Wisconsin Lawyer
Vol. 81, No. 12, December 2008

Letters

Auto Collision Victims Can Recover for Vehicle’s Diminished Value

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 loss-of-value-after-repair, too.

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 vehicle.

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 us.

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.

Mark Hazelbaker,
Madison  

Wisconsin Lawyer