The Wisconsin Supreme Court recently ruled that local property tax assessors cannot require an interior “search” of a homeowner’s property as a precondition to challenging an assessment before the local Board of Review or in the Circuit Court. In Milewski v. Town of Dover, the plaintiffs wished to challenge an increased revaluation of their property. The Town claimed that the statutes required the plaintiffs to allow an inspection of the interior of their property in order to challenge the assessment. The plaintiffs refused, and the assessor raised the valuation of their home while lowering the assessments of other houses in their subdivision. The Court held that the denial of the tax payers’ challenge violated their due process rights under the 14th Amendment of the United States Constitution as well as the Wisconsin Constitution. While homeowners must still follow all of the procedural requirements for challenging assessments, this ruling is significant because now home owners can deny access to the interior of their properties to local property tax assessors and still preserve their right to challenge the assessment.
Court Finds that a Single Unsolicited Phone Sales Message is Sufficient to Confer Standing in Telephone Consumer Protection Act Claims
The Third Circuit Court of Appeals recently held that a single unauthorized prerecorded sales voicemail on a plaintiff’s cell phone constitutes a violation of the Telephone Consumer Protection Act (TCPA), and is sufficient to confer standing. In Susinno v. Work Out World, the plaintiff’s complaint identified a single prerecorded phone message from a fitness club left on her cell phone. In finding that the plaintiff had standing to pursue her claim, the Court held that Congress had identified automated and prerecorded calls as a “nuisance and invasion of privacy.” The phone call constituted the same harm to privacy interests as a common law cause of action for intrusion upon seclusion. This decision constitutes a significant benefit for future plaintiffs, as they no longer need to allege any actual injury resulting from a statutory violation – they merely need to allege that a federal statute, such as TCPA, was violated. At the same time, it will be more difficult for defendants to challenge such claims at the pleadings stage for lack of standing.
Wisconsin Court of Appeals Finds Statute of Repose Did Not Apply In Parking Garage Fatality Case, Affirms $39 Million Judgment Against Panel Installer, But Finds Insurer Only Liable For Policy Limit Of $10 Million
In Wosinski v. Advance Cast Stone, Inc., 2017 WI App ____, 2014AP1961 (July 11, 2017), the Wisconsin Court of Appeals affirmed in part and reversed in part the circuit court’s award of $39 million in the suit over a fatal accident at a Milwaukee County parking garage. In its 67-page unanimous opinion, the appellate court addressed numerous issues; in its most important ruling, the could held that the defendant’s insurer, instead of being liable for the entire award, need only cover about a quarter of the amount.
In 2010, a 13-ton decorative concrete panel fell from the O'Donnell Park garage, killing 15-year-old Jared Kellner and injuring two other people. In 2013, a Milwaukee County jury found Advance Cast Stone (ACS), installer of the panel, 88% percent at fault. ACS’ insurer, Liberty Surplus, had issued policies with $10 million coverage. Liberty disputed coverage but defended ACS under a reservation of rights. The circuit court held that Liberty had breached its duty to defend ACS and held Liberty was obligated to pay the entire $39 million award.
ACS’ primary argument on appeal was that Wisconsin’s 10-year statute of repose for bringing claims based on improvements to real property barred the plaintiffs’ claim. The appellate court disagreed and held that the statute’s exception for fraud, concealment, and misrepresentation applied. Evidence showed that ACS did not follow the original design for the panels when installed and submitted as-built drawings that did not reflect changes to the design.
ACS also disputed the jury’s award of $15 million in punitive damages. The appellate court held that ACS’ deviation from the construction and installation design plan for the panel and failure to submit a change order before making these changes to the design plan was sufficient evidence to prove that it acted in intentional disregard of the rights of the plaintiffs.
Liberty disputed coverage arguing that the jury’s finding of intentional misrepresentation with regard to the panel installation rendered the panel’s failure an intentional act, as opposed to an “occurrence” which is required under the policy to trigger coverage, and that if there was an occurrence, the “expected or intended" exclusion eliminated coverage. The appellate court disagreed and held that ACS did not expect or intend for the panel to fall.
Liberty, however, prevailed when it disputed the circuit’s holding that it was liable for the entire amount because Liberty breached its duty to defend ACS. The circuit court found Liberty breached its duty to defend when it did not move for bifurcation and instead submitted a proposed special verdict question that pertained to its coverage position. The appellate court disagreed and held Liberty followed the proper procedure to determine coverage, did not breach its duty to defend, and thus Liberty was responsible only for the $10 million limit as provided in the policy issued to ACS.
All parties are expected to seek review of the decision by the Wisconsin Supreme Court.