Supreme Court Digest
By Prof. Daniel D. Blinka & Prof. Thomas J.
Hammer
| Civil Procedure | Criminal
Procedure | Insurance | Torts
|
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(that is, it did not refer to the prior, superseded complaint).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The default was entered on the original complaint, which was superseded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concluded that "the amended complaint superseded the original complaint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was entered on the superseded original complaint."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.
Torts
Third-party Claims - Therapist's Negligence - Statute of
Limitations
Sawyer v. Midelfort, No.
97-1969 (filed 29 June 1999)
The patient's estate and her parents brought this action against the
patient's therapist, alleging negligent therapy and care. The circuit
court concluded that the complaint failed to state a valid claim and, in
the alternative, the claims were barred by the statute of limitations.
The court of appeals reversed.
The supreme court, in an opinion written by Justice Steinmetz,
affirmed. Two issues related to the validity of the claims. First, did
the law permit the parents of an adult child to maintain a third-party
professional negligence action that alleged the defendant implanted and
reinforced "false memories" of sexual abuse as a child? Holding that the
claim was valid, the court untangled the case law and the public policy
arguments advanced by the defense. Second, did section
895.01 of the Wisconsin Statutes or public policy preclude a claim
by the patient's estate alleging "pain, suffering and disability,
medical, psychiatric and psychological expense, and loss of enjoyment of
life," where the patient sustained no physical injury? The court read
the estate's claim "as a valid survival action seeking compensatory
damages stemming from professional negligence." In upholding this claim
as well, the supreme court distinguished several cases involving "loss
of enjoyment" and "alienation of affection."
Finally, the court held that the actions were not barred at the
summary judgment stage by the laches statute of limitations. The record
did not unequivocally demonstrate that the parents failed to exercise
reasonable diligence in discovering the cause of their injury, as
required by the discovery rule. Similar reasoning supported the court's
rejection of the laches defense: "[T]he Estate's cause of action did not
accrue until it discovered her injury when it gained access to her
treatment records."
Justice Wilcox filed a concurring opinion and Justice Bradley
dissented.
Medical Malpractice - EMTALA Violations - Patients Compensation
Fund
Burks v. St. Joseph's
Hospital, No. 97-0466 (filed 8 July 1999)
The plaintiff arrived at the hospital's emergency room 22 weeks
pregnant and in distress. She gave birth to a child who died several
hours later, weighing only 7 ounces and measuring just 11 inches. She
sued the hospital alleging that the child was breathing and had a
heartbeat at birth but that the staff had refused to provide the baby
with medical assistance. The hospital admitted that no attempt was made
to resuscitate the "fetus" for medical reasons. The narrow issue before
the supreme court was whether the Wisconsin Patients Compensation Fund
(Fund) is required to provide excess coverage for violations of the
federal Emergency Medical Treatment and Active Labor Act (EMTALA),
particularly for damages "resulting from a hospital's refusal or failure
to provide medical treatment to a severely premature infant." The
circuit court ruled that the Fund provided no such coverage. The court
of appeals reversed and the Fund appealed.
The supreme court, in an opinion written by Justice Prosser, affirmed
the court of appeals. The opinion details the requirements found in the
pertinent state and federal legislation governing the Fund and EMTALA.
It held that "when a hospital's violation of EMTALA results from a
negligent medical act or from a decision made in the course of rendering
professional medical care, the Fund has an obligation to provide excess
coverage. Conversely, when a hospital's violation of EMTALA results from
an economic decision, the Fund has no duty to provide coverage." The
record in this case disclosed a "medical" decision, and hence the Fund
had coverage.
Chief Justice Abrahamson concurred, but wrote separately to state her
disagreement with the purported distinction between "economic" and
"medical" motivations in refusing or neglecting proper treatment.
Justice Bradley dissented on the ground that "EMTALA is not a federal
malpractice statute and is not designed to provide a federal remedy for
general malpractice."
Motor Vehicles - Drive-by Shootings - Parental Liability
Reyes v. Greatway Ins.
Co., No. 97-1587 (filed 1 July 1999)
Seventeen-year-old Aaron was driving a car when he and an accomplice
fired several shotgun blasts at "rival gang members." The plaintiff was
severely injured in the shooting. Aaron later pleaded guilty to serious
felony charges in connection with this incident. The plaintiff sued
Aaron, his mother, and several insurance companies. The mother had
sponsored Aaron when he applied for his driver's license the year
before. The issue before the court was whether Aaron's mother was liable
for the personal injuries suffered by the gunshot victim under the
parental sponsorship statute, section 343.15(2)(b) (1993-94) of the
Wisconsin Statutes. The circuit court concluded that the mother was
responsible, but the court of appeals reversed.
The supreme court, in an opinion written by Justice Prosser,
affirmed. In an artfully succinct sentence, Justice Prosser summed up
the court's 20-page analysis: "[B]ased on strict construction, statutory
history, prior case law defining the legislative purpose of Wis. Stats.
sec. 343.15(2), and the maxim that a court should avoid absurd results
when interpreting a statute, we conclude that when a minor discharges a
firearm toward a group of pedestrians while driving a motor vehicle on
the highway, the minor's conduct does not fall within the terms of
Wisconsin's sponsorship statute."
Negligence - Trespassers - Landlord's Liability
Johnson v. Blackburn, No.
97-1414 (filed 30 June 1999)
One child died and another was seriously injured in an apartment
fire. The case raised two prime issues. First, were the children
trespassers? Second, did the location of the smoke detectors violate a
statutory requirement? The circuit court ruled that the plaintiffs
established negligence per se because the landlord failed to provide a
smoke detector in the basement, as required by statute. It dismissed the
claim, however, because the children were trespassers and the landlord's
conduct was not reckless. The court of appeals reversed.
The supreme court, in an opinion written by Chief Justice Abrahamson,
affirmed but on different grounds. As to the first issue, Wisconsin law
has long held that landlords owe tenants and their guests the duty to
exercise ordinary care but are not liable to trespassers except for
injuries inflicted by the landlord's willful and intentional conduct.
The tenants, who were clearly covered by a lease, consented to the use
of the basement by the two injured children. The landlord disputed the
tenants' authority to grant such consent. The court held that "whether
the tenants had exclusive possession of the basement or joint possession
of the basement with the occupant of the upper apartment, whether the
basement was a common area, whether the landlord limited the use of the
basement to certain purposes, and whether the basement was used for an
unintended purpose at the time of the injury are all factual issues in
dispute." Resolution of these issues was essential to determine the
children's legal status as trespassers or guests.
The court next reviewed the statutory requirements governing smoke
detectors. Wis. Stat. §
101.645. The record disclosed disputed issues of fact as well as the
statute's application to these disputed factual questions. Summary
judgment was thus inappropriate and the matter was remanded for
trial.
Justice Wilcox, joined by justices Crooks and Bablitch,
concurred.
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
