Welcome to the fourth quarter edition of Wisconsin Law Quarterly. To view the issue, please here.
Breaking News:
The aim of this newsletter is to provide a summary of significant cases decided in Wisconsin during the past quarter. Often, developments in the law arise that may alter the landscape of Wisconsin law entirely. When that occurs, we strive to keep you abreast of the changes. The Wisconsin Legislature’s newest amendment to the Truth in Auto Insurance law and phantom vehicle accidents is one such change.
The concept behind a phantom vehicle or “miss and run” accident is simple: a driver is involved in an accident that was caused by the necessity to avoid contact with another vehicle while the other vehicle drives away unscathed and unidentified.
Because the car that caused the accident is ultimately unidentifiable in this scenario, it would fall under the purview of the uninsured motorist provision available under many automobile insurance policies. However, for accidents that occurred before November 1, 2009, in order to be covered by uninsured motorist coverage, there needed to be some amount of physical contact between the two vehicles.
As a result, in 2009, the Wisconsin legislature amended Wisconsin statute section 632.32 to create what would become known as the “Truth in Auto Insurance” law. The amended statute, which applied to automobile insurance policies issued after November 1, 2009, provided a remedy in phantom vehicle accidents so long as the insured had corroboration from an independent third party regarding the phantom vehicle’s involvement.
In 2011, the Wisconsin legislature amended the Truth in Auto Insurance law yet again. Effective November 1, 2011, phantom vehicle uninsured motor vehicle coverage applies if the following three elements are present:
- The facts of the accident are corroborated by competent evidence that is provided by someone other than the insured or any other person who makes a claim against the uninsured motorist coverage as a result of the accident.
- Within 72 hours after the accident, the insured or someone on behalf of the insured reports the accident to a police, peace, or judicial officer or to the department of transportation or, if the accident occurs outside of Wisconsin, the equivalent agency in the state where the accident occurs.
- Within 30 days after the accident occurs, the insured or someone on behalf of the insured files with the insurer a statement under oath that the insured or a legal representative of the insured has a cause of action arising out of the accident for damages against a person whose identity is not ascertainable and setting forth the facts in support of the statement.
The differences between the 2009 and 2011 versions of Wisconsin statute section 632.32 are glaring. Of note, is the requirement under subsection (c) that requires the insured or someone on their behalf to make a statement under oath regarding the accident. This particular provision has not been the subject of any reported judicial decision, but it is of key importance when analyzing any phantom vehicle accident going forward. SmithAmundsen is keeping a keen eye on the developments of the Truth in Auto Insurance law, and will undoubtedly be reporting on cases involving phantom vehicles in newsletters to come.
Recent Litigation Successes:
We are proud to report a number of litigation successes this quarter. In a professional malpractice case, SmithAmundsen partner Mike Vescio convinced a circuit court judge to dismiss the entire case on the pleadings before any significant discovery could occur. Mike Vescio and associate Paul Werkowski also recently persuaded a circuit court to refrain from entering default judgment, even though a client first retained Mike after the 45-day deadline for filing an answer had lapsed.
Paul Werkowski succeeded in an underinsured motorist arbitration. A three-member arbitration panel awarded the claimant a little more than $5,000 when claimant previously sought the UIM policy limits of $250,000. In addition, in a products liability lawsuit involving common law negligence and strict products liability, Paul persuaded the Monroe County Circuit Court to grant summary judgment dismissing his clients.
John O’Neill, a partner, secured a defense verdict in the Circuit Court for Milwaukee County in October. The plaintiff alleged that the defendant’s negligent operation of a motor vehicle was the sole cause of a pedestrian versus taxicab accident and that he had sustained incident related damages and injuries. He asserted a claim for past and future personal injury, $40,000 worth of past health care expenses, and $16,000 worth of future health care expenses, and a non-negotiable demand for the tender of the defendants’ applicable $50,000 liability coverage limit throughout the litigation. The defendants extended $5,000 settlement offer to the plaintiff prior to trial.
The defense argued that the plaintiff’s excessive consumption of alcohol throughout the course of the evening was the sole cause of this incident. During direct examination, John received the gift of the plaintiff responding to a question from his lawyer as to whether he had to take a painkiller that morning with the answer, “Yes, I washed it down with a beer.” The jury awarded the plaintiff a total of $54,000 in damages but found that his negligence was the sole cause of the accident thus barring him from any recovery whatsoever.
John walked out of one courtroom after receiving the above-referenced jury verdict and participated in a hearing in another matter on behalf of another taxicab company. In the second case, he obtained the dismissal of the plaintiff’s claim arising out of a motor vehicle accident and the granting of a judgment in favor of the defendant in the amount of its property damage counterclaim. John subsequently secured a dismissal of two wrongful termination claims against a taxicab company during hearings within the Circuit Court for Milwaukee County as well.