Lee v. GEICO Indemnity Co.

2009 WI App 168, 776 N.W.2d 622, 321 Wis. 2d 698, 2009 Wisc. App. LEXIS 741
CourtCourt of Appeals of Wisconsin
DecidedSeptember 29, 2009
Docket2008AP3125
StatusPublished
Cited by9 cases

This text of 2009 WI App 168 (Lee v. GEICO Indemnity Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lee v. GEICO Indemnity Co., 2009 WI App 168, 776 N.W.2d 622, 321 Wis. 2d 698, 2009 Wisc. App. LEXIS 741 (Wis. Ct. App. 2009).

Opinions

[701]*701BRENNAN, J.

¶ 1. GEICO Indemnity Company and Ceree King (unless otherwise noted collectively referred to as GEICO) appeal from the trial court's amended judgment imposing sanctions for: (1) GEICO's breach of the Civil Division Scheduling Order; and (2) GEICO's filing of Motions After Verdict in which GEICO sought relief from the sanction previously imposed for violating the trial court's scheduling order. With regard to the former, GEICO argues that the trial court lacked the authority to sanction it for violating the scheduling order and that the sanction imposed (travel expenses) was unjust. With regard to the latter, GEICO argues that the trial court exceeded its authority in imposing a sanction on GEICO for seeking reconsideration of the trial court's earlier order for sanctions.

¶ 2. We conclude that the trial court reasonably exercised its discretion in sanctioning GEICO for breach of the trial court's scheduling order but that the court erroneously exercised its discretion in sanctioning GEICO for filing the Motions After Verdict. Accordingly, we affirm in part, reverse in part and remand to the trial court for recalculation of the appropriate sanctions, attorney fees and costs consistent with this opinion.

Background

¶ 3. Valarie Lee filed a personal injury lawsuit on August 15, 2007, in Milwaukee County Circuit Court, the basis of which arose out of an automobile accident that took place in April 2006 between her car and one driven by King. GEICO insured King. The trial court conducted a scheduling conference with both parties' counsels in November 2007 and issued the Civil Division Scheduling Order, which is on a preprinted form with spaces for handwritten modifications.

[702]*702¶ 4. The scheduling order contains two clauses pertinent to this appeal. First, in paragraph five, entitled "ADR," the court checked the box labeled "B," which states:

Pursuant to § 802.12, Wis. Stats, the parties shall complete mediation no later than 414/08, with a mediator agreed to by the parties, or Jerry Schmidt shall serve as mediator. The parties shall share equally the cost of the service provider's fee. The parties and their attorneys shall be present and participate in person in the mediation. Each corporate party or other legal entity which is a party shall appear by an individual other than the attorney, which individual shall have full authority to negotiate in this matter, unless the parties and the mediator agree otherwise. Full authority means that the person has the authority to modify any previous offers and present new offers to settle and to approve any final settlement, without the need to call or speak with any other representative of that party. In the event either party fails to appear or appears at the mediation without full authority to negotiate a resolution, the party so responsible may be ordered to pay all costs of the mediation and be subject to further sanctions determined by the court.

Second, the final two lines of the scheduling order, immediately above the trial court's signature, state: "Failure to comply with any term of this order shall be considered cause for imposing sanctions which may include the dismissal of claims and defenses. See § 804.12 and 805.03, Wis. Stats."

¶ 5. The following facts are undisputed by the parties. On April 4, 2008, Lee and her attorney attended the mediation. GEICO's counsel also attended. GEICO's counsel had phone contact with a representative from GEICO with authority to settle the case [703]*703during the mediation,1 but no corporate representative appeared in person for GEICO. The GEICO claim representative assigned to the case works out of an office in Macon, Georgia. GEICO had not obtained any modification of the scheduling order to give it relief from the obligation of having an individual from the corporate entity with full settlement authority appear at the mediation. Lee's counsel did not object to the non-appearance of the GEICO representative while at the mediation nor did the mediator register any objection. The mediation took place. The mediation lasted sixty-five minutes, exclusive of attorney preparation and travel time. Lee was required to use vacation time from her job to attend. The mediation did not lead to settlement of the case.

¶ 6. Lee's initial pre-suit settlement demand was $13,000.00. GEICO offered $500.00. Lee's demand at mediation was $8000.00, and GEICO increased its offer to $2000.00 at mediation through its representative on the phone, but no settlement was reached at the mediation. Following the mediation, Lee filed an Offer of Settlement offering to settle the action for $7500.00, together with costs and disbursements of the action. [704]*704GEICO later filed an Offer of Judgment offering $1200.00 with costs. A jury trial in the matter was held in August 2008 and the jury returned a verdict, which awarded Lee $2324.44.

¶ 7. In March 2008, prior to trial, Lee filed a Motion for Sanctions based on GEICO's violation of the scheduling order in not having a corporate representative of GEICO appear at the mediation. Plaintiff sought reimbursement of her actual expenses, including her share of the mediator's fee, her actual wages lost from missed work to attend the mediation, her actual attorney fees for preparation and attendance at the mediation and any other remedy the court deemed just.

¶ 8. GEICO's response claimed that Lee brought the Motion for Sanctions not because GEICO violated the scheduling order, but because GEICO would not settle for Lee's requested amount. Accordingly, GEICO argued that the trial court lacked authority to sanction a party for failing to settle. Additionally, GEICO argued that its conduct at the mediation was not egregious or in bad faith as purportedly required by this court in Gray v. Eggert,2001 WI App 246, 248 Wis. 2d 99, 635 N.W.2d 667.

¶ 9. On May 21, 2008, the trial court heard arguments on the Motion for Sanctions and found that GEICO had violated the scheduling order by not having a GEICO representative appear in person at the mediation. The court found that the violation undermined the court and was disrespectful to Lee and her counsel. The court ordered GEICO to pay as a sanction the amount it attempted to save by participating in the mediation by phone instead of in person, estimating the amount saved to be $500.00. However, the court gave GEICO an [705]*705opportunity to present evidence of a lower amount for a reduced award. The court also awarded statutory motion costs.

¶ 10. After the sanctions hearing, GEICO submitted evidence that round trip air travel from Atlanta to Milwaukee cost $311.00. Lee objected and submitted her request that the sanctions include ground travel from Macon to Atlanta to be calculated at the current IRS mileage reimbursement rate of $0,505 per mile for a total of $84.70. The trial court granted both requests in an order for sanctions dated June 26, 2008, including $311.00 for roundtrip airfare from Atlanta to Milwaukee, $84.70 for ground travel from Macon to Atlanta and $300.00 for statutory motion costs for a total of $695.70 that GEICO was to pay to Lee's attorney by July 25, 2008.

¶ 11. The case then proceeded to a jury trial, and after the jury's verdict, GEICO filed Motions After Verdict.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Krista Scudder v. Concordia University, Inc.
Court of Appeals of Wisconsin, 2025
Par, Inc. v. Suzan Lietzau McCahey
Court of Appeals of Wisconsin, 2024
Village of Bay City v. David C. Meixner
Court of Appeals of Wisconsin, 2023
Waukesha County H&HS v. S.S.
Court of Appeals of Wisconsin, 2020
Marriage of Wenzel v. Wenzel
2017 WI App 75 (Court of Appeals of Wisconsin, 2017)
Dustardy H. v. Bethany H.
2011 WI App 2 (Court of Appeals of Wisconsin, 2010)
Lee v. GEICO Indemnity Co.
2009 WI App 168 (Court of Appeals of Wisconsin, 2009)

Cite This Page — Counsel Stack

Bluebook (online)
2009 WI App 168, 776 N.W.2d 622, 321 Wis. 2d 698, 2009 Wisc. App. LEXIS 741, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lee-v-geico-indemnity-co-wisctapp-2009.