COURT OF APPEALS DECISION DATED AND RELEASED December 12, 1996 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-0244
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
PATRICIA LUCHSINGER,
Plaintiff-Appellant,
WISCONSIN PHYSICIANS
SERVICE CORPORATION,
Plaintiff,
v.
HERITAGE MUTUAL
INSURANCE COMPANY,
Defendant-Respondent.
APPEAL from a judgment
of the circuit court for Dane County:
GEORGE A. W. NORTHRUP, Judge. Affirmed.
Before Eich, C.J.,
Vergeront and Deininger, JJ.
PER
CURIAM. Patricia Luchsinger appeals from a judgment dismissing
her complaint against Heritage Mutual Insurance Company under
§ 804.12(2)(a)3, Stats.,
after the trial court found that Luchsinger's failure to
answer interrogatories in a timely fashion was egregious and that
dismissal was the appropriate sanction.
Because the trial court did not erroneously exercise its discretion, we
affirm.
BACKGROUND
Luchsinger commenced
this personal injury action in August 1988.
Luchsinger's claim arises from an August 1985 automobile accident. Heritage is the liability insurer of the
other driver, Cindi Koltes. Koltes was
dismissed from the litigation by stipulation in 1988.
In March 1992, the trial
court dismissed the complaint for failure to prosecute. Luchsinger appealed, and this court
reversed. Luchsinger v. Koltes,
No. 92-1402, unpublished slip op. (Wis. Ct. App. Nov. 4, 1993). We held that Luchsinger's actions,
"while not necessarily the most effective response to the situation, were
reasonable given her pro se status, so that the [trial] court
erroneously exercised its discretion in finding them egregious or without
excuse." Id. at 9.
After remittitur, the
trial court conducted a scheduling conference on February 17, 1994. Luchsinger was now represented by
counsel. Trial was scheduled for
November 7, 1994. No specific discovery
deadlines were established.
On July 8, 1994,
Heritage served interrogatories on Luchsinger.
Under § 804.08(1)(b), Stats.,
Luchsinger was required to answer the interrogatories within thirty days. She did not do so. During a September 8 hearing on an unrelated topic, Luchsinger's
attorney told opposing counsel that the answers were substantially completed,
and were awaiting his client's final review and signature. On September 14, Heritage's attorney
sent Luchsinger's counsel a letter requesting that the interrogatories be
answered. Heritage filed a motion to
dismiss on September 23. That motion
apparently crossed in the mail with Luchsinger's answers, and Heritage received
the interrogatory answers on September 26, 1994. Luchsinger's answers were not complete. For example, while the answers included a summary of medical
expenses, they also stated that "[w]age loss information will be provided
upon receipt."
A motion hearing was
held on October 10, 1994. After hearing
argument from Heritage and Luchsinger, the trial court dismissed Luchsinger's
complaint. The trial court found that
Luchsinger's conduct was "absolutely outrageous." The court reviewed the long history of the
litigation, including the earlier dismissal, and concluded that Luchsinger's
failure to timely answer the interrogatories was egregious. The court rejected Luchsinger's assertion
that her incomplete answers were offered in good faith, noting that she had
stated in a 1988 deposition that she would "have to go back and look at
her records" to substantiate her wage loss claim. The court felt that Luchsinger's reply,
offered six years later, that she would supply the wage loss information as
soon as practicable was "inconsistent" with her 1988 deposition
answer.
ANALYSIS
A trial court may
dismiss a complaint if the plaintiff violates the rules of discovery. See §§ 805.03 and 804.12(2)(a)3, Stats.; Hudson Diesel Inc. v. Kenall, 194 Wis.2d 531, 541,
535 N.W.2d 65, 69 (Ct. App. 1995). This
court reviews the decision to dismiss a complaint under the erroneous exercise
of discretion standard. Id.
at 541-42, 535 N.W.2d at 69. We will
reverse the trial court's discretionary determination only if it fails to
properly apply the law or its determination is unreasonable under the existing
facts and circumstances. Id.
at 542, 535 N.W.2d at 69.
Dismissal is a
"drastic penalty that should be imposed only where such harsh measures are
necessary." Id. A trial court may dismiss a complaint where
the noncomplying party's conduct is either egregious or in bad faith. Id. A dismissal for bad faith requires intentional conduct and a
finding that the noncomplying party "intentionally or deliberately
delayed, obstructed or refused" the discovery demand. Id. at 543, 535 N.W.2d at
69. Unintentional conduct will not
support a dismissal unless it is "so extreme, substantial and persistent
that it can properly be characterized as egregious." Id. Egregious conduct includes a persistent violation of discovery
procedure or conduct that is "part of a continuous attempt to obstruct or
delay the litigation." Id.
at 543, 535 N.W.2d at 70.
On appeal, Luchsinger
argues that her conduct cannot be considered egregious because her answers were
only "a few weeks tardy."
Luchsinger also asserts that she acted in good faith, and that she
answered the interrogatories as soon as she could. We are not persuaded.
The timeliness of the answers
must be viewed in the context of the entire litigation. Luchsinger's complaint had been dismissed
previously because of inaction on her part.
While this court reversed, the facts remained unchanged. The reversal and reinstatement did not alter
the fact that nearly nine years had elapsed since the accident and that the
litigation had been pending for six years.
The parties had a duty to bring this matter to a prompt completion, and
the trial court had a "duty to discourage the protraction of litigation." Johnson v. Allis Chalmers Corp.,
162 Wis.2d 261, 282, 470 N.W.2d 859, 867 (1991). To fulfill that duty, the trial court properly could consider the
history of the entire litigation, including conduct that led to the prior
dismissal.
In an attempt to shift
responsibility from her conduct, Luchsinger notes that Heritage did not serve
its interrogatories until seven months after remittitur. Luchsinger asserts that Heritage's
"last-minute discovery requests" exacerbated the situation. As we noted above, no discovery deadlines
were established by court order.
Heritage acted properly when it served interrogatories on Luchsinger
four months before trial. Once served,
Luchsinger had a statutory obligation to answer within thirty days. Section 804.08(1)(b), Stats.
Luchsinger's failure to do so is unaffected by Heritage's actions.
Luchsinger's assertion
of good faith was expressly rejected by the trial court. Heritage first sought information about the
claimed wage loss in a 1988 deposition.
At that time, Luchsinger deflected the inquiry by stating that she had
to check her records. Six years later,
and only six weeks before trial, she had yet to review her records so that a
complete response could be made. The
trial court reasonably rejected Luchsinger's claim of good faith.
Luchsinger also argues
that the trial court misused its discretion by not exploring less severe
sanctions. When faced with egregious
conduct, "the trial court must determine whether less severe sanctions are
available to remedy the noncomplying party's discovery violation before
dismissal may be ordered." Hudson
Diesel, 194 Wis.2d at 545, 535 N.W.2d at 70. While a trial court must "explore alternative
remedies," the court is not obligated to choose the less severe sanction
if the court determines that dismissal is "necessary to assure justice
between the parties." Id.
at 545-46, 535 N.W.2d at 70-71.
The record defeats
Luchsinger's argument. Before
dismissing the complaint, the court did consider less severe sanctions. The court noted that it could deny recovery
for wage loss and limit damages to the medical expenses identified in the
answers. However, the court noted that
"in order to do that, I'd have to say that ... it was reasonable for her
to file the interrogatories [sic] at the time that she did." The court stated that the interrogatories
were "[n]ot overly cumbersome" and were designed to elicit
information necessary to the defense of the action. The court noted that the responses were not forthcoming after
Luchsinger's counsel represented that they were ready during the September 8
hearing and after Heritage's attorney sent a follow-up letter on September
14. Finally, the court noted that
Luchsinger had known since her 1988 deposition that Heritage wanted the basis
for the wage loss claim.
The record shows that
the trial court explored alternative remedies prior to concluding that
dismissal was warranted. Therefore, the court properly exercised its
discretion, and the dismissal must be upheld.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.