Estate of Capistrant v. Froedtert Memorial Lutheran Hospital9/23/2003
. The Wisconsin Patients Compensation Fund appeals from a judgment directing it to pay $2,108,065 plus costs to the plaintiff Patricia A. Capistrant as the result of a jury's verdict finding that various physicians were responsible for the death of her husband, Mark Capistrant. The Fund contends that all of the primary insurance covering those physicians should be viewed as an homogenous pool of funds that must first be exhausted before the Fund's excess-liability coverage kicks in. We disagree and affirm. Physicians Insurance Company of Wisconsin, Inc., seeks frivolous-appeal costs under Wis. Stat. Rule 809.25(3)(c)2. We deny the motion.
I.
. This is a dispute between the Fund and Physicians Insurance. No one on appeal challenges either the jury's findings of negligence or its award of damages. The jury found that Louis Somberg, M.D., Rebecca Freer, M.D., Jeanette Chassaignac, M.D., and a radiology resident, whom the verdict does not name, were all causally negligent in connection with Mark Capistrant's treatment and death at Froedtert Memorial Lutheran Hospital on July 31, 1997. Drs. Freer and Chassaignac as well as the radiology resident worked at Froedtert, and were employed by the Medical College of Wisconsin Affiliated Hospitals, Inc. Dr. Somberg worked for The Medical College of Wisconsin, Inc. The jury apportioned the causal negligence as follows:
ù Dr. Somberg: 70%
ù Dr. Freer: 12.5%
ù Dr. Chassaignac: 5%
ù The radiology resident: 12.5%
The jury assessed total damages (including two items that were answered by the trial court upon the parties' stipulation) of $2,700,000 plus an unspecified amount for funeral expenses, which the verdict form indicated would be determined by the trial court.
. Dr. Somberg was self-insured through his employer, the Medical College, with a limit of $600,000 per occurrence. The other physicians were insured by Physicians Insurance, with limits of $1,000,000 per occurrence. Physicians Insurance also provided an additional $1,000,000 per occurrence insurance for residents employed by Medical College of Wisconsin Affiliated Hospitals. Thus, excluding consideration of the Fund's liability in this case, there was the self-insurance for Dr. Somberg of $600,000, and, according to the Fund, $4,000,000 of total primary coverage provided by Physicians Insurance to Drs. Freer and Chassaignac and the radiology resident. The Fund contends that this $4,600,000 must first be exhausted before its statutory liability kicks in. On the other hand, Physicians Insurance argues that, subject to the Fund's right to seek contribution for the proportion of causal negligence attributable to Drs. Freer and Chassaignac and the radiology resident, the Fund must cover Dr. Somberg's joint and several liability for everything over his $600,000 self-insurance limit. We agree with Physicians Insurance.
II.
. The Fund is, in essence, an excess-coverage carrier, created by the legislature to provide medical-malpractice insurance for damages that exceed a health-care provider's underlying primary insurance or self-insurance. Wis. Stat. § 655.27(1); Patients Comp. Fund v. Lutheran Hospital-LaCrosse, Inc., 223 Wis. 2d 439, 452-453, 588 N.W.2d 35, 40 (1999). Scope of the Fund's liability is set by statute. Wisconsin Patients Comp. Fund v. Wisconsin Health Care Liab. Ins. Plan, 200 Wis. 2d 599, 607, 547 N.W.2d 578, 580-581 (1996). We interpret and apply the applicable statutes de novo. Wisconsin Patients Comp. Fund v. Physicians Ins. Co. of Wis., Inc., 2000 WI App 248, , 239 Wis. 2d 360, 366-367, 620 N.W.2d 457, 460.
. The goal of statutory construction is, of c
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