Oct. 21, 2014 – The Wisconsin Supreme Court has added 13 cases to its docket, including one to determine insurance coverage for damages in a natural gas explosion that injured workers, destroyed a church, and damaged nearby residential property.

In 2008, a construction company was performing excavation work in Oconomowoc when employees allegedly disturbed a gas line, resulting in an explosion. Nobody was killed, but the blast caused significant property damage and injured some workers.

The company had a commercial general liability policy with Acuity, which did not contest its duty to defend and indemnify Dorner. But Acuity said another insurer also had a duty to defend and indemnify Dorner under a Contractor Pollution Liability policy.

The other insurer, Chartis Specialty Insurance, argued that its policy was covered only in the event of bodily injury or property damage that arose from pollution conditions.

Ultimately, the circuit court ordered the insurers to equally share defense costs and indemnity settlements, which totaled approximately $1.53 million. However, a state appeals court reversed, concluding that Chartis had no duty to defend or indemnify.

The Supreme Court is expected to decide whether natural gas from an explosion constitutes a “pollution condition” that triggered coverage under the Chartis policy, and whether Chartis had a duty to share defense and indemnification duties with Acuity.

The case is Acuity v. Chartis Specialty Ins. Co., 2013AP1303.

Competency Issues in Homicide Cases

The supreme court has also accepted review in two murder cases in which the defendants or defense put forth evidence of their schizophrenic episodes either at the time of the crime or in postconviction proceedings.

In one State v. Kucharsky, the court will examine the standard for granting a new trial in the interest of justice. Corey Kucharsky murdered his parents and was convicted of first-degree intentional homicide. He pled not guilty by reason of mental disease or defect.

At trial, there was evidence from psychiatrists who concluded that Kucharsky suffered a schizophrenic episode when he killed his parents and lacked the substantial capacity to appreciate the wrongfulness of his acts to conform his behavior to the law.

The circuit court concluded that a mental disease or defect was present, but Kucharsky did not meet his burden to prove that he could not appreciate the wrongfulness of his conduct. The court sentenced his to two terms of life in prison. A divided appeals court reversed and remanded for a new trial on mental responsibility in the interests of justice.

The supreme court is expected to decide whether the appeals court could substitute its judgment for that of the trial court on issues of fact-finding, and whether a new trial was warranted in the interested of justice if there was no error or unfairness at trial.

In State v. Daniel, the supreme court is expected to decide whether a defendant should bear the burden of proving incompetency in a post-conviction proceeding, the procedures to determine competency when defense counsel and client disagree on competency, and that standard that applies in determining postconviction competency.

Roddee Daniel was 15 years old and a diagnosed schizophrenic when he  wascharged with first degree intentional homicide and burglary with a dangerous weapon. He was found competent to stand trial, was convicted, and sentenced to life in prison.

Daniel’s defense counsel raised numerous issues on appeal, and questioned Daniel’s ability to understand his appellate rights. The defense attempted to prove Daniel’s incompetence, but the court ruled that the burden to prove incompetency by clear and convincing evidence was not met.

The appeals court reversed, ruling that a “preponderance of the evidence” standard applied and said the lower court erroneously applied a higher burden of proof.

Other Cases for Review

In Holman v. Harvey, the court is expected to decide whether the “known and compelling danger exception” applied to government immunity in a case involving an accident that occurred while a town employee was scraping ice from an intersection with a grader.

In Oneida Seven Generations Corp. v. City of Green Bay, the supreme court may decide issues surrounding the revocation of the Oneida subsidiary’s “conditional use permit” to operate a waste-to-energy facility that uses “pyrolysis” to vaporize waste.

In State v. Herrmann, the court may decide whether a sentencing judge violated the defendant’s due process rights when the judge allegedly exhibited bias in sentencing Jesse Herrmann on his conviction for homicide by intoxicated use of a vehicle. In the sentencing remarks, the judge spoke of losing her sister to drunk driving in 1976.

In Aguilar v. Husco Int’l Inc., the supreme court reviews a series of questions arising from a dispute between Husco and a labor union over how break times are to be treated under the terms of a faulty contract provision and in the context of state and federal law.

In State v. Hurley, the court will examine the standard of review in evaluating due process notice challenges to complaints that allege the crime of repeated sexual assault of a child. Hurley requested a new trial based on an improper remark in closing arguments by the prosecutor related to “other acts” evidence and another victim.

In State v. Kempainen, the court will examine whether a trial court must apply certain factors to determine whether a complaint is sufficiently definite in a case involving delayed allegations of sexual assault.

In State v. Blatterman, the court will examine the community caretaker exception as it relates to probable cause to investigate and arrest someone for operating while intoxicated or operating with a prohibited alcohol concentration. Police acted on reports that the defendant was acting “suicidal” before they pulled him over.

In Mary E.B. v. Cecil M., the supreme court may decide issues surrounding whether a father’s parental rights should be terminated based on the mother’s claim that the father did not have a “substantial parental relationship with the child.”

In First Weber Group Inc. v. Synergy Real Estate Group LLC, the court may decide whether First Weber could compel arbitration of its dispute with Synergy. Specifically, the court will examine lower court decisions related to arbitration time limits.

In Milwaukee City Housing Authority v. Cobb, the court may decide whether federal housing law preempts a state statute that permits landlords to terminate tenancies upon lease breaches if the landlord gives the tenant a five-day notice to remedy or vacate.

Summaries derived from full summaries posted at www.wicourts.gov.