As just mentioned, the Wisconsin Supreme Court has decided to accept six new cases, three criminal cases and three civil ones. My prior blog post about those cases discussed the criminal cases; this post discusses the civil ones.
The most newsworthy civil matter seems to be Biskupic v. Cicero, 2007AP2314. Through this appeal Vince Biskupic seeks to have his libel and slander claims against various defendants reinstated. Biskupic, as you may know, is a former Outagamie County D.A. who ran for state attorney general in 2002. Biskupic v. Cicero, 2008 WI App 117, ¶ 1. The defendants include a Shawano newspaper, the Shawano Leader, which published a false report stating that Biskupic had been convicted of bribery and graft. Id. ¶1
The Defendants moved for summary judgment against Biskupic’s claims. The circuit court “concluded Biskupic was a limited purpose public figure, and the actual malice standard applied. The court held the summary judgment submissions showed ‘the defamation occurred as a result of confusion and negligence, not malice.'” The circuit court also rejected Biskupic’s argument that he should be granted judgment against the newspaper defendants, or a jury instruction, based on a reporter’s destruction of interview notes. Id. ¶10-11. The Court of Appeals affirmed, and the Supreme Court has accepted Biskupic’s petition for review.
The next civil case, Hocking v. City of Dodgeville, 2007AP1754, is a certification from the Court of Appeals, asking, “Can an uphill landowner who has done nothing to affect surface water flow be held liable to the owner’s downhill neighbor for damages sustained as a result of the water flow?” The Hockings bought a house in 1978, and later, in 1991, the City of Dodgeville developed a subdivision around that home. The Hockings contend that the development changed the surface water flow and damaged their property. They sued the city and some individual homeowners, but the claim was dismissed on summary judgment because the property owners did nothing to their properties to alter the flow to the Hockings’ detriment, so that under the “reasonable use” doctrine, there was no liability. In its certification, the Court of Appeals explains,
The Hockings argue that the neighbors are liable for negligently failing to abate a nuisance, relying on a recent supreme court case, Milwaukee Metropolitan. This case involves damages caused by water in sewers and pipelines, not surface water. In Milwaukee Metropolitan, the sewerage district brought a claim for maintaining a nuisance against the City of Milwaukee for damage to a sewer allegedly caused by a collapse of the city’s water main. Id., ¶3. The supreme court cited with favor RESTATEMENT (SECOND) OF TORTS § 839, which imposes liability on a party who negligently fails to abate a nuisance condition. See id. The Hockings argue that the neighbors have not appropriately managed the surface water flow from their property and are thus subject to liability for negligently failing to abate this nuisance under Milwaukee Metropolitan.
Finally, Donaubauer v. The Farmers Auto Ins. Assoc., 2007AP1992. This case gives the court the opportunity to clarify whether the appraisal process of resolving an insurance dispute is equivalent to the arbitration process. The plaintiff’s home was burned down in a fire caused by a passing Union Pacific train. His insurer paid him $530,000 for the loss, but the plaintiff claimed that more money was due under his “Home Guard replacement endorsement.” After the lawsuit had been filed, the insurer asked the plaintiff to participate in an appraisal process to settle the claim, and the plaintiff initially agreed, but then wished to back out of the process. He also wanted to conduct futher discovery about the appraisal. The circuit court granted summary judgment against his claims, holding that the appraisal could not be set aside. The court of appeals affirms. The Wisconsin Supreme Court news release explains that in the petition,
Donaubauer has asked the Supreme Court to review if the standards for challenging appraisals and arbitrations precisely mirror one another and to provide guidance on the method to challenge an appraisal. He also asks if it was appropriate for him to be forced to participate in a binding appraisal process, even though nothing in his insurance policy mandated a binding process. He also wants the Supreme Court to review if he should have been allowed to conduct discovery on the undertakings of the appraisal process.
Farmers contends that Donaubauer agreed in writing to the appraisal process and that his attorney acknowledged doing so in court. Farmers also contends the Court of Appeals correctly decided that under the facts, requiring actual replacement under the policy was not unfair but commercially reasonable.
A decision by the Supreme Court could clarify law in this area.