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  • Wisconsin Lawyer
    February
    01
    2014

    Supreme Court Digest

    Prof. Daniel D. Blinka & Prof. Thomas J. Hammer

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    This column summarizes all decisions of the Wisconsin Supreme Court (except those involving lawyer or judicial discipline, which are digested elsewhere in the magazine). Profs. Daniel D. Blinka and Thomas J. Hammer invite comments and questions about the digests. They can be reached at Marquette University Law School, 1215 W. Michigan Ave., Milwaukee, WI 53233, (414) 288-7090.

    Insurance

    Business Owners Policy – Asbestos Exclusion

    Phillips v. Parmelee, 2013 WI 105 (filed 27 Dec. 2013)

    HOLDING: An asbestos exclusion in an insurance policy precluded coverage.

    SUMMARY: The plaintiff-buyers bought a building and learned it contained asbestos only when their contractor cut through asbestos-wrapped pipes, dispersing asbestos throughout the building and rendering it uninhabitable. They sued the defendant-sellers, who had insured the building through an American Family Insurance business owners policy, which included a broad asbestos exclusion. The circuit court granted summary judgment in favor of American Family, finding that it had no duty to defend or to indemnify. In a published decision, the court of appeals affirmed. See 2013 WI App 5.

    Daniel D. Blinkaedu daniel.blinka marquette Prof. Daniel D. Blinka, U.W. 1978, is a professor of law at Marquette University Law School, Milwaukee.

    Thomas J. Hammeredu thomas.hammer marquette Prof. Thomas J. Hammer, Marquette 1975, is a law professor and Director of Clinical Education at Marquette University Law School, Milwaukee.

    The supreme court affirmed in an opinion written by Chief Justice Abrahamson. “The only issue presented is whether the asbestos exclusion in the American Family Business Owners policy issued to the defendant-sellers precludes coverage for the losses that the plaintiff-buyers claim” (¶ 5).

    First, the exclusion was not ambiguous simply because it did not define the term “asbestos.” “In the absence of other language in the policy, and there is none, a reasonable person in the position of the insured would not interpret the word ‘asbestos’ to limit the clause to certain types of asbestos. To a reasonable insured reading this policy, asbestos in any form is asbestos” (¶ 21). The court distinguished the comprehensive, broadly worded exclusion in this case from other cases containing different policy language (see ¶ 31).

    The court also rejected the contention that the sellers’ alleged negligent failure to disclose the presence of asbestos somehow affected the exclusion. “Yet, the scope of the asbestos exclusion does not depend on the type of tort from which the loss arose; the exclusion’s language concerns the loss itself arising out of asbestos. Our analysis focuses on whether the loss suffered by the plaintiff-buyers is within the text of the asbestos exclusion and thus reasonably contemplated by the parties” (¶ 34). “In sum, we are persuaded that a reasonable insured would interpret the asbestos exclusion in American Family’s policy to preclude the loss alleged by the plaintiff-buyers” (¶ 35).

    Justice Prosser did not participate in this case.

    Motor Vehicle Law

    Implied Consent – Limited Authority of Circuit Courts to Dismiss Implied-Consent-Refusal Cases

    State v. Bentdahl, 2013 WI 106 (filed 27 Dec. 2013)

    HOLDING: Circuit courts have no discretionary authority to dismiss an implied-consent-refusal case when the defendant fails to request a refusal hearing within the statutory 10-day time limit and chooses to plead not guilty to the underlying operating a motor vehicle while intoxicated (OWI) or OWI-related offense.

    SUMMARY: In State v. Brooks, 113 Wis. 2d 347, 335 N.W.2d 354 (1983), the supreme court upheld a circuit court’s discretionary decision to dismiss an implied-consent-refusal charge when the defendant had already pleaded guilty to the underlying OWI charge by the time of his refusal hearing. The issue before the court in this case was whether Brooks applies when a defendant fails to request a refusal hearing within the statutory 10-day time limit and chooses to plead not guilty to the underlying OWI or OWI-related offense.

    In a unanimous decision authored by Justice Crooks, the court held that “circuit courts have no discretionary authority to dismiss refusal charges when the defendant chooses to plead not guilty to the underlying OWI or OWI-related charge. We further hold that a circuit court has no discretionary authority to dismiss refusal charges when the defendant fails to request a refusal hearing within the ten-day time limit” provided for in the implied-consent statute (¶ 26).

    The court declined the state’s invitation to overrule Brooks.Brooks continues to grant circuit courts discretionary authority to dismiss refusal charges when a defendant requests a hearing within the statutory ten-day time period and pleads guilty to the underlying OWI or OWI-related offense” (¶ 35).