Gliniecki v. Borden, Inc., 73-C-612.
| Decision Date | 06 February 1978 |
| Docket Number | No. 73-C-612.,73-C-612. |
| Citation | 444 F. Supp. 619 |
| Parties | Anne GLINIECKI, Plaintiff, v. BORDEN, INC., a Foreign Corporation, et al., Defendants. |
| Court | U.S. District Court — Eastern District of Wisconsin |
Gray & End, J. Michael End, Milwaukee, Wis., for plaintiff.
Foley & Lardner by James R. Clark, Steven E. Keane, Milwaukee, Wis., for defendants.
DECISION and ORDER
In this action the plaintiff seeks damages from the defendants for injuries she allegedly suffered while working as a meat wrapper for the A & P food stores. The plaintiff claims that in the process of wrapping meat in plastic film manufactured by the defendants, the film exuded smoky fumes containing toxic agents, causing the plaintiff injury.
A trial was scheduled to begin in this action on September 12, 1977. On the morning of September 12, the court was informed by James R. Clark, counsel for Borden, Inc., that the action had been settled. In early October, however, the court was informed by the plaintiff's counsel, Harold Harris, that the previously-negotiated settlement had collapsed. Following a pretrial conference before me on October 19, 1977, the parties met with the magistrate in an unsuccessful effort to reach another settlement. At the October 19 pretrial conference, I set the case for a jury trial to begin on February 13, 1978.
Two motions are presently before me. Borden has filed a motion for an order either enforcing the settlement agreement or requiring the plaintiff to pay the duplicative expenses Borden will incur in preparing for the February 13, 1978, trial as a condition to her right to continue this suit. Secondly, Mr. Harris' motion to withdraw as counsel for the plaintiff was granted. The order accompanying the motion which I signed on December 23, 1977, provided that J. Michael End be substituted for Mr. Harris as counsel for Mrs. Gliniecki. Borden challenges the substitution of counsel.
Affidavits have been submitted on this motion both by James R. Clark, counsel for Borden, and by the plaintiff, Mrs. Gliniecki. Mr. Clark's affidavit states that on September 9, 1977, the Friday before the September 12 trial, he and Mr. Harris discussed the possibility of settling this case. Mr. Clark informed Mr. Harris that Borden would settle for $5,000 provided that the settlement were finalized before the end of the day. During the evening of September 9, 1977, Mr. Harris telephoned Mr. Clark at home to say that Mrs. Gliniecki had consented to settle the case for $5,000. The record indicates that the terms of this oral agreement between Mr. Clark and Mr. Harris have never been reduced to a writing signed by the parties or their attorneys.
Mrs. Gliniecki's affidavit states that on September 9, 1977, Mr. Harris called her and requested permission to discuss settlement. The plaintiff said that she would not approve a settlement without discussing it with her husband, who could not be reached at work that day, and "that he Mr. Harris should see what he could do regarding settlement of the case, and call my husband and me at 5:00 p. m. that day." During the evening of September 9, 1977, Mrs. Gliniecki received a telephone call from Mr. Harris, who stated that he "took it upon himself to settle the case" for $3,000. Mrs. Gliniecki later learned that the case had been settled for $5,000, not $3,000. She denies that a settlement for either sum has ever been acceptable to her.
In some diversity cases, federal courts have applied the law of the state in which they were sitting on the question of the requirements for enforcing a settlement agreement. Albright v. R. J. Reynolds Tobacco Co., 350 F.Supp. 341, 348 (W.D.Pa.1972), aff'd, 3 Cir., 485 F.2d 678, cert. den. 416 U.S. 951, 94 S.Ct. 1961, 40 L.Ed.2d 301; Bruce Realty Co. of Florida v. Berger, 327 F.Supp. 507, 509 (S.D.N.Y.1971).
I believe that the plaintiff is correct in her contention that the Wisconsin statute requiring that stipulations be in writing is "in the nature of a statute of frauds." Such a conclusion casts § 807.05 as "substantive" law, which must be applied by a federal court in a diversity case, pursuant to Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1937), and its progeny.
Conversely, what appears to be a federal standard has also been applied in deciding whether a settlement agreement should be enforced. In Kukla v. National Distillers Products Co., 483 F.2d 619, 621 (6th Cir. 1973), this standard and its purpose were explained as follows:
"The power of a trial court to enter a judgment enforcing a settlement agreement has its basis in the policy favoring the settlement of disputes and the avoidance of costly and time-consuming litigation . . . To effectuate this policy, the power of a trial court to enforce a settlement agreement has been upheld even where the agreement has not been arrived at in the presence of the court nor reduced to writing." (Citations omitted).
As already noted, I believe that Wisconsin law should be applied to the dispute over the enforceability of the asserted agreement. Although Wis.Stat. § 807.05 would appear to require that settlement agreements be in writing, case law establishes that the statute does not invariably preclude enforcement of oral settlements.
In Krueger v. Herman Mutual Insurance Co., 30 Wis.2d 31, 139 N.W.2d 592 (1966), the Wisconsin supreme court upheld the trial court's determination that an oral settlement agreement be given full effect....
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