By Alex De Grand, Legal Writer, State Bar of Wisconsin

Feb. 16, 2010 – During oral arguments on Feb. 10, the Wisconsin Supreme Court considered whether a hit-and-run occurs when a motorist stops to check on the victim before driving away, leaving no identifying information.

In Zarder v. Acuity, a Mutual Ins. Co., 2009 WI APP 34, the court of appeals had held that Acuity must provide coverage to 13-year-old Zachary Zarder after a car struck him while he rode his bicycle. The vehicle had stopped and three unidentified occupants stepped out to ask Zarder if he was hurt, and Zarder said he was fine. But within 24 hours of the accident, Zarder discovered he was injured and he eventually sought treatment for a right forearm and left femur fracture. The left femur fracture required two surgical procedures.

Before the justices, attorney Lance Grady, representing Acuity, argued that Zarder could not receive hit-and-run insurance coverage because no “run” had occurred. The insurance policy did not define “hit-and-run,” but Acuity insisted that the supreme court had equated the term “run” to “fleeing” in Hayne v. Progressive Northern Ins. Co., 115 Wis. 2d 68 (1983). Grady said the motorist had not “fled” when he stopped and did not leave until assured by Zarder no injury had occurred.

What is dicta?

The court of appeals found the discussion of “run” to be mere dicta in Hayne, a case considering the meaning of “hit” in a miss-and-run case. Chief Justice Shirley Abrahamson remarked that “run” was not important for resolving the dispute in Hayne, and it was unlikely the parties had even bothered to brief that issue.

But Grady responded by citing Judge Harry Snyder’s dissent from the court of appeals decision in Zarder. “[W]hen a court of last resort intentionally takes up, discusses, and decides a question germane to, though not necessarily decisive of, the controversy, such decision is not a dictum but is a judicial act of the court which it will thereafter recognize as a binding decision,” Snyder wrote, quoting State v. Kruse, 101 Wis. 2d 387 (1981)

Abrahamson acknowledged that a line of cases holds that whatever the supreme court says must be followed, but she said there is competing authority that says the court’s off-the-cuff comments are not controlling. She asked Grady if he wanted the court to effectively declare in this case that dicta no longer exist in supreme court decisions.

Justice Ann Walsh Bradley said that it did not matter if the Hayne court intended to define “run” as “fleeing” because “flee” lacks the precision necessary to resolve the questions presented here. A motorist could “flee” after having stopped just as much as if the motorist never stopped, she suggested.

Parked car hypothetical

Justice Patience Roggensack questioned the importance Acuity placed on the fact that the motorist stopped to check on Zarder to distinguish this case from a hit-and-run. She asked how those facts differ from a hypothetical in which a motorist who ran into a parked car stopped to see the damage, and then drove away without leaving identifying information.

Grady responded by distinguishing Roggensack’s hypothetical in which the motorist actually sees damage done to the parked car before driving away from this case in which Zarder told the motorist he was fine.

Justice Annette Ziegler followed up on the importance of this fact when Zarder’s lawyer, Luke Wagner, took his turn at the podium. Ziegler asked whether it was practical to require motorists in all instances where vehicles collide to exchange identifying information – even when the drivers agree at the scene that no damage occurred – only because an injury might later appear.

Wagner referred to Wis. Stat. sec. 346.67 of the criminal code which requires a motorist in a hit-and-run to provide the victim a name, address, and vehicle registration number. Wagner argued that sec. 346.67 should apply in this case because the statute includes bicycles and Zarder’s bicycle had been damaged in the collision.

Further, Wagner warned against creating an insurance coverage gap for people who are not aware of their injuries before permitting the unidentified motorist to leave. In such a scenario, the victim would be better off if the culpable driver never stopped – creating an opportunity to get identifying information – so that the victim could simply claim unidentified motorist coverage, he said.

Zarder’s age

If Zarder had been 50 years old rather than a teenager, Justice Michael Gableman wondered if that would have changed Zarder’s obligations under the insurance policy.

Wagner said it should not because the policy only required the insured to notify police of the accident within 24 hours and to cooperate with the insurance company in processing the claim, duties Zarder fulfilled. Neither the insurance contract nor statute imposed a duty on the insured to obtain that information, Wagner pointed out.