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  • June 04, 2024

    Wisconsin Court of Appeals: Punitive Damages Cap Applies To Total Compensatory Award

    The statute that limits punitive damages to twice recovered damages applies to the total amount of compensatory damages, not only the amount attributable to a single defendant, the Wisconsin Court of Appeals has ruled.

    Jeff M. Brown

    Silhouetted Against A Blue Sky Painted Orange By The Setting Sun, A Line Of Factory Workers Leave Work Along A Gangplank, With Two Belching Smokestacks In The Background

    June 4, 2024 – The statute that limits punitive damages to twice recovered damages applies to the total amount of compensatory damages, not only the amount attributable to a single defendant, the Wisconsin Court of Appeals (District I) has ruled in Estate of ​Lorbiecki v. Pabst Brewing Co., 2022AP723 (May 7, 2024).  

    Gerald Lorbiecki worked as a pipefitter from the mid-1970s until the early 2000s at multiple job sites in Wisconsin. While working at the Pabst Brewery in Milwaukee, Lorbiecki was exposed to asbestos.

    In 2017, Lorbiecki was diagnosed with mesothelioma, a type of lung cancer caused by exposure to asbestos.

    In December 2017, Lorbiecki filed a lawsuit against Pabst and other companies in Dane County Circuit Court. The lawsuit alleged negligence and violations of Wis. Stat. section, 101.11​., the state “safe place” statute.

    Lorbiecki died in January 2018. His estate continued the ​​lawsuit, which after a change of venue motion was moved to Milwaukee County Circuit Court.

    $20 Million in Punitive Damages

    In October 2021, a jury found Pabst and four other companies liable for Lorbiecki’s injuries, and determined the damages as follows:

    • $195,164 for medical, hospital, and funeral expenses;

    • $5 million for pain and suffering;

    • $1.35 million for loss of society and companionship; and

    • $20 million in punitive damages against Pabst.

    The circuit court reduced the loss of society and companionship award to $350,000, under section 895.04(4), and set the total compensatory damages at $5,545,164. The circuit court also reduced the punitive damages award against Pabst to $6,986,906.

    Both parties appealed.

    Non-delegable Duties

    Pabst argued that the circuit court erred by granting Lorbiecki’s post-verdict motion to impute the 20% liability of Sprinkman Sons (Sprinkman) under the verdict to Pabst.

    Sprinkman was the exclusive provider of asbestos insulation to Pabst during the time Lorbiecki worked at Pabst.

    Chief Judge Maxine White began her opinion for a three-judge panel by explaining that under Barry v. Employees Mut. Cas. Co., 2001 WI 101, 245 Wis. 2d 560, 630 N.W. 2d 517, an employer’s duty under the safe place statute was non-delegable.

    Pabst argued that Barry didn’t apply because it hadn’t specifically hired Sprinkman to fulfill its duties under the safe place statute.

    Jeff M. Brown Jeff M. Brown , Willamette Univ. School of Law 1997, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6126.

    “Pabst’s argument fails because it appears to ask us to determine that Pabst did not delegate certain duties, which is not a fact question asked of the jury and contradicts the conclusion of the circuit court,” White wrote.

    Chief Judge White also concluded that if the Court of Appeals were to accept Pabst’s argument, it would “ignore the purpose of the safe place statute.”

    “It does not diminish Pabst’s ultimate duty under the safe place statute that the jury was asked to apportion the negligence attributable to each entity on the special verdict, nor does the jury’s finding that Sprinkman was 20% liable negate Pabst’s ultimate responsibility for its workplace,” White wrote.

    Higher Standard of Care

    Pabst also argued that the rule, established by the Wisconsin Supreme Court in Tatera v. FMC Corp., 2010 WI 90, 328 Wis.2d 320, 786 N.W. 2d 810, that an employer is not liable in tort for injuries sustained by the employee of an independent contractor should apply to claims under the safe place statute.

    But Judge White pointed out that the Tatera case involved common law negligence. The standard of care required under the safe place statute, White explained, was higher than that involved in a common law negligence claim.

    Judge White noted that in another case, the Supreme Court held that while common law negligence is aimed at negligent acts, claims under the safe place statute are aimed at unsafe conditions.

    Meaning of ‘Recovered’

    Lorbiecki argued that the circuit court erred by reducing the punitive damages under section 895.043(6). That statute specifies that punitive damages are limited to “twice the amount of any compensatory damages recovered by the plaintiff.”

    After imputing Sprinkman’s 20% liability to Pabst, the circuit court found Pabst liable for $2,328,969 in compensatory damages, 42% of the total compensatory damages.

    In applying section 895.043(6), the court set Pabst’s share of the punitive damages at $4,657,937 – double the amount of the compensatory damages assessed against it.

    Lorbiecki argued that the circuit court misinterpreted the word “recovered” in section 895.043(6) and argued that the multiplier in section 895.043(6) should be applied to the total amount of compensatory damages, not only Pabst’s share.

    White concluded that the ter​m “recovered” in section 895.043(6) means the total amount of the plaintiff’s recovery, not just the amount assessed against any one defendant.

    “‘Recover’ is not the same as ‘receive a payment;’ moreover, the statute here does not address any practicalities of collecting a judgment,” Judge White wrote.

    “A plaintiff’s recovery arises out of the calculation of compensatory damages, even if a plaintiff may never touch a fraction of that amount due to other factors.”

    Lorbiecki argued that the full amount of the companionship award, before the circuit court reduced it, should be included in the amount “recovered” for purposes of section 895.043(6).

    But White concluded that the amount “recovered” under section 895.043(6) did not include the full amount of companionship awarded by the jury, because “‘recovery’ is the amount of the award that a plaintiff has a legal right to enforce, after apportionment of liability and application of statutory caps.”

    Final Amount of Punitive Damages

    Pabst argued that allowing the award of $20 million in punitive damages to stand against it would be to punish it for the other parties’ wrongdoing.

    But that argument missed the mark, Judge White reasoned.

    “Pabst ignores that the jury awarded $20 million in punitive damages solely against Pabst; no imputation of punitive damages occurred, so Pabst’s argument that it is being punished for the conduct of others is not persuasive,” White wrote.

    The Court of Appeals instructed the circuit court to enter punitive damages against Pabst in the amount of $11,090,327, twice the $5,545,164 in total compensatory damages.

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    WisBar Court Review, published by the State Bar of Wisconsin, includes summaries and analysis of decisions from the Wisconsin Supreme Court, the Wisconsin Court of Appeals, and the U.S. Court of Appeals for the Seventh Circuit, as well as other court developments. To contribute to this blog, contact Joe Forward.

    Disclaimer: Views presented in blog posts are those of the blog post authors, not necessarily those of the Section or the State Bar of Wisconsin. Due to the rapidly changing nature of law and our reliance on information provided by outside sources, the State Bar of Wisconsin makes no warranty or guarantee concerning the accuracy or completeness of this content.

    © 2024 State Bar of Wisconsin, P.O. Box 7158, Madison, WI 53707-7158.

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