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Supreme Court accepts seven new cases

Madison, Wisconsin - November 18, 2009

The Wisconsin Supreme Court has voted to accept seven new cases. The Court also acted to deny review in a number of cases; those cases were listed in the November 13 press release. The case numbers, issues, and counties of origin for the newly granted cases are provided below. Court of Appeals’ opinions/certification memos available online for the newly accepted cases are hyperlinked.

2008AP89 Michael Pries v. Raymond McMillon and ABC Insurance Company
This case began with the injury of Michael Pries, a community corrections inmate who was working with a team of inmates to disassemble horse stalls at Wisconsin State Fair Park. He sued Raymond McMillon, an employee of the park. McMillon had stepped in to help when Pries could not disassemble one of the stalls. He jumped on the stall and it fell and hit Pries. The case went to court, and the question was whether McMillon had immunity as a governmental employee. State law shields some public employees from liability in certain circumstances so that they will be able to do their jobs. Both the circuit court and the Court of Appeals concluded that McMillon was not immune – but they disagreed on why. Now the case has come to the Supreme Court, which is expected to consider the questions posed by the petitioner, including whether a public employee may be held liable in a situation where no life-threatening or perilous circumstances exist, no history of previous injury in similar circumstances is shown, and the employee had multiple options available in deciding how to carry out the duties in question. From Milwaukee County

2008AP170 Walter Tatera, deceased, and Vicki Tatera, individually and as Special Administrator of the Estate of Walter Tatera v. FMC Corporation et al.
This is an asbestos case. Walter Tatera died from malignant mesothelioma. His widow, Vicki, alleges Walter was exposed to asbestos when he worked at B&M Machine (owned by Walter’s father) from the 1960s through 1993. She sued the supplier of the asbestos-containing products, FMC Corporation. The circuit court dismissed the lawsuit after concluding that Vicki had failed to make her case. The Court of Appeals affirmed part of the circuit court’s decision, but reversed another part. Now, both parties have come to the Supreme Court, which is expected to clarify several issues related to strict liability, negligence and the definition of hazardous work. The Court’s decision will determine whether Vicki Tatera may proceed with her lawsuit. From Milwaukee County

2008AP1303 Roehl Transport, Inc. v. Liberty Mutual Insurance Company,Barbara Reilly, Brian Kaminski and Charles Kilander
Roehl Transport, a trucking company, carried liability insurance through Liberty Mutual Insurance Company. A Roehl truck collided with a car and injured the car’s driver. Liberty Mutual handled the defense of the case. A jury awarded the injured driver more than $830,000 – of which Roehl had to pay $500,000, the amount of its deductible. Roehl then sued Liberty, arguing that Liberty acted in bad faith by taking the case to trial rather than offering the car’s driver a reasonable settlement. Roehl maintains the case could have been settled for $100,000 or so. A jury found that Liberty acted in bad faith, and awarded Roehl $127,000. Roehl also asked for attorneys’ fees, but the trial court denied those. The Wisconsin Court of Appeals certified this case to the Supreme Court, which is expected to clarify Wisconsin law regarding bad-faith claims and to determine whether attorneys’ fees must be decided by a jury, or whether they may be awarded post-trial by the trial court. From St. Croix County

2008AP2231-CR State v. Michael R. Hess
Justice N. Patrick Crooks did not participate.
This case involves a defendant, Michael R. Hess, who was convicted of sixth-offense drunk driving. Prior to sentencing Hess, the circuit court ordered a pre-sentence investigation but the official assigned to conduct the investigation had trouble getting Hess to show up for appointments. The court issued a civil arrest warrant to bring Hess into custody so that the report could be completed. Officers executing the warrant found Hess drunk – a violation of his bail. He was then charged with felony bail jumping. He filed a motion to suppress the evidence, arguing that the arrest warrant had been illegal. The circuit court denied the motion, and Hess was tried and convicted of felony bail jumping. He appealed, and the Court of Appeals reversed the conviction after concluding that the arrest warrant had been invalid. Now the case has come to the Supreme Court, where the parties all agree that the warrant was, in fact, not valid. The issue in question is whether the evidence of Hess’ alcohol consumption must be suppressed, or whether – because the error was committed by the judge, not by the police – the good-faith exception to the exclusionary rule should apply. From Walworth County

2008AP2812 Glen D. Hocking and Louann Hocking v. City of Dodgeville et al.
This case involves a Dodgeville couple who in 1978 purchased a home that was surrounded by undeveloped land. In 1992, a subdivision was built on the hill above the Hockings’ home, and storm sewer run-off damaged their home and eroded their land. In 2006, the Hockings sued the City of Dodgeville for failing to make good on promises allegedly made by city officials to address the run-off problem. The circuit court dismissed the lawsuit because it was filed more than 10 years after substantial completion of the subdivision. The Court of Appeals affirmed this decision. Given that the city officials’ alleged promises to remedy the situation allegedly caused the Hockings to delay filing a lawsuit, the Supreme Court is expected to determine – among other things – whether the 10-year deadline in Wis. Stat. § 893.89(2) was properly applied in this case. From Iowa County.

2008AP2937 Mercycare Insurance Company and Mercycare HMO, Inc. v. Wisconsin Commissioner of Insurance
This case involves health insurance coverage for two surrogate mothers, both of whom were denied coverage by Mercycare HMO during their pregnancies. The Wisconsin Commissioner of Insurance reversed Mercycare’s coverage decisions and the insurer took the matter to the circuit court. The court found in favor of Mercycare after concluding that Wisconsin law (§ 632.895(7))requires only that any exclusion apply equally to all – and that the surrogate exclusion was uniformly applied. The Wisconsin Court of Appeals certified this case to the Supreme Court, which is expected to decide if an insurer may exclude maternity coverage for otherwise eligible insured pregnant women based on their status as surrogate mothers. From Rock County

2009AP1021 Estate of James F. Sheppard, by its Co-Personal Representative, Michael E. McMorrow v. Jessica Schleis, James Schleis, Mary Jo Schleis et al.
This case involves a 17-year-old girl, Jessica Schleis, who inherited $3.8 million when her Godfather passed away. The $3.8 million was in Payable on Death (POD) accounts. The total estate was approximately $12 million. A dispute arose between the girl and the estate over who was responsible for paying taxes on the inheritance. The girl and her parents maintained that the estate was responsible; the estate maintained that the girl was responsible. The estate paid the federal taxes and then sued the Schleises to recover the money. The circuit court found in favor of the Schleises. The case bypassed the Wisconsin Court of Appeals. The Supreme Court is expected to determine, among other things, whether Schleis must reimburse the estate for the taxes on these POD accounts. From Washington County

Amanda K. Todd
Court Information Officer
(608) 264-6256

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