Chapman v. Mutual Service Cas. Ins. Co.
| Decision Date | 28 January 1999 |
| Docket Number | No. 94-C-812.,94-C-812. |
| Parties | Kevin CHAPMAN, a Minor, by his next friend and Legal Guardian, Cindy CHAPMAN, Cindy and Leonard Chapman, and Family Health Plan, Plaintiffs, v. MUTUAL SERVICE CASUALTY INSURANCE COMPANY, Ralph Green Realtors, Inc., Richard Gurda d/b/a Gurdaco Income Property and Painting Company, ABC Insurance Company and Grace M. Oldenburg, Trustee and/or Personal Representative of the Estate of Laverne E. Mathea, Defendants, |
| Court | U.S. District Court — Eastern District of Wisconsin |
Timothy Cesar, Hausmann-McNally, Milwaukee, WI, for Plaintiff Kevin Chapman and Family Health Plan.
Emile H. Banks, Kasdorf, Lewis & Swietlik, W. Ted Tornehl, Borgelt, Powell, Peterson and Frauen, Milwaukee, WI, for Defendant Ralph Green Realtors and Mutual Casualty Ins. Co.
Steven J. Snedeker, Hills and Hicks, Brookfield, WI, for Mutual Service Casualty Ins. Co.
Richard Gurda, Franklin, WI, Pro Se Defendant.
James T. Murray Jr., Attorney Molly C. Feldbruegge, Peterson, Johnson & Murray, Milwaukee, WI, for Defendant Laverne E. Mathea and Grace Oldenburg.
Thomas E. Dolan, Dolan Law Offices, Milwaukee, WI, for 3rd Party Defendant James E. Wilkes d/b/a Wilkes Realty.
DECISION AND ORDER
Plaintiffs Leonard and Cindy Chapman and their son Kevin bring this negligence action against numerous defendants, alleging various tortious acts in connection with the faulty inspection of their home for lead-based paint. Plaintiffs claim that Kevin suffers the effects of lead toxicity caused by the presence of lead-based paint in the house purchased by his parents.
The Chapman home was inspected by a government-approved independent appraiser, James Wilkes, during the Federal Housing Administration (FHA) mortgage loan approval process. Pursuant to this inspection, the house was repainted by Richard Gurda of Gurdaco Income Property & Painting Company. The Chapmans moved into the house shortly thereafter. Kevin, who was then about 4½, soon began to experience increased lead levels, allegedly from consuming paint chips or inhaling paint dust around the Chapman home.
In addition to Wilkes and Gurda (and after much cross-claiming, intervening and amended pleading), the Chapmans subsequently sued (1) the United States and the U.S. Department of Housing and Urban Development (HUD), alleging that Wilkes was an HUD employee; (2) Security Bank, S.S.B., the lender underwriting the Chapmans' HUD-insured FHA mortgage; (3) Ralph Green Realtors, Inc., the real estate broker for the sale of the Chapman home, who hired Gurda to repaint the house; (4) Grace Oldenburg, the seller of the house and personal representative of the estate of the late owner; (5) and Federal Insurance Company and Mutual Service Casualty Insurance Company, potential liability insurers of Security Bank and Ralph Green Realtor, respectively.
With the exception of individual defendants Wilkes and Gurda, all defendants filed dispositive motions. By previous order addressing several motions, the United States, Security Bank and Federal Insurance Company were dismissed as defendants, and the court elected to retain jurisdiction. This order addresses the following motions: (1) Ralph Green Realtor's motion for summary judgment; and (2) Grace Oldenburg's motion for summary judgment.
On July 21, 1991, the Chapmans, first-time home buyers, signed an offer to purchase the residential property located at 2165 S. 31st Street, Milwaukee. The property had been put up for sale by Grace Oldenburg on April 4, 1991, in her capacity as personal representative of the estate of the late owner, Laverne Mathea. Ralph Green Realtors ("RGR"), through its sales representative Milton Erdman, had prepared and listed the home for sale. The Chapman's offer was contingent on the plaintiffs obtaining an FHA First Mortgage Loan Commitment.
The Chapmans applied for the HUD loan at Security Bank ("Security"), which acted as a Direct Endorsement Underwriter for HUD loans. As part of the required process for obtaining such a loan, Security contacted HUD-approved appraiser Wilkes to do an appraisal and inspection of the property. Wilkes performed his appraisal on August 5, 1991, and completed the required appraisal form and "Attachment A," describing necessary repairs. Attachment A included the following instructions with respect to the garage and home exterior, to be completed before closing: "Remove all chipped or pealing [sic] paint, repaint as needed." (Dentice Aff. Ex. D.) Wilkes mailed the appraisal and Attachment A to Security.
The appraisal was initially reviewed by Lee Ann Johnson, a Security loan processor. On August 21, 1991, Johnson faxed a copy of Attachment A and a cover letter to Erdman at RGR, asking Erdman to make the necessary repair arrangements and to contact her with any questions. The letter also instructed Erdman to contact Security when the repairs were done so the bank could arrange a follow-up inspection.
According to Erdman and RGR owner Ralph Green, Attachment A was unclear and not sufficiently specific about areas needing repainting. Green asserts that someone from RGR called Johnson to clarify the extent of repairs needed and that Johnson said she would check with Wilkes and call back. According to Green, Johnson later called back and informed him that only the areas that were flaking or in need of paint would have to be repainted. The Security phone logs contain no record of these calls, nor does Johnson appear to recall them.
At some point after receiving Attachment A, RGR made arrangements to have the Chapman home repainted. Oldenburg agreed to pay for the external painting of the house, and the Chapmans agreed to paint the interior themselves. According to Erdman, Green suggested Richard Gurda to do the external painting. Erdman contacted Gurda about repainting the house, obtained an estimate, secured Oldenburg's approval of the fee, and ultimately gave Gurda directions on how to proceed.
On October 9, 1991, after Gurda had completed his work, Wilkes reinspected the house. Wilkes determined that the house satisfied HUD requirements and forwarded his final compliance inspection report to the bank. The closing took place two days later. Wilkes' report was reviewed and signed by Janet Jandl, a senior underwriter at Security, several weeks after the closing.
The Chapman family moved into the house in late October 1991. Kevin's blood was tested for lead toxicity in early December 1991 and on a monthly basis thereafter. According to the Chapmans, his lead levels continued to rise steadily, peaking in July 1992.
Summary judgment is appropriate only where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); Celotex v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In weighing a summary judgment motion, courts should construe evidence in the light most favorable to the non-moving party and draw all reasonable and justifiable inferences in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). However, a genuine issue of material fact is not demonstrated by the existence of "some alleged factual dispute between the parties," id. at 247, 106 S.Ct 2505, or by "some metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Pointing to the "mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient" to establish a material factual dispute. Anderson, 477 U.S. at 252, 106 S.Ct. 2505. Rather, a genuine issue of material fact does not exist unless "there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party." Id. at 249, 106 S.Ct. 2505.
Plaintiffs' claims are grounded in negligence law. To maintain a cause of action for negligence in Wisconsin, a plaintiff must show (1) a duty of care on the part of the defendant; (2) a breach of that duty; (3) a causal connection between the conduct and the injury; and (4) an actual loss or damage as a result of the injury. Rockweit v. Senecal, 197 Wis.2d 409, 418, 541 N.W.2d 742 (1995). Because the existence of negligence is a mixed question of law and fact, generally the question of whether an individual is negligent is for the jury and should be decided by the court as a matter of law only in rare cases. Olson v. Ratzel, 89 Wis.2d 227, 251-52, 278 N.W.2d 238 (Ct.App.1979). However, where there is no dispute as to the facts alleged to give rise to a duty of care, the existence and scope of that duty is a question of law which the court may decide. Id.; Ceplina v. South Milwaukee Sch. Bd., 73 Wis.2d 338, 341-42, 243 N.W.2d 183 (1976).
The Chapmans allege that RGR breached its "warranties and covenants of good faith and fair dealing and/or [was] negligent" in connection with the sale of the Chapman home. (Fourth Am. Compl. ¶ 24.) Specifically, plaintiffs allege that this negligence
includes but is not limited to their hiring, supervising and inspecting the work of the paint contractors, Richard Gurda and/or Gurdaco, and the inspector; their failure to warn and/or notify the Chapmans of lead based paint and its hazards; their failure to diligently investigate the material fact of lead base paint; their failure to meet the appropriate standards of care; their failure to comply with Wisconsin Administrative Code Regulations and Licensing, Sec. 24.07, and other acts of negligence and breaches of their warranties and covenants of good faith and fair dealing.
(Id.)
RGR moves for summary...
To continue reading
Request your trial
-
Weinstock v. Adt LLC
...not have an independent claim for negligent hiring, training or supervising. The plaintiffs point to Chapman ex rel. Chapman Serv. Cas. Ins. Co., 35 F. Supp. 2d 699, 706 (E.D. Wis. 1999), for the proposition that negligent hiring exists independent of the contract. But the Chapman court not......
-
Novum Structures, LLC v. Larson Eng'g, Inc.
...A-E8.10(1)).) Statutes and regulations may indicate the duty of care expected of a professional. See Chapman by Chapman v. Mut. Serv. Cas. Ins. Co., 35 F. Supp. 2d 699, 705 (E.D. Wis. 1999) (citing Grube v. Daun, 173 Wis. 2d 30, 52, 496 N.W.2d 106, 113 (Ct. App. 1992); Meas v. Young, 142 Wi......
- Lasalvia v. City of Evanston
- Bronzino v. Sheldon