Doll v. American Family Mutual Insurance Co.6/2/1998
APPEAL and CROSS-APPEAL from a judgment of the circuit court for Outagamie County: MICHAEL W. GAGE, Judge. Affirmed in part; reversed in part, and cause remanded with directions.
Rosella Doll appeals a judgment that applies the revised rule of joint and several liability, Section 895.045(1), Stats., effective May 17, 1995, to an action arising out of an automobile accident filed on April 27, 1995. Rosella argues that the trial court erroneously ruled that her amended complaint, adding a claim of negligence against her late husband, Gerald Doll, did not relate back to her original complaint. Because the amended complaint relates back to the original complaint, Section 895.045(1) does not apply. We therefore reverse that portion of the judgment.
American Family Mutual Insurance Company cross-appeals. It argues that based upon insufficient evidence, Gerald, its insured, was not negligent as a matter of law in causing the automobile collision. We conclude that the trial court correctly determined that credible evidence supported the jury's verdict. We therefore affirm in part, reverse in part and remand with directions to enter judgment without applying Section 895.045(1), Stats.
On September 6, 1994, Rosella, a passenger in a car driven by her husband, was very seriously injured in a two-car accident. Gerald was killed in the accident. The other car was driven by Ronald Sutton, who failed to stop at a stop sign and collided with the Doll vehicle.
Sutton was insured through Allstate Insurance Company for $100,000 per person. Gerald had an automobile liability policy through American Family, with limits of $250,000 per person. Rosella, whose medical bills alone exceeded $200,000, had no underinsured motorist coverage.
The initial complaint named Sutton, Allstate, American Family and Simplicity Manufacturing, a subrogated employer, as defendants. Rosella alleged a personal injury claim and, as special administrator of Gerald's estate, alleged a wrongful death claim based upon Sutton's negligence. The complaint alleged that American Family insured Gerald "against liability of the type hereinafter alleged; and that this policy of insurance was in full force and effect at the times material hereto" and "reserved the right to settle and compromise any and all claims resulting from the insured's negligence ... and to defend all lawsuits and actions arising from such claims."
The complaint did not again refer to Gerald's negligence. With respect to the facts of the collision, it stated:
That on or about September 6, 1994, the Plaintiffs, Rosella F. Doll and Gerald E. Doll, deceased, were driving southbound on State Highway 47, Outagamie County, Wisconsin; that at the same time and place, Defendant, Ronald W. Sutton, was traveling westbound on County Highway S, when Defendant, Ronald W. Sutton, negligently operated his motor vehicle and collided with the vehicle driven by Gerald E. Doll, deceased, thereby causing Gerald E. Doll's death and causing injuries to Plaintiff, Rosella F. Doll and damages as hereafter described.
Nonetheless, in its answer, American Family stated: "AS AND FOR A SEPARATE AND AFFIRMATIVE DEFENSE, this answering defendant alleges that Gerald E. Doll was not negligent in the operation of his motor vehicle."
On November 10, 1995, after retaining new counsel, Rosella filed an amended complaint. The amended complaint named the identical parties as defendants, but added a specific allegation that Gerald was negligent in the operation of his vehicle, and that his negligence, along with Sutton's, was a substantial factor and proximate cause of Rosella's injuries.
The trial cour
Page 1 2 3 4 5 6 Wisconsin Personal Injury Attorneys
Personal Injury Lawyers
|