Over the course of my career, many people have asked me what area of law I practice in, and I usually respond by stating “civil litigation.”  Then I am typically asked, “What do you mean by civil litigation?”  The civil in “civil litigation” refers to the form of law, and generally speaking, litigation is the process that occurs after a lawsuit is filed and the parties are attempting to resolve a dispute, with the potential for having a trial to decide the issues for the parties.  Many attorneys, including myself, emphasize handling litigation matters as part of their practice.  While every case has different facts and many contain different legal issues, there are some similarities among all litigation matters that you should be aware of. This awareness will make the process easier to understand and can make it less stressful for you should you ever find yourself in a lawsuit.

Most types of litigated matters follow a similar process; however, I will use a personal injury matter as an example for how things typically proceed.  This process takes place before the lawsuit is filed, up through a trial and potential appeal and can take several years of time.  The following sequence of events is typical for a claim by someone who sustains personal injuries as a result of someone else’s negligence:

1.)  First, the client meets with the attorney to discuss injuries and who is at fault for causing the accident or incident.

2.)  Second, the attorney investigates the facts relating to liability and damages, gathers evidence and speaks with potential witnesses.

3.)  From that point, the client treats with doctors or other health care providers until they reach the end of their medical treatment, and the attorney gathers all relevant medical records, bills, and other evidence of damages which have been caused by the negligent party.  This process may take quite some time, as we do not want to try to settle cases before the client has reached the end of their medical treatment, because once a case is settled, no claim for that same incident can be pursued again.

4.)  After that, the attorney and client discuss the value of the claim, and the attorney sends out a demand to the insurance company, along with all supporting documentation, to attempt to settle the claim for a fair and reasonable value.

 5.)  Then, if the insurance company is unreasonable with its offer, the attorney will file a lawsuit against the negligent party and his or her insurance company, and the case will proceed in a circuit court in the county in which the lawsuit is filed.

6.)  Next Discovery takes place.  The process of discovery is when both parties learn about the relevant facts and strengths and weaknesses in each other’s cases.  The parties each serve written interrogatories (questions) to the opposing side; the parties also request documents from the opposing side, and it often involves the insurance company seeking authorizations to be signed by the injured party so that the insurance company can obtain all pertinent medical records and bills.  The parties in the lawsuit also take depositions of the parties, as well as other important witnesses, including doctors or health care professionals and of other experts who have been hired.  A deposition involves the attorneys asking the witness numerous questions, sometimes for several hours, where the witness must answer the questions under oath and a court reporter transcribes all the questions and answers.

7.)  Once most of the discovery is completed by both sides, each side evaluates their respective cases to determine whether they are in a position to try to settle the case.  The parties will then either pursue Mediation, or the Court will usually order mediation so that the parties have to attempt to settle the case without having to proceed with a trial.  Mediation is a process that is not binding, and no one can be forced to settle unless they agree to the settlement terms.  Mediation usually involves the parties jointly hiring a neutral attorney or a retired judge to assist the parties in taking a closer look at the strengths and weaknesses of their cases.  The mediator will go back and forth for several hours between separate rooms where the respective parties are sitting with their attorneys.  The mediator tries to persuade each party to be reasonable in light of the risk and expense of going forward and having a trial, and hopefully the parties will agree on a settlement.

8.)  If mediation fails and the parties do not settle, then the parties will have a trial.  The trial can be only to the judge, or either party can request a trial to a jury, which usually involves a 12-person jury.

9.)  During the trial, the parties’ attorneys, with the assistance of their clients, will pick the jury through a process called voir dire.  The attorneys will give opening statements, call witnesses, and present documents and other evidence to support or defend their positions.  A jury trial can last from a half day to several weeks, depending on the complexity of the case and the number of witnesses each side intends to call.  The parties will then give closing arguments to the jury and try to persuade the jury to find in their favor.

10.)  The jury then goes from the courtroom back into a separate jury room to deliberate privately and to complete a questionnaire which is called a special verdict.  The answers the jury gives on a special verdict will determine who is at fault for the incident and the amount of damages that should be awarded to the injured party.  The process of jury deliberations can take less than an hour to more than several days, depending on the complexity of the case, the number of exhibits that it must consider, and the number of questions it must answer on the special verdict questionnaire.  The judge will then read the answers on the verdict to the parties once the jury has completed the questionnaire.

11.)  Finally, after the verdict if the losing party is required to pay damages, they can either pay it, try to negotiate for a lower amount, or appeal the case to the Wisconsin Court of Appeals.  If the losing party does not appeal and does not pay the judgment, then the winning party must attempt to enforce a judgment through collection procedures.

While it is best for the parties to attempt to resolve issues without having to file a lawsuit, the litigation process may be the only way a party can actually enforce their legal rights if the other side is not willing to cooperate or be reasonable in reaching a resolution to the dispute.  While attorneys try to work with their clients to persuade the other party to reach a resolution so as to avoid the risk and expense of litigation, being able to effectively litigate is one of the critical skills an experienced attorney must have in order to increase their client’s chance of having a successful outcome.  At Anderson O’Brien, our experienced litigation attorneys assist clients from the very beginning of a dispute through the entire litigation process, including any trials or appeals that may be necessary.

If the parties have a full understanding of this entire process, including the amount of time, risks, and expense involved, that should assist them in making well-reasoned decisions in determining what efforts they wish to take in attempting to resolve their dispute, or to file a lawsuit and go through the litigation process to enforce their legal rights.

 

I have frequently talked about the importance of having adequate insurance coverage, particularly automobile and homeowner’s insurance. In the past, I have presented this topic at our firm sponsored seminars, written on the subject in my article Insurance Plays Critical Role and I have even created a video titled Importance of Having Adequate Auto Insurance.

However, determining whether you are adequately insured first requires a basic understanding of what is contained in your insurance policies and where you can locate critical information about your coverages.  While your complete insurance policy contains many pages of conditions, exclusions and endorsements, many of which are written such that they are difficult to understand, the first place you should look in your policy is the declarations pages.  The declarations pages consist of the first few pages of your policy which identify the specific automobile and homeowner’s coverages and the amounts of coverage.  Not all policies are the same for each individual, as you need to specifically pay premiums for each of the different components of coverage.  The primary categories of coverage that you typically will find in your insurance policy include the following:

Automobile Insurance Coverages

• Bodily Injury Liability – Identifies how much coverage you have if you are responsible for causing injuries to someone else in an automobile collision.
• Property Damage Liability – Identifies how much coverage you have if you are responsible for causing property damage to someone else in an automobile collision.
• Medical Payment Coverage – Identifies the amount of coverage you have for injuries to you or your passengers in your vehicle sustained in an accident, regardless of who is at fault. This amount is usually $10,000.00 or less.
• Comprehensive Insurance – Identifies coverage that helps pay to replace or repair your vehicle if it is stolen or damaged in an incident that does not involve a collision. This would include damage from fire, vandalism, or trees or hail falling on the vehicle.
• Collision Coverage – Identifies the coverage to help pay to repair or replace your car if it is damaged in an accident with another vehicle or object.
• Uninsured Motorist Coverage – Identifies how much coverage you have for bodily injuries you sustain in an accident as a result of the negligence of a driver who has no insurance.
• Underinsured Motorist Coverage – Identifies how much coverage you have for injuries you sustain if you are struck by a negligent driver who has some insurance but inadequate amounts of insurance.

Homeowner’s Insurance Coverages

• Dwelling Coverage – Identifies the amount of coverage for your actual home in the event you sustain damages due to a fire or weather event.
• Personal Injury Liability – Identifies the amount of coverage you have if someone is injured on your property due to your negligence.
• Personal Property Coverage – Identifies the amount of coverage you have for the actual contents of personal belongings in your home, such as furniture, appliances, etc. Your declarations page will also tell you whether or not you have replacement cost or actual cash value  Replacement cost coverage is better because then you can recover the amount it actually costs to replace the items that are damaged or lost.  Actual cash value only provides you with that amount of damages you sustained based upon the depreciated value of those items you lost.  For example, if you paid $1,000.00 for a couch that is now 20 years old, the actual cash value amount may be extremely low, such as $50.00.  However, if you had replacement cost coverage, you would be able to replace that $1,000.00 couch with a new one and you would receive the full amount for that replacement couch.  Replacement cost coverage does cost more in premium amount; however, as you can see, it is much better coverage.

Umbrella Endorsement Coverage

Umbrella endorsement coverage is extremely important and can apply to both automobile and homeowner’s coverages.  This is perhaps the most important coverage you can purchase.  For approximately $200.00 to $250.00 per year, you can add an additional $1 million or more of coverage to the following:

• Automobile liability limits if you are at fault in an automobile collision;
• Uninsured and underinsured motorist coverage if someone injures you in an automobile collision; and
• Homeowner’s liability limits if you are negligent and someone is injured on your property.

In order to obtain an umbrella policy that covers all of the above, you need to specifically request this from your insurance agent.  Many companies will only sell policies that simply provide a liability umbrella policy which would add another million dollars in coverage to your liability coverage for home and auto.  However, it is extremely valuable to have the additional protection for your automobile, uninsured and underinsured motorist coverage, as well.  That is what you will need to specifically request when you speak with your insurance agent.  This would help protect you and provide additional benefits if you or others in your vehicle are injured in an automobile collision caused by someone who is either uninsured or underinsured.

If you are injured in an automobile collision or sustain significant property damage to your home or its contents, it is important for you to consult with an attorney to assist you in obtaining fair and reasonable compensation for your losses and to utilize your insurance coverage to the fullest extent.  You should review your declarations pages with your insurance agent and discuss whether or not there is a need to increase your insurance coverages.  Simply because an agent says that you have “full coverage” does not mean that you have enough insurance to cover the typical losses that our law firm sees on a daily basis.

 

Flooding is the nation’s most common natural disaster, which causes billions of dollars in damage each year. Just one inch of water can cause $25,000 in damages to your home. Flooding can result from natural disasters such as hurricanes, excessive rain, or events such as excessive snow melt and rising water levels in rivers and lakes due to ice dams or snow melt. Wisconsin was hit hard by flooding as a result of excessive snow melt in early Spring 2019, and many residents contacted our firm to address potential recovery under their insurance policies.

Unfortunately, the fact is, regardless of whether the flooding at your home or business is a result of a natural occurrence, most homeowner’s and business insurance policies do NOT provide coverage for flooding. Additionally, sewer backup or sump pump overflow is not covered by a standard homeowner’s insurance policy or by flood insurance. This type of coverage must be purchased with a special endorsement on your homeowner’s policy.

Those who live in areas that are at high risk for flooding, based upon government flood zone maps, may be required to obtain flood insurance as a condition of receiving a mortgage from a federally regulated or insured lender. Even if federal law does not require it, a lender may still require that you possess flood insurance. If you live in a high risk area, you may be able to purchase a policy through the National Flood Insurance Program (NFIP) through the Federal Emergency Management Agency (FEMA).

If you live in a low risk flood zone or in areas that typically have a low risk for flooding, flood insurance is not federally required. However, flood insurance may still be worth considering, because over 20% of flood insurance claims come from outside the high risk areas. You will need to check with your insurance agent whether it is possible to purchase flood insurance through a private insurance company or if your community participates in the National Flood Insurance Program where flood insurance policies should be available for purchase. Based upon the web site www.fema.gov, both Stevens Point and the Village of Plover, the area in Wisconsin our firm is located, are communities which participate in the National Flood Insurance Program.

How much flood insurance coverage is typically available through a flood insurance policy? In a one to four family residence, there is typically $250,000 in coverage for the structure itself and $100,000 for the contents. For a business, there is typically $500,000 for the structure and $500,000 for the contents.

There is typically a 30-day waiting period from the date you purchase the flood insurance policy before your policy goes into effect. Therefore, you cannot afford to wait until an imminent threat of flooding before you purchase flood insurance to protect yourself. Additionally, if you have flood insurance, make sure that you do not let your policy lapse, as that will cause you to lose coverage and you may not be in compliance with the terms of your Mortgage Agreement if your lender requires flood insurance.

For more information on which private companies sell flood insurance and to learn additional information on other questions you may have about the National Flood Insurance Program, please check out the following website: www.floodsmart.gov. Another resource you may wish to consult is the Wisconsin Office of the Commissioner of Insurance: www.oci.wi.gov. These are valuable resources that can lead you into the right direction as you consider protecting your home or business from flooding in the future.

 

Anderson O’Brien handles many claims involving individuals who injure themselves after falling or tripping due to ice or some other unsafe condition or obstacle. These types of cases are called premises liability cases. They occur frequently, especially during Wisconsin’s difficult winters involving ice and snow. March is a particularly hazardous month with all of the freezing and thawing that takes place, resulting in the accumulation of ice. Many of these incidents result in very serious injuries requiring surgery, necessitating the insertion of plates and screws into someone’s ankle, leg or hip. These cases can be difficult to prove, as it is necessary to establish that the property owner was negligent and/or, in some cases, that they violated Wisconsin’s Safe Place Statute.

However, while serious injuries may result from a slip and fall, it can be difficult to preserve the very evidence you need to prove your case. Several steps must be taken to effectively preserve your evidence and to pursue your claims. The following consists of some of the steps that are important for you to take if you intend to pursue a premises liability claim.

1. Provide Notice of the Incident Immediately.
Proper documentation in premises liability cases is crucial. Providing notice immediately to the owner or manager of the property is something that absolutely must be done in order to pursue your claim. The purpose of immediate notice is that it puts the owner or manager of the property on notice so that it provides credibility to your claim that the trip and fall actually occurred at the time and location you said it did. The restaurant, store, gas station, or manager of the facility where you fell also should generate a written incident report which can later be used to prove your claim. Additionally, providing immediate notice to the owner or manager on site will cause that person to investigate and to observe for themselves if there are, in fact, icy conditions or other dangerous conditions which exist, and they can be a witness that you can use to establish your claim. It also provides the manager with notice that they should take measures to render the premises safer, such as placing salt on the ice upon which you fell, and that can also be used as evidence against the property owner.

2. Take as Many Photographs as You Can.
Documenting the scene of the incident through photographs is invaluable and can literally make or break your case. The condition of what you tripped or fell on can change almost instantly. (For example, water or liquids can be cleaned up by the property owner; ice and snow conditions on a sidewalk or inside a building can melt. Other unsafe conditions can be fixed and repaired within a short period after the incident.) Therefore, if you do not take photographs to establish the condition at the time you fell, it may be very difficult to give an accurate verbal description to the insurance company or to a jury of what it is you fell on, what time you fell, and where you fell. Certainly, you may not be able to think about taking photographs at the time that you sustained a serious injury. However, you need to do whatever you can to take pictures. If you need to, ask someone else to take pictures with your phone immediately or have a friend or relative go back to the location as soon as they can after you fall. Photographs are the single most critical piece of evidence in many slip and fall claims.

3. If Possible, Obtain Information About Other Witnesses.
In many slip and fall cases, if you do not have direct video surveillance saved by the business where the incident took place, the claim may essentially boil down to “he said, she said” evidence. The insurance company may argue that you did not even fall on the date or time that you said you did. If you obtain the contact information of all witnesses who observed the incident or saw you lying on the ground after you were injured, this will give greater credibility to your claim. You will also then have contact information for these witnesses who can testify as to the conditions where you fell at that exact moment.

4. Seek Medical Treatment if Necessary.
If you are injured in a slip and fall incident and you need medical care, you should do so immediately and go to the emergency room rather than waiting for an appointment with your doctor several days later. The significance of this is twofold. First, the doctors can examine you and take x-rays to get you the proper care you need immediately to get you on the road to recovery. You should follow all of your doctor’s advice and show up to all of your appointments. Secondly, the fact that you slipped and fell will be reported in your medical records and if you go to the emergency room, this will help establish the date, time, and location of when this incident actually occurred. Be specific with your doctors about the details surrounding this injury. When you pursue a claim against the insurance company and have to testify, sometimes several years later after the fall, the documentation in your medical records will prove invaluable in establishing your claims.

5. Contact an Attorney.
It is important to contact an attorney right away if you intend to pursue a potential premises liability claim. There are important time limits and notice provisions under the law that must be satisfied in order to pursue a claim against property owners or insurance companies. The legal requirements of notice will differ based upon where you fell (i.e., for a government entity, you must give notice of the injury within 120 days). Evidence must be preserved, investigations and contact with witnesses must be made. Anderson O’Brien has the experience and expertise to handle these types of cases. We take the burden off of you to develop your case from the very beginning. We offer free initial consultations to evaluate potential premises liability claims.

Following the above steps in a premises liability claim, or any personal injury claim, will greatly assist your attorney in representing you to obtain the best results possible.

 

Dog owners love their dogs. Statistics show that there are approximately 89 million dogs in the United States which are kept by 60 million households. However, while our dogs give us great companionship, they can also create a liability concern, costing the owners substantial amounts of money if the dogs cause property damage or personal injuries. The statistics show that there are approximately 4.5 million dog bites per year in the United States and approximately 750,000 dog bite victims who require medical care each year. In 2015, more than 28,000 reconstructive surgery procedures were performed because of dog bites.

Under Wisconsin Statutes, Wis. Stat. § 174.02, an owner of a dog is strictly liable for the full amount of damages caused by property damage or bodily injuries caused by a dog to another person, animal, or property. (The strict liability is subject to the defense of contributory negligence. For example, if someone provoked the dog which resulted in a dog bite, that may reduce the dog owner’s responsibility for damages to that person.)

If the owner of the dog is aware of a previous time when the dog, without provocation, caused serious injury to someone, then the owner of the dog will be liable for twice the full amount of damages caused by the dog biting someone again with sufficient force to break the skin and cause permanent injuries. The amount of damages may include pain and suffering, past and future medical bills, wage loss, and permanent disfigurement. In addition to monetary damages, a court may order that the dog be euthanized under both of the following conditions:
1. The dog caused serious injury to a person or domestic animal on two separate occasions off of the owner’s property, without reasonable cause; and
2. The owner of the dog was notified or knew prior to the second injury that the dog caused the first injury.
The financial impact of dog bites is substantial. Dog attack victims in the United States suffer over $1 billion in losses every year. Dog bites and other dog-related injuries cost homeowners liability insurance companies more than $686 million in 2017.

Given that a dog owner is strictly liable for damages, what can a homeowner do to protect themselves? First of all, using good old common sense may go a long way to preventing these occurrences. Keeping one’s dog on a leash and preventing it from roaming onto other people’s property may help prevent unwanted injuries. Additionally, not allowing strangers or small children to approach one’s dog will also prevent situations where the dog may feel threatened. Also, keeping the dog in the house when mail carriers or delivery people are approaching the home would be a prudent course of action. The statistics show that 5,900 U.S. postal service letter carriers were bitten by dogs in 2012.

No matter what precautions one takes, it cannot always prevent dog bites from occurring. To protect against this personal financial risk that you have for being a dog owner, the first place one should look to is one’s homeowner’s or renter’s insurance policy. It would be wise to evaluate your insurance coverage at the present time if you own a dog. Depending on which insurance company you have, there are a wide variety of approaches taken by the insurance companies as to whether they cover dog bites or whether they exclude damages resulting from dog bites. Some companies will cover the damages, provided that you pay the premium for an endorsement providing this type of coverage. Some companies will only pay a small amount for damages and some may pay less depending upon the type of breed of dog that you have. Some companies will exclude coverage completely. Interestingly enough, some companies will provide coverage for the first bite, but then have language in their policy excluding coverage for any subsequent dog bites after the owner has knowledge of a first bite.

Therefore, it is recommended that if you want to be certain as to whether and to what extent you have insurance coverages for damages resulting from a dog bite, that you get in touch with your insurance agent. Another way for one to minimize the financial risk associated with dog bites would be to purchase an umbrella insurance policy which provides additional protection for liability. Our law firm has discussed the importance of an umbrella policy at many of our seminars and in other articles and website videos. An umbrella policy, which is relatively inexpensive, does not simply apply to automobile liability, underinsured motorist coverage, or uninsured motorist coverage. A personal umbrella policy can also provide for additional liability coverage under your homeowner’s policy for occasions such as this if you are found liable for damages resulting from a dog bite. Again, you are encouraged to check with your insurance agent to see what coverages are offered and what limitations or exclusions can be found in your policy relating to dog bites.

It is also important to note that if you do, in fact, have coverage for dog bites under your homeowner’s policy, then the insurance company is obligated to provide a defense to you in the event you are sued in a lawsuit resulting from the dog bite. The insurance company would then have a duty to defend you and pay for attorneys’ fees to defend you. That is a very valuable benefit of having the insurance coverage – not only may it provide coverage so that you do not have to dip into your personal resources to pay for any damages, but the cost of a defense in a lawsuit can be very substantial and it is an excellent benefit to have in the event this unfortunate situation arises. If you have questions about liability for dog bites or are a victim of a dog bite, you should contact an attorney right away. There are time limitations in which you can bring claims for injuries if you do sustain a serious dog bite and, therefore, it is important to preserve evidence and discuss the legal ramifications early in the process.