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Robison v. Wisconsin Lawyers Mutual Insurance Co.8/25/2005
Before Dykman, Deininger and Higginbotham, JJ.
Kathryn Robison appeals a partial summary judgment order entered in favor of Wisconsin Lawyers Mutual Insurance Company (WILMIC), dismissing her WIS. STAT.ยง 632.24 (2003-04) direct action malpractice claim against WILMIC as Attorney James Kitelinger's malpractice insurer. The Robisons assert they retained Kitelinger to file a lawsuit against J. Wm. Foley Company (Foley) and Wisconsin Electric Power Company (WEPCO) for electrical surge incidents and stray voltage problems that occurred on their farm. The Robisons alleged that Kitelinger negligently failed to include their stray voltage claim in the 1994 lawsuit and instead asserted only the electrical surge claims.
The Robisons argue partial summary judgment should not have been granted for three reasons. First, claim preclusion barred them from prosecuting the stray voltage claim in any subsequent action following the dismissal of the 1994 action. Second, the Robisons claim Kitelinger's mishandling of their lawsuit was so far-reaching that the case would have been without value once it was dismissed. Third, because Kitelinger's negligence caused their stray voltage claim to be barred by claim preclusion, their negligence or the negligence of a different attorney was immaterial.
We conclude claim preclusion did not bar the stray voltage claim because the facts surrounding that claim differ markedly from the electrical surge claims dismissed in 1998. We further conclude Kitelinger's alleged negligence did not cause the loss of the Robison's stray voltage claim. Rather, when the Robisons consulted with a different attorney to pursue a malpractice claim against Kitelinger, the statute of limitations had not yet expired on their stray voltage claim. Thus, because that attorney may have been negligent in failing to properly advise the Robisons their stray voltage claim remained viable, at least with respect to the statute of limitations, Kitelinger's alleged negligence did not cause the Robisons to lose their stray voltage cause of action. We therefore affirm the partial summary judgment order entered in WILMIC's favor.
FACTS
The Robisons were Kitelinger's long-time clients. In September and October 1993, the Robisons experienced three electrical surges on their farm that caused substantial damage. The Robisons contacted Kitelinger about a possible lawsuit, not only for the damages from the surges, but also for damages related to stray voltage. On May 5, 1994, the Robisons arranged a meeting with Kitelinger and Attorney Scott Lawrence. Lawrence had extensive experience with stray voltage litigation and the meeting was to discuss the Robisons' potential electric surge and stray voltage claims. After this meeting, Lawrence wrote to the Robisons declining to represent them in a stray voltage case and emphasizing the difficulty and challenges of stray voltage cases.
In September 1994, the Robisons, represented by Kitelinger, sued WEPCO and Foley in Sheboygan county. The complaint alleged as follows:
4. On information and belief, at all times relevant to the allegations contained in this Complaint, including, but not limited to, the months of September through December, 1993, Foley was employed by WEPCO to repair and/or replace electric power distribution lines in the vicinity of plaintiffs' residence at Glenbeulah, Wisconsin.
5. On information and belief, on or about October 15, 1993 and October 28, 1993, Foley, by its negligence, caused a surge of high voltage electricity to pass through the electrical transmissions lines and onto plaintiffs' property. As a result of Foley's negligence, plaintiffs suffered damag
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