wis. Admin. Code § DHS 106.03(08), which permits hospitals to either bill Medicaid or join personal injury lawsuits when liability may be contested.11 Specifically, the majority determined that the Gisters’ position that the hospital liens were an “impermissible direct charge upon them” in violation of Wis. Stat. § 49.49(3m)(a), but somehow valid if the hospital joins in the lawsuit after it is filed, was inconsistent with § DHS 106.03(08).12 In finding that the action by St. Joseph’s could not be a “direct charge in one circumstance and not in another,” the court focused on the underlying
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similarities between filing a lien and joining in a lawsuit—notably, that the money sought originated from the same source (American Family), went to the same recipients (the Gisters and St. Joseph’s), and was designated for the same purpose (to satisfy the medical expenses incurred by the Gisters after the accident).13
Lastly, the court looked to decisions of federal appellate courts which upheld the validity of liens similar to St. Joseph’s. For example, in Miller v. Gorski Wladyslaw Estate,14 a 2008 decision from the Fifth Circuit, the hospital intervened in a patient’s federal lawsuit against an alleged tortfeasor and its insurers, seeking to enforce the hospital’s statutory lien against settlement or judgment obtained by the patient as a result of the accident in which patient sustained injuries.15 The Miller court rejected the argument that “a health care provider cannot seek to collect payments from that patient if a third party is liable for the patient’s medical expenses.”16 In rejecting this position, the court noted that “[c]aselaw uniformly indicates that the limitations on provider reimbursement are triggered…when a provider elects to bill and accepts payment from Medicaid for the services it provides to the patient.”17
Dorr Was Factually and Legally Distinguishable.
Unlike the Gisters, who were Medicaid-eligible, in Dorr the patients/plaintiffs had medical insurance coverage through an HMO which had a contract with the hospital where the medical care was provided. More specifically, under the terms of the contract between the HMO and the hospital, the hospital was required to provide medical services to Mrs. Dorr at an agreed-upon rate.18 The contract also contained a “hold harmless” clause, by which the hospital agreed not to bill, or hold liable, the HMO’s subscribers for expenses covered by the contract.19 The court of appeals in Dorr determined the hospital lien was impermissible and held that “when [the HMO] immunity provisions apply or when a contract between an HMO and a hospital contains a hold harmless provision, no hospital lien can be filed against an HMO patient’s property
because the HMO patient is not indebted to the hospital for the medical services provided.”20
In Gister, the Wisconsin Supreme Court specifically limited the scope of Dorr and made specific efforts to “clarify the teaching of Dorr.”21 In limiting the holding of Dorr, the court focused on the application of the proposition that a lien “presupposes the existence of a debt” and that medical services rendered give rise to a debt.22 Concluding that these two positions rest together “uneasily,” while acknowledging that other courts “have wrestled with the resulting tension in a variety of different ways,” the court in Gister held that a case-by-case analysis is proper:
When a court is presented with a challenge to a hospital lien against a settlement between a patient and a third-party tortfeasor and their insurer, it should ask whether the applicable statutory and regulatory framework permits the lien in light of the specific facts of the case. Part of that analysis will be an examination of whether the possibility of the patient ever owing a debt to the hospital is legally foreclosed in such a way as to render the lien invalid.23
The court further noted that the court of appeals’ decision in Gister, which found St. Joseph’s Hospital liens impermissible, did not perform the case-by-case analysis of the applicable statutory and regulatory framework, and instead “side-stepped [the] analysis of where the debt legally belong[ed].”24
Dissent
The dissent, authored by Justice Bradley, concluded that the Gisters were entitled to a declaration that the hospital’s liens were invalid based upon the principles underlying Wisconsin’s Medicaid program. In particular, the dissent relied upon the principle established by Wis. Stat. § 49.49(3m)(a) and Wis. Admin. Code § DHS 104.01(12)(b)
26
27
that a hospital cannot charge Medicaid recipients for services covered by Medicaid because the Medicaid recipients are not liable for the cost of those services.25 Second, the dissent noted that in situations where a third-party tortfeasor may be liable for services provided to a Medicaid recipient, the hospital has two billing options: bill Medicaid or attempt to recover its charges by joining the personal injury lawsuit.26 The law governing Wisconsin’s Medicaid program, according to the dissent, did “not authorize any third option.”27
Conclusion
Following the decision in Gister, hospitals will now be able to pursue payment from tortfeasors in lieu of claiming reimbursement through the Wisconsin Medicaid program. It should be noted that this holding is expressly limited to Medicaid-eligible patients and has not been extended to situations involving Medicare.
John P. Loringer is a senior associate at O’Connell, Tivin, Miller & Burns, L.L.C. in Milwaukee where his work focuses on the defense of personal injury, products liability and toxic tort matters, including defending manufacturers, suppliers and contractors in asbestos-related wrongful death actions. Mr. Loringer counsels clients in all phases of litigation from inception through trial and has served as lead trial counsel on cases throughout the country. He has experience resolving matters through mediation and arbitration, as well as successfully drafting and arguing post-trial motions and appeals. He is
licensed to practice in Wisconsin, California and Minnesota. Mr. Loringer graduated from Marquette University and Santa Clara University School of Law where he was the recipient of the Witkin Award for Academic Excellence and the Santa Clara Fellowship.
References1 2012 WI 86, 342 Wis. 2d 496, 818 N.W.2d 880.2 Gister v. Am. Family Mut. Ins. Co., unpublished slip op.,
No. 2009AP2795 (Wis. Ct. App. Nov. 11, 2010).3 228 Wis. 2d 425, 597 N.W.2d 462 (Ct. App. 1999).4 Id. at 435.5 Gister, 342 Wis. 2d 496, ¶¶ 18-20.6 Id.7 Wis. Stat. § 779.808 Gister, 342 Wis. 2d 496, ¶ 10.9 Id., ¶ 12.10 Id., ¶ 10 (citing Wesley Health Care Ctr., Inc. v. DeBuono,
244 F.3d 280, 281 (2d Cir. 2001)). 11 Id., ¶ 14.12 Id.13 Id.14 547 F.3d 273 (5th Cir. 2008).15 Gister, 342 Wis. 2d 496, ¶¶ 21-22; Miller, 547 F.3d at 276-
277. 16 Gister, 342 Wis. 2d 496, ¶ 23; Miller, 547 F.3d at 282.17 Gister, 342 Wis. 2d 496, ¶ 23; Miller, 547 F.3d at 282.18 Dorr, 228 Wis. 2d at 430.19 Id. at 433.20 Id. at 435.21 Gister, 342 Wis. 2d 496, ¶ 50.22 Id., ¶¶ 51, 53; Dorr, 228 Wis. 2d at 437.23 Gister, 342 Wis. 2d 496, ¶¶ 53, 60.24 Id., ¶ 59.25 Id., ¶ 71.26 Id., ¶ 78.27 Id.
28
Who’s Liable For The Fall? continued from page 21
30 Id. at 516.31 2003 WI App 217, 267 Wis. 2d 368, 671 N.W.2d 692.32 Id., ¶ 16.33 Id., ¶¶ 21-22, 24.34 4 Wis. 2d 111, 89 N.W.2d 801 (1958).35 Id. at 117.36 66 Wis. 2d 296, 224 N.W.2d 582 (1975).37 Id. 38 Id. at 306.
39 Smith v. Congregation of St. Rose, 265 Wis. 393, 400-01, 61 N.W.2d 896 (1953), overruled in part by Widell v. Holy Trinity Catholic Church, 19 Wis. 2d 648, 657, 121 N.W.2d 249 (1963).
29
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Acuity v. Society: A Missed Opportunityby: Ryan M. Wiesner, McCoy Leavitt Laskey LLC
In 2012, the Wisconsin Court of Appeals released its decision in Acuity v. Society, a case that re-quired the court to tackle three issues regard-
ing the applicability and interpretation of a standard commercial general liability policy (CGL policy).1 Specifically, the court was tasked with determin-ing (1) whether a contractor’s faulty workmanship was an “occurrence” under the contractor’s CGL policy; (2) whether the CGL policy covered purely economic losses resulting from breach of contract; and (3) whether the “Business Risk” exclusions precluded coverage for damage to property gener-ally, as opposed to the specific property on which the contractor performed work.
Ultimately, the court concluded that the CGL policy did afford coverage for the property damage and that no exclusions precluded coverage. Review was sought and granted by the Wisconsin Supreme Court and the issues were briefed. Fortunately, the parties reached a settlement. Unfortunately, due to the settlement, the appeal was dismissed on November 6, 2012. This dismissal resulted in a missed opportunity to clarify several important and seemingly unsettled issues touching upon commercial and construction litigation and insurance defense. As such, expect these same issues to be the topic of litigation in Wisconsin courts in the future.
Factual Background
VPP, the owner of an animal processing facility, contracted with RS Construction (RS) and Flint’s Construction (Flint) to have the two contractors
remove and reinstall the south wall of VPP’s engine room at its processing plant.2 RS and Flint were responsible for all work on the project.3
RS initially shored up the engine room and removed the existing wall.4 While a Flint contractor was excavating a trench adjacent to the south wall site, the soil eroded from under the concrete slab making up the first floor of the engine room, causing that slab to crack and shift downward.5 This also caused the portion of the building above the compromised floor to shift downward, which damaged the adjacent engine room walls and an adjacent building that shared a common wall with the engine room.6
This damage disrupted service and reduced refrigeration capacity at VPP’s processing plant, causing approximately $380,000 in business costs and expenses.7 VPP was required to repair the engine room before RS could complete the original project.8 After submitting a claim with its insurer, Acuity, VPP received more than $600,000 for the property damage.9
Acuity then commenced a subrogation action against RS, Flint, and their insurer, Society, seeking to recover amounts paid due to the engine room collapse. Acuity alleged causes of action for negligence and breach of contract.10
Society disputed that its policy provided coverage to RS and Flint for Acuity’s claims. Society’s CGL policy provided the standard CGL coverage for claims for property damage caused by an “occurrence.” The policy included two important
31
“Business Risk” exclusions, providing that insurance would not apply to property damage to:
(1) That particular part of real property on which you or any contractor or subcontractor . . . is performing operations, if the “property damage” arises out of those operations; or
(2) That particular part of any property that must be restored, repaired or replaced because “your work” was incorrectly performed on it.11
Society moved for summary judgment, arguing that its CGL policy did not cover VPP’s property damage. The circuit court agreed, concluding that Flint’s faulty excavation was not an “occurrence” under the policy.12 The court of appeals, in a decision by Judge Higginbotham, reversed. Three issues were addressed on appeal, all of which were decided in favor of coverage:
(1) Whether Flint’s faulty workmanship was covered under Society’s CGL policy;
(2) Whether a breach of contract claim resulting from purely economic loss was a covered “occurrence” under Society’s CGL policy; and
(3) Whether the “Business Risk” exclusions in Society’s CGL policy precluded coverage.
Society successfully petitioned the Wisconsin Supreme Court for review of the court of appeals’ decision. However, before a decision could be released, the appeal was dismissed because the parties reached a settlement. This dismissal was unfortunate as the court could have settled several issues regarding CGL coverage, the Economic Loss Doctrine, and the interpretation of an “occurrence” in a CGL policy. The court would also have had an opportunity to interpret the “Business Risk” exclusion commonly found in CGL policies, and
provide guidance specifically as to what “that particular part” means in such an exclusion.
What Is an “Occurrence”?
What constitutes an “occurrence”? This is a seemingly simple question that has been and continues to be litigated time and again. Society’s policy used the standard definition of “occurrence” as “an accident, including continuous or repeated exposure to substantially the same general harmful condition.”13 Relying on the Wisconsin Supreme Court’s decision in American Family Mut. Ins. Co. v. American Girl, Inc.,14 the court concluded there was an “occurrence” under Society’s policy—namely, VPP’s damage was caused by accidental soil erosion that occurred due to Flint’s faulty excavation.15 The court felt that this conclusion was in line with prior decisions in American Girl, Glendenning’s Limestone & Ready-Mix Co., Inc. v. Reimer,16 and Kalchthaler v. Keller Const. Co.17
At first glance, this conclusion may seem like common sense. However, Wisconsin courts have repeatedly determined that faulty workmanship cannot constitute an “occurrence” under a CGL policy.18 So, how could Flint’s faulty workmanship be covered under a CGL policy that only insured property damage resulting from an “occurrence?” The court of appeals reasoned that faulty workmanship, although not an occurrence, could cause an event such as soil erosion that did constitute an “occurrence” and therefore triggered coverage.19
However, Society had a legitimate argument to the contrary. Namely, Society contended that the court of appeals had failed to recognize two very distinct elements—cause and effect—both of which were, by definition, required to trigger coverage. Specifically, Society’s position was that its policy covered only property damage that was “caused by an occurrence,” i.e., an accident must have caused the property damage, and it needed to be the accident itself that was the “occurrence,” not the result of the accident. Society contended that it was the faulty workmanship, which was undisputedly not an “occurrence,” that had caused the soil erosion and
32
structural collapse. Because faulty workmanship could not be an “occurrence,” there should have been no coverage. From Society’s perspective, the court of appeals erred because it considered whether the effect (soil erosion) rather than the cause (faulty workmanship) was the “occurrence.” It is unfortunate that the Supreme Court did not have an opportunity to resolve this issue, which remains an open question.
The Economic Loss Doctrine and CGL Coverage
The second issue needing clarification involved the Economic Loss Doctrine. It is well-established that the Economic Loss Doctrine bars recovery in tort for economic losses resulting from a contractual relationship—instead of tort, the remedy lies exclusively in contract.20 Society contended that the doctrine precluded Acuity from recovering under a tort theory because the contract between VPP, RS, and Flint was for a product—namely, a new wall for its facility. Consequently, Acuity’s remedy was to sue under the contract rather than to proceed in tort.21 Society further contended that such a breach of contract claim would not be covered by its CGL policy because it was not an “occurrence.”22
The court of appeals rejected this argument based upon the American Girl decision. Even assuming the economic loss doctrine precluded Acuity’s tort claims, the court concluded that Society’s CGL policy—much like the policy at issue in American Girl—did not differentiate between “occurrences” based on tort or contract.23 As such, the court concluded that there was no support for Society’s argument that a breach of contract could not constitute an occurrence.24
It is arguable that this conclusion disregarded several Wisconsin cases holding otherwise. Specifically, in Wausau Tile, Inc. v. County Concrete Corp., the Wisconsin Supreme Court, recognizing that the plaintiff’s negligence claims were barred by the economic loss doctrine, had concluded that the defendant’s insurance policy did not cover the remaining breach of contract claims.25 This was so because such claims did not constitute
“‘bodily injury’ or ‘property damage’ under the plain language of the policy” and therefore were not “covered occurrences.”26 The court of appeals came to a similar conclusion in Wisconsin Label Corp. v. Northbrook Prop. & Cas. Ins.27
The results in Wausau Tile and Wisconsin Label Corp. seem only natural considering that general liability policies are intended to cover tort liability to injured third parties, not liability arising from a contractual relationship. However, this once seemingly settled legal issue—whether a CGL policy covers a breach of contract claim—has since been called into question by courts that are quick to follow the American Girl decision and, now, the Acuity v. Society decision.
“Business Risk” Exclusions
The third issue in Acuity v. Society involved the “Business Risk” exclusions in Society’s CGL policy. After determining that the policy did afford coverage because Flint’s faulty workmanship was an “occurrence,” the court was tasked with determining whether coverage was nevertheless precluded under a valid exclusion.
Society argued that two exclusions were applicable to preclude coverage for damage to VPP’s engine room.28 The specific exclusions provided that insurance did not apply to property damage to:
That particular part of real property on which you or any contractor or subcontractor working directly or indirectly on your behalf is performing operations, if the “property damage” arises out of those operations; or
That particular part of any property that must be restored, repaired or replaced because “your work” was incorrectly performed on it.29
The main issue for the court was what constituted “that particular part” of the property on which
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RS and Flint had performed work.30 The court recognized that there were no published cases in Wisconsin interpreting these exclusions, let alone the particular language at issue. As a result, the court looked to cases from other jurisdictions.
First, the court of appeals considered the North Dakota case of Acuity v. Burd & Smith Const., Inc.,31 which involved a policy containing identical exclusions. In that case, the insured construction company replaced a roof which later leaked and caused extensive property damage to personal property owned by the building’s tenants.32 In determining whether the “Business Risk” exclusion applied in that case to preclude coverage, the court “recognized that facts in each case are determinative of the particular part of property on which an insured is performing its operations,” and that a helpful technique is to look at the scope of the insured’s contract with the property owner.33
The court of appeals in Acuity v. Society then looked at Fortney & Weygandt, Inc. v. American Mfrs. Mut. Ins. Co., a Sixth Circuit case applying Ohio law to interpret the scope of “that particular part.”34 In finding coverage, the Sixth Circuit had held that the exclusion was “trebly restrictive” and only applied “to building parts on which defective work was performed, [] not to the building generally.”35
In light of this case law, the court of appeals in Acuity v. Society then analyzed the contract between VPP, RS, and Flint and narrowly construed its scope as being for the removal of the south engine room wall. Consequently, any damage to the engine room building in general or equipment in the building was not excluded under the CGL policy.36 In other words, because “the particular part” of VPP’s property on which RS and Flint were working was the south engine room wall, only damage to the south engine room wall was excluded under Society’s “Business Risk” exclusion.
Before the court of appeals rendered its decision, Society had argued that the exclusion should have been broadly interpreted to exclude coverage for damage to the building on which its insured
performed work as a whole; not simply the engine room.37 Society’s position was that, although the contract may have specifically been for work on the south engine room wall, its insureds were required to shore up the rest of the building, which meant that work was actually performed on the building as a whole.38 Of course, the court of appeals rejected this argument in concluding instead that the exclusion had a very narrow application.
Despite a Missed Opportunity to Settle these Issues, All Is Not Lost.
Because the appeal to the Supreme Court was dismissed, these issues remain unsettled. However, although the court of appeals’ decision can be relied upon in the future by plaintiffs seeking recovery under a CGL policy, defense counsel still have plenty of ammunition to put forth a strong argument against coverage.
First, when it comes to whether faulty workmanship constitutes an “occurrence” under a CGL policy, there is a strong argument that the level of generality utilized by the court of appeals gave too broad an interpretation to the definition of “occurrence,” and that the court blurred the line between cause and effect—since only the former should properly be considered a covered “occurrence.” The court in Acuity v. Society also arguably disregarded past Wisconsin case law holding that faulty workmanship was not an “occurrence” under a CGL policy. There is no reason to believe that past case law is not still good law despite Acuity v. Society.
Second, there is favorable case law—namely, Wausau Title and Wisconsin Label—that contradicts the court of appeals’ holding that a CGL policy could cover purely economic losses for which recovery was sought by breach of contract claims.
All that said, the issue that would have benefited the most from Supreme Court review may be the interpretation of Society’s “Business Risk” exclusion, especially considering that no Wisconsin court has fully interpreted the “particular” language. Would the court have followed other states and
interpreted the language narrowly—excluding coverage for damage only to the “particular part” of the property on which the tortfeasor worked—or would it have agreed with Society’s broader interpretation—excluding coverage for any part of the building on which the tortfeasor worked? One thing is for sure, these issues are ripe for decision and are likely to be topics of litigation for the foreseeable future.
Ryan M. Wiesner is an Associate at McCoy Leavitt Laskey LLC. He is a graduate of Marquette University Law School and is licensed to practice law in Wisconsin and Illinois. Ryan represents insurance companies, businesses, and individuals in all types of civil litigation, with an emphasis on assisting in the defense of catastrophic fire and explosion litigation, products liability actions, and commercial disputes
References1 2012 WI App 13, 339 Wis. 2d 217, 810 N.W.2d 812.2 Id., ¶¶ 2–3.3 Id., ¶ 2.4 Id., ¶ 3.5 Id., ¶ 4.6 Id. 7 Id., ¶¶ 4–5.8 Id., ¶ 6.
9 Id., ¶ 7. 10 Id., ¶ 8.11 Id., ¶ 9.12 Id., ¶ 10.13 Id., ¶ 16.14 2004 WI 2, 268 Wis. 2d 16, 673 N.W.2d 65. 15 Id., ¶ 17.16 295 Wis. 2d 556, 721 N.W.2d 704 (Ct. App. 2006).17 224 Wis. 2d 387, 591 N.W.2d 169 (Ct. App. 1999).18 See Glendenning’s, 295 Wis. 2d 556; Kalchthaler, 224
Wis. 2d 387; Mantz Automation, Inc. v. Navigators Ins. Co., unpublished slip op., No. 2009AP1681 (Wis. Ct. App. May 12, 2010).
19 Acuity, 339 Wis. 2d 217, ¶ 24.20 Id., ¶ 29.21 Id., ¶ 28.22 Id. 23 Id., ¶ 30 (citing American Girl, 268 Wis. 2d 16, ¶ 41).24 Id., ¶ 31.25 226 Wis. 2d 235, 266-69, 593 N.W.2d 445 (1999).26 Id.27 221 Wis. 2d 800, 586 N.W.2d 29 (Ct. App. 1998).28 Acuity, 339 Wis. 2d 217, ¶ 33.29 Id., ¶ 34 (emphasis added).30 Id. 31 721 N.W.2d 33, 35 (N.D. 2006). 32 Id.33 Id. at 41.34 595 F.3d 308 (6th Cir. 2010).35 Id. at 311.36 Acuity, 339 Wis. 2d 217, ¶ 41.37 Id., ¶ 43.38 Id., ¶ 45.
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the negligent Maintenance and inspection exception to the Builders’ statute of reposeby: Justin F. Wallace, Nash, Spindler, Grimstad &
McCracken
The Builders’ Statute of Repose, Wis. Stat. § 893.89, creates a ten year “exposure peri-od” during which claimants can bring a cause
of action arising out of any problem with the design or construction of an improvement to real property. There are four exceptions to this cutoff set forth in Wis. Stat. § 893.89(4). One of the exceptions, sub-section (c), states that the ten year exposure period does not apply to “[a]n owner or occupier of real property for damages resulting from negligence in the maintenance, operation or inspection of an im-provement to real property.” This exception is the focus of this Article.
What it means to negligently maintain, operate, or inspect an improvement to real property is not explained by the statute. Many responses to motions for summary judgment on the statute of repose reference this exception, and oftentimes reports from an engineer or a “premises liability” expert will baldly assert that the property has been negligently maintained and/or inspected during the ten year window. The court may have difficulty granting such a motion in the face of these assertions as it must construe all reasonable inferences against the party asserting that the statute of repose bars the claim.1
Differentiating between claims for design or construction defects, which can be barred by the statute of repose, from claims arising out of negligent maintenance or inspection, which are excepted from the statute by subsection 4(c), can be difficult. Certainly, it can be argued that any defect could have been inspected and fixed in the ten years preceding the claim, and that the absence of
such an inspection or even an allegedly-negligent inspection is the true basis of the claim. The same position can be taken with regard to maintenance: If you had only maintained the portion of the structure that resulted in the defect, this would not have happened. Thus, there seems to be substantial overlap between the analysis of the existence of a defect and the analysis of the duty to inspect and/or maintain the portion of the structure that results in a defect.
Courts have adopted two approaches to differentiate such claims. In Wisconsin, courts have used the distinction between a “structural defect” and an “unsafe condition associated with the structure” from Safe Place law as the basis for distinguishing such claims. If an alleged defect is “structural,” the claim can be barred by the statute of repose. If the defect is merely associated with the structure, but not actually “structural” itself, then the problem could truly be with maintenance or inspection, and the subsection 4(c) exception to the statute of repose may apply.
The second approach to distinguishing between the two is the one taken in Oklahoma, in which courts consider whether the claim arises out of a building code violation or not. If the claim does arise out of such a violation, the statute of repose will be applicable. If the claim does not arise out of a building code violation, the claim may be excepted from the statute of repose as arising out of negligent maintenance or inspection.
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A. there Would Be no Meaningful stat-ute of repose if it could Be Overcome by Arguing that the defect Was negli-gently Maintained or inspected Merely Because it Was Allowed to remain.
Broadly construed, the “negligent maintenance or inspection” exception could swallow the entire statute of repose. As the Wisconsin Supreme Court reasoned in Hocking v. City of Dodgeville2:
Construing the phrase “maintenance, operation or inspection of an improvement to real property” to mean maintenance or operation of a nuisance would create an exception that swallows the rule. This is so because every improvement that is negligently designed could be considered an ongoing nuisance that the owner or operator negligently maintains by failing to correct.3
Thus, merely because a defect was allowed to remain is not necessarily a basis to apply the negligent maintenance or inspection exception. Instead, courts in Wisconsin and in other jurisdictions have developed different tests that make more coherent and consistent distinctions between the two situations.
B. Wisconsin—Grafting the “structur-al defect/unsafe condition” distinc-tion from safe Place law onto the statute of repose’s distinction Be-tween design/construction defects and negligent Maintenance/inspection
The Wisconsin Safe Place Statute differentiates between “structural defects” and “unsafe conditions associated with the structure” to determine, among other things, whether a plaintiff needs to prove that a property owner had constructive notice of the alleged defect.4 Summary judgment motions based on the statute of repose are often brought alongside motions relating to the Safe Place Statute because both consider alleged problems with buildings.
The Wisconsin Supreme Court has been amenable to drawing the line between the statute of repose and the 4(c) exception by following the Safe Place Statute’s distinction between a structural defect and an unsafe condition associated with the structure, applying the statute of repose to the former situation and the 4(c) exception to the latter situation. As the court held in Mair v. Trollhaugen Ski Resort:
Under the safe place statute, a failure to “maintain” correlates to an unsafe condition associated with the structure, and thus allegations of such defects do not fall under the purview of the builder’s statute of repose. Thus, from a plain reading of the statute, we can conclude that [Wis. Stat.] § 893.89 bars safe place claims resulting from injuries caused by structural defects, but not by unsafe conditions associated with the structure, beginning ten years after a structure is substantially completed.5
No prior case law had reached this conclusion. Although the court relied upon the “plain reading” of the Safe Place Statute and Builders’ Statute of Repose, the court’s connection between the two—while logical—appears to have been derived for the most part from the arguments of counsel.
Mair’s decision to graft the Safe Place distinction onto an analysis of the 4(c) exception to the Builders’ Statute of Repose has the benefit of a much richer history of cases from Safe Place law that can now be used to analyze factual scenarios in the statute of repose context. For example, prior cases under Safe Place law had analyzed the following factual scenarios and differentiated between “unsafe conditions” and “structural defects”:
“Unsafe conditions associated with the structure” have been found in cases involving: improper lighting; the failure to remedy the movement of gravel that resulted in a height
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disparity between the edge of a paved parking lot and an abutting gravel strip; a loose window screen; and an improperly connected elevator motor. The common theme of these cases is that the property hazards arose from the failure to keep an originally safe structure in proper repair or properly maintained.
…
“Structural defects” have been found in cases involving: the failure to install a handrail along a staircase; a trapdoor that was not surrounded by a railing; a balcony railing that was not high enough; and a false ceiling that did not support a worker’s weight.6
Due to Mair connecting Safe Place law to the Builders’ Statute of Repose, these factual distinctions can now also serve as the basis for differentiating construction/design defect cases from negligent inspection/maintenance cases.
c. Oklahoma—Building code “Aftercare or cleanup”
An alternative approach is the one set forth by the Oklahoma Supreme Court in Gorton v. Mashburn.7 Gorton used an analysis of whether a claim alleged building code violations or not as a way to distinguish “negligent maintenance and inspection” claims from design or construction defect claims.
In Gorton, the plaintiff slipped on a wooden bridge during a rainstorm. He contended that the bridge violated the building code and that the City was negligent per se in the bridge’s maintenance. The defendant moved for summary judgment, alleging that the claim was barred by the statute of repose. The plaintiff argued that the claim was excepted from the statute of repose because it alleged negligent maintenance and inspection. The defendants’ summary judgment motion was granted in the trial
court, reversed by the court of appeals, and certiorari was granted by the Oklahoma Supreme Court. The Oklahoma Supreme Court reversed the court of appeals and affirmed the trial court’s decision, holding that the claim was barred by the statute of repose and the negligent maintenance/inspection exception did not apply. In doing so, the court expressed some frustration with the plaintiff, who had used the phrase “negligent maintenance” without acknowledging the true nature of his claim: “Resolution of the present cause requires statement of the obvious: Maintenance is not the same as nor synonymous with design and construction. Maintenance is best characterized as after-care or upkeep.”8 The court concluded that because the plaintiff was alleging building code violations, he was actually alleging a defect in the design and construction of the bridge, the negligent maintenance/inspection exception did not apply, and his claims were therefore barred by the statute of repose.
In sum, analyzing whether a claim alleges building code violations as a basis for differentiating between design/construction defect claims and those alleging negligent maintenance/inspection, as the Oklahoma Supreme Court did in Gorton, sets forth an alternative approach to determining whether to apply the Builders’ Statute of Repose or not.
Conclusion
Courts may have difficulty concluding that a plaintiff’s claim is barred on summary judgment by the statute of repose if the plaintiff characterizes the claim as one for negligent maintenance and inspection or there is expert testimony to that effect. By referring to the “structural defect”/”unsafe condition associated with the structure” distinction set forth by the Wisconsin Supreme Court in Mair, or by relying on Oklahoma case law making use of the building code to differentiate between the two situations, the defense practitioner will be on more solid ground to argue for application of the statute of repose to bar the plaintiff’s claim.
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Justin Wallace is an associate at Nash, Spindler, Grimstad & McCracken LLP in Manitowoc, specializing in medical malpractice and casualty defense. He graduated from the University of Wisconsin Law School in 2008 with honors. Justin received Bachelor’s degrees in Mathematics and English from Grinnell College in Iowa in 2005. He enjoys golf, fishing, and downhill skiing with his fiancée Rachel.
References1 The Wisconsin Supreme Court recently noted, in a stat-
ute of repose case, that “[s]ummary judgment should not be granted, ‘unless the facts presented conclusively show that the plaintiff’s action has no merit and cannot be main-tained.’” Kohn v. Darlington Cmty. Sch., 2005 WI 99, ¶ 11, 283 Wis. 2d 1, 698 N.W.2d 794 (quoting Mayberry v. Volkswagen of Am., 2005 WI 13, ¶ 15, 278 Wis. 2d 39, 692 N.W.2d 226) (additional internal quotations and citations omitted).
2 2010 WI 59, 326 Wis. 2d 155, 785 N.W.2d 398.3 Id., ¶ 47.4 See Barry v. Employers Mut. Cas. Co., 2001 WI 101, ¶¶
22-23, 245 Wis. 2d 560, 630 N.W.2d 517. 5 See Mair v. Trollhaugen Ski Resort, 2006 WI 61, ¶ 29, 291
Wis. 2d 132, 151, 715 N.W.2d 598.6 See Barry, 245 Wis. 2d 560, ¶¶ 27, 29.7 995 P.2d 1114 (Okla. 1999).8 Id. at 1116 (emphasis in original).
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