Cullen v. Flanders
| Decision Date | 08 March 1994 |
| Docket Number | No. 93-0813,93-0813 |
| Citation | 516 N.W.2d 20,183 Wis.2d 430 |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. Terrence J. CULLEN, Plaintiff-Appellant-Cross Respondent, v. Dennis J. FLANDERS, Defendant, Badger Mutual Insurance Company, Defendant-Respondent-Cross Appellant. |
| Court | Wisconsin Court of Appeals |
Before WEDEMEYER, P.J., FINE and SCHUDSON, JJ.
Terrence Cullen appeals a judgment dismissing his action against his insurer, Badger Mutual Insurance Company. He sought recovery of personal-injury damages arising from a car accident caused by an uninsured motorist, Dennis Flanders. 1 Cullen argues that the trial court should have granted his motion for summary judgment because Cullen got a default judgment against Flanders. Cullen contends that the default judgment was binding on Badger. We conclude that the trial court properly denied Cullen's motion and affirm.
Badger cross-appeals, arguing that the trial court erred in denying its motion for sanctions against Cullen. We agree and remand to the trial court for determination of an appropriate award. We further conclude that Cullen's attorney, Robert Weidenbaum, violated RULE 802.05, STATS., on appeal, and therefore remand to the trial court to determine the reasonable expenses, including reasonable attorney fees, incurred by Badger as the result of Weidenbaum's violation of the obligations imposed by that rule.
I.
On March 18, 1984, Cullen injured his left knee in a car collision with Flanders. That knee was also injured in 1983, and was operated on less than a month before the 1984 accident. Flanders apparently had no car insurance. Badger insured Cullen via a policy issued to the owner of the car Cullen was driving, a corporation in which Cullen was apparently the major shareholder. That policy included the following relevant clauses:
INSURING AGREEMENTS
1. Damages for Bodily Injury Caused by Uninsured Automobiles: The company will pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury ... sustained by the insured, caused by accident and arising out of the ... use of such uninsured automobile; provided, for the purposes of this endorsement, determination as to whether the insured or such representative is legally entitled to recover such damages, and if so, the amount thereof, shall be made by agreement between the insured or such representative and the company or, if they fail to agree, by arbitration.
No judgment against any person or organization alleged to be legally responsible for the bodily injury shall be conclusive, as between the insured and the company, of the issues of liability of such person or organization or of the amount of damages to which the insured is legally entitled unless such judgment is entered pursuant to an action prosecuted by the insured with the written consent of the company.
3. Proof of Claim; Medical Reports: As soon as practicable, the insured person or other person making claims shall give to the company written proof of claim under oath if required, including full particulars of the nature and extent of the injuries, treatment, and other details entering into the determination of the amount payable hereunder. The insured and every other person making claim hereunder shall submit to examinations under oath by any person named by the company and subscribe the same as often as may reasonably be required....
The injured person shall submit to physical examinations by physicians selected by the company when and as often as the company may reasonably require and he or in the event of his incapacity his legal representative, or in the event of his death his legal representative or the person or persons entitled to sue therefore, shall upon each request from the company execute authorization to enable the company to obtain medical reports and copies of records.
11. Action Against Company: No action shall lie against the company unless as a condition precedent thereto, the insured ... has fully complied with all the terms of this endorsement.
On July 25, 1984, Weidenbaum notified Badger of Cullen's claim for uninsured-motorist benefits under the policy. On August 23, Badger requested Cullen's medical records and special-damages information. Weidenbaum did not respond. Over the next four years, Badger continuously, but unsuccessfully, requested these records from Weidenbaum. Indeed, Weidenbaum contacted Badger only once after notifying Badger of Cullen's claim in 1984 until he filed the present case against Badger, Cullen's employer, and Flanders in March of 1987. Badger finally received Cullen's partial medical records in October of 1988. 2
Upon receiving notice of the suit, Badger did not immediately file an answer. Rather, Cullen gave Badger an indefinite extension of time to answer. Badger repeatedly notified Weidenbaum that, as required by the insurance policy, Cullen had to arbitrate the dispute between Cullen and Badger. Badger also told Weidenbaum that Badger did not consent to be bound by any judgment Cullen might get against Flanders, and that Badger did not consider itself to be a proper party to Cullen's suit against Flanders.
In February of 1988, Weidenbaum told Badger that Cullen was not bound by the arbitration provision in the policy, and refused to arbitrate. Weidenbaum directed Badger to answer the complaint if they would not settle. At this point, however, Badger still did not have any medical records or special-damages information from Cullen. Badger answered the complaint, and again invoked the arbitration clause. During this time, Cullen moved for default judgment against Flanders, specifically noting that he was not requesting judgment against Badger. Default judgment against Flanders was entered on February 29, 1988.
On July 1, 1988, Badger filed a motion to stay the court proceedings in Cullen's suit against it, pending arbitration. At a hearing on the motion, the trial court ordered the parties to exchange and provide the court with their written settlement positions before the next hearing. Cullen did not comply. Finally, on October 31, 1988, the trial court granted the stay.
Over the next month, Badger made several attempts to contact Weidenbaum to discuss initiation of arbitration. Weidenbaum did not respond until after the third attempt, when Badger supplied him with arbitration information and demand forms. Badger informed Weidenbaum that it expected Cullen to initiate arbitration because Cullen was asserting the claim. Weidenbaum gave no indication that Cullen would refuse to file for arbitration, but Cullen did not do so for over a year. Weidenbaum never contacted Badger during that year.
Twice in 1990, during the pendency of the arbitration proceedings, Badger requested that Weidenbaum send it up-to-date medical records, and sought available deposition dates for Cullen. Weidenbaum did not respond. Badger finally pinned Weidenbaum down when it requested that he stay on the line after a January 3, 1991, phone status conference with the court. Weidenbaum said that he would not voluntarily produce Cullen for deposition until an arbitrator was appointed and set a discovery schedule allowing depositions. He also told Badger that the medical records he had produced were all the documents relevant to the claim. Weidenbaum said that Cullen would consider submitting to a medical exam by a doctor of Badger's choice. Badger then invoked the mandatory discovery provisions of the policy, and demanded that Weidenbaum provide Badger with a list of Cullen's health care providers for purposes of preparing medical records authorizations, that Cullen submit to deposition on one of the dates it provided, and warned that Badger would require a physical examination of Cullen, under the terms of the policy. Weidenbaum did not reply. Badger repeated the requests, and informed Weidenbaum that Cullen was in breach of the insurance policy. Weidenbaum did not respond.
In May of 1991, Weidenbaum finally responded to the mandatory discovery issues in a letter to the arbitration administrator-after the administrator requested that he do so-suggesting that the "discovery" issues be settled at a pre-hearing conference. Badger agreed, but reiterated that the policy required Cullen's compliance with Badger's requests. Badger then made numerous attempts to set up mutually convenient dates for the conference, but Weidenbaum failed to timely respond. Weidenbaum finally provided Badger with available dates-three months, four letters from Badger, and two unreturned phone calls to Weidenbaum later.
At the arbitrator's request for more information in an attempt to get stipulations on certain issues, and a brief on others, Badger wrote to Weidenbaum on October 29, 1991, asking again for the information required by the insurance policy, and invited a discussion on possible stipulations. Weidenbaum never responded, despite two requests to do so by the administrator, and a warning that if he did not respond, arbitration would be suspended. Arbitration was suspended in November of 1991.
Despite the suspension, Badger continued to attempt to move Cullen's claim along. It requested that Cullen comply with discovery, and warned that failure to do so would result in Badger moving for a dismissal of Cullen's claim with prejudice. Weidenbaum did not respond to Badger, but again asked the administrator for a pre-hearing conference. Badger agreed to proceed if Cullen would cooperate with the insurance policy's discovery requirements. Badger continually requested such compliance for months, with no relevant response from Weidenbaum. 3 Badger moved for summary judgment on June 9, 1992, on the basis that Cullen materially breached the discovery...
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