Vol. 81, No. 12, December
Letters to the
editor: The Wisconsin Lawyer publishes as many letters in each
issue as space permits. Please limit letters to 500 words; letters may
be edited for length and clarity. Letters should address the issues, and
not be a personal attack on others. Letters endorsing political
candidates cannot be accepted. Please mail letters to " Letters to the
Editor," Wisconsin Lawyer, P.O. Box 7158, Madison, WI 53707-7158, fax
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Auto Collision Victims Can Recover for Vehicle’s Diminished
On April 26, 2001, Troy Hellenbrand’s 2001 Honda Odyssey was
seriously damaged in an accident caused by an unrelated driver. The
other driver’s insurance carrier, American Family, accepted
responsibility. Well, sort of.
American Family paid for the cost of repair, but Hellenbrand
asserted this did not make him whole. Hellenbrand argued that the repair
notwithstanding, the accident had diminished the vehicle’s value.
He claimed that American Family was responsible for this
American Family countered that “well established”
case law in Wisconsin limited Hellenbrand’s damages to the cost of
repairs to his vehicle. The parties took it to circuit court.
Hellenbrand lost and appealed.
The Wisconsin Court of Appeals reversed. In Hellenbrand v.
Hilliard, 2004 WI App 151, 275 Wis. 2d 741, 687 N.W.2d 37, the court
held that when an injured party proves that repairs to personal property
have not restored the property to its pre-injury value, and the party
proves it is harmed by this loss in value, the party is entitled to
damages for the proven lost value.
The law caught up with the information age. As any used-car sales
manager will attest, a buyer only has to run a CarFax record check to
see if a vehicle has been in an accident. Between two otherwise
identical vehicles, a buyer will pay more for the one that has not been
in an accident.
In May 2008, my vehicle was rear-ended at a stoplight. The other
driver’s insurance carrier, Selective Insurance, accepted
responsibility and paid for the cost of repair. I asserted that this did
not make me whole and, the repair notwithstanding, the accident had
diminished the car’s value. I gave Selective’s adjusters a
copy of the Hellenbrand decision and a letter from my car
dealership “expert witness.” I claimed that Selective was
also responsible for the loss of value after repair. Selective countered
that Wisconsin case law limited my damages to the cost of repairs to my
Selective eventually agreed to share the Hellenbrand
decision with its coverage counsel. Counsel confirmed that the
Hellenbranddecision was controlling law. Selective and I quickly
and amicably settled the claim.
A few caveats. Insurance carriers, who do not like the
Hellenbrand precedent, are free to write out
loss-of-value-after-repair value responsibility from contracts with
their customers – and some probably have. So the precedent may not
extend to persons making claims under an insurance contract. That aside,
this principle advances basic justice in Wisconsin.
Troy Hellenbrand is a lawyer in a small firm. He concentrates on
small business and real estate matters. He litigated his case himself,
paying for it out of his own pocket. He pushed the law forward for
himself, sure, but he also pushed the law forward for the rest of
Douglas H. Frazer
DeWitt Ross & Stevens s.c., Milwaukee
Magazine Should Clearly Label “Editorial” Content
The Wisconsin Lawyer exists both to communicate the State
Bar’s perspective on issues and offer dispassionate information
about the law. Both purposes are important and appropriate, but they
should be clearly identified and separated. Recent coverage of the
Wisconsin Public Defender failed to do so. In the September issue, the
cover featured State Public Defender Nick Chiarkas. The accompanying
story was an interview identifying accomplishments of Wisconsin’s
public defender service and challenges it faces. The article appeared,
in form, like all other news coverage published by the magazine. Only a
close reading disclosed that the author and interviewer was Mr.
Chiarkas’s communications director.
Unsurprisingly, the author related that Wisconsin’s public
defender model is the best in the country. However, he noted, more
public funds are needed. In October, the magazine followed up with a
guest editorial explicitly calling for more public funding.
Mr. Chiarkas is an excellent public servant. As criminal laws
currently stand, the overuse of criminal prosecution to solve public
problems indeed requires more public defender resources. But, I take
strong exception to blurring the line between advocacy and scholarship.
Publication of the September cover story as a straight news story did a
huge disservice to the reputation of editorial excellence that
Wisconsin Lawyer has earned.