Bell, Gierhart & Moore, S.C.
Recent Appellate Cases - August, 2007
First American Title Ins. Co. v. Dahlmann, 2006 WI 65, 291 Wis. 2d 156, 715 N.W.2d 609. A title insurance company sought a declaratory judgment that its policy did not cover the encroachment of a hotel's underground parking garage into the right-of-way for a city street. Atty. Timothy J. Yanacheck, representing the hotel owner, successfully argued before the Supreme Court that the encroachment was an "encumbrance on the title" under the terms of the insurance policy and should be covered by the policy if it was substantial.
Manke v. Physician Ins. Co. of Wisconsin, Inc., 2006 WI App 50, 289 Wis. 2d 750, 712 N.W.2d 40. In this medical malpractice case, Attys. John W. Markson and Sheila M. Sullivan persuaded the Wisconsin Court of Appeals to uphold a trial court ruling granting a new trial to a defendant doctor. The new trial was warranted by the jury's consideration of extraneous evidence, in this instance a dictionary definition of the word "neglect."
Suchomel v. University of Wisconsin Hosp. & Clinics, 2005 WI App 234, 288 Wis. 2d 188, 708 N.W.2d 13. This medical malpractice appeal was handled by Attys. David E. McFarlane and Sheila M. Sullivan. The issue in this case revolved around the interpretation of Wis. Stat. § 233.17(2)(b), which prevents any faculty member of the University of Wisconsin system from being deemed an agent of the University of Wisconsin Hospital and Clinics Authority for liability purposes. The Court of Appeals held that this statute applied to all forms of agency, whether actual, apparent, or ostensible.
J.W. v. B.B., 2005 WI App 125, 284 Wis. 2d 493, 700 N.W.2d 277. This discovery dispute arose in a medical malpractice action after allegations from job applicants that a doctor had performed an improper type of medical examination. The Court of Appeals agreed with the arguments of Atty. John W. Markson that the plaintiffs were not entitled to discovery information about the defendant physician's sexual orientation.
Degenhardt-Wallace v. Hoskins, Kalnins, McNamara & Day, 2004 WI App 209, 277 Wis. 460, 689 N.W.2d 911. The disputed issue in this legal malpractice action was the amount of damages which a personal injury plaintiff could recover from her attorney when she had underinsured motorist coverage available for a portion of her claim. The attorney had failed to file a timely lawsuit against the tortfeasor in a motor vehicle accident. The Court of Appeals sided with Attys. Ward I. Richter and Sheila M. Sullivan in holding that a settlement by the plaintiff with her attorney for the amount of her underlying policy limits would trigger coverage under her underinsured motorist coverage, thus relieving the attorney of liability for damages exceeding that amount.
Grinnell Mut. Reinsurance Co. v. State Farm Mut. Auto. Ins. Co., 2004 WI App 32, 269 Wis. 2d 873, 676 N.W.2d 573. A motorist sued a county after the county applied a deicing agent to a highway, alleging that the treatment had caused the highway to become slick and contributed to an accident. Attys. John M. Moore and Sheila M. Sullivan convinced the Court of Appeals that the county was entitled to discretionary acts immunity for its decision to apply the deicing agent, since the exception to that immunity found in Wis. Stat. § 81.15 did not apply to a county's contractual arrangement to maintain a state highway.
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