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Gaertner v. Holcka6/26/1998
ON CERTIFICATION FROM THE COURT OF APPEALS
Submitted on Briefs: Oral Argument: January 7, 1998
Source of APPEAL COURT: Circuit COUNTY: Kenosha JUDGE: David M. Bastianelli
APPEAL from an order of the Circuit Court for Kenosha County, David M. Bastianelli, Judge. Affirmed.
This case is before the court on certification from the court of appeals following an order of the Circuit Court for Kenosha County, David M. Bastianelli, Judge, which dismissed the appellants' (collectively referred to as Catholic Mutual) motion for summary judgment upon Catholic Mutual's cross-claim for contribution against the respondent American Family Insurance Company (American Family). Catholic Mutual appealed from the circuit court's final order.
. As we interpret this case, there is one issue presented for our determination: whether a common law action for contribution may be brought against persons who violate Wis. Stat. Section 347.48(2m)(c) (1989-90), as controlled by Section 347.48(2m)(g), by operating a motor vehicle without reasonably believing that each passenger between 4 and 15 years of age, and seated at a designated seating position in the vehicle, is properly restrained with a seat belt. The court of appeals presented the following two issues on certification: (1) whether the passive negligence of a non-intentional negligent tortfeasor creates a common liability with a causally negligent tortfeasor supporting a claim of contribution for enhanced injuries attributable to the passive negligence; and (2) whether there can be contribution in an enhanced injury case from a party whose passive negligence was a substantial cause of the enhanced injuries.
. We need not address these issues as they are certified to this court, since we conclude that the legislature has expressed its intent that a claim for contribution may not be sustained in cases involving negligence for failure to restrain another with a seat belt, as controlled by Wis. Stat. Section 347.48(2m)(g). Accordingly, we affirm the order of the circuit court which dismissed Catholic Mutual's motion for summary judgment.
. In the proceedings below, the parties stipulated to the relevant facts in this matter. On September 11, 1991, the plaintiff Robin Gaertner (Gaertner) picked up 11 year-old Justin Koldeway (Koldeway) from school at the request of Koldeway's mother and drove him to a doctor's appointment. Following the appointment, Gaertner, a friend of Koldeway's mother, began driving to her home with Koldeway seated in the rear seat of the car. On the way home, Gaertner was involved in an accident with an automobile driven and owned by the defendant Gertruda Holcka (Holcka). The accident was caused solely by Holcka's negligence.
. At the time of the accident, Koldeway was not wearing an available rear shoulder harness seat belt installed for his seat. Gaertner operated her automobile without reasonably believing either prior to or at the time of the accident that Koldeway was wearing the seat belt.
. Koldeway sustained serious and permanent injuries in the accident, amounting to $588,235.29 in damages. As a full and final settlement of Koldeway's claims arising out of the accident, Catholic Mutual, Holcka's insurer, paid $500,000 to Koldeway. At the same time, Catholic Mutual preserved its right to seek contribution from Gaertner's insurer, American Family, which had issued a $100,000 insurance policy to Gaertner that was in effect on the date of the accident.
. The $500,000 settlement appears to represent 85% of the total damages suffered by Koldeway, as reduced by the parties' apparent interpretation of Wis. Stat. Section 347.48(
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