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Wisconsin Supreme Court accepts two new cases

Madison, Wisconsin - March 4, 2015

The Wisconsin Supreme Court has voted to accept two new cases and has acted to deny review in a number of other cases. The case numbers, issues, and counties of origin of granted cases are listed below, as are hyperlinks to Court of Appeals’ decisions where available. Visit the Supreme Court and Court of Appeals Access website for more information about the status of any particular case.

2013AP907 Kenneth (and Linda) Burgraff, Sr. v. Menard, Inc.
This is an insurance case arising from an incident that occurred in a loading area at a Menard’s store. The Supreme Court reviews several complicated issues, following up on a decision in Blasing v. Zurich American Family Ins. Co., 2014 WI 73, 356 Wis. 2d 63, 850 N.W.2d 138.

Blasing held that an auto insurer had a duty to defend and indemnify Menard after a Menard employee injured Vicki Blasing’s foot while loading her pickup truck with lumber. This was so, Blasing reasoned, because Menard was a “permissive user” of Blasing’s truck under her auto insurance policy.

The Blasing court, however, left “for another day” any dispute over the relative obligations of Menard’s own policy versus its customer’s automobile policy.

In the case now being heard, a Menard employee hurt Kenneth Burgraff while using a forklift to load materials onto Burgraff’s trailer. The trailer was attached to Burgraff’s pickup truck. Burgraff sued Menard for negligence. Menard, per Blasing, tendered its defense to Burgraff’s automobile insurer, Millers First Insurance Company. Millers First agreed to provide a defense for Menard, subject to a reservation of rights. Millers First eventually conceded Menard was entitled to coverage under Burgraff’s policy.

In the trial court, the parties disagreed as to which insurance was primary: Millers First’s $100,000 liability coverage, or Menard’s $500,000 “self-insured retention.” (Menard had liability coverage with CNA, and this coverage had a liability limit of $500,000 per occurrence. However, the CNA policy also had a $500,000 “self-insured retention.” A self-insured retention is a dollar amount specified in a liability insurance policy that must be paid by the insured before the insurance policy will respond to a loss.)

Both Menard’s CNA policy and Burgraff’s Millers First policy had “other insurance” clauses. Menard argued that CNA’s “other insurance” clause made Millers First the primary insurer. Conversely, Millers First argued that its “other insurance” clause made Menard the primary insurer.

The trial court sided with Millers First. It held that, under Millers First’s pro rata “other insurance” clause, Millers First’s liability was limited to a proportionate percentage of all insurance covering Burgraff’s accident. Thus, Millers First would be responsible for 1/6th of any verdict or settlement; i.e., the proportion that Millers First’s liability limit ($100,000) bore to the total of all applicable limits ($600,000 – comprised of Millers First’s $100,000 limit plus Menard’s $500,000 self-insured retention).

The parties also disagreed at the trial court level as to whether Millers First had satisfied its duty to defend.

At mediation, Millers First and Burgraff settled Millers First’s 1/6th portion of Burgraff’s claim. Under the settlement agreement, Millers First paid Burgraff $40,000. In exchange, Burgraff agreed to fully discharge Millers First and 1/6th of any liability that Menard may have to Burgraff. Menard did not reach any settlement with Burgraff regarding the remaining 5/6th of its liability. Millers First then moved for summary judgment, arguing that it no longer had a duty to defend Menard because it had fully satisfied its duty to pay 1/6th of any verdict or settlement. The trial court agreed.

Menard appealed, with partial success. Menard first argued that its coverage was excess pursuant to CNA’s “other insurance” clause. The Court of Appeals rejected this argument, holding that CNA’s “other insurance” clause governs CNA’s obligations when other insurance is available for a covered loss. The clause does not address the priority of Menard’s obligation to pay the self-insured retention amount when other insurance is available.

Menard argued in the alternative that its coverage was excess because, if the Millers First’s “other insurance” clause is applicable, Menard’s self-insured retention did not constitute “other applicable liability insurance” under that clause. The Court of Appeals disagreed, holding that self-insurance constitutes “other collectible insurance” for purposes of an “other insurance” clause.

Menard next argued to the Court of Appeals that the trial court erroneously concluded Millers First no longer had a duty to defend Menard after it settled its 1/6th share of Burgraff’s claim. The Court of Appeals agreed with Menard, holding that the unambiguous policy language required Millers First to provide a defense for Menard until it paid its $100,000 limit of liability.
Both sides petitioned the Supreme Court for review.

In its petition for review, Millers First offers the following issue:

  • What is the continuing defense obligation of a concurrent insurer or concurrent self-insurer when a fortuitous insurer has settled and satisfied all of its coverage obligations imposed under an “other insurance” determination for less than the total policy limits?

In its petition for cross-review, Menard offers the following issues:

  • Does a self-insured retention constitute “other applicable insurance” for purposes of an “other insurance” clause?
  • Where a policy of liability insurance incorporates a self-insured retention endorsement, is the insured entitled to rely on the policy language’s “other insurance” clause when there is other applicable insurance?

From Eau Claire County.

2012AP2520 Hoffer Properties v. DOT
This eminent domain case examines the standard as to when the government must pay compensation for eliminating an abutting landowner’s right of direct access to a controlled-access highway.

Some background: The state Department of Transportation (DOT) took 0.72 acres of property from Hoffer Properties LLC for a state highway construction project. The highway project involved State Highway 19, which is a controlled-access highway. A controlled-access highway is designed for high-speed traffic, with the traffic flow and entrance and departure points regulated by the DOT. Wis. Stat. § 84.25(2).

The result of the taking was that Hoffer’s direct driveway access to State Highway 19 was replaced by alternate access; specifically, the westward extension of an existing public road, Frohling Lane, to reach the Hoffer property.

Hoffer appealed to the trial court on the issue of compensation. DOT moved for partial summary judgment, arguing that the alternate access from Hoffer’s property to Highway 19 was reasonable as a matter of law. The trial court granted summary judgment on that issue. Hoffer filed motions in limine and moved to dismiss the action, reserving the right to appeal. The trial court denied the motions in limine, but granted the motion to dismiss the action.

Hoffer appealed, unsuccessfully.

Hoffer contended it was denied reasonable access to Highway 19 when DOT cut off its direct access to the highway in exercising its power of eminent domain. Hoffer argued that the question of whether the alternate access was reasonable should have gone to the jury.

DOT countered that it provided alternate access to the subject property and, thus, the change in access was not compensable as a matter of law. See Surety Savings & Loan Ass’n v. State, 54 Wis. 2d 438, 443, 446, 195 N.W.2d 464 (1972) (holding that “there is no compensable taking when direct access to a controlled-access highway is denied, where other access is given or otherwise exists.”

The Court of Appeals agreed with the DOT that Surety Savings applied here.
In its petition for review, Hoffer challenges the Court of Appeals’ holding that in a loss of access case involving a controlled-access highway, the court need not consider whether the alternate access provided by the DOT is reasonable.

The DOT argues that the Court of Appeals correctly found that the Surety Savings case is outcome-determinative, and that under that case, the provision of any alternate access is – as a matter of law – “reasonable access.” That is, the question of the reasonableness of access does not go to the jury because the elimination of direct access to a controlled access highway is an exercise of police power. See Wis. Stat. § 84.25(3) (DOT may “regulate, restrict or prohibit access to or departure from [a controlled access highway] as the department deems necessary or desirable”). From Jefferson County.

Review denied: The Supreme Court denied review in the following cases. As the state’s law-developing court, the Supreme Court exercises its discretion to select for review only those cases that fit certain statutory criteria (see Wis. Stat. § 809.62). Except where indicated, these cases came to the Court via petition for review by the party who lost in the lower court:

2014AP209 State v. Boettcher

2013AP1522-CR State v. Pugh
2013AP2490-CR State v. Ashford
2014AP612-CR State v. Gajeski

2014AP222 Anderson v. Viking Ins. Co. of WI

2013AP1314 Reese v. Grams

2012AP2652 State v. Birkett
2013AP492 State v. Talley
2013AP2385-CR State v. Jackson
2014AP1437 Dane Co. DHS v. Christina L.
2014AP2641-W Morris v. Wall

Fond du Lac
2013AP2132-CR State v. Lisko

2014AP2447-W Henderson v. COA

2013AP1311 State v. Rodriguez

2014AP424 State v. Cook

2013AP1639 State v. King
2013AP2020-21 State v. Hill
2013AP2023-CR State v. Chappell
2013AP2260-CR State v. Brooks
2013AP2519-20 State v. Sharp
2013AP2858-CR State v. Cannon
2014AP80-CR State v. O’Boyle
2014AP85-CR State v. Moore
2014AP132 State v. Jines
2014AP285-CR State v. Bogan
2014AP415-16 State v. Anderson
2014AP447-48 State v. Williams
2014AP467 State v. Jermaine C.
2014AP829 Rowell v. Pugh
2014AP1020 State v. Hampton
2014AP1055-56 State v. Bandy
2014AP1929-W Smith v. Clarke
2014AP2035-36 State v. Faizel K.
2014AP2062-W Murray v. Foster
2014AP2560-W Miller v. COA, Dist. I
2014AP2676-W Martin v. McCulloch
2014AP2814-W Minnis v. Pollard
2014AP2957-OA Milwaukee Co. v. Preserve Our Parks - Justice Patience Drake Roggensack dissents.

2013AP2772 Est. of Adrianna Seroy v. Leuck

2013AP2386 State v. Marshall

2014AP2934-W Bengston v. Cir. Ct. Pierce Co.

2013AP1482 Burlington Pavers Leasing v. David Montoya Const.
2014XX223-CR State v. Adams - Justice David T. Prosser, Jr. did not participate.
2014AP1229-FT Blake v. Racine Co. HSD

2011XX1206-CR State v. Humphrey
2013AP2709 State v. Freeman - Justice Ann Walsh Bradley did not participate.

2013AP2380-83 State v. O’Brien

2014AP414-CR State v. Garcia - Justice David T. Prosser, Jr. did not participate.
2014AP562-CR State v. Senkbeil

2014AP78 James v. Wicke

2014AP137 Bentivenga v. City of Delavan - Justice David T. Prosser, Jr. did not participate.

2013AP645-CR State v. Duncan
2014AP965-CR State v. Harris - Justice David T. Prosser, Jr. did not participate.

2014AP17-CR State v. Osburn
2014AP1341-CRNM State v. Gallion

2013AP2534 Tina B. v. Richard H.
2013AP2600 Richard H. v. Tina B.

Tom Sheehan
Court Information Officer
(608) 261-6640


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