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[T] Kulbiski v. DeMarco9/10/2003
. Michael DeMarco and State Farm Mutual Automobile Insurance Company (hereafter DeMarco) appeal from a judgment awarding damages to Matthew Kulbiski and the Estate of Kathleen Kulbiski. On appeal, DeMarco argues that Matthew Kulbiski's settlement with other parties released him from liability as well. DeMarco also argues that the judgment in favor of Matthew Kulbiski should be reduced by the amount paid by other parties to settle Kulbiski's bodily injury claim. We disagree on both fronts, and we affirm the judgment.
. The facts are undisputed. A vehicle driven by DeMarco's son, Brian DeMarco, rear-ended the Kulbiskis' vehicle. Matthew Kulbiski was injured; Kathleen Kulbiski ultimately died of her injuries. Brian's parents, Michael DeMarco and Patricia Despotovich, sponsored Brian's driver's license under Wis. Stat. § 343.15(2)(b) (1997-98). Despotovich owned the vehicle involved in the accident. Sentry Insurance insured Brian and Despotovich. Matthew Kulbiski sued Brian and his parents on his own behalf and on behalf of Kathleen Kulbiski's estate. Matthew Kulbiski also sued Michael DeMarco's insurer, State Farm.
. Prior to trial, Sentry paid its policy limits of $100,000 to Kathleen Kulbiski's estate for Kathleen Kulbiski's wrongful death and $100,000 to Matthew Kulbiski for his bodily injury claim. In exchange for these payments, Matthew Kulbiski executed settlement documents as an individual and as the authorized representative of the estate. The settlement documents contained a release, indemnification of the settling parties, and a reservation of rights against Michael DeMarco. The case proceeded to trial on the Estate's wrongful death claim and Matthew Kulbiski's emotional distress claim. The jury awarded the Estate $300,000 for Kathleen Kulbiski's pain and suffering. The jury also awarded Matthew Kulbiski $350,000 for the loss of Kathleen Kulbiski's society and companionship.
. At motions after verdict, the circuit court reduced the Estate's recovery by the $100,000 paid to the Estate by Sentry. Post-verdict Michael DeMarco argued that Matthew Kulbiski's bodily injury claim settlement operated as a complete release of DeMarco's liability or, in the alternative, the damages awarded for loss of society should be reduced by the $100,000 settlement payment Matthew Kulbiski received for his bodily injury claim. The circuit court rejected both of DeMarco's arguments, and DeMarco appeals.
. We first address Matthew Kulbiski's argument that Michael DeMarco waived his claim that the release benefits him because DeMarco did not plead the release as an affirmative defense via an amended answer. DeMarco disagrees.
. The record does not support Kulbiski's waiver argument. Kulbiski suggested in the circuit court that the meaning of the release could be decided after trial, and Kulbiski did not object when DeMarco raised the import of the release via post-verdict motion. Wisconsin Stat. § 802.09(2) (2001-02) provides that if issues not raised in the pleadings are tried by the parties, such issues are "treated in all respects as if they had been raised in the pleadings." We reject the waiver argument because Kulbiski suggested addressing the release after the trial, did not object on waiver grounds when the release was addressed on post-verdict motions, and § 802.09(2) treats the release issue as if it had been raised in the pleadings.
. We turn to the meaning of the release contained in the settlement of Kulbiski's and the Estate's claims. A settlement agreement is subject to the rules of contract construction. See Fleming v. Threshermen's Mut. Ins. Co., 131 Wis. 2d 123, 132, 388 N.W.2d 908 (1986). When a contract is plain and unambiguous,
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