 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Hess v. Fernandez2/25/2005
3, 232, 533 N.W.2d 746 (1995), that the motion here should not be considered untimely and, thus, improper. In that case, we allowed a post-verdict motion for attorney fees under Wis. Stat. § 100.18. There were allegations that the defendant engaged in false and misleading advertising that resulted in pecuniary loss to the plaintiffs. Id. at 232. We held that these allegations were exactly the type of allegations that fall within the purview of § 100.18. Id. That case is distinguishable, however, because there was clear evidence of implied consent during trial from the party objecting to the amendment. The reason that this court allowed the post-verdict motion for attorney fees in Gorton was because the claim was "fully aired" at trial, the party objecting had actual notice.
. Fernandez and the Fund argue that the plain language of Wis. Stat. § 51.61(7)(a) limits fee recovery to "actual attorney fees . . . incurred." Yet, as noted, Hess now claims fees and costs much greater than those permitted by the contingent fee agreement between Hess and counsel, and thus greater than the reasonable actual attorney fees incurred.
. We conclude that the circuit court erroneously exercised its discretion in granting Hess's motion to amend the pleadings under either the theory of implied consent or the balancing test related to the "interests of justice." The circuit court should have considered factors other than just prejudice and should have given much more weight, in applying the balancing test, to the delay in bringing the motion to amend, the motive of the moving party, as well as the prejudice to Fernandez and the Fund, resulting from the hourly fee claim, and the lack of opportunity to present their positions at trial. It appears obvious that Fernandez and the Fund had relied on the fact that there was a contingent fee agreement involved here.
III.
. In light of our holding above, there is no need to address the remaining issues certified by the court of appeals, except the question of the Fund's liability in regard to future claims for costs and reasonable actual attorney fees under Wis. Stat. § 51.61(7)(a).
. The legislature established the Fund when it enacted Wis. Stat. ch. 655 in 1975, in response to medical malpractice concerns. Wis. Patients Comp. Fund v. WHCLIP, 200 Wis. 2d 599, 606-07, 547 N.W.2d 578 (1996). The legislature created a new system for processing medical malpractice claims and created the Fund in order to "finance a portion of the liability incurred by health care providers in medical malpractice actions." Id. at 607.
. In order to determine if the Fund's financing applies to claims brought under Wis. Stat. ch. 51 for violation of patients rights, we must examine Wis. Stat. § 51.61. Again, we hold that the interpretation of a statute presents a question of law, which we review de novo. Meriter, ___ Wis. 2d ___, -13; see also State v. Williams, 198 Wis. 2d 516, 525, 544 N.W.2d 406 (1996). Although we consider this question independent of the decision of the circuit court, we nevertheless benefit from its analysis. Meriter, ___ Wis. 2d at ___, -13; Meyer v. Sch. Dist. of Colby, 226 Wis. 2d 704, 708, 595 N.W.2d 339 (1999).
. Our main objective in statutory interpretation "is to determine what the statute means so that it may be given its full, proper, and intended effect." State ex rel. Kalal v. Circuit Court, 2004 WI 58, , 271 Wis. 2d 633, 681 N.W.2d 110. As a result, the court's analysis should begin with the plain language of the statutory text. Id., . If the language of the statute is clear on its face, then we should apply the statute using the common and generally accepted meanings of the terms. Meri
Page 1 2 3 4 5 6 7 8 9 10 Wisconsin Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|