Vol. 71, No. 2, February
1998
Court of Appeals Digest
By Prof. Daniel D. Blinka & Prof. Thomas
J. Hammer
| Arbitration | Attorneys
| Attorney Fees | Civil
Procedure |
| Contracts | Criminal
Law | Criminal Procedure |
| Family Law | Insurance | Motor
Vehicle Law |
| Torts |
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.
|