Flynn v. Arctic Express
| Decision Date | 07 September 2000 |
| Docket Number | 00-024799-2422 |
| Parties | NOTICE This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. 808.10 and Rule 809.62. Charles E. Flynn and Jeanann Flynn, Plaintiffs-Respondents-Cross- Appellants, v. Arctic Express, The Connecticut Specialty Insurance Company, Frances C. Lindsey, William Randecker, State Farm Mutual Automobile Insurance Company, and Fortis Insurance Company, Defendants, The Insurance Company of the State of Pennsylvania, Defendant-Appellant- Cross-Respondent. Carla Randecker and William A. Randecker, Plaintiffs-Respondents, Goodyear Tire & Rubber Co., and State Farm Mutual Automobile Insurance Company, Subrogated-Plaintiffs, v. Frances C. Lindsey, Arctic Express Inc., and The Connecticut Indemnity Co. d/b/a Connecticut Specialty Ins. Co. d/b/a Security Ins. Co. of Hartford, Defendants, Insurance Company of the State of Pennsylvania a/k/a The Insurance Company of the State of Pennsylvania, Defendant-Appellant.STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT IVDECISION DATED AND FILED: |
| Court | Wisconsin Court of Appeals |
This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports.
A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. 808.10 and Rule 809.62.
Charles E. Flynn and Jeanann Flynn, Plaintiffs-Respondents-Cross-
Appellants,
v.
v.
Frances C. Lindsey, Arctic Express Inc., and The Connecticut Indemnity Co.
Insurance Company of the State of Pennsylvania a/k/a The Insurance Company of the State of Pennsylvania, Defendant-Appellant.
APPEALS from judgments of the circuit court for Grant County: ROBERT P. VAN DE HEY, Judge. Reversed.
Before Dykman, P.J., Eich and Deininger, JJ.
1. EICH, J.
This is a consolidated appeal in two personal injury actions arising out of a single automobile accident. Plaintiffs Charles E. and Jeanann Flynn and Carla Randecker were passengers in a car driven by Carla's husband, William, when it collided with a truck driven by defendant Frances Lindsay, an employee of the Arctic Express company. In addition to suing Lindsay and Arctic Express, the Flynns and Randeckers proceeded directly against the defendants' insurers. The two actions were consolidated for trial.
2. The trial court granted the plaintiffs' motions for default judgment against one of the insurers, the Insurance Company of the State of Pennsylvania (ISOP), for its failure to timely answer the complaints. ISOP appeals, arguing, among other things, that the judgments cannot stand because the complaints fail to state claims upon which relief can be granted. We agree and reverse the judgments in both actions.
3. It is well-settled law that a default judgment must have as its underpinning a complaint stating a claim upon which relief can be granted. See Davis v. City of Elkhorn, 132 Wis.2d 394, 398-99, 393 N.W.2d 95 (Ct. App. 1986).
Just because a party fails to answer within a prescribed time does not automatically entitle the complainant to judgment absent excusable neglect. The complainant must make two preliminary showings. First, the moving party must show that the complaint was served and filed in the manner and within the time prescribed by statute. Second, the complaint must contain allegations sufficient in law to state a claim for relief against a defendant.
Id. at 398-99, cited sources omitted.
4. The default judgment in this case focused only on whether ISOP's failure to answer the complaints was the result of excusable neglect; and the trial court ruled that it was not. We need not consider that question, however-or the other issues raised by ISOP-because we are satisfied that both complaints fail to state a claim under the direct-action statute. 1
5. In Decade's Monthly Fund v. Whyte & Hirschboeck, 173 Wis.2d 665, 678, 495 N.W.2d 335 (1993), the supreme court discussed the requirements for commencing and maintaining a direct action against an insurer:
Section 803.04(2)(a) sets forth the standards for bringing a direct action against an insurer in a negligence action. Specifically, the statute provides that before being joined as a defendant [the insurer] must meet at least one of the following criteria: (1)have an interest in the outcome of the controversy adverse to the plaintiff or any of the parties; (2)assume or reserve the right to control the prosecution, defense or settlement of the action; (3)agree to prosecute or defend said action; or (4)agree to pay the defendant's litigation costs.
There is, in addition, a "threshold" requirement that, in order for a direct action to be commenced against an insurer, the policy in question must have been delivered or issued for delivery in the State of Wisconsin. Kenison v. Wellington Ins., 218 Wis. 2d 700, 705-06, 582 N.W.2d 69 (1998).2
6. The Randeckers' complaint contains the following allegations relating to ISOP:
Defendant, the Insurance Company of the State of Pennsylvania (hereinafter, "Insurance of Pennsylvania") is a Pennsylvania corporation with its principal place of business at 70 Pine Street, New York, New York 10270. Insurance of Pennsylvania engages in the business of, among other things, providing excess liability insurance to its policy holders. Insurance of Pennsylvania is authorized to and engages in the business of providing excess liability insurance within the State of Wisconsin.
Insurance of Pennsylvania was a liability insurer covering Arctic and Lindsey against liability imposed by law for incidents arising on September 16, 1995. Insurance of Pennsylvania is named as a party defendant pursuant to ...
To continue reading
Request your trial