Vogel v. Liberty Mutual Insurance

571 N.W.2d 704, 214 Wis. 2d 443, 1997 Wisc. App. LEXIS 1242
CourtCourt of Appeals of Wisconsin
DecidedOctober 28, 1997
Docket96-2145
StatusPublished
Cited by17 cases

This text of 571 N.W.2d 704 (Vogel v. Liberty Mutual Insurance) 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
Vogel v. Liberty Mutual Insurance, 571 N.W.2d 704, 214 Wis. 2d 443, 1997 Wisc. App. LEXIS 1242 (Wis. Ct. App. 1997).

Opinions

WEDEMEYER, P. J.

Tank Transport, Inc. (hereinafter "Tank") appeals from a judgment dismissing its tort action against Liberty Mutual Insurance Co., Steven E. Ellifson, E & L Truck Rental Co., and E & L Transport Co. Tank claims that the trial court erred in dismissing Tank's action for tort damages, which sought to recover lost premium dividends and increased payments Tank incurred from its worker's compensation insurance carrier on the grounds that public policy and § 102.29, Stats., bar recovery. Because the trial court correctly concluded that public policy bars recovery for these purely economic damages, we affirm.1

[446]*446I. BACKGROUND

On July 24, 1992, plaintiff Barbara Vogel was traveling northbound in an automobile on North 107th Street in Milwaukee. The defendant, Steven E. Ellif-son, was traveling southbound on North 107th Street. Without warning, Ellifson turned left in front of Vogel. Vogel struck the truck driven by Ellifson, causing extensive damages to her automobile and severely injuring her. Vogel was employed by Tank, and was acting in the course of her employment at the time of the accident, and Ellifson was employed by the defendant E & L Transport Co., and was also acting in the course of his employment at the time of the accident. Liberty Mutual provided liability insurance to Ellif-son's employer.

Because Vogel was acting in the course of her employment at the time of the accident, Tank's worker's compensation carrier, West Bend Mutual Insurance Co., paid her medical bills and lost wages totaling approximately $15,000. The West Bend insurance policy contained a clause which stated that if West Bend was indemnified by the defendants within eighteen months of the inception of the policy (beginning in August 1993), there would be no effect on Tank's worker's compensation premiums as a result of the accident. The defendants did not reimburse West Bend within this period, however, causing Tank to receive $19,720 less in premium dividends than it would have received had the defendants reimbursed West Bend within the eighteen-month period, and causing West Bend to increase its "experience modifier," which resulted in Tank incurring an additional $3,707 in worker's compensation premiums during the 1994-95 policy year. This increase has also had a simi[447]*447lar effect in raising the premiums for the 1995-96 and 1996-97 policy years as well.

Tank brought an action in tort against defendants Liberty Mutual, Ellifson, E & L Truck Rental Co. and E & L Transport Co. to recover the amount of the increased worker's compensation premiums and amount of the lost premium discounts incurred. The defendants filed a motion to dismiss the action, which the trial court granted stating that public policy and § 102.29, Stats., bars Tank's claims. Tank now appeals.

II. DISCUSSION

A. Standard of Review

A motion to dismiss tests the legal sufficiency of a complaint. See Anderson v. Continental Ins. Co., 85 Wis. 2d 675, 683, 271 N.W.2d 368, 372 (1978). The issue is not whether the plaintiff can prove the case as pled, but whether the complaint is legally sufficient to state a claim upon which relief can be granted. See Scarpaci v. Milwaukee County, 96 Wis. 2d 663, 669, 292 N.W.2d 816, 819 (1980). On a motion to dismiss, the facts pled are taken as true and inferences from the pleadings are construed in favor of the party against whom the motion is brought. See Heinritz v. Lawrence Univ., 194 Wis. 2d 606, 610, 535 N.W.2d 81, 83 (Ct. App. 1995). A claim is dismissed when "it is quite clear that under no conditions can the plaintiff recover." State v. American T.V. & Appliance, 146 Wis. 2d 292, 300, 430 N.W.2d 709, 712 (1988) (citations omitted). Whether a complaint properly pleads a cause of action upon which relief may be granted is a question of law this court reviews de novo. See Heinritz, 194 Wis. 2d at 610, 533 N.W.2d at 83.

[448]*448 B. Public Policy

Tank claims that the trial court erred in dismissing its action on public policy considerations. Tank claims that applying each of the public policy considerations enumerated by the court in Colla v. Mandella, 1 Wis. 2d 594, 85 N.W.2d 345 (1957), fails to produce any basis for protecting the respondents from the damages caused by their employee's negligence. We disagree.

As both parties to this action concede, liability in tort may be denied based on factors that the courts have termed "public policy considerations." See id. at 598-99, 85 N.W.2d at 348. The application of these considerations is the function of the court and does not always require a full factual resolution of the cause of action through a trial. See Hass v. Chicago & Northwestern Ry. Co., 48 Wis. 2d 321, 327, 179 N.W.2d 885, 888 (1970). Where the public policy question is fully presented by the complaint, a court may make a public policy determination without requiring a trial. See Rieck v. Medical Protective Co., 64 Wis. 2d 514, 520, 219 N.W.2d 242, 245 (1974). "Public policy is involved in determining whether a particular claim is compen-sable as a matter of law." See Howard v. Mount Sinai Hosp. Inc., 63 Wis. 2d 515, 520, 217 N.W.2d 383, 386 (1974) (Hansen, J., concurring).

The court in Colla, enumerated a number of considerations to be applied in determining whether or not imposing liability in a tort action violates public policy. These considerations have been summarized to include the following: (1) the injury is too remote from the negligence; (2) the injury is too wholly out of proportion to the culpability of the negligent tortfeasor; (3) in retro-

[449]*449spect, it appears too highly extraordinary that the negligence should have brought about the harm; (4) allowance of recovery would place too unreasonable a burden on the tortfeasor; (5) allowance of recovery would be too likely to open the way for fraudulent claims; or (6) allowance of recovery would enter a field that has no just or sensible stopping point. See Citizens State Bank v. Timm, Schmidt & Co., 113 Wis. 2d 376, 387, 335 N.W.2d 361, 366 (1983). In applying these rationales to the case at bar, the trial court found:

Although denial of liability in this case may be justified on multiple factors, the Court finds, in particular, that the business loss suffered by Tank Transport in the form of increased premiums and lost discounts is too remote from the negligence of the defendant in failing to exercise due care when making a left turn on a city street.
Employers are required by law to provide Worker's Compensation insurance for their employees.

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Vogel v. Liberty Mutual Insurance
571 N.W.2d 704 (Court of Appeals of Wisconsin, 1997)

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Bluebook (online)
571 N.W.2d 704, 214 Wis. 2d 443, 1997 Wisc. App. LEXIS 1242, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vogel-v-liberty-mutual-insurance-wisctapp-1997.