COURT OF APPEALS DECISION DATED AND RELEASED November 19, 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. 95-2601
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
General Casualty
Company of Wisconsin,
Defendant-Respondent,
v.
Cameron Gilbert and
Eisenberg, Weigel,
Carlson, Blau, Reitz
& Clemens, S.C.,
Defendants-Appellants.
APPEAL from a judgment
of the circuit court for Milwaukee County:
JOHN J. DiMOTTO, Judge. Affirmed.
Before Wedemeyer, P.J.,
Schudson and Curley, JJ.
PER CURIAM. Cameron Gilbert and Eisenberg, Weigel,
Carlson, Blau, Reitz & Clemens, S.C. (“law firm”) appeal from a judgment
entered after a jury found in favor of General Casualty Company of Wisconsin on
its subrogation claim.
The law firm claims
that: (1) the trial court erred in
denying its motion for summary judgment on the basis that the law firm was not
uninsured; (2) the trial court erred in not allowing the insurance
question to be submitted to the jury; and (3) the judgment should be
reversed in the interests of justice because the jurors evidenced bias in
rendering the verdict. Because the
trial court did not err in denying the law firm's motion seeking summary
judgment, because the law firm waived the right to raise the second issue, and
because the law firm's interests of justice issue is undeveloped, we affirm.
I. BACKGROUND
On December 29, 1992, an
automobile collision occurred involving an employee of the law firm (Gilbert)
and General Casualty's insured, Sam Minessale.
Minessale filed a claim with General Casualty under the uninsured
motorist provision of his automobile policy.
General Casualty paid the claim and filed a complaint against the law
firm seeking subrogation.
The law firm filed a
motion for summary judgment arguing that because it was insured at the time of
the accident, General Casualty was not obligated to pay the UM claim, and
therefore must have paid “as a volunteer.”
Based on this argument, the law firm claims that General Casualty has no
right to seek subrogation from it. The
trial court denied the motion, ruling there were material issues of fact.
The case proceeded to
trial. The trial court submitted to the
jury a verdict on the issues of negligence and damages. The jury found that both drivers were
negligent, but that the law firm's employee was 100% causally negligent.
The law firm failed to
timely file motions after verdict. As a
result, the trial court entered judgment on the verdict. The law firm now appeals.
II. DISCUSSION
The law firm first
challenges the trial court's ruling on summary judgment. In reviewing a grant of summary judgment, we
employ that same methodology as the trial court. Green Spring Farms v. Kersten, 136 Wis.2d 304,
315, 401 N.W.2d 816, 820 (1987). This
methodology has been so often repeated, we decline to do so here. Our review is de novo. Id.
Applying this de novo
standard of review, we conclude that the trial court's ruling was correct. The law firm claimed that it was insured at
the time of the accident and, therefore, Minessale made an improper UM
claim. The law firm argues that
Minessale and his attorney knew that the law firm was insured and never made
any attempt to make a claim against the law firm's insurer, but rather chose to
seek UM benefits from General Casualty.
General Casualty argues that the law firm deceived everyone into
believing that it did not have insurance, and in fact, actually represented to
the State of Wisconsin during the hearing with the Safety Responsibility Unit
of the Wisconsin Department of Transportation that it did not have
insurance. We agree with the trial
court that under these circumstances, a material issue of fact existed as to
whether General Casualty paid as a volunteer, depending on which party's
version of the facts was believed.
The law firm next claims
that the trial court erred in not allowing the issue of whether General
Casualty paid the UM claim as a volunteer to go to the jury. We are not persuaded. We have reviewed the record, and conclude
that the law firm waived the right to raise this issue on appeal for two
reasons. First, the law firm never
specifically asked the court to submit the issue to the jury, and never
requested any jury instructions or verdict questions on this issue. See § 805.11, Stats. Second, it is
undisputed that the law firm failed to timely file motions after verdict. If the law firm wanted to challenge the
verdict—as a matter of right—it should have filed a timely motion after
verdict. Rennick v. Fruehauf
Corp., 82 Wis.2d 793, 808, 264 N.W.2d 264, 271 (1978). Although we may exercise our discretion to
decide waived issues, see Brandner v. Allstate Insurance Co.,
181 Wis.2d 1058, 1066-67, 512 N.W.2d 753, 758 (1994); Wirth v.
Ehly, 93 Wis.2d 433, 443-44, 287 N.W.2d 140, 145-46 (1980), we see no
reason to do so here. Accordingly, we
conclude that this issue was waived and decline to address it.
Finally, the law firm
argues that the judgment should be reversed in the interests of justice because
the verdict was inconsistent and the jurors were “obviously” biased. We decline to address this argument as well
because it is undeveloped. W.H.
Pugh Coal Co. v. State, 157 Wis.2d 620, 634, 460 N.W.2d 787, 792
(Ct. App. 1990) (an appellate court may decline to consider an issue that is
undeveloped in the briefs or that is not supported by citation to legal
authority).
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.