Beware of Dog Owner Liability and Coverage

Beware of Dog Owner Liability and Coverage

“As wonderful as dogs can be, they are famous for missing the point.” – Jean Ferris. Sometimes when dogs miss the point; things can go horribly wrong. Statistically, there are four to five million Americans bitten by dogs every year.  There is precedent for animals standing trial for criminal charges, with the earliest record of an animal trial is the execution of a pig in 1266 at Fontenay-aux-Roses.  However, in recent history, putting the animal on trial for its vicious acts has gone out of vogue. Without the possibility of a kangaroo court – pun intended – it is the owners who face the consequences when a good dog “breaks bad.”  Specifically, Wisconsin has two categories of laws regarding the liability for harm caused by dogs.

The first applies when the dog has no history of causing harm.  In this case, the owner will only be liable for the actual amount of damage caused by the dog.  Included in the amount an owner may owe to the victim are hospital bills, lost wages and money to compensate the victim for pain and suffering.  It is worth noting that under the law, “owner” includes anyone who keeps or harbors a dog. This means that if you are caring for a dog long-term at your residence, you may be liable for damage caused by the dog if you are found to be “harboring or keeping” the dog.

The second category of liability creates enhanced penalties for an owner of a dog who has notice of the dog’s past bad behavior.  To quote the statute, “the owner of a dog is liable for twice the full amount of damages caused by the dog biting a person with sufficient force to break the skin and cause permanent physical scarring or disfigurement if the owner was notified or knew that the dog had previously, without provocation, bitten a person with sufficient force to break the skin and cause permanent physical scarring or disfigurement.”  Luckily, normal puppy bites and teething behavior do not rise to this level. Gasper v. Parbs, 2001 WI App 259, 249 Wis. 2d 106, 637 N.W.2d 399.

In light of the threat that a dog owner may be on the hook for the damage caused by a dog that attacks, what can be done? Aside from obedience training, the most important thing to do is to check your homeowner’s insurance policy.  Many policies have language excluding certain dog breeds from liability coverage. A list of commonly excluded breeds may include any of following: Pit Bull, American Pit Bull, Rottweiler, Chow Chow, Doberman Pinscher, American Staffordshire Terrier, American Bulldog, Colorado Bulldog, Northwood’s Bulldog, English Bull Terrier, Wolf Hybrids, or a mixed breed with any of the aforementioned breeds.  Although this list seems somewhat arbitrary, it is worth checking your policy to determine if you will be covered in the event that your dog bites someone.

 

Take it Easy on the Beers While Riding a Lawn Mower

Take it Easy on the Beers While Riding a Lawn Mower

If you are like me, after mowing the lawn and job well cut, you may enjoy a cold refreshing adult beverage.  With that frosty refreshment in mind, I stumbled upon a recent, and unique, Wisconsin Court of Appeals decision that held that a riding lawn mower is a “motor vehicle” for purposes of Wisconsin’s Operating While Intoxicated (OWI) statute.  Since we are in the doldrums of winter, I figured the case was worth a share as a humorous public service announcement during these dark and cold days.

In the recent State v. Shoeder case, following his departure from a local tavern, the defendant was arrested for an OWI while he was operating a riding lawn mower on the shoulder of a public roadway.  The defendant moved to dismiss the charge, arguing that a riding lawn mower is not a “motor vehicle” within the meaning of the OWI statute, and instead it was more akin to Wisconsin’s definition of an “all-terrain vehicle” (OWI while on an ATV had different penalties).  The trial court and Court of Appeals disagreed with the defendant’s position.

In reaching its decision, the Court of Appeals looked at the definitions of “motor vehicle” and “vehicle.”  Under Wisconsin law, a “motor vehicle” is any vehicle that “is self-propelled, except a vehicle operated exclusively on rail.”  Crucial to the decision was the broadly defined “vehicle,” which includes “every device in, upon, or by which any person or property is or may be transported or drawn upon a highway, except railroad trains.”  Wis. Stat. § 340.01(74).

Applying these definitions to the defendant’s chosen conveyance, the court determined that the riding lawn mower was a “motor vehicle” and “vehicle;” it is self-propelled and a device on which a person may be transported on a highway.  The court further rejected the defendant’s argument that the riding lawn mower should be considered an “all-terrain vehicle,” as it did not meet the ATV definition requirement of being “equipped with a seat designed to be straddled by the operator.”  Wis. Stat. § 340.01(2g).

It is important to highlight a very important fact that led to this defendant’s predicament:  He was using the riding lawn mower on the shoulder of a public roadway.  As with any OWI in Wisconsin, the operation must have taken place on a public roadway or highway; a homeowner’s lawn is not going to be considered a public roadway for purposes of the OWI statute should someone make the mistake to over imbibe.   That all said, the safest route is to limit your beer consumption to when you are done cutting the lawn and are sitting back enjoying the fruits of your labor.

 

Update on Bill That Seeks to Curb Harassment of Sports Officials

Update on Bill That Seeks to Curb Harassment of Sports Officials

Sports, even at the high school level, can raise emotions in players and spectators alike.  Sports officials are not strangers to displeasure with calls they make on the field or court.  However, there comes a point when expressing displeasure can cross the line. For this reason, a growing number of legislators from both sides of the aisle are backing a new bill that would criminalize harassment of sports officials.

Under current Wisconsin law, a person can be charged for harassment or intimidation of another, striking, shoving or kicking another person or engaging in a course of conduct that repeatedly commits acts which harass or intimidate another person and which serve no legitimate purpose. Offenders can be slapped with a fine up to $1,000 which is classified as a Class B forfeiture.

Under the bill, someone who harasses a referee, umpire, judge or person performing similar functions and the conduct is in response to a sport official’s action or is intended to influence a sport official’s action, could receive greater consequences.  Punishment could include up to nine months in jail, a fine of $10,000 or both, classifying it as a Class A misdemeanor.

Organizations are identifying an increasing need for protections specific to sports officials.  Referees are already protected by law in 24 other states.  According to a Wisconsin Public Radio report on the bill: “In 2017, the National Association of Sports Officials conducted a survey of more than 17,000 referees from across the country. It found that nearly 50 percent of officials have feared for their safety, while almost 60 percent felt that sportsmanship is on the decline.”

Legislation offering protection to sports officials has found support from organizations including the National Association of Sports Officials, the Wisconsin Interscholastic Athletic Association, the Wisconsin Athletic Directors Association and the Wisconsin Intercollegiate Athletic Conference.

The bill has bi-partisan support but is currently seeking co-sponsors before it would be presented to a legislative committee in Wisconsin.  Support for the bill continues to grow with sponsorship coming from 29 Assembly representatives and nine senators.

 

Flood Damage – Is Your Home or Business Covered?

Flood Damage – Is Your Home or Business Covered?

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.

 

Important Legal Documents for Young Adults

Important Legal Documents for Young Adults

It can be an exciting time for parents of high school seniors. Many are selecting colleges, technical schools, planning for careers after high school, or perhaps a trip abroad. With all the changes that come with being the parent of a child who is turning 18 and in their last year of high school, in most cases parents are not thinking about the legal change that takes place when a child turns 18.

When a child turns 18, he or she is an adult in the eyes of the law. As a result, parents can no longer make legal decisions for their son or daughter, or even receive information about them that is considered private unless they have their son or daughter’s permission. This can have unexpected consequences and create problems, particularly when the son or daughter is many miles away. The good news is that many of these potential problems can be easily avoided with a little bit of planning. The following are a few of the legal documents a parent of child who has turned 18 should consider putting in place:

1.) Healthcare Power of Attorney.
Many people only think about having someone execute a healthcare power of attorney if they are elderly or have a medical condition. In reality, everyone over the age of 18 should have a healthcare power of attorney in place. A healthcare power of attorney allows someone to appoint another person to make healthcare decisions for them in the event they are incapacitated. In the event a young adult is miles from home and is in an accident or has a medical condition that renders them incapacitated, even if it is temporary, a properly executed healthcare power of attorney will allow his or her parents to make medical decisions on their behalf. If a healthcare power of attorney is not in place, there is no clear decision-making authority and a legal guardianship may be required in some cases.

2.) HIPAA Release.
The Health Insurance Portability and Accountability Act (“HIPAA”) is a federal law that protects the privacy of an individual’s medical information. While the HIPAA law provides each of us with important privacy protections, it can also have unintended consequences. For example, parents of a young adult have no legal right to receive any information regarding their adult son or daughter’s healthcare or condition without the son or daughter’s consent. In situations where the son or daughter is incapacitated or otherwise not able to give consent, it can be a frustrating situation for parents who are trying get information on their son or daughter’s condition. This situation can be avoided by having the adult son or daughter sign a HIPAA Release consenting to the release of his or her medical information to the individuals named in the release (e.g., his or her parents).

3.) Financial Power of Attorney.
A financial power of attorney allows someone to appoint another person to obtain information and make financial decisions on their behalf. A financial power of attorney can be limited or broad in scope and can be effective immediately or only in the event of legal incapacity depending on your son or daughter’s preference. Financial powers of attorney can be important if a parent is assisting with financial aid matters, or if a young adult is traveling aboard and wants to allow his or her parents to handle their bank accounts and other financial transactions while they are gone.

4.) Education Release.
The Family Educational Rights and Privacy Act (“FERPA”) is a federal law that protects the privacy of a student’s education records and requires that any student over the age of 18 provide written consent before his or her education records (such as grades, transcripts, etc.) can be released, even to parents who are paying the tuition bill. Many educational institutions are proactive and inform parents and students about this requirement. However, some are not, and parents should inquire with their child’s secondary educational institution regarding the requirements for the release of their son or daughter’s educational records.

If you have a young adult in your family and have questions or need assistance with regard to obtaining the above referenced documents, then you should contact one of the estate planning attorneys at Anderson O’Brien who can help you navigate this process.

 

Mueller v. TL90108, LLC a Tale on the Statutes of Limitations

Mueller v. TL90108, LLC a Tale on the Statutes of Limitations

Regardless of the facts, there are certain types of legal cases that restrict the amount of time in which legal action may be taken based on statutes of limitations. Statutes of limitations are laws that set the maximum time after an event within which legal proceedings may be initiated. When that period of time passes, the statute of limitations can be used as a defense to defeat the claim. Such was the case in the recent Wisconsin Supreme Court decision in Mueller v. TL90108, LLC.

Like a Bond film, this captivating story of international intrigue has a rare and exotic automobile at the center of its storyline. Specifically, a French handmade 1938 Talbot-Lago T150C with distinguished coachwork.

In 2001 the car (and title to it) were reported stolen. Under the cover of darkness, the thieves had disassembled the Talbot-Lago from a garage in Milwaukee, Wisconsin and smuggled it to Europe.* In 2015 a company purchased the Talbot-Lago for nearly $7 million. This company is listed as TL90108, LLC in court documents. TL90108 is owned by Illinois dental company founder Rick Workman. When the original owners of the Talbot-Lago found out that it had been purchased by TL90108, LLC in 2017, they sued for return of their property when Workman refused to do so.

Despite having a sordid history, the Supreme Court did not actually take into consideration the car’s history. Instead, their decision was based on the statute of limitations. Here, the statute of limitations for the wrongful conversion or detention of the Talbot-Lago was 6 years. The question the Court had to decide is when the 6-year period began. If it began in 2001 when the car was stolen, then Plaintiff’s claim would be dismissed as stale. However, if the 6-year period began when Workman refused to give back the car in 2017, then the claim was still timely. Because the statute in question very clearly states the 6-year period begins with the theft OR when the wrongful detention began, the Wisconsin Supreme Court allowed Plaintiff’s claim to move forward. The ultimate question of who owns the Talbot-Lago remains unresolved.

*The thieves remain at-large and were not part of the Mueller v. TL90108, LLC lawsuit.

 

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