When people envision an auto wreck, their minds usually go to an image of two crashed vehicles on the side of the road, and the police are present talking to the parties and witnesses to document what occurred. As a result, an accident victim can readily identify the at-fault party and insurance company to pursue compensation for his or her injuries and losses. However, in a hit-and-run, if the other driver is never identified, the accident victim obviously cannot identify a driver or insurance company to pursue. Therefore, in order to obtain compensation for injuries sustained in a hit-and-run, the accident victim must use his or her Uninsured Motorist coverage. This can make recovering compensation more complicated, as there are procedural pitfalls awaiting an accident victim.

While using Uninsured Motorist coverage (also referred to as “UM”) may seem counterintuitive, under Wisconsin law, one of the definitions of an “uninsured motor vehicle” is “an unidentified motor vehicle involved in a hit-and-run accident with another person.” Since Wisconsin law requires every automobile insurance policy sold in the state to contain UM coverage, every Wisconsin automobile insurance policy has protection for a hit-and-run (the amount of protection depends on the limits of UM purchased).

The “more complicated” part referenced above comes from policy language that imposes additional duties on the accident victim in order to utilize the UM coverage for a hit-and-run. While every insurance company and policy is different (and they are always changing), many policies require the person making a claim for a hit-and-run to notify the police and the insurance company in a timely matter. Some insurers only require the person “promptly notify,” while others have even more stringent requirements of 30 days or even 72 hours. As always, you want to read and follow your policy’s duties and deadlines to avoid the argument that you breached the policy and are not entitled to UM coverage. Therefore, in addition to the ever-present three-year statute of limitations that the claim must be brought within, the policy imposes its own obligations.

As if not already complicated enough, if you are injured in an accident in which the unidentified vehicle did not physically make contact with your vehicle (a/k/a “phantom motor vehicle”), a set of even more stringent requirements await you. For example: a driver comes over the centerline forcing you to swerve, your vehicle overturns and you are injured. In this type of scenario, Wisconsin law requires that: (1) the facts be corroborated by “competent evidence” provided by someone other than the insured or the person making the claim; (2) within 72 hours of the accident, a report of the accident is made to the police, peace or judicial officer, or the DOT (or equivalent in another state); and (3) within 30 days after the accident, a statement under oath is filed with the insurer setting forth the claim and facts in support of the statement.

Depending on your viewpoint, these obligations permit the insurance company the opportunity to investigate difficult claims timely, serve as a way for insurance companies to deny meritorious claims, or a little bit of both. Regardless, they are but one example of why it is so important to seek representation immediately after an accident. Even without these potential procedural pitfalls, an accident victim is likely to face a fight with the insurance company over liability for the accident and what compensation is owed. You do not want to be barred from even making a claim because of failure to comply with any policy and statutory requirements.

 

Recent trends have seen some employers hire on-site healthcare providers, oftentimes a nurse or a physical therapist. Depending on your viewpoint and utilization, these healthcare providers can be seen as a convenient benefit to employees, a way to contain healthcare costs, or a way to minimize workplace injuries. While an employer may encourage an injured worker to see the on-site nurse, therapist, or physician, it is important that workers know that Wisconsin’s Worker’s Compensation law allows them to choose their own doctor.

Injured workers in Wisconsin have an almost unrestricted right to choose their treating healthcare provider. Wisconsin statute allows the injured worker his or her choice of any physician, chiropractor, psychologist, dentist, podiatrist, physician assistant, or nurse practitioner, so long as they are licensed to practice in Wisconsin. If the worker wants to obtain treatment out of state, then the worker must obtain a referral from a Wisconsin practitioner or obtain the employer’s consent.

An employee is limited to two choices of a treating provider. If the employee is unhappy with the first treating provider, he or she has the right to choose a second treating provider. However, treatment by providers who practice together as partners or as a clinic only counts as one choice. Further, a referral from one healthcare provider to another healthcare provider also counts as one choice.

Part of the convenience of on-site healthcare for work injuries is offset by the worker’s compensation policy that allows employees to claim reimbursement for mileage related to medical treatment. This policy applies to medical appointments, physical therapy, and pharmacy visits.

More importantly, the choice of a healthcare provider has ramifications well beyond the type and scope of medical treatment that the injured worker receives; the healthcare provider’s opinions about an injured employee’s work injury plays a huge role in determining the amount of compensation the injured worker receives. The healthcare provider determines very important medical-legal issues, such as (1) whether the injury is indeed work-related; (2) whether the injury is permanent; (3) what is the amount of permanency; and (4) what are the work restrictions. The healthcare provider’s answers to these questions can determine the amount of compensation for a work injury.

Because so much of the worker’s compensation system depends on a healthcare provider’s opinions, it is crucial that an injured worker does not feel restricted to their employer’s suggestion. Remember, you have a right to choose your own doctor.

 

I recently had the incredibly good fortune of getting married to my wonderful wife, Kat.  In addition to the name, address, and health insurance changes that came with this life event, I volunteered to get our auto and homeowners insurance policies and coverages melded and up to date.  Since I focus my practice on representing injury victims, as we were updating our policies, I kept an eye out for a number of insurance policy issues that I recently came across in my practice.

Arbitration for Underinsured (UIM) and Uninsured (UM) Motorist Coverage

One of the greatest, if not the greatest, protection that an injury victim has is his or her Seventh Amendment right to a jury trial.  If the negligent party’s insurer is unwilling to provide fair and reasonable compensation for the injuries and damage sustained, you can seek recourse from a jury of your peers.  This is also true if the negligent driver does not have sufficient, or any, insurance and you need to make an underinsured or uninsured motorist claim with your own insurance company.

However, the Seventh Amendment protection is disappearing in some automobile insurance policies that include provisions that require arbitration for uninsured and underinsured motorist claims.  As a result, if the injured person and his or her insurance company cannot agree as to whether UIM/UM coverage applies or the amount of damages, rather than a jury of your peers deciding the issues, a group of arbitrators (usually three) decides the issues.

It is easy to pass this issue off as an “only lawyers read the insurance policy” type of issue.  However, depending on the issues and type of injuries, having your claim limited to a three-person arbitration body with limited discovery, limited evidence and limited appellate review could have a huge influence on your injury claim.  Unfortunately, by the time a lawyer reads your insurance policy, it is often after the injuries have occurred, and it is too late for the injured party to make an informed choice.

Breed Restrictions and Limits for Dog Bites

In Wisconsin, there is statutory liability for an owner, harborer and keeper of a dog when a dog bite occurs.  Normally, insurance coverage for this type of incident falls under a homeowner’s or renter’s insurance policy.  Just as all UIM/UM policy provisions are not written the same, not all policy provisions involving dog bite liability are the same.  There are a number of insurance policies in Wisconsin that limit, or completely exclude, coverage for certain dog breeds.

Some insurance policies exclude coverage for bodily injury or property damage caused by what the policy defines as prohibited or excluded breeds of dogs, including mixed breeds.  If not excluded, some policies limit the amount of insurance to an amount that is much lower (e.g. $25,000 or $10,000) than the policy’s normal liability limit.  As such, if you or your family owns a dog, make sure to check your policy for any dog breed restrictions or limitations of coverage.  Fortunately, my new married life includes only a teacup Chihuahua, which I have yet to see listed as an excluded breed.

 

Recently, the Wisconsin Court of Appeals reaffirmed the wide-reaching nature of governmental immunity from negligence claims.  In Seitz v. City of Prairie Du Chien, a young girl was crossing a crosswalk which lines had become faded when she was struck by an automobile and injured.  Seitz alleged that the City was negligent because they had allowed the crosswalk paint to fade to the point where it was no longer visible to motorists.

On the basis of Wis. Stat. § 893.80(4), the Court of Appeals held that the City was immune.  Wisconsin Statute § 893.80(4) immunizes municipalities and their employees against liability for acts that involve the exercise of discretion and judgment.  The City did not have any written policies about how often the crosswalks should be repainted, and the City simply painted as needed based on the visual observations of its employees.  There was no statute, code, ordinance or rule that created a duty on the City to maintain its crosswalks.  The court held that crosswalk maintenance is a discretionary function.

Finally, the Seitz court evaluated whether one of the exceptions to governmental immunity – the known danger exception – applied.  In situations where the nature of the danger is so obvious and compelling, the public officer has no discretion not to act, and governmental immunity falls away.  The court considered that there were signs alerting drivers to the crosswalk and there was no evidence of prior accidents at the location.  The court concluded that the potential danger of faded crosswalk lines did not rise to the level of known and compelling danger.  The Court of Appeals held that the City was immune and dismissed Seitz’s claim against the City.

As such, a municipality’s failure to maintain a crosswalk now falls within the ever-expanding sphere of “discretionary act immunity” for government entities, their employees and their private contractors.  In other words, a government employee can be 100% negligent, but so long as the nature of his duty involves “discretion,” he escapes responsibility.  Even if Seitz was successful at overcoming governmental immunity, the amount she could recover from the municipality is capped by statute at $50,000.00 – a sum that is often not enough to compensate someone for their injuries.

While this case does not break new ground in governmental immunity law, it serves to highlight the complexities that can come with personal injury matters.  When someone is injured, it is not as simple as finding the at-fault party and demanding fair compensation; there can be issues of immunity, insurance coverage and notice requirements.  A skilled attorney can help you understand your rights and navigate these difficult waters.

 

When thinking of being potentially held liable for your child’s actions outside of an auto accident, parents tend to think of some of the traditional situations: negligently entrusting a child with an item or activity that harms someone else, or failing to control a child which in turn leads to injury. In both situations, in Wisconsin, the parent can be treated as a joint tortfeasor with their child. Often referred to as the “tort of negligent control,” the latter situation recognizes “a parent’s responsibility to exercise reasonable care to control his or her child in order to prevent harm to others.” Nieuwendorp v. Am. Fam. Ins. Co.

Perhaps unsurprisingly, the advent of social media has caused some parents, and now some courts, to think of parental liability beyond the traditional situations. Last fall, the Georgia Court of Appeals, in Boston v. Athearn, held that whether parents were negligent in their supervision and control of their son’s Facebook use was a viable claim that could go forward to the jury. While not binding on Wisconsin courts, the decision nevertheless provides insight into the changing landscape of parental liability.

In the Boston case, 13-year-old Dustin Athearn and a friend decided to “have some fun” at a classmate’s expense. Using a computer supplied by his parents and using the family internet account, Dustin posed as the classmate and created a new Facebook account in her name. In addition to manufacturing an unflattering profile photo of the classmate, Dustin added postings that were sexual and racist and falsely stated that the classmate had mental health issues and used drugs.

Dustin was soon discovered as the culprit, and the principal disciplined him and informed Dustin’s parents. While Dustin’s parents also disciplined him for the incident, the unauthorized profile and page remained accessible for another 11 months until Facebook deactivated the account. By this point, the classmate and her parents filed suit against Dustin and Dustin’s parents for libel.

Under Georgia law, parents “may be held directly liable for their own negligence in failing to supervise or control their child with regard to conduct which poses an unreasonable risk of harming others.” After the claims against the parents were dismissed at the trial court level, the court of appeals reversed, agreeing with the aggrieved classmate, concluding that when the circumstances support an inference that the parents were on notice that, but for their intervention, injury was likely to result from the child’s conduct, the issue should survive summary judgment dismissal and go to the jury.

The Boston court was not persuaded by the defendant parents’ argument that they could not be liable because they had no reason to anticipate their son would engage in this behavior, and after the school informed them of the behavior, they disciplined Dustin. According to the court, Dustin’s parents continued to be responsible for supervising Dustin’s use of the computer and internet after learning that he had created the unauthorized Facebook profile. Because the false and offensive statements remained for 11 months after learning of Dustin’s misconduct, the court concluded that a jury could find that the parents failed to exercise due care in supervising and controlling such activity going forward.

While there does not appear to be published Wisconsin case law addressing a parent’s failure to control his or her child’s Facebook use as addressed in Boston v. Athearn, the Wisconsin Supreme Court’s dicta in its 1995 Nieuwendorp decision illustrates that Wisconsin tort law on parental responsibility can meet societal and generational changes:

“Across this state, increasing numbers of students have been identified as exhibiting emotional and behavioral problems which significantly interfere with their academic progress. Some of those students engage in disruptive or violent conduct. As a result, teachers, administrators and staff now face problems and dangers in the classroom unheard of a generation ago…A decision by this court will, therefore, help develop the law on that issue.” Id.

It may be only a matter of time before a Wisconsin court helps develop the law on the issue addressed in Boston v. Athearn for Wisconsin parents.