COURT OF APPEALS DECISION DATED AND RELEASED NOVEMBER
28, 1995 |
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. 95-1034-FT
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT I
MARGO
BENNETT,
Plaintiff-Appellant,
v.
PICCADILLY
APARTMENTS and
AETNA
INSURANCE COMPANY,
Defendants-Respondents.
APPEAL
from a judgment of the circuit court for Milwaukee County: PATRICK J. MADDEN, Judge. Reversed and cause remanded.
Before
Sullivan, Fine and Schudson, JJ.
PER
CURIAM. Margo Bennett appeals from a
summary judgment granted to Piccadilly Apartments and its insurer, Aetna
Insurance Company (together "Aetna"). Pursuant to this court's order dated May 23, 1995, this case was
submitted to the court on the expedited appeals calendar. We conclude that a genuine issue of material
fact remained unresolved at the time of the hearing and, therefore, that
summary judgment should not have been granted.
On
October 13, 1994, Bennett filed suit against Piccadilly Apartments, claiming
that she suffered injuries when she stepped into a hole in Piccadilly's parking
lot. The accident occurred on May 29, 1986.
Aetna
denied liability in its answer. In a
subsequent request for summary judgment, Aetna conceded that it had made
voluntary payments to Bennett after the accident for her medical treatment. Aetna alleged, however, that it had made its
last payment to Bennett in 1990, and that Bennett's action, filed more than
three years after its final payment to her, was, therefore, time-barred
pursuant to § 893.12, Stats.[1]
In
opposition to summary judgment, Bennett challenged Aetna's assertion that it
had made its last payment to her or on her behalf in 1990. Bennett maintained that the last
payment Aetna had made on her behalf was a payment to Dr. William A. Stewart in
October 1991. Bennett alleged that Aetna
had requested that she be evaluated by Dr. Stewart. She complied with that request on September 18, 1991. Aetna then issued a check to Dr. Stewart on
October 10, 1991, and Bennett alleged that Dr. Stewart's records showed that
his office had processed the check on October 16, 1991. Bennett claimed that Aetna's payment to Dr.
Stewart was a payment on her behalf within the meaning of § 885.285(1), Stats., and that the limitation on
filing an action against Aetna was therefore October 16, 1994. She contended that her claim was not
time-barred because she had filed her action on October 13, 1994.
In
support of her contention that Aetna's payment to Dr. Stewart in 1991 was, at
least in part, on her behalf, Bennett noted that Aetna had made payments to her
for medical treatment in the past. She
pointed out that she had been referred by Aetna to Dr. Stewart, and that Dr.
Stewart not only evaluated her injury and condition, but recommended a course
of treatment for her injury. In his
report, Dr. Stewart recommended that Bennett be referred to a "chronic
pain management program," and that her "multifactoral [sic]
behavior issues should be addressed in the setting of a team approach in a time
limited and goal directed fashion."
Dr. Stewart stated that he would "discourage ... the use of
continued passive modalities or passive manipulation types of treatments due to
their tendency to discourage patients taking an active role in their own
healing process and the tendency to foster long term dependence." He further noted that Bennett "may
benefit from appropriately titrating her antidepressant medication," and
that she should "taper off and discontinue use of narcotic
medications." Dr. Stewart also
stated that Bennett "deserve[d] a full behavioral evaluation by a trained
pain psychologist."
The
trial court agreed with Aetna's argument that Bennett's action was
time-barred. It reasoned that Aetna's
payment to Dr. Stewart had not been on Bennett's behalf. It noted that Dr. Stewart's report was
labeled an "Independent Medical Evaluation" and that the report
itself indicated that Dr. Stewart's "activities ... were
an evaluation on behalf of [Aetna] and not on behalf of
[Bennett]." The trial court noted
that Bennett had not requested the evaluation and was not required to pay Dr.
Stewart. It noted that Aetna had
requested the evaluation and had paid Dr. Stewart. Thus, it concluded that there was "no payment to [Bennett]
or on her behalf arising out of [Aetna's] October, 1991 payment to Dr.
Stewart."
The
trial court also held that Riley v. Doe, 152 Wis.2d 766, 449
N.W.2d 83 (Ct. App. 1989), supported summary judgment to Aetna. It held that Aetna's payment to Dr. Stewart
had been a payment to "a stranger," and that, under Riley,
it "would be anomalous to apply the protection of [§§] 885.285(4) and
893.12, [Stats.] to a stranger to
a settlement or advance payment." See
id. at 771, 449 N.W.2d at 84-85.
The trial court concluded that by seeking Dr. Stewart's evaluation of
Bennett, Aetna was "just evaluating its responsibilities and
exposure." The trial court
determined that Bennett's action was time-barred because Aetna's October 1991
payment to Dr. Stewart had not been on Bennett's behalf, and Bennett had not
begun her lawsuit within three years of the last payment Aetna had made on her
behalf.
On
appeal, Bennett argues that the trial court erred when it granted summary
judgment to Aetna. We agree. The record does not conclusively demonstrate
that Aetna's payment to Dr. Stewart was made solely on its behalf, and was not
intended to be on Bennett's behalf. In
addition, we disagree with the trial court that Riley requires
summary judgment to Aetna.
Summary
judgment is governed by § 802.08, Stats. In reviewing summary judgment
determinations, we apply the same standards as the trial court. Posyniak v. School Sisters of St.
Francis, 180 Wis.2d 619, 627, 511 N.W.2d 300, 304 (Ct. App. 1993). Under summary judgment methodology, the
trial and appellate courts:
first
examine[] the pleadings to determine whether claims have been stated and a
material factual issue is presented. If
the complaint ... states a claim and the pleadings show the existence of
factual issues, the court examines the moving party's affidavits for
evidentiary facts admissible in evidence or other proof to determine whether
that party has made a prima facie case for summary judgment. To make a prima facie case for summary
judgment, a moving defendant must show a defense which would defeat the
claim. If the moving party has made a
prima facie case for summary judgment, the court examines the affidavits
submitted by the opposing party for evidentiary facts and other proof to
determine whether a genuine issue exists as to any material fact, or reasonable
conflicting inferences may be drawn from the undisputed facts, and therefore a
trial is necessary.
Summary judgment
methodology prohibits the trial court from deciding an issue of fact. The court determines only whether a factual
issue exists, resolving doubts in that regard against the party moving for
summary judgment.
Preloznik v. City of Madison, 113 Wis.2d 112, 115-16, 334 N.W.2d 580, 582-83 (Ct.
App. 1983) (citations omitted).
We
are satisfied that, given the materials before the trial court in regard to the
summary judgment motion, a genuine issue of material fact remained as to
whether Aetna's payment to Dr. Stewart was, at least in part, "on behalf
of" Bennett within the meaning of § 885.285(1), Stats.
Although the trial court concluded that Dr. Stewart's report was solely
for Aetna's benefit, there is nothing in the record to support this conclusion
except Dr. Stewart's labelling of the report as an "independent medical
examination," and the fact that Aetna paid for the evaluation. Although counsel for Aetna submitted an
affidavit in support of summary judgment noting that Dr. Stewart's report was
an "independent medical examination," nothing in the record indicates
that Aetna's counsel had personal knowledge of the purpose of Dr. Stewart's
examination of Bennett. See
§ 802.08(3), Stats.
(Affidavits in support of or opposition to summary judgment "shall be made
on personal knowledge and shall set forth such evidentiary facts as would be
admissible in evidence."). Aetna
submitted nothing from Dr. Stewart or its own employees as to the purpose of
the report.
The
purpose of Dr. Stewart's evaluation was a disputed issue of fact that went to
the heart of the question of whether Aetna's payment to Dr. Stewart was
"on behalf of" Bennett. The
record at the time of the summary judgment motion was insufficient to support
the trial court's conclusion that Dr. Stewart's report was commissioned by
Aetna solely for its benefit. Although Dr. Stewart's report was labelled
an "independent medical evaluation," that label does not, in and of
itself, answer the crucial question.
Therefore, a genuine issue of material fact remained that precluded
granting summary judgment.
As
we have noted above, the trial court, in granting summary judgment to Aetna,
relied on this court's opinion in Riley. That reliance was misplaced. In Riley, the plaintiff was a
passenger in an automobile when she was injured. Riley, 152 Wis.2d at 768, 449 N.W.2d at 83. Riley filed suit more than three years after
the accident, but she maintained that the statute of limitations had been
extended by operation of § 893.12, Stats.,
because the insurance company had made a payment to the owner of the automobile
in which she had been injured less than three years before commencement of her
action. Id. This court
rejected Riley's argument because the advanced payment had not been between the
parties to the litigation, see § 885.285(3), Stats. ("[a]ny settlement or
advance payment under sub. (1) shall be credited against any final settlement
or judgment between the parties), and was not on Riley's behalf. Id. at 771, 449 N.W.2d at
84.
In
Riley, the payment was made to a stranger whose claim was
unrelated to the plaintiff's.
Therefore, it was not on the plaintiff's behalf. Here, Aetna's payment to Dr. Stewart,
although not made directly to Bennett, was allegedly made on Bennett's behalf
for treatment of the injuries she claims she suffered. The payment to Dr. Stewart, if made on
Bennett's behalf, would, unlike the payment to the owner of the vehicle in Riley,
be credited against a final settlement or judgment between Bennett and
Aetna. If it is ultimately determined
that Dr. Stewart was retained by Aetna to benefit Bennett, the payment to Dr.
Stewart extended the deadline for Bennett to file suit for three years after
the date of the payment pursuant to § 893.12 and 885.285(1)(b), Stats.
By
the Court.--Judgment reversed
and cause remanded.
This
opinion will not be published. See
Rule 809.23(1)(b)5, Stats.
[1] Section 893.12, Stats., provides:
The period fixed
for the limitation for the commencement of actions, if a payment is made as
described in [§] 885.285(1),[Stats.],
shall be either the period of time remaining under the original statute of
limitations or 3 years from the date of the last payment made under [§]
885.285(1), whichever is greater.
Section 885.285(1), Stats.,
provides:
No admission of
liability shall be inferred from the following:
(a) A settlement
with or any payment made to an injured person, or to another on behalf of any
injured person, or any person entitled to recover damages on account of injury
or death of such person; or
(b) A settlement with or any
payment made to a person or on the person's behalf to another for injury to or
destruction of property.