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[T] Howie v. Estate of Weisensel2/26/2004
. Reverend William T. Howie and his mother, Frances A. Howie, (the Howies) appeal from an order dissolving the estate of Robert Weisensel and, because of the dissolution of the estate, dismissing their personal injury complaint against the estate. Because the estate had minimal assets and its liabilities exceeded those assets, we conclude that summary settlement of the estate under Wis. Stat. § 867.01(1)(a) (2001-02) was proper. Therefore, we affirm.
. The Howies were seriously injured in an automobile accident caused by the negligence of Robert Weisensel. Weisensel was killed in the accident. Weisensel was insured by Allied Property and Casualty Insurance Company. On November 10, 2000, the Howies filed a summons and complaint seeking damages from Weisensel's estate and Allied. On March 13, 2001, Allied petitioned for leave to pay its policy limits to the court and asked to be dismissed. The court accepted Allied's tender and dismissed Allied with prejudice, noting that payment of the policy limits "shall be deemed to have satisfied [Allied's] indemnity obligations ...."
. Thereafter, the special administrator petitioned for summary settlement of the estate. The petition stated that, at the time of his death, Weisensel owned only his car, which was totaled in the accident, and furniture valued at $100. As claims against the estate, the petition listed medical bills totaling between $20,000 and $30,000 and the Howies' personal injury claim. The Howies objected to summary settlement, arguing that the petition did not account for a bad faith claim that the estate may have against Allied. From the Howies' perspective, the special administrator for the estate was obliged to accept their settlement offer of nearly $2,000,000. The Howies' plan was to enter judgment against the estate for the settlement amount, and in satisfaction of the judgment, take an assignment of the estate's bad faith claim against Allied.
. The circuit court rejected the Howies' position. The court noted that no bad faith claim existed at that point in time. The Howies' claim against the estate was a liability, and the estate had no assets from which it could pay that claim, or the claim of any other creditor. The court observed that the special administrator's first duty is to the estate, and in this instance, the estate had no money to defend itself against the Howies' claim and that any judgment against the estate would go unsatisfied. Even if a judgment in excess of the policy limits existed, the court stated that such a judgment does not automatically give rise to a valid bad faith claim against Allied. In sum, the court concluded that summary settlement under Wis. Stat. § 867.01 was warranted.
. Under Wis. Stat. § 867.01(1)(a), an estate shall be summarily settled whenever the debts of an estate exceed assets. The petition showed that Weisensel's debts far exceeded his assets. The Howies' contention that summary settlement should not have been ordered stems from their belief that the petition omitted an asset, namely, a bad faith claim against Allied. That contention, however, is both factually and legally speculative and, therefore, it does not support the Howies' claim of error.
. A special administrator owes a duty of loyalty to the estate and he or she must "not be motivated ... the interest of third parties." Robert Hill Found. v. Learman, 30 Wis. 2d 116, 121, 140 N.W.2d 196 (1966). Therefore, the special administrator of Weisensel's estate was under no obligation to accept a settlement offer that would lead to a significant judgment against the estate. Without such a judgment, no bad faith claim exists. See e.g., Kranzush v. Badger State Mut. Cas. Co., 103 Wis. 2d 56
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