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    Wisconsin Lawyer
    February 01, 1998

    Wisconsin Lawyer February 1998: Court of Appeals Digest 3


    Family Law

    Divorce - Child Support - Nonmodifiable Stipulations - Public Policy

    Krieman v. Goldberg, No. 96-3489 (filed 8 Oct. 1997) (ordered published 20 Nov. 1997)

    The parties were married in 1976 and divorced in 1987. Custody of their four children went to their mother. Various post-divorce issues have been the subject of litigation with much of it pertaining to the level of child support the father is required to pay. In 1995 the trial court signed an order based upon the parties' stipulation which, among other things, provided for a specific amount of child support and further provided that, regardless of the father's future income, the child support level shall remain the same and that "neither party shall under any circumstances have the right to petition the court for a modification of the child support provided for [in the stipulation]."

    The father subsequently filed a motion requesting modification of his child support obligation and, on appeal, one of the issues was whether an agreement with language that absolutely prohibits the modification of child support under any circumstances offends public policy. In a decision authored by Judge Snyder, the court concluded that the absolute stipulation agreement, with no time limitation or opportunity for review, is against public policy and that the father is therefore not estopped by the stipulation from seeking a modification of his support obligations due to a material change in circumstances.

    In reaching this conclusion the court relied on the decision in Ondrasek v. Tenneson, 158 Wis. 2d 690, 462 N.W.2d 915 (Ct. App. 1990). Ondrasek stands for the proposition that the child's best interests are served through a policy that does not preclude a payee from seeking a modification in child support because of a change of circumstances, even though the parties had stipulated to a nonmodifiable amount of support. Pursuant to Ondrasek, the mother in this case retains the ability, in spite of the stipulation agreement, to come back to the court and request a modification of the support agreement if there is a change in circumstances and the children's best interests require a modification of the payment. However, to prohibit the payor parent from exercising the same right ignores the reality that the supporting parent's financial circumstances may change dramatically for reasons beyond the payor's control.

    A stipulation that purports to make child support nonmodifiable and is unlimited as to time could impoverish the payor parent and place him or her in financial jeopardy. "A court must consider the vagaries of life and the reality that a specific circumstance may require an adjustment of an agreed-upon level of support, even where the parties have entered into a stipulation agreement. To hold otherwise and subject a payor parent to an unreviewable stipulation for child support could jeopardize a payor parent's financial future, may have detrimental effects on the parent-child relationship and in this way would ultimately not serve the best interests of the child."

    The court distinguished the decision in Honore v. Honore, 149 Wis. 2d 512, 439 N.W.2d 827 (Ct. App. 1989), where it considered the question of whether a party to a divorce may stipulate to maintaining a certain level of child support notwithstanding a subsequent reduction in the parties' income. The parties' agreement in that case stated that the payor father had agreed to maintain a specific level of child support monthly, notwithstanding a reduction in his income or other financial factors "at least until the youngest child ... is in first grade." The Honore decision concluded that such a stipulation was not contrary to public policy. In this case the stipulation differed from that in Honore in one significant respect. The stipulation in Honore included a point in time at which the stipulated payment could be reviewed and adjusted based upon a change of circumstances. Thus, the payor spouse in that case was bound to a certain level of payment for a time certain, at which point he could request a reevaluation. In the instant case, however, the agreement as written contained no such provision and thus was contrary to public policy.


    Insurance

    Pollution Exclusion - Paint Chips

    Peace v. Northwestern National Ins. Co., No. 96-0328 (filed 18 Nov. 1997) (ordered published 17 Dec. 1997)

    A young boy allegedly suffered injuries from ingesting lead-based paint. The parties appealed an order granting summary judgment to an insurer based on the conclusion that the insurer had no duty to defend or indemnify the homeowner because of the pollution exclusion clause. Originally, the court of appeals affirmed the judgment based on a case-law distinction between lead from "intact accessible painted surfaces" and lead from "paint chips, paint flakes and dust." The court of appeals revisited this case in light of the supreme court's decision in Donaldson v. Urban Land Interests Inc., 211 Wis. 2d 224 (1997).

    The court of appeals, in an opinion written by Judge Schudson, now reversed the trial court. "Contaminants" fall within a policy's pollution exclusion clause. Donaldson "obliterated" the distinction between lead from paint on intact surfaces, which was not deemed to be a "contaminant," and lead from paint chips, flakes or dust, which was a contaminant. The court held that "lead in paint chips, flakes, or dust is not a contaminant" and thus the pollution exclusion clause does not apply.

    Judge Fine dissented, disagreeing with the majority's interpretation of Donaldson ("this case does not involve the failure of a mechanism to either regulate or flush a byproduct of life before that substance reaches dangerous levels").

    Homeowner's Coverage - Motor Vehicle Exclusion - "Using or Operating"

    Poppy v. Muehlenberg, No. 97-0822-FT (filed 4 Nov. 1997) (ordered published 17 Dec. 1997)

    The plaintiff, a child, broke her arm when the school bus on which she was riding lurched to a sudden stop. The abrupt stop occurred because a 14-year-old girl, Maggie, "stepped" on the driver's foot while it was on the brake pedal. The plaintiff sued the bus driver, the bus company and its insurer, who in turn filed a third-party complaint against Maggie, her parents and their homeowner's insurer. The homeowner's carrier ("the insurer") moved for summary judgment citing the policy exclusion when an insured is "using" or "operating" any type of motor vehicle. The trial judge dismissed the insurer.

    The court of appeals, in an opinion written by Judge Wedemeyer, affirmed. The court held that "a person may be using or operating a vehicle even if they do not exercise complete control over the vehicle." Maggie did not have "complete control" over the bus, but her "horseplay" caused the lurching stop. Thus, taking control of a vehicle, even if "only for an instant," brings the insured within the exclusion.


    Motor Vehicle Law

    OWI - Collateral Attack on Prior Convictions Used to Enhance Penalty

    State v. Foust, No. 97-0499-CR (filed 30 Oct. 1997) (ordered published 20 Nov. 1997)

    Wis. Stat. section 346.65(2) is a penalty statute that uses prior OWI convictions to enhance the punishment for subsequent offenses. The issue in this case was whether those prior convictions can be collaterally attacked in the present prosecution.

    In a decision authored by Judge Deininger, the court of appeals held that convictions used to enhance punishment are subject to collateral attack and, when it is established that a prior conviction was based upon a constitutionally defective plea, that conviction cannot be used in applying section 346.65(2). Though not the issue in this case, the court intimated that the same result would pertain when the state uses prior convictions to support a claim that the defendant is subject to the lower prohibited alcohol concentration of 0.08 applicable to certain repeat offenders.

    Implied Consent Law - Recanting Refusal to Submit to Testing

    State v. Rydeski, No. 97-0169-CR (filed 2 Oct. 1997) (ordered published 20 Nov. 1997)

    This case concerns the issue of whether a person arrested for OWI who refuses to submit to chemical testing may thereafter recant that refusal and be entitled to take the test. In a decision authored by Judge Dykman, the court of appeals answered in the negative.

    Based upon State v. Neitzel, 95 Wis. 2d 191, 289 N.W.2d 828 (1980) and the language of the implied consent statute, the court concluded that once a person has been properly informed of the implied consent law, that person must promptly submit or refuse to submit to the requested test, and that upon a refusal, the officer may "immediately" gain possession of the accused's license and fill out the Notice of Intent to Revoke form. A person's refusal is thus conclusive and is not dependent upon such factors as whether the accused recants within a "reasonable time," whether the recantation comes within the three-hour time period provided in Wis. Stat. section 885.235(1), or whether administering the test at a later time would inconvenience the officer or result in a loss of the test's evidentiary value.


    Torts

    Punitive Damages - Insurance Coverage

    Davis v. Allied Processors Inc., No. 97-0478 (filed 21 Oct. 1997) (ordered published 20 Nov. 1997)

    A jury awarded the plaintiff $585,000 in compensatory damages and assessed $500,000 in punitive damages against defendant Allied Processors Inc. The jury also found that the plaintiff was 10 percent and Allied was 90 percent at fault. An insurer, Western National Mutual Ins. Co., had issued Allied two liability policies. One provided primary coverage in the amount of $500,000 and a second provided excess coverage of $2,000,000. The primary policy was silent on the issue of punitive damages; thus, as mandated by the case law, it covered both compensatory and punitive damages. The excess policy expressly excluded punitive damages. The trial judge ruled that the punitive damages could be taken from the primary policy and the compensatories paid through the excess policy. The insurer appealed.

    The court of appeals, in an opinion written by Judge Nolan, reversed. Addressing a novel issue, the court concluded that the trial judge had, in effect, rewritten the agreement between the insurer and the insured. The contract language was not ambiguous. The parties had clearly bargained so that primary coverage should be exhausted by compensatory, not punitive, damages.

    Injured Employees - Worker's Compensation - Recovery of Lost Premium Dividends - Recovery of Higher Payments

    Vogel v. Liberty Mut. Ins. Co., No. 96-2145 (filed 28 Oct. 1997) (ordered published 20 Nov. 1997)

    An employee was injured during the course of her employment for Tank Transport. Tank's worker's compensation carrier paid her about $15,000 in lost wages and medical expenses. By the terms of the worker's compensation policy, Tank lost nearly $20,000 in premium dividends and was subjected to an "experience modifier" that increased its annual premiums by about $3,700. Tank sued the tortfeasor, his employer and the employer's insurer seeking recovery of its increased insurance expenses. The trial judge granted summary judgment to the defendants on the grounds that public policy and section 102.29 of the Wisconsin Statutes foreclosed such claims.

    The court of appeals, in an opinion written by Judge Wedemeyer, affirmed. Focusing on the public policy considerations, the court agreed that such claims open the door "to a field with no sensible stopping point."

    Judge Fine dissented, taking the position that public policy and precedent supported the claim.

    Statute of Limitations - Date of Injury

    Elfers v. St. Paul Fire & Marine Ins. Co., No. 96-3516 (filed 28 Oct. 1997) (ordered published 20 Nov. 1997)

    In 1985 the plaintiff, then a four-year-old child, fractured her arm. The defendant physicians failed, however, to diagnose a dislocated elbow. The dislocation was first diagnosed in 1989 in the course of other treatment; at this point the plaintiff suffered no pain, loss of motion, and so on. In 1993 she began to suffer symptoms linked to the dislocation. Plaintiff's current physician believes that these symptoms would not have occurred had the dislocation been identified and properly treated in 1985. In 1996 the plaintiff filed this medical malpractice lawsuit against the physicians who treated her in 1985. On summary judgment the circuit court found that the injury occurred in 1985 and the statute of limitations expired in 1988. The complaint was thus dismissed.

    The court of appeals, in an opinion written by Judge Myse, reversed. Applying Meracle v. Children's Serv. Soc'y (1989) the court determined that there was a disputed issue of fact over the date of the injury. More precisely, "[t]he Meracle case demonstrates that it is essential to know when it became reasonably certain that [the plaintiff] would suffer compensable damages as a result of the negligent act." The record in this case did not reveal the date with reasonable certainty; therefore, the issue was one of fact for the jury. The court cautioned that it disagreed with plaintiff's "apparent contention that an asymptomatic dislocated elbow is not an injury." The case was remanded to determine whether the dislocation could have been benign for a lifetime or whether the dislocation was reasonably certain to result in future disabilities (in which case she suffered the "injury" in 1985).

    Negligence - Storeowners - Duty to Protect Patrons

    Beyak v. North Central Food Systems Inc., No. 97-1221-FT (filed 4 Nov. 1997) (ordered published 17 Dec. 1997)

    Beyak was injured in a fracas that occurred on and near a Hardee's restaurant he was patronizing. He alleged that Hardee's had breached its duty to protect him from negligent or intentional acts of third persons. The circuit court granted summary judgment to Hardee's because Beyak had "voluntarily" injected himself into the fight, thereby eliminating any duty on Hardee's behalf.

    The court of appeals, in an opinion written by Judge Hoover, reversed. Starting from the premise that summary judgment is "rarely appropriate in negligence cases," the record disclosed a triable issue of fact. Specifically, "a reasonable person could conclude that the security guard breached the duty of ordinary care to patrons by telling fighting parties to take their argument outside and by apparently disappearing for twenty to twenty-five minutes."

    Escaping Inmates - Public Officer Immunity - Public Policy

    Ottinger v. Pinel, No. 96-3403 (filed 26 Nov. 1997) (ordered published 17 Dec. 1997)

    Bruce Ottinger was seriously injured when he was struck by a state-owned van driven by an escaping prisoner. Several hours before the accident, an off-duty guard observed the prisoner at a local mall, in violation of the prisoner's work release requirements. The guard called the corrections facility, which advised him that authorities would confront the prisoner when he returned from work release. The prisoner later returned to the facility, the guards confronted him with the earlier violation, and the prisoner stole the van and eventually crashed into Ottinger. Ottinger's guardian and his mother sued the guards for negligence. The circuit court granted summary judgment to the guards.

    The court of appeals, in an opinion written by Judge Anderson, affirmed. First, the guards were entitled to public officer immunity. Their duty to prevent escapes involves discretionary decision-making; thus, the guards' actions did not constitute negligently executed ministerial duties. Ottinger also argued that the "known and present danger" exception applied to this case. However, the record failed to reveal that the guards were on a "heightened state of alert" based on the prisoner's work release violation. Finally, the court rejected the argument that in this case public policy supported liability because the state had created "a dangerous situation" or rendered its citizens more vulnerable to danger. Although the guards had a duty to apprehend inmates, their broad discretionary authority to manage the facility invested them with broad discretion. The court was unwilling to assume that the state has a "duty to protect the general public from injury inflicted by escaping inmates."

    This column summarizes all decisions of the Court of Appeals. Prof. Daniel D. Blinka and Prof. Thomas J. Hammer invite comments and questions about the digests. They can be reached at the Marquette University Law School, 1103 W. Wisconsin Ave., Milwaukee, WI 53233, (414) 288-7090.

    Wisconsin Lawyer


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