Filed Under: Appellate Law Litigation
A Skeptical View of Daubert Motions in Two Recent Wisconsin Court of Appeals Decisions
Litigants routinely rely upon expert witnesses to provide opinion testimony at trial based on their specialized knowledge, training or experience. Also common, the opponent sees serious methodological flaws and thus reaches for a well-known weapon: a Daubert motion asking the trial court to exclude from evidence the report and any associated testimony. Originating in Daubert […]
Filed Under: Appellate Law Litigation
Non-Delegation in Wisconsin after Becker v. Dane County: The Dissenters
A prior post discussed how, in Becker, et al. v. Dane County, et al., Nos. 2021AP1343 & 2021AP1382, the Wisconsin Supreme Court recently turned back an effort to revive the non-delegation doctrine, a tool that—at least in its sharper versions—could be used to pare back much of the modern administrative state. This post picks up […]
Filed Under: Appellate Law Litigation
Non-Delegation in Wisconsin after Becker v. Dane County
At the end of its 2021-22 term, the Supreme Court released its long-awaited decision in Becker, et al. v. Dane County, et al., Nos. 2021AP1343 & 2021AP1382. The case affirmed the validity of orders issued by the joint public health department of Dane County and the City of Madison to control COVID-19 by, among other […]
Filed Under: Appellate Law Business Law Insurance Law Litigation
Wisconsin Joins the Majority: Profit Losses Due to COVID-19 Not Insured
Nationwide, restaurants and bars felt financial strain over the past two years. With measures in place to prevent the spread of COVID-19, many food and beverage businesses were subject to restrictions on the use of their in-person dining rooms. In a recent case, the Wisconsin Supreme Court found that COVID-19 related business interruption losses were […]
Filed Under: Appellate Law Litigation
Seventh Circuit Rejects Students’ Claim that University’s Refusal to Refund Fees During COVID Closures Amounts to Constitutional Violation
Public bodies deal with many of the same legal issues as private enterprises—plus a host of unique risks that arise because they are public actors. Public bodies therefore must take care to ensure that they are not violating the protected constitutional rights of their citizens, employees, contractors, or (in the case of schools) students. A […]
Filed Under: Appellate Law Municipal Law
Court of Appeals Determines City Development Condition Is Unconstitutional Taking
This month, the Court of Appeals affirmed a circuit court decision that held that the City of Brookfield engaged in an unconstitutional taking when it conditioned the approval of a subdivision development on construction of a new public street. The Court of Appeals determined that this “exaction” was not permissible because it did not address […]
Filed Under: Appellate Law Insurance Law
Wisconsin Court of Appeals Rules that Reckless Homicide Cannot Constitute an Accident for Purpose of Insurance Coverage
Recently, the Wisconsin Court of Appeals ruled in a case that tests the interaction between criminal law and civil liability. In Dostal v. Strands, 2020AP1943 (Oct. 19, 2021), the court held that an insured’s criminal conviction for second-degree reckless homicide precluded a mother’s claim against the insurer for damages arising from the death of her child. […]
Filed Under: Appellate Law
Wisconsin Court of Appeals Rejects Attempted Underinsured Motorist Double Dip
At the close of summer, the Wisconsin Court of Appeals rejected an insurance company’s attempt to “double dip” and reduce its underinsured motorist (“UIM”) coverage responsibility to an insured based on a liability payment made to another insured.[1] The case arose from an automobile accident that caused the death of Michael Shimeta and serious injuries […]
Filed Under: Appellate Law Municipal Law
Denial of Variance Request Regarding Lakefront Yard Setback Requirements
Cox v. City of Madison Zoning Board of Appeals, Appeal No. 2020AP478 (July 8, 2021) Kathleen Cox purchased property on Lake Mendota with the plan to demolish and rebuild the existing house and wet boathouse. A wet boathouse is one that is built over excavated shoreline with the lake water underneath, into which a boat […]
Filed Under: Appellate Law Election & Political Law
Supreme Court of Wisconsin Denies Legislative Redistricting Rulemaking Petition
The Supreme Court of Wisconsin recently denied a petition submitted by former Assembly Speaker Scott Jensen, represented by the Wisconsin Institute for Law and Liberty (“WILL”), proposing new procedural rules limited solely to legal challenges to new legislative districts, including requiring such challenges to be brought solely to the Wisconsin Supreme Court. Stafford Rosenbaum Attorneys […]
Filed Under: Appellate Law
Court of Appeals Holds that Prejudgment Interest Can Be Triggered without a Demand
Recently, the Wisconsin Court of Appeals touched on two important insurance issues: covered autos under Wis. Stat. § 632.32(3) and prejudgment interest under Wis. Stat. § 628.46(1). In January 2016, Jason and Wendy Foerster’s thirteen-year-old son was directed by his uncle to drive a Chevrolet Tahoe to the child’s grandparents’ house to retrieve a piece […]
Filed Under: Appellate Law Municipal Law
Court of Appeals Accepts Petition for Interlocutory Appeal on Discretionary Immunity, Reverses in Favor of Stafford Rosenbaum’s Client to Dismiss Case
At the end of last week, the Court of Appeals recommended for publication an opinion resulting from a permissive interlocutory appeal sought by Stafford Rosenbaum on behalf of the City of Monroe. Stafford sought the appeal after the trial court denied the City’s motion for summary judgment asserting absolute and governmental immunity in response to […]
Filed Under: Appellate Law Municipal Law
Court of Appeals Holds that a Continuing Trespass Does Not Circumvent the Notice of Injury Requirements
The Wisconsin Court of Appeals recently found that a continuing trespass does not create a new “event” each day that it remains on the property. See Ebert v. Village of Gresham, 2020 WL 6278316, ¶¶ 2, 13. Because a new event is not created each day, a claimant must file a notice of injury within […]
Filed Under: Appellate Law Municipal Law
Court of Appeals Confirms that an Unimproved Platted Public Road May Not Be Adversely Possessed
A property owner, Timothy Casa De Calvo, sued the Town of Hudson claiming that he adversely possessed real property adjacent to his house. The property in question had been dedicated about 31 years before as a street on a subdivision plat. The circuit court granted summary judgment in favor of the Town, and the court […]
Filed Under: Appellate Law Municipal Law
Wisconsin Court of Appeals Allows Inclusion of Parking Lot Income in Milwaukee Property Tax Assessment
In Milwaukee Block 10 Properties v. City of Milwaukee, the Wisconsin Court of Appeals reaffirmed two key principles in its reversal of a circuit court decision which ordered the City of Milwaukee to revise its property tax assessment for the Aloft Hotel. First, Wisconsin affords substantial deference to property tax assessments prepared by municipalities. Property […]
Filed Under: Appellate Law Litigation
Wisconsin Court of Appeals Strikes Down Insurer’s Limitation on Underinsured Motorist Coverage
The Wisconsin Court of Appeals recently held that Wisconsin law precludes enforcement of a provision in an insurance policy that purported to limit underinsured motorist (“UIM”) coverage to only those insureds who sustain bodily injury or death. Ryan Johnson died from injuries sustained in a collision involving an underinsured vehicle. Johnson’s minor son, Elliot Brey, […]
Filed Under: Appellate Law Employment & Labor Law Litigation
U.S. Supreme Court Holds Employment Protection Reaches Sexual Orientation and Transgender Status
Title VII is the portion of the federal Civil Rights Act that prohibits employers from discriminating on the basis of race, color, religion, sex, and national origin. It was first adopted by Congress in 1964. Last week, in a 6-3 ruling, the U.S. Supreme Court interpreted Title VII to prohibit discrimination on the basis of […]
Filed Under: Appellate Law Government Law Municipal Law
Court Reiterates that Not All Government Actions that Diminish Property Value Are Compensable
State and local governments have a variety of powers. They can take private property for public use, but they have to fairly compensate the property owner. They can also use their police power—a broad array of authority to protect public health and safety—to regulate the use of property. The Wisconsin Court of Appeals’ recent decision […]
Filed Under: Appellate Law Business Law
Court of Appeals Applies Economic Loss Doctrine to Subcontractor Dispute under Interrelated Contracts Theory
The Wisconsin Court of Appeals recently issued a decision expanding the economic loss doctrine to horizontal claims by subcontractors who lack contractual privity. See Mechanical, Inc. v. Venture Electrical Contractors, Inc., No. 2018AP2380 (Apr. 22, 2020). The issue was whether one subcontractor could assert a negligence claim seeking purely economic losses (in this case delay […]
Filed Under: Appellate Law Business Law
Seventh Circuit Upholds Dismissal of Subcontractor’s Meritless Claims for Damages Based on Customary Bid Negotiations with General Contractor
Earlier this week, the Seventh Circuit affirmed the district court’s order granting our client’s, Annex Construction, LLC, motion for summary judgment dismissing all claims brought against it by a framing subcontractor, Skyrise Construction Group, LLC. See Skyrise Construction Group, LLC v. Annex Construction, LLC, Case No. 19-1461 (7th Cir. April 21, 2020). In a unanimous […]
