Factory Mut. Ins. Co. v. ACUITY, A Mut. Ins. Co.
Decision Date: Pending
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”
Milwaukee Journal-Sentinel -
“Jury Largely Clears Brennan in Falk Blast”
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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Broder v. ACUITY, A Mut. Ins. Co.
Decision Date: 8/26/08
Case No. 06 CV 012634
State of Wisconsin/Circuit Court/Milwaukee County
Plaintiff’s Motion for Declaratory Judgment denied.
Attorney(s): Stuart R. Deardorff, Arthur P. Simpson, and Christine M. Rice
In this case involving substantial bodily injuries, S&D obtained a favorable ruling of no underinsured motorist coverage. The plaintiff filed a motion seeking a declaratory ruling that an umbrella policy issued by S&D’s client was contextually ambiguous and, therefore, must be reformed to provide underinsured motorists coverage. S&D successfully argued this case in the circuit court. The court found the policy was not contextually ambiguous and did not provide underinsured motorists coverage.
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ACUITY, A Mut. Ins. Co. v. Ferrellgas, L.P.
Decision Date: 8/25/08
Case No. 08 CV 30
State of Wisconsin/Circuit Court/Rusk County
Early settlement obtained for client
Attorney(s): Ronald W. Harmeyer
S&D represented an insurer of a building that was damaged when an employee of the defendant collided with an utility pole. Not only did the utility pole damage the house when the pole fell on it, but when repairs were made and energy was restored to the house, a fire occurred, causing extensive damage to the house. These facts presented a complex set of issues, including whether the fire was caused by the negligence of the utility company for failing to inspect the house or by the negligence of a former electrician who did not properly ground the house. Through aggressive prosecution of this claim, S&D was able to recover 67% of the total claim less than six months after the file was opened.
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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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ACUITY, A Mut. Ins. Co. v. Grade A Construction, Inc.
Decision Date: 8/22/08
Case No. 08 CV 2624
State of Wisconsin/Circuit Court/Waukesha County
Early settlement obtained for client
Attorney(s): Ronald W. Harmeyer
S&D represented an insurer who insured a home that was damaged by fire. The homeowner had a local contractor install blown-in insulation in the attic. Less than three weeks later, a fire occurred in a ceiling light fixture, causing extensive smoke damage throughout the house. S&D organized a site investigation, which included working with a qualified fire investigator and an electrical engineer. Adverse parties were put on notice. The investigation revealed that when the insulation was blown into the attic, it was blown over the light fixture, causing a thermal blanket which led to overheating. Through a process of aggressive investigation and comprehensive claim presentation, S&D was able to settle this claim within four months for 90% of the total value of the claim.
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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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Quality Addiction Management, Inc. v. Wisconsin Community Mental Health Counseling Centers, Inc.
Decision Date: 3/31/08
Case No. 06 CV 255
State of Wisconsin/Circuit Court/Ozaukee County
Summary Judgment finding no duty to defend or indemnify
Attorney(s): Thomas J. Binder
The insured and the plaintiff operate narcotic addiction treatment centers. The plaintiff claimed that the insured copied its manner of doing business by plagiarizing its forms and its license application materials submitted to the State of Wisconsin. The insured tendered the defense, contending coverage under the “advertising injury” provisions in its CGL policy. S&D argued (because the state of the law in Wisconsin was unclear at the time) that whether the court were to apply a broad or narrow definition of “advertising,” the result would be the same: no advertising took place to trigger coverage under the policy. The trial court agreed, granting summary judgment finding that S&D’s client had no duty to defend or indemnify the insured.
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ACUITY, A Mut. Ins. Co. v. State Farm Fire & Cas. Co.
Decision Date: 3/8/08
Case No. 07 CV 630
State of Wisconsin/Circuit Court/Waupaca County
Property Subrogation settlement
Attorney(s): Ronald W. Harmeyer
In this property subrogation case, S&D’s client insured a residence. The homeowner’s father was grinding a truck frame in the garage. The grinding created sparks, which ignited contents in the garage. Fire spread throughout the garage and house, causing over $80,000 in damages. After filing suit, S&D pursued an aggressive settlement negotiation strategy. As a result, S&D was able to quickly reach a settlement with the defendant for 92% of the claim’s value.
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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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Ebbers v. C&R Siding, Windows & Roofing, LLC
Decision Date: 1/11/08
Case No. 07 CV 257
State of Wisconsin/Circuit Court/Sheboygan County
Property Subrogation settlement
Attorney(s): Ronald W. Harmeyer
In this construction/home remodeling case, S&D’s client insured a home in which an addition was being constructed. During the construction, a significant amount of water infiltrated the house, causing damage to the existing structure. S&D pursued a claim against the contractor. The defendant argued that the loss was caused by extreme weather. After aggressively prosecuting this case, S&D was able to settle it for 82% of the claim value.
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ACUITY, A Mut. Ins. Co. v. Founders Ins. Co.
Decision Date: 11/28/07
Case No. 06 CV 11260
State of Wisconsin/Circuit Court/Milwaukee County
Jury Trial - Plaintiff 25%/Defendant 75% liability apportionment
Attorney(s): Christine M. Rice
S&D successfully litigated a subrogation action against the adverse driver’s insurance company. ACUITY’s insured suffered property damage when her vehicle was struck by a driver who lost control of his automobile on black ice on the interstate during adverse weather conditions. The defense claimed that liability rested equally on ACUITY’s insured and argued that she could have done more to try to avoid the accident. The jury apportioned the majority of liability on Founders’ insured for his failure to properly manage and control his vehicle immediately prior to the accident.
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Finnessy v. ACUITY, A Mut. Ins. Co.
Decision Date: 11/16/07
Case No. 07 CV 5826
State of Wisconsin/Circuit Court/Milwaukee County
Dismissal of bad faith and interest claims following Motion for Partial Summary Judgment
Attorney(s): Stuart R. Deardorff and Christine M. Rice
S&D filed a motion for partial summary judgment in a suit alleging umbrella underinsured motorists (UIM) coverage for significant personal injuries following a 2005 motor vehicle accident. Plaintiffs alleged ACUITY made a bad faith denial of umbrella UIM coverage and therefore, they were entitled to statutory interest pursuant to Wis. Stat. § 628.46. Plaintiffs believed they purchased excess UIM coverage at the time they were purchasing their personal umbrella policy. The plaintiffs’ policy did not contain umbrella UIM coverage. Plaintiffs tried to argue that because ACUITY failed to give notice of UIM availability prior to their accident, they were entitled to statutory and/or legal reformation based on Wisconsin law. They also argued that the ACUITY policy was contextually ambiguous and therefore, they should be entitled to excess coverage. The court found that ACUITY was in the process of a good faith appeal to the Wisconsin Supreme Court on similar issues and that it was fairly debatable whether the plaintiffs would be entitled to policy reformation when they admit notice of UIM availability. The court held that there was no material issue of fact that ACUITY acted in bad faith in denying umbrella UIM coverage. The court also held that the plaintiffs were not entitled to statutory interest because ACUITY’s liability was not entirely clear and the value of the plaintiffs’ umbrella UIM claim was in dispute.
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Sass v. ACUITY, A Mut. Ins. Co.
Decision Date: 11/9/07
Case No. 07 CV 1159
State of Wisconsin/Circuit Court/Racine County
Summary Judgment finding no homeowner’s insurance coverage for watercraft liability
Attorney (s): Arthur P. Simpson and Christine M. Rice
Plaintiff-passenger was injured when a boat the driver was towing came loose and an impact occurred with the cab of the vehicle. It was undisputed that the driver’s automobile policy provided insurance coverage for this claim. However, plaintiff claimed that a separate watercraft liability endorsement to the driver’s homeowners policy also covered the loss. S&D moved the court arguing that the plaintiff was not entitled to “double coverage” for a motor vehicle accident just because the driver was towing a watercraft. The watercraft liability endorsement contained a statement indicating that all other policy provisions, including the motor vehicle exclusion, still applied. The trial court found no watercraft liability because the boat was not “actively engaged” in any loading, unloading, or other activity at the time of the loss. The court also found that there was no use of the boat simply because it was resting on the driver’s trailer. Plaintiff has appealed the trial court’s ruling. A decision is anticipated by the end of 2008.
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Jude v. City of Milwaukee
Decision Date: 11/1/07
Case Nos. 06 C 1101, 06 C 1103, 06 C 1104, 07 C 61
United States District Court/Eastern District of Wisconsin
Summary Judgment finding no insurance coverage under homeowners policy
Attorney(s): Michelle D. Johnson
Four consolidated cases arose out of one incident in which off duty police officers allegedly assaulted and unlawfully restrained the plaintiffs. S&D represented an insurance company that issued a homeowners policy to one of the defendant off duty officers. S&D argued the policy did not provide coverage for the plaintiffs’ claims because the plaintiffs did not allege an “occurrence” as required by the policy and both the intentional acts exclusion and the business pursuits exclusion barred coverage. The court agreed with S&D that no occurrence was alleged. In addition, the court held that since it was alleged the defendants were acting within the scope of their employment as police officers throughout the incidents alleged, any liability would clearly fall within the policy’s exclusion for liability for injuries arising out of the insured’s business pursuits. Therefore, the court granted S&D’s Motion for Summary Judgment and dismissed S&D’s client from all four cases.
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Fuller v. Everest National Ins. Co.
Decision Date: 9/20/07
Case No. 06 CV 9603
State of Wisconsin/Circuit Court/Milwaukee County
Dismissal following filing of Motion for Summary Judgment
Attorney(s): Stuart R. Deardorff
S&D filed a motion for summary judgment in a suit alleging significant personal injuries occurring at a construction site. S&D’s client, a contractor on the project, denied that it was responsible for the alleged defective condition and denied that it had any notice of the condition. After S&D’s filing of a summary judgment motion, plaintiff and all other defendants agreed to a dismissal on the merits, rather than face ruling on the motion and assessment of costs.
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Mundt v. B&N Lisbon, LLC
Decision Date: 9/6/07
Case No. 07 CV 544
State of Wisconsin/Circuit Court/Waukesha County
Summary Judgment finding no duty to defend or indemnify
Attorney(s): Thomas J. Binder
In this insurance coverage dispute, the insured was a real estate developer who sold one of his lots to the plaintiff. The plaintiff claimed that the lot did not comport with the plat of the subdivision, rendering it unbuildable for the home they wanted to erect. They alleged breach of contract and misrepresentation in the sale of the lot. The insured tendered the defense, and S&D was retained on coverage. S&D moved the court for summary judgment, contending that the claims in the case did not allege an “occurrence,” “property damage,” or “causation nexus” as defined in the policy. The trial court granted the motion for summary judgment, finding that S&D’s client had no duty to defend or indemnify the insured.
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Beltran-Xolot v. Dlugi
Decision Date: 9/5/07
Case No. 06 CV 7887
State of Wisconsin/Circuit Court/Milwaukee County
Jury Trial - Plaintiff dismissed claims after jury selection
Attorney(s): Michelle D. Johnson
S&D successfully defended a driver alleged to have run a red light and struck a pedestrian. The plaintiff claimed he suffered a laceration to his forehead, various abrasions, and pain to his knees, elbows and neck as a result of the accident. S&D asserted a Counterclaim for the damage to the defendant’s vehicle. Due to concern that he might lose the case and be required to pay for the damage to the defendant’s vehicle, the plaintiff decided to dismiss his claims after the jury selection process was completed.
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Shorewest Realtors v. Busch
Decision Date: 8/29/07
Case No. 07 CV 0130
State of Wisconsin/Circuit Court/Ozaukee County
Declaratory Judgment Motion on Coverage
Attorney(s): Stuart R. Deardorff and Jennifer M. Burns
S&D successfully stayed underlying litigation while pursuing and obtaining a declaratory ruling of no insurance coverage in a case involving an alleged fraudulent real estate sale. The circuit court granted S&D’s motion holding that the complaint failed to allege an “occurrence” or “property damage” as required by the insurance policy and, therefore, the insurer had no duty to defend or indemnify the insured defendants.
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Hebbe v. Bobrowitz
Decision Date: 5/30/07
Case No. 06 CV 1622
State of Wisconsin/Circuit Court/Waukesha County
Summary Judgment granted finding no duty to defend or provide coverage
Attorney(s): Thomas J. Binder
In this insurance coverage dispute, the plaintiffs alleged that the insureds sold them a residential lot on which to build a home without disclosing that the lot was subject to periodic flooding. The plaintiffs sued the insureds for misrepresentation. The insureds tendered the defense, claiming coverage under business, homeowners, and umbrella policies. S&D argued that periodic flooding does not constitute “property damage” as that term was defined in each of the policies at issue. The court granted the motion, finding no duty to defend or provide coverage.
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Yannaras v. Thomas
Decision Date: 5/1/07
Case No. 05 CV 834
State of Wisconsin/Circuit Court/Milwaukee County
Jury Trial - Defense verdict: $0.00 awarded to plaintiff
Attorney(s): Thomas J. Binder
S&D obtained a defense verdict in this auto accident case. The plaintiff claimed to have sustained spinal injuries as a result of being rear-ended by the insured on I-94. The plaintiff incurred more than $110,000 for treatment and surgery to the lumbar spine, and claimed $75,000 for future cervical surgery. Plaintiff's demand was $250,000. S&D contended that there was insufficient evidence of negligence and causation on the insured because this was a chain reaction accident. S&D further contended that the plaintiff’s alleged spinal injuries were pre-existing and the plaintiff sustained nothing more than strains in the accident. The jury returned a verdict finding no negligence on the insured, awarding $1,000 for medical expense and $1,000 for pain and suffering (which did not have to be paid because of the liability finding). The case was dismissed with costs awarded to S&D’s client. The Yannaras verdict was listed in the top 10 zero-dollar defense verdicts in 2007 as reported by the Wisconsin Law Journal’s Verdict & Settlement Reporter.
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Doro v. Trimble
Decision Date: 3/16/07
Case No. 06 CV 7166
State of Wisconsin/Circuit Court/Milwaukee County
Summary Judgment granted finding no duty to defend or provide coverage
Attorney(s): Thomas J. Binder
In this insurance coverage dispute, the plaintiff alleged that the insureds sold her a residential property without disclosing mold in the basement, a plumbing leak, a leaky roof, and other defects. S&D moved for summary judgment asserting that the alleged misrepresentations made by the insureds did not constitute an “occurrence” as defined by the policy, nor was there a “causation nexus” between the alleged property damage and the alleged occurrence. The trial court agreed, granting summary judgment and relieving the insurance company of the duty to further defend or provide indemnity for the claims of the plaintiff.
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