Szwaczka v. Top of the Hill Condominium Owner’s Association, Inc
Decision Date: 5/4/10
Case No. 09 CV 293
State of Wisconsin/Circuit Court/Door County
Summary Judgment finding no insurance coverage.
Attorney(s): Michelle D. Johnson
This case arose out of the condo association’s approval of the placement of a vent stack on the exterior of a condo building that allegedly obstructed the plaintiffs’ view from their condo unit. The plaintiffs alleged this cut back on their enjoyment and reasonable use of their unit as well as the value of it. S&D’s client had issued an insurance policy to the condo association. S&D intervened in the case and filed a Motion for Summary Judgment on behalf of its client, arguing the policy did not afford coverage for the plaintiffs’ claims because the plaintiffs did not allege bodily injury or property damage caused by an occurrence or personal and advertising injury, two exclusions barred coverage, the plaintiffs did not allege a loss or wrongful act as required for coverage under the directors and officers coverage form, and two exclusions contained in the directors and officers form barred coverage. The condo association argued allegations of interference with the plaintiffs’ property interests constituted property damage and that an occurrence could be either an accident or continuous and repeated exposure to substantially the same general harmful conditions. The court found there must be an accident for an occurrence. Since there were no allegations of accidental conduct that fell within the definition of an occurrence, the court found no coverage. :
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Camelot v. J. Karrels Trucking
Decision Date: 5/3/10
Case No. 07 CV 542
State of Wisconsin/Circuit Court/Ozaukee County
Declaratory Judgment Motion on Coverage.
Attorney(s): Stuart R. Deardorff and Christine M. Rice
S&D successfully obtained a declaratory ruling of no insurance coverage for claims made by a grocery store owner seeking over $800,000.00 in lost profits allegedly caused by delays arising out of negligent grading and excavating at a large commercial development. The circuit court granted S&D’s motion holding that the policy did not provide coverage because the damages did not constitute “property damage” as defined in the policy and resulted from previously excluded claims of damage to the insured’s work.
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ACUITY, A Mut. Ins. Co. v. Applied Flooring Solutions, LLC
Decision Date: 4/27/10
Case No. 09 CV 334
State of Wisconsin/Circuit Court/Waushara County
Subrogation Settlement.
Attorney(s): Michelle D. Johnson
S&D successfully settled this subrogation case, recovering 94% of the actual cash value S&D’s client paid to its insured for damages resulting from a fire at the insured’s residence. The defendant’s employee lost control of a vehicle he was operating and struck a power pole in front of the insured’s residence. When the power pole was hit and knocked down, wires from the pole to the house were severed causing a short circuit and a fire at the insured’s residence. Following some initial discovery, the defendant agreed to settle the case.
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Scheder v. Wisconsin Management Company
Decision Date: 3/17/10
Case No. 08 CV 5682
State of Wisconsin/Circuit Court/Dane County
Summary Judgment Motion.
Attorney(s): Stuart R. Deardorff and Jennifer M. Burns
S&D successfully obtained a summary judgment ruling dismissing a slip and fall claim. Plaintiff claimed she fell and sustained a severe leg fracture on an icy sidewalk. The circuit court granted S&D’s motion holding that ACUITY’s insured had no actual or constructive notice of the icy condition.
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ACUITY, A Mut. Ins. Co. v. Blum
Decision Date: 3/12/10
Case No. 09 CV 318
State of Wisconsin/Circuit Court/Clark County
Summary Judgment in favor of plaintiff.
Attorney(s): Julie K. Vaughn
S&D filed a subrogation action against the defendant after he breached his installment agreement with ACUITY, arising out of damage caused by a motor vehicle accident. After reviewing the defendant’s responsive pleading, S&D filed a Motion for Judgment on the Pleadings alleging that no material issues of fact existed and judgment should be entered for ACUITY as a matter of law. After oral argument, the court agreed and entered judgment on behalf of ACUITY.
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ACUITY, A Mut. Ins. Co. v. Chatham
Decision Date: 3/4/10
Case No. 09 SC 5285
State of Wisconsin/Small Claims/Waukesha County
Judgment in favor of plaintiffs.
Attorney(s): Julie K. Vaughn
This subrogation case arose out of a motor vehicle accident in a shopping mall parking lot. S&D filed suit to recover the amounts ACUITY paid to its insured for property damage sustained in the collision. S&D also asserted a claim for the insured’s deductible. After a hearing, the Court Commissioner held that the defendant was 100% liable for the accident. ACUITY was able to recover its damages and ACUITY’s insured recovered his deductible interest.
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Joiner v. East Pointe Marketplace Limited Partnership
Decision Date: 2/18/10
Case No. 08 CV 16230
State of Wisconsin/Circuit Court/Milwaukee County
Jury trial – Defense verdict.
Attorney(s): Thomas J. Binder
S&D obtained a defense verdict in this trip and fall case. The plaintiff alleged she tripped and fell on uneven pavement on a sidewalk outside a bank located in the client’s shopping center. She sustained fractures and a dislocation of fingers of her right hand, requiring surgery and extensive physical therapy. She incurred almost $20,000.00 in medical bills and a $2,500.00 wage loss. S&D argued to the jury that the discrepancy between the sidewalk slabs was only three-eighths of an inch, well within the three-quarter inch tolerance utilized by the client. S&D argued that a reasonable person exercising due care for her own safety would not have tripped and fallen on the discrepancy in height between the sidewalk slabs. The jury found that East Pointe Marketplace was not negligent. The trial court dismissed the case and awarded costs to S&D’s client.
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ACUITY, A Mut. Ins. Co. v. S&K Pump & Plumbing
Settlement Date: 1/27/10
Case No. 08 CV 454
State of Wisconsin/Circuit Court/Ozaukee County
Subrogation Recovery.
Attorney(s): Stuart R. Deardorff
S&D successfully recovered $190,000.00 for its client. The insured’s home sustained significant water damage as a result of frozen water pipes. The general contractor and multiple subcontractors all denied responsibility for freezing pipes. After discovery and expert investigation, all defendants contributed to settlement of the claim at mediation.
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Rauch v. Society Ins., A Mut. Co.
Decision Date: 12/15/09
Case No. 08 CV 11339
State of Wisconsin/Circuit Court/Milwaukee County
Jury Trial – Defendant not negligent.
Attorney(s): Jennifer M. Burns
S&D successfully defended a slip and fall on snow-covered stairs outside an apartment building. The plaintiff claimed the apartment owner was negligent in its maintenance of the staircase and violated the safe-place statute. The parties reached a stipulation with respect to past medical expenses and wage loss. Issues of liability and pain and suffering were tried to a jury over two days. The jury returned a verdict in favor of S&D’s client finding no negligence on the apartment owner.
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Christiansen v. Landquest Builders, LLC
Decision Date: 11/11/09
Case No. 07 CV 1492
State of Wisconsin/Circuit Court/Kenosha County
Summary Judgment holding the Economic Loss Doctrine barred the plaintiffs’ Amended Complaint.
Attorney(s): Michelle D. Johnson
This case involved problems with construction and initial construction repairs at the plaintiffs’ residence. The Amended Complaint alleged only one cause of action for negligence. S&D moved to dismiss the Amended Complaint on the grounds that the Economic Loss Doctrine barred the negligence claim. The court agreed with S&D and dismissed the plaintiffs’ case. The court held the construction and repairs were performed pursuant to a contract and the integrated systems exception applied. Therefore, the Economic Loss Doctrine limited the plaintiffs to remedies in contract and the plaintiffs’ negligence claim was dismissed.
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Kerr Concrete, LLC v. Advanced Concrete, Inc.
Decision Date: 10/30/09
Case No. 09 CV 1594
State of Wisconsin/Circuit Court/Dane County
Summary Judgment finding no insurance coverage.
Attorney(s): Christine M. Rice
The plaintiff companies brought a lawsuit against a concrete supplier based on alleged concrete driveway and flatwork failures at 21 properties on which the plaintiffs provided their services. S&D intervened on behalf of ACUITY and argued on summary judgment (1) that there was no initial grant of insurance coverage to the supplier because the pleadings failed to allege property damage caused by an occurrence as required by the policy and (2) that the business risk exclusions in the policy applied to bar any arguable insurance coverage. The court agreed with ACUITY’s arguments and held ACUITY had no duty to defend or indemnify the supplier with respect to allegations arising out of faulty workmanship.
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ACUITY, A Mut. Ins. Co. v. Lee
Settlement Date: 10/09/09
Case No. 09 CV 17
State of Wisconsin/Circuit Court/Waukesha County
Favorable settlement in subrogation case.
Attorney(s): Arthur P. Simpson and Michelle D. Johnson
In this subrogation case, S&D successfully recovered amounts paid by the insurer to repair a residence that was damaged by a fire. The fire was caused by a tenant’s negligence in discarding cigarettes over the edge of a deck connected to the residence before the cigarettes were extinguished. The case was resolved following the completion of discovery.
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ACUITY, A Mut. Ins. Co. v. B&B Specialized Sales & Service, LLC
Settlement Date: 9/1/09
Case No. 08 CV 2392
State of Wisconsin/Circuit Court/Brown County
Favorable settlement in subrogation case.
Attorney(s): Christine M. Rice
S&D successfully represented the insurer in a subrogation case involving the failure of a trailer extension purchased by its insured to haul wind turbines. ACUITY paid its insured tens of thousands of dollars to repair the trailer and replace the extension after the failure. Early efforts at discovery, mediation, and an offer of settlement brought a favorable settlement without undue expert expense.
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Weins v. SJS Enterprises, Inc.
Decision Date: 8/24/09
Case No. 08 CV 15822
State of Wisconsin/Circuit Court/Milwaukee County
Summary Judgment finding no causal negligence as a matter of public policy.
Attorney(s): Thomas J. Binder and Julie K. Vaughn
S&D’s client contracted to put a new roof on the plaintiff’s residence. The client allegedly failed to tarp the roof after the tear-off, causing water to enter the residence during a rainstorm. The plaintiff took one of the contractor’s ladders that had been left on his property and went onto the roof to tarp it. The ladder slipped as the plaintiff descended same and he fell eight feet onto his back, sustaining severe spinal injuries. S&D argued that public policy considerations should preclude liability as a matter of law, as the actions of the plaintiff constituted an intervening cause. The trial court agreed, finding the negligence of the client too remote from the injury to submit the matter to a jury. The lawsuit was dismissed with costs to S&D’s client.
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ACUITY, A Mut. Ins. Co. v. Pieper Electric, Inc.
Settlement Date: 8/19/09
Case No. 09 CV 6356
State of Wisconsin/Circuit Court/Milwaukee County
Favorable settlement obtained in subrogation case.
Attorney(s): Jennifer M. Burns
In this subrogation case, S&D represented the insurance company that paid its insured for damage to stored papers and records. The damages were the result of basement flooding, which was caused by a failure in a water line joint installed by the defendant. S&D reached a favorable settlement with the defendant before S&D’s client began to incur discovery or expert costs.
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Neu v. Spiegelhoff’s Super Food Market, Inc.
Decision Date: 8/19/09
Case No. 08 CV 2973
State of Wisconsin/Circuit Court/Kenosha County
Motion to dismiss safe place claim granted.
Attorney(s): Jennifer M. Burns and Arthur P. Simpson
S&D filed a motion to dismiss the Safe Place statutory claims against a grocery store when a wayward grape was found near the checkout counters and not in the produce section. There was no evidence of how long the grape had been present. The court granted the motion, holding that the special rule that vitiates the notice requirements applies only in the produce section and only where the produce is openly displayed and not in any type of sealed container. The court declined the invitation to extend the constructive notice waiver to situations where produce is found in other parts of the store, reasoning that requiring no proof of notice throughout the entire store would pose an unreasonable risk upon grocery stores. The court also noted that modern practices no longer include simply leaving product open with the product in the modern grocery store typically sealed. Plaintiff’s case was not dismissed as to the negligence claims. However, the court will require some showing of notice and/or substandard practices by the grocery store in order to establish liability.
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Pember v. Ruiz
Decision Date: 8/3/09
Case No. 08 CV 1249
State of Wisconsin/Circuit Court/Rock County
Declaratory Judgment finding no insurance coverage.
Attorney(s): Stuart R. Deardorff and Jennifer M. Burns
S&D successfully intervened and obtained declaratory judgment finding no insurance coverage in this construction defect case. The plaintiffs were homeowners who purchased a newly constructed home that was allegedly built without drain tile and had other building defects. The circuit court agreed with S&D that there was no initial grant of insurance coverage because faulty workmanship was not an “occurrence” and there was no “property damage” sustained to other property during the policy period. The circuit court granted the motion holding that S&D’s client had no duty to defend or indemnify the insured with respect to the plaintiffs’ claims.
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ACUITY, A Mut. Ins. Co. v. Whirlpool Corp.
Settlement Date: 8/09
Case No. 2:08-cv-79
United States District Court for the District of North Dakota
Favorable settlement in subrogation case.
Attorney(s): Thomas J. Binder and Jennifer M. Burns
In this subrogation action, S&D represented the insurer of a company whose warehouse was damaged by fire. S&D filed suit against Whirlpool Corporation alleging the fire was caused as the result of a malfunctioning air conditioner unit. S&D retained an expert who examined the unit and was able to offer an opinion as to the cause of the malfunction and fire. After receiving the expert report, Whirlpool agreed to a very favorable settlement for S&D’s client.
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Brumfield v. Glisson Glass & Emergency Boarding Services, LLC
Decision Date: 7/13/09
Case No. 08 CV 17978
State of Wisconsin/Circuit Court/Milwaukee County
Summary Judgment finding no insurance coverage for faulty workmanship.
Attorney(s): Stuart R. Deardorff and Michelle D. Johnson
In this faulty workmanship case, S&D successfully obtained summary judgment finding no insurance coverage for any of the claims asserted against the defendant. The case involved allegations of negligent workmanship and performance associated with a storefront window replacement project at the property of the plaintiff. S&D argued there was no initial grant of coverage because there was no “property damage” or “occurrence” alleged and any damage occurred outside the policy period. S&D further argued the “intentional act”, “your work”, and “impaired property” exclusions precluded coverage. The circuit court agreed with S&D finding no initial grant of coverage and dismissing S&D’s client with prejudice.
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Kopacka v. ACUITY, A Mut. Ins. Co.
Decision Date: 5/15/09
Case No. 07 CV 7330
State of Wisconsin/Circuit Court/Milwaukee County
Jury Trial: Low verdict for defense
Attorney(s): Christine M. Rice
This case involved a motor vehicle accident in which the plaintiffs, driver and passenger, alleged injury. The plaintiffs alleged that the defendant driver failed to yield the right-of-way from a stop sign at the subject intersection. The plaintiff driver alleged an elbow injury and claimed approximately $1,600.00 in medical bills. His settlement demand at the time of mediation was $15,000.00. The plaintiff passenger alleged numerous injuries including, but not limited to, head injury, loss of consciousness, seizures, loss of balance, loss of memory, tremors, bruising, lacerations, and musculoskeletal complaints. The plaintiff passenger incurred medical bills totaling approximately $11,000.00. Her last demand at the time of mediation was $40,000.00. The plaintiff driver refused to stipulate to liability at 90/10 in his favor and argued that the defendant driver should be held 100% accountable for all damages.
S&D argued that both drivers’ negligence were substantial factors in causing the accident despite the defendant’s failure to yield the right-of-way at the intersection. S&D also argued that the injuries claimed by both were not substantiated by the medical records and testimony of their own physicians. The jury returned a verdict finding the defendant 85% negligent and the plaintiff driver 15% negligent in causing the accident. They awarded $500.00 in damages to the plaintiff driver and $11,500.00 to the plaintiff passenger.
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Tolbert v. Georgia-Pacific Consumer Products, LLC
Decision Date: 4/30/09
Case No. 08 CV 1109
State of Wisconsin/Circuit Court/Brown County
Intervenor-Defendant’s Motion for Summary Judgment granted.
Attorney(s): Christine M. Rice
The plaintiff was injured after a slip-and-fall while in the course of employment for ACUITY’s insured, JDC Logistics, Inc., and while on premises owned by the defendant companies. The plaintiff brought negligence and safe place claims against the defendant companies arguing that their failure to maintain stairs at the subject premises and their failure to maintain the premises in a dry and safe condition were substantial factors in causing his injuries. ACUITY intervened in the lawsuit for a determination of its duties to defend and/or indemnify the defendant companies based on a Georgia Contract Carriage Agreement, which all parties agreed would govern the insurance coverage dispute. S&D argued (1) that ACUITY’s insured was not required by contract to defend or indemnify the defendant companies for personal injury caused by their own acts or omissions and (2) that the defendant companies were not listed as additional insureds under ACUITY’s policies and would not qualify as additional insureds (even if they were listed as same) for the acts or omissions of the defendant companies in causing plaintiff’s injuries. The defendant companies argued that the indemnification language in the contract required ACUITY to defend even though it may not have required ACUITY to indemnify. The trial court agreed with S&D that interpretation of the contract based on Georgia law provided that neither JDC nor ACUITY had a duty to defend or indemnify the defendant companies based on the allegations of the plaintiff’s Complaint.
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Mantz Automation, Inc. v. Craft Masonry, Inc.
Decision Date: 4/16/09
Case No. 08 CV 180
State of Wisconsin/Circuit Court/Waukesha County
Intervenor-Defendant’s Motion for Summary Judgment granted.
Attorney(s): Christine M. Rice
The plaintiffs brought a lawsuit against a general contractor and a masonry contractor for failure of a concrete floor in a manufacturing facility. ACUITY’s insured, American Concrete & Supply, LLC, was brought into the suit based on a Third-Party Complaint alleging that it failed to prepare, provide, and/or deliver the appropriate and proper concrete mix to the job site and project. S&D intervened on behalf of ACUITY and argued on summary judgment (1) that there was no initial grant of coverage under the policy because the pleadings failed to allege property damage caused by an occurrence as required by the policy and (2) that the business risk exclusions in the policy applied to bar any arguable insurance coverage. The trial court agreed that the factual basis of all claims alleged was faulty workmanship, which does not qualify as an “occurrence” necessary for an initial coverage grant. The court also determined that the “damage to your product,” “damage to your work,” and “damage to impaired property” exclusions applied to bar any arguable coverage under the policy.
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Zarnstorff v. ACUITY, A Mut. Ins. Co.
Decision Date: 3/31/09
Case No. 06 CV 249
State of Wisconsin/Circuit Court/Adams County
Post verdict motion granted limiting judgment to the insurance available under a commercial auto policy.
Attorney(s): Arthur P. Simpson and Michelle D. Johnson
S&D entered this case after a trial was concluded. The jury verdict was in excess of the coverage available under the commercial auto policy issued by S&D’s client. The plaintiffs sought additional coverage, arguing a commercial general liability policy also provided coverage. S&D moved the court for an order entering judgment for the amount of coverage available under the commercial auto policy only. The case involved a motor vehicle accident. The insured was transporting a logging skidder from one job site to another. The driver of the tractor/trailer transporting the skidder slowed as he neared an overpass because he was concerned about clearance. The insured’s employee that was following the tractor/trailer in his personal vehicle got out to check for clearance. One driver slowed his vehicle when he saw the insured’s employee in the roadway. The plaintiff was unable to slow his vehicle and collided with the vehicle in front of him as well as the tractor/trailer. The circuit court agreed with S&D that only the commercial auto policy applied and the commercial general liability policy provided no coverage for the damages arising out of this motor vehicle accident. The court limited the judgment against S&D’s client to the amount of coverage available under the commercial auto policy.
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Rafel v. ACUITY, A Mut. Ins. Co.
Decision Date: 2/11/09
Case No. 08 CV 177
State of Wisconsin/Circuit Court/Jefferson County
Summary judgment finding no coverage.
Attorney(s): Thomas J. Binder
In this coverage dispute, the insured, a builder, tendered the defense of a lawsuit alleging faulty workmanship in pouring the foundation, concrete footings, and walls of a new residence. The trial court agreed with S&D’s argument that there was no “occurrence” within the meaning of the policy, and the business risk exclusions applied. The court followed the rationale of the Court of Appeals in Glendennings v. Reimer, 2006 WI App 161, and granted summary judgment finding no duty to defend or indemnify.
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Matelski v. Am. Fam. Mut. Ins. Co.
Decision Date: 1/22/09
State of Wisconsin/Circuit Court/Milwaukee County
Jury Trial – Defendant not negligent
Attorney(s): Michelle D. Johnson and Arthur P. Simpson
S&D successfully defended a driver alleged to have stopped too quickly in the roadway in order to make a u-turn. The plaintiff also alleged the defendant driver failed to use her turn signal. The plaintiff stopped behind the defendant driver, but was then rear-ended by a third driver and pushed into the defendant driver. The third driver settled out of the case and the plaintiff proceeded against S&D’s client. The plaintiff claimed a three level cervical fusion and a shoulder surgery were accident-related. The plaintiff sought over two million dollars in damages. The parties reached a stipulation with respect to damages just prior to trial. The liability issues were tried to a jury over the course of three days. The jury returned a verdict in favor of S&D’s client, finding she was not negligent. The jury found the accident was caused solely by the negligence of the third driver that settled out of the case prior to trial.
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Constantineau v. AJR Industrial
Decision Date: 1/12/09
Case No. 08 CV 867
State of Wisconsin/Circuit Court/Milwaukee County
Summary judgment granted.
Attorney(s): Thomas J. Binder
Constantineau suffered a broken leg requiring surgery in a slip-and-fall accident in the parking structure at Mitchell International Airport. S&D’s client, AJR, had a contract with Milwaukee County for snow and ice removal at the airport. The plaintiff alleged that the safe place statute applied to AJR and that its contract made it responsible for the area where the plaintiff fell. S&D argued successfully on summary judgment that the safe place statute did not apply because AJR was not an “owner of a place of employment” under the statute. In addition, the contract was not specific enough to impose responsibility for the area on AJR. AJR was dismissed as a defendant.
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Birmingham v. Thompson Corp.
Decision Date: 1/8/09
Case No. 08 CV 10759
State of Wisconsin/Circuit Court/Milwaukee County
Summary Judgment granted by the trial court finding no duty to defend or provide coverage.
Attorney(s): Stuart R. Deardorff and Jennifer M. Burns
S&D successfully represented the insurer in this coverage dispute. The insured allegedly misrepresented the condition of a condominium during its sale to the plaintiffs. The complicated complaint mentioned issues of economic loss, water damage, loss of use, mental distress, and medical damages. S&D argued that the claims against the insured arose from misrepresentations during the sale of the condominium and any claimed damages were the result of the pre-existing faulty conditions of the property. S&D contended the misrepresentations did not qualify as “property damage” caused by an “occurrence.” Further, coverage would be excluded under the intentional acts exclusion. The trial court agreed, granting summary judgment finding that ACUITY owed no duty to defend or provide coverage with respect to the claims of the plaintiff against the insured.
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Schwartz v. Beres
Decision Date: 11/21/08
Case No. 08 CV 7587
State of Wisconsin/Circuit Court/Milwaukee County
Defendant’s Motion for Summary Judgment granted
Attorney(s): Christine M. Rice and Jennifer M. Burns
S&D was successful in arguing to the trial court that plaintiff, Schwartz, failed to exercise due diligence in service of process upon ACUITY’s insured. Schwartz filed her lawsuit days before the statute of limitations expired. ACUITY’s insured, Beres, moved to Florida shortly thereafter. S&D answered on Beres’ behalf prior to service. Although Schwartz learned on several occasions through her process server that Beres had moved to Florida, she did not exercise formal discovery means to determine Beres’ whereabouts. Schwartz published the summons against Beres in Milwaukee after public record searches failed. The court found that this did not constitute reasonable efforts at making personal service possible. Schwartz’s cause of action against Beres was dismissed for lack of jurisdiction.
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Factory Mut. Ins. Co. v. ACUITY, A Mut. Ins. Co.
Decision Date: 10/3/08
Case No. 07 CV 1514
State of Wisconsin/Circuit Court/Milwaukee County
Attorney(s): Arthur P. Simpson and Jennifer M. Burns
S&D successfully represented J.M. Brennan and its insurance carrier with respect to claims arising from the explosion at Falk Corporation on December 6, 2006. This case proceeded to trial in September of 2008. The case went to trial with a 70 million dollar subrogation property damage claim of Factory Mutual Insurance Company along with damages, which were ultimately stipulated at 1.2 million dollars, of the Falk Corporation. The principal issue in the case related to the failure of Falk to annually inspect the cathodic protection of the pipe. Cathodic protection, as a process, is designed to prevent corrosion of underground pipe. Falk claimed that the cathodic protection would not have made any difference in this case. Factory Mutual claimed that J.M. Brennan should have performed a host of safeguards that would have detected the failure to maintain the cathodic protection.
The trial began September 8, 2008 in Milwaukee County Circuit Court before Judge David Hansher.
Listen to news coverage of the opening statements as reported by WISN.
On October 3, 2008, the jury returned a verdict finding Falk 95% causally negligent and J.M. Brennan 5% causally negligent. The jury found damages for Factory Mutual at 61 million dollars and a stipulation was reached as to Falk’s damages at 1.2 million dollars, for total damages of slightly over 62 million dollars. The verdict finding 95% of the negligence rests with Falk means J.M. Brennan will not be responsible for these damages. The media reports of the verdict may be found at:
The Business Journal -
“Jury Verdict: J.M. Brennan Won’t Pay for Falk Blast”
NBC Channel 4 and WTMJ radio -
“Jury Finds Falk Responsible For Explosion”
ABC Channel 12 WISN -
“Jury Rules on Who is Responsible for Falk Explosion”
J.M. Brennan issued a statement to the press following the verdict in which Brennan thanked Art Simpson for his work on this case.
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American Family Mut. Ins. Co. v. Ansay
Decision Date: 8/27/08
Case No. 07 SC 34187
State of Wisconsin/Small Claims Court/Milwaukee County
Judgment in favor of Defendant.
Attorney(s): Jennifer M. Burns
S&D successfully represented the insured-defendant in this small claims matter. The case arose out of water damage to a condominium. The defendant had performed air duct cleaning prior to the loss and plaintiff alleged the insured had negligently removed the humidifier, activating the sprinkler system. S&D presented testimony from the defendant establishing its work did not involve the humidifier and that defendant had not been in the utility closet for several months before the accident. S&D argued the plaintiff failed to provide expert testimony on causation or establish no other party had access to the humidifier. The Commissioner found the defendant was not negligent.
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Osegard v. Forward Management, Inc.
Decision Date: 8/22/08
Case No. 06 CV 323
State of Wisconsin/Circuit Court/Dane County
Case dismissed for failure to prosecute.
Attorney(s): Arthur P. Simpson
The plaintiffs filed this action against S&D’s client alleging mold in their apartment caused personal injuries. The plaintiffs failed to offer proof of their alleged injuries. The lack of medical testimony could not be overcome by a toxicologist opinion that mold could have health impacts. The court granted summary judgment in favor of S&D’s client with respect to the personal injury claims. The plaintiffs then abandoned much of their personal property and S&D’s client sold it at auction. The plaintiffs then sought to recover the value of their personal property. There was a dispute about the value of the property. The plaintiffs’ counsel was compelled to withdraw at the final pretrial due to disagreement with the plaintiffs. The plaintiffs were given 60 days to find new counsel. They did not find new counsel within that period of time and requested more time. The court dismissed the action pursuant to Wis. Stat. § 805.03 based upon failure to prosecute.
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Allen v. W.O.S., Inc.
Decision Date: 8/18/08
Case No. 05 CV 1237
State of Wisconsin/Circuit Court/Winnebago County
Settlement reached in complex toxic tort case.
Attorney(s): Arthur P. Simpson and Michelle D. Johnson
This was a complex toxic tort case in which the plaintiffs filed suit against various respirator manufacturers that supplied respirators to the foundry where the plaintiffs were employed. The plaintiffs claimed they were afflicted with silicosis. They blamed the respirator manufacturers, alleging theories of liability including negligence, concerted action, and misrepresentation. S&D successfully defended one of the respirator manufacturers. The case involved extensive depositions and written discovery. Following the completion of some of the discovery, S&D achieved a minimal cost of defense settlement for its client.
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ACUITY, A Mut. Ins. Co. v. Cegers
Decision Date: 7/28/08
Case No. 08 SC 5279
State of Wisconsin/Small Claims Court/Milwaukee County
Judgment in favor of Plaintiff
Attorney(s): Julie K. Vaughn
This case arose out of a motor vehicle collision. The defendant failed to yield the right of way, striking the plaintiff’s vehicle and causing property damage. S&D filed suit to recover the amounts paid for the property damage to the plaintiff’s vehicle. S&D presented the case to a Court Commissioner in Small Claims Court. The Commissioner agreed that the defendant was negligent and wholly responsible for the property damage to the plaintiff’s vehicle.
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Burback Builders, LLC v. Anton Keller d/b/a Zig’s Heating & Cooling
Decision Date: 7/14/08
Case No. 07 CV 2100
State of Wisconsin/Circuit Court/Waukesha County
Summary Judgment granted by the trial court finding no duty to defend or provide coverage
Attorney(s): Thomas J. Binder
The insured was a HVAC contractor who allegedly improperly installed HVAC systems in two buildings, causing a “loss of use” of the buildings and requiring the general contractor to repair the systems. S&D contended that there was insufficient “loss of use” to qualify as “property damage” under the policy. The repair costs were excluded by the business risk exclusions. The trial court agreed, granting summary judgment finding that ACUITY owed no duty to defend or provide coverage with respect to the claims of the plaintiff against the insured.
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Highbridge Condominium Assoc. v. New Land Development
Decision Date: 6/26/08
Case No. 05 CV 7221
State of Wisconsin/Circuit Court/Milwaukee County
Settlement reached in complex construction defect case
Attorney(s): Stuart R. Deardorff
This was a condominium construction defect case involving water infiltration issues in a luxury high rise condominium project. S&D successfully represented the rough carpentry subcontractor in this case in which damages were alleged to be in excess of six million dollars. This complex litigation involved 20 parties and was actively litigated for almost two years. During this time, nearly 100 depositions were conducted along with the production of hundreds of thousands of pages of discovery materials. Multiple motion hearings and multi-day mediations were necessary before the matter was finally resolved. Despite the client’s scope of work being involved in numerous areas of alleged water intrusion and, therefore, becoming a primary target in the litigation, S&D was able to successfully defend the case and achieve a settlement, paying less than 10% of the confidential, multi-million dollar settlement.
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Mclandsborough v. Your-Way Homes, LLC
Decision Date: 4/24/08
Case No. 07 CV 78
State of Wisconsin/Circuit Court/Ozaukee County
Summary Judgment finding no duty to defend or indemnify
Attorney(s): Thomas J. Binder and Michelle D. Johnson
The insured was a contractor who installed septic systems for new homes. The plaintiff alleged that the insured negligently staked out the septic system, causing the grading contractor to level the area. As a result, the plaintiff had to install an expensive alternative system, would incur costs for periodic maintenance, and suffered a diminished market value of the property. S&D argued that the plaintiff did not allege “property damage” as that term was used and defined in the CGL policy. Instead, the crux of the plaintiff’s complaint was for monetary damages. The trial court agreed, granting summary judgment finding no duty to defend or indemnify the insured for the plaintiff’s claims.
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Bruno v. Miller
Decision Date: 4/22/08
Case No. 06 CV 9475
State of Wisconsin/Circuit Court/Milwaukee County
Jury Trial: low verdict for defense
Attorney(s): Thomas J. Binder
The plaintiff slipped and fell on ice outside the entrance to the insured’s building. The plaintiff alleged that the insured failed to properly salt, resulting in an ice buildup in front of the entrance. The plaintiff sustained a displaced fracture of the patella, requiring surgery. He incurred $20,000 in medical bills. His settlement demand going into trial was $100,000. On closing argument, his attorney asked for more than $200,000.
S&D argued to the jury that although no salting had been done, the plaintiff owed a duty to use due care for his own safety on a horrible Wisconsin winter day. S&D also argued that the plaintiff’s wife bore some responsibility for not warning him of the condition because she had previously used the same entrance. Finally, S&D argued that the plaintiff was overvaluing his claim. The jury returned a verdict finding the insured 45% negligent, the plaintiff 45% negligent, and plaintiff’s wife 10% negligent. They awarded a total of $55,000 in damages, making the net award $24,750 (more than $75,000 less than the plaintiff’s lowest settlement demand).
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Vilmin v. Society Ins., A Mut. Co.
Decision Date: 1/22/08
Case No. 07 CV 315
State of Wisconsin/Circuit Court/Dodge County
Summary Judgment finding no coverage under a business auto policy
Attorney (s): Arthur P. Simpson and Jennifer M. Burns
Plaintiff presented an uninsured motorist claim under her business auto policy after her daughter was a passenger in a vehicle not covered under the policy. Plaintiff had the same first and last name as her daughter, but a different middle initial. The policy listed additional insureds by first and last name and plaintiff argued the language provided coverage to both herself and her daughter. S&D moved for summary judgment arguing the underlying policy materials clearly identified only the plaintiff as an additional insured by middle initial and social security number, the omnibus statute did not require a commercial policy to provide coverage for the family members of additional insureds, and coverage would have been denied based the daughter’s driving record had coverage been requested. The trial court found the policy provided coverage for only one individual and the plaintiff had never sought coverage for her daughter. The court also found that had plaintiff sought coverage for her daughter, it would have been denied.
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