Supreme Court Digest
By Prof. Daniel D. Blinka &
Prof. Thomas J. Hammer
| Civil Procedure | Criminal
Procedure |
| Insurance | Torts
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Civil Procedure
Default Judgments - Amended Complaints - Timely
Service
Holman v. Family Health
Plan, No. 97-1490-FT (filed 7 July 1999)
A plaintiff injured in a car accident filed a complaint against
the other driver and her subrogated health insurer, Family Health
Plan (FHP), on Jan. 7, 1997. Ten days later, on Jan. 17, the
plaintiffs served the complaint on FHP and the other defendants.
On Jan. 23 the plaintiffs filed an amended complaint "that
was complete in itself" (that is, it did not refer to the
prior, superseded complaint). When FHP failed to answer the
original complaint within the statutory 20-day period, the plaintiffs
moved for a default judgment, which the court entered against
FHP on Feb. 11, 1997. The court of appeals affirmed the default
judgment.
The supreme court, in an opinion written by Chief Justice
Abrahamson, reversed. The court first observed a problem that
went unnoted below: The default was entered on the original complaint,
which was superseded by the amended complaint that was never
served on FHP. The court concluded that "the amended complaint
superseded the original complaint when the amended complaint
was filed in the circuit court." Thus it followed that "the
default judgment in this case is a nullity because it was entered
on the superseded original complaint." The holding conformed
to the practice followed in federal courts and in other states.
Criminal Procedure
Other Acts Evidence - Third-party Acts - Exculpatory
Evidence
State v. Scheidell,
No. 97-1426-CR (filed 30 June 1999)
The defendant was charged with first-degree sexual assault
while masked. Asserting an "identity" defense, he proffered
evidence of another, purportedly similar, offense by an unknown
third party. The trial judge excluded the evidence. The court
of appeals reversed in an opinion that addressed the defendant's
use of evidence that a third party committed "other acts"
where identity is at issue. State
v. Scheidell, 220 Wis. 2d 753 (Ct. App. 1998).
The supreme court, in an opinion written by Justice Wilcox,
reversed the published decision of the court of appeals. The
court held the admissibility of the defense's other act
evidence is governed by the framework recently established in
State v. Sullivan, 216
Wis. 2d 768 (1998). It rejected the court of appeal's "newly
established test" in the opinion below as well as the approach
taken years earlier in State v. Denny, 120 Wis. 2d 614
(Ct. App. 1984). While the defense need not demonstrate a "signature-like"
affinity between the charged offense and the other act, some
similarity must be demonstrated, especially where the other act
is perpetrated by an unknown actor. Applying the three-step
approach outlined in Sullivan, the court held that the trial
judge had properly excluded the evidence.
Chief Justice Abrahamson, joined by Justices Bradley and Bablitch,
dissented. The other act evidence bore sufficient similarity
and presented little in the way of unfair prejudice justifying
its exclusion under section
904.03 of the Wisconsin Statutes.
Insurance
Pollution Exclusion - Lead-based Paint
Peace v. Northwestern National
Ins. Co., No. 96-0328 (filed 9 July 1999)
This action began when a guardian ad litem alleged that the
owners of a building 1) failed to comply with a city ordinance
prohibiting "any lead-based nuisance," 2) negligently
failed to inspect and maintain the premises, and 3) negligently
failed to properly remove lead-based paint. The issue concerned
whether the owners had coverage under a commercial general liability
policy that contained a pollution exclusion. The circuit court
ruled that the pollution exclusion clause applied and forestalled
coverage. The court of appeals reversed, "concluding that
lead derived from paint chips, paint flakes and dust is not a
pollutant or contaminant under the exclusion."
The supreme court, in an opinion written by Justice Prosser,
reversed. Based on the policy language and case law, the court
held "that the pollution exclusion clause in [an owner's]
policy excludes bodily injury from the ingestion of lead in paint
that chips, flakes, or breaks down into dust or fumes. When the
'pollutant' lead - once contained - begins
to disperse, discharge, or escape from the containment of the
painted surface, it falls within the plain language of the pollution
exclusion." The supreme court rejected arguments to the
effect that the policy language was ambiguous, that a reasonable
insured would have anticipated coverage, and that it was unreasonable
"to apply the pollution exclusion clause to routine incidents
such as paint peeling off a wall."
Justice Bradley filed a concurring opinion that responded
to the dissent filed by Justice Crooks and joined by Justice
Bablitch. Chief Justice Abrahamson also dissented.
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