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
