Casper v. Am. Int'l. S. Ins. Co.

2011 WI 81

Bryan Casper, Susan Casper, Michael Casper, a

minor, by his Guardian ad Litem, Thomas Casper,

a minor, by his Guardian ad Litem, Sara Janey,

a minor, by his Guardian ad Litem, and Sharon Janey,

Plaintiffs-Respondents-Petitioners,

Blue Cross Blue Shield United of Wisconsin,

Primax Recoveries, Inc., Allstate Insurance Company,

American Family Mutual Insurance Company

and Milwaukee County Department of Health & Social Services, Involuntary-Plaintiffs,

v.American International South Insurance Company,

Mark Wearing, Bestway Systems, Inc., RJW, Inc.,

Transport Leasing/Contract, Inc., Applied Industrial Technologies,

Inc., Jeffrey E. Wenham, United States Fidelity and Guaranty Company,

Federal Insurance Company, Continental Casualty Company,

and John Doe, Defendants,

Ryder Truck Rental, Inc. and Old Republic Insurance Company, Defendants-Appellants.

Bryan Casper, Susan Casper, Michael Casper, a

minor, by his Guardian ad Litem, Thomas Casper, a minor, by his Guardian ad Litem,

Sara Janey, a minor, by her Guardian ad Litem, and Sharon Janey,

Plaintiffs-Appellants-Petitioners,

Blue Cross Blue Shield United of Wisconsin, Primax Recoveries, Inc.,

Allstate Insurance Company,

American Family Mutual Insurance Company

and Milwaukee County Department of Health & Social Services, Involuntary-Plaintiffs,

v.American International South Insurance Company,

Mark Wearing, Bestway Systems, Inc., RJW, Inc.,

Transport Leasing/Contract, Inc., Applied Industrial Technologies, Inc.,

Jeffrey E. Wenham, Ryder Truck Rental, Inc., Old Republic Insurance Company,

United States Fidelity and Guaranty Company,

Federal Insurance Company, Continental Casualty Company and John Doe, Defendants,

National Union Fire Insurance Company of Pittsburgh, PA., Defendant-Respondent.

Bryan Casper, Susan Casper, Michael Casper, a minor, by his Guardian ad Litem, Thomas Casper,

a minor, by his Guardian ad Litem, Sara Janey,

a minor, by her Guardian ad Litem, and Sharon Janey,

Plaintiffs-Respondents-Petitioners,

Blue Cross Blue Shield United of Wisconsin, Primax Recoveries, Inc.,

Allstate Insurance Company,

American Family Mutual Insurance Company

and Milwaukee County Department of Health & Social Services,

Involuntary-Plaintiffs,

v.American International South Insurance Company,

Mark Wearing, Bestway Systems, Inc.,

RJW, Inc., Transport Leasing/Contract, Inc.,

Applied Industrial Technologies, Inc.,

Ryder Truck Rental, Inc., Old Republic Insurance Company,

United States Fidelity and Guaranty Company,

Federal Insurance Company, Continental Casualty Company,

National Union Fire Insurance Company of Pittsburgh, PA. and John Doe, Defendants,

Jeffrey E. Wenham, Defendant-Appellant-Petitioner.

No. 2006AP1229 & 2006AP2512 & 2007AP369

L.C. No. 2004CV5852

STATE OF WISCONSIN IN SUPREME COURT

OPINION FILED: July 19, 2011

ORAL ARGUMENT: December 1, 2010

Supreme Court of Wisconsin

Case Nos. :_2006AP1229, 2006AP2512, 2007AP369

COMPLETE TITLE:

Bryan Casper, Susan Casper, Michael Casper, a

minor, by his Guardian ad Litem, Thomas Casper,

a minor, by his Guardian ad Litem, Sara Janey, a

minor, by her Guardian ad Litem, and Sharon Janey,

Plaintiffs-Respondents-Petitioners,

Blue Cross Blue Shield United of Wisconsin,

Primax Recoveries, inc., Allstate insurance

Company, American Family Mutual Insurance Company and Milwaukee County Department of

Health & Social Services,

Involuntary-Plaintiffs,

v.

American International South Insurance Company,

Mark Wearing, Bestway Systems, Inc., RJW, Inc.,

Transport Leasing/Contract, Inc., Applied

Industrial Technologies, Inc., Jeffrey E.

Wenham, United States Fidelity and Guaranty

Company, Federal Insurance Company, Continental

Casualty Company, John Doe,

Defendants,

Ryder Truck Rental, Inc. and old Republic

Insurance Company,

Defendants-Appellants.

Bryan Casper, Susan Casper, Michael Casper, a

minor, by his Guardian ad Litem, Thomas Casper,

a minor, by his Guardian ad Litem, Sara Janey, a

minor, by her Guardian ad Litem, and Sharon Janey,

Plaintiffs-Appellants-Petitioners,

Blue Cross Blue Shield United of Wisconsin,

Primax Recoveries, Inc., Allstate Insurance

Company, American Family Mutual Insurance

Company and Milwaukee County Department of

Health & Social Services,

Involuntary-Plaintiffs,

v. American International South Insurance Company,

Mark Wearing, Bestway Systems, Inc., RJW, Inc.,

Transport Leasing/Contract, Inc., Applied

Industrial Technologies, Inc., Jeffrey E.

Wenham, Ryder Truck Rental, Inc., old Republic

Insurance Company, United States Fidelity and

Guaranty Company, Federal Insurance Company,

Continental Casualty Company and John Doe,

Defendants,

National Union Fire Insurance Company of

Pittsburgh, PA.,

Defendant-Respondent.

Bryan Casper, Susan Casper, Michael Casper, a

minor, by his Guardian ad Litem, Thomas Casper,

a minor, by his Guardian ad Litem, Sara Janey, a

minor, by her Guardian ad Litem, and Sharon Janey,

Plaintiffs-Respondents-Petitioners,

Blue Cross Blue Shield United of Wisconsin,

Primax Recoveries, Inc., Allstate Insurance

Company, American Family Mutual Insurance

Company and Milwaukee County Department of

Health & Social Services,

Involuntary-Plaintiffs,

v.

American International South Insurance Company,

Mark Wearing, Bestway Systems, Inc., RJW, Inc.,

Transport Leasing/Contract, Inc., Applied

Industrial Technologies, Inc., Ryder Truck

Rental, Inc., Old Republic Insurance Company,

United States Fidelity and Guaranty Company,

Federal Insurance Company, Continental Casualty

Company, National Union Fire Insurance Company

of Pittsburgh, PA., and John Doe,

Defendants,

Jeffrey E. Wenham,

Defendant-Appellant-Petitioner.

REVIEW OF A DECISION OF THE COURT OF APPEALS

2010 WI App 2

Reported at: 323 WI 2d 80. 779 N.W. 2d 444

(Ct.App. 2010 - Published)

SUBMITTED ON BRIEFS:

SOURCE OF APPEAL:

COURT: Circuit Court

COUNTY: Milwaukee

JUDGE: Christopher R. Foley

JUSTICES:

CONCURRED:

CONCURRED/DISSENTED: BRADLEY, J. concurs in part; dissents in part (opinion filed).

ABRAHAMSON, C. J. joins concurrence/dissent.

DISSENTED:

NOT PARTICIPATING:

ATTORNEYS:

2006AP1229: For Plaintiffs-Respondents-Petitioners there were

briefs by Monte E. Weiss and Charles W. Kramer and oral argument

by Alan H. Deutch, Deutch & Weiss, LLC.

For the Defendants-Appellants there was a brief by Larry J.

Britton and Shannon M. Trevithick, Britton & Associates, S.C.

2006AP2512: For Plaintiffs-Appellants-Petitioners there were

briefs by Alan H. Deutch, Charle W. Kramer, James L. McAlister

and Monte E. Weiss, Deutch & Weiss, LLC, and oral argument by

Monte E. Weiss

For Defendant-Respondent there was a brief by Ross A.

Anderson and Timothy H. Posnanski, Whyte Hirschboeck Dudek S.C.,

and oral argument by Ross A. Anderson.

2007AP369: For Defendant-Appellant-Petitioner there were briefs

by Robert J. Lauer and Patti J. Kurth, Kasdorf, Lewis &

Swietlik, S.C., and oral argument by Robert J. Lauer.

For Plaintiffs-Respondents-Petitioners there were briefs by

Alan H. Deutch, Charle W. Kramer, James L. McAlister and Monte

E. Weiss, Deutch & Weiss, LLC, and oral argument by Alan H.

Deutch.

An amicus brief was filed by James A. Friedman and

Katherine Stadler, Godfrey & Kahn, S.C., for the Wisconsin

insurance Alliance and the Wisconsin Civil Justice Council, inc.

and by Andrew C. Cook, The Hamilton Consulting Group LLC, for

the Wisconsin Civil Justice Council, inc.

An amicus brief was filed by Catherine M. Rottier,

Boardman, Suhr, Curry & Field LLP, for Wisconsin Defense

Counsel.

NOTICE

This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports.

REVIEW of a decision of the Court of Appeals. Affirmed in part and reversed in part.

¶1 DAVID T. PROSSER, J. This is a review of a published decision of the court of appeals, Casper v. American International South Insurance Co., 2 010 WI App 2, 323 Wis. 2d 80, 779 N.W.2d 444,¹ affirming three orders of the Milwaukee County Circuit Court, Christopher R. Foley, Judge. The case arises out of a tragic accident that occurred when atruck driven by Mark Wearing collided with the Casper family's minivan while it was stopped at an intersection. Bryan, Susan, Michael, and Thomas Casper, as well as Sara Janey, another passenger in the Casper vehicle (collectively, the Caspers), were all injured, some very seriously, in the accident.

¶2 The Caspers brought suit against 14 named defendants. Only 5 are relevant for purposes of this appeal: Mark Wearing; his co-employers Bestway Systems, Inc. (Bestway) and Transport Leasing/Contract Inc. (TLC); Bestway's CEO, Jeffrey Wenham (Wenham); and TLC's excess insurer, National Union Fire Insurance Company of Pittsburgh PA. (National Union). Both the Caspers and Wenham petitioned this court for review of the decision of the court of appeals.

¶3 These appeals present three issues to the court. First, did the circuit court properly exercise its discretion in granting National Union Fire Insurance Company an enlargement of time to answer the Caspers' Fifth Amended Complaint? National Union failed to answer the amended complaint within the time period required by statute but it claimed excusable neglect. The circuit court agreed. The Caspers contend that National Union did not satisfy the requirements for excusable neglect and that the circuit court erroneously exercised its discretion.

¶4 Second, can the Caspers maintain a direct action claim against National Union when its policy of insurance was neither delivered nor issued for delivery in Wisconsin but the insurance policy covers the insured's "business operations" conducted in this state? Relying on Kenison v. Wellington Insurance Co., 218Wis. 2d 700, 582 N.W.2d 69 (Ct. App. 1998), the circuit court and court of appeals answered "no." In this review, the Caspers contend that a plain reading of Wis. Stat. § 631.01(1), together with Wis. Stat. § 632.24, authorizes direct action against an insurer in any of four situations stated in the disjunctive in Wis. Stat. § 631.01(1). Only one of these four situations requires delivery of the policy...