Gonzalez v. City of Franklin

• Decision Date: 12 September 1985
• Docket Number: No. 84-1733,84-1733
• Citation: 128 Wis.2d 485,383 N.W.2d 907
• Court: Wisconsin Court of Appeals
• Parties: Miguel GONZALEZ, Sr., Esperanza Gonzalez and Miguel Gonzalez, Jr., by his Guardian ad Litem, Robert H. Bichler, * Plaintiffs-Respondents and Cross-Appellants, v. The CITY OF FRANKLIN, a municipal corporation, and the Home Indemnity Company, an insurance corporation, Defendants-Appellants and Cross-Respondents. . Oral Argument

Page 907

383 N.W.2d 907

128 Wis.2d 485

Miguel GONZALEZ, Sr., Esperanza Gonzalez and Miguel

Gonzalez, Jr., by his Guardian ad Litem, Robert H.

Bichler, ^* Plaintiffs-Respondents and Cross-Appellants, v. The CITY OF FRANKLIN, a municipal corporation, and the Home

Indemnity Company, an insurance corporation,

Defendants-Appellants and Cross-Respondents.

No. 84-1733.

Court of Appeals of Wisconsin.

Oral Argument Sept. 12, 1985.

Opinion Released Jan. 22, 1986.

Opinion Filed Jan. 22, 1986.

Rocke A. Calvelli (argued) and Douglas H. Starck (argued) of Prosser, Wiedabach & Quale, S.C., Milwaukee, for defendants-appellants and cross-respondents.

Robert H. Bichler (argued) of Thompson & Coates, Ltd. of Racine, for plaintiffs-respondents and cross-appellants.

Before SCOTT, C.J., BROWN, P.J., and NETTESHEIM, J.

SCOTT, Chief Judge.

The City of Franklin and The Home Indemnity Company (collectively, Franklin) appeal from a judgment following a jury verdict in favor of Miguel Gonzalez, Sr. (Gonzalez), Esperanza Gonzalez, and Miguel Gonzalez, Jr. (the boy) for injuries suffered by Gonzalez and the boy when a firework found in a Franklin park exploded. Franklin raises a plethora of issues on appeal. The only reversible error involves the trial court's determination that the city's insurance policy with Home waived the statutory governmental $50,000 limit on recovery of sec. 893.80, Stats. Beyond this, however, we affirm the trial court's judgment in all respects. We also reject the Gonzalezes' cross-appeal asking us to reconsider our holding in White v. General Casualty Co. of Wisconsin, 118 Wis.2d 433, 348 N.W.2d 614 (Ct.App.1984).

On August 1, 1982, Gonzalez, his wife Esperanza, daughter Norma, and son Miguel, Jr. went to a family picnic in Lions Legend Park in Franklin. While at the park, the seven-year-old boy found an explosive evidently left over from the city's Fourth of July celebration. The boy took the black plastic ball home with him, unbeknownst to his parents. There, he managed to light the fuse of the ball, which he evidently believed to be a smoke bomb. Gonzalez then noticed what the boy had done, shouted to the children to get back and reached for the ball to throw it away. It exploded, seriously injuring both father and son.

The Fourth of July fireworks show was put on by Galaxy Fireworks Manufacturing Company (Galaxy). Among the fireworks Galaxy used was a box purchased from Pyro Science Development Corporation (Pyro). Following the show that evening, a Galaxy crew cleaned up the launching area, looking for unexploded shells. None was found. Galaxy, however, had made no representation to Franklin, contractual or otherwise, concerning cleanup. City representatives acknowledged that the city was in charge of security and cleanup. Moreover, there were other fireworks shot off at the park that night; no conclusive showing was made at trial that the offending explosive originated with Galaxy or Pyro.

At trial, the judge forbade any reference to Gonzalez's status as an illegal alien. While recognizing its potential relevance, he deemed its prejudicial effect to outweigh it.

The jury found the City of Franklin 100% negligent and assessed damages for the Gonzalezes at $694,973.82. This was reduced on motions after verdict to $500,000, the limits of the insurance policy issued to Franklin by Home. The trial court denied Franklin and Home's motion to reduce the amount of the award to comport to the $50,000 per person governmental limit of sec. 893.80, Stats., holding that there was a waiver of that limitation by language in an amendment to the policy. Franklin and Home (hereinafter, Franklin) appeal.

The Gonzalezes cross-appeal, claiming that their joint offer to settle with Home for $499,999.99 entitles them to preverdict interest and double costs. Further facts will be set forth as necessary.

Franklin first contends that the $50,000 limit of sec. 893.80, Stats., was not waived by the language of an amendment to the policy. We agree and accordingly reverse that part of the judgment setting damages and remand for the entry of a damages award in accord with the $50,000 limit set forth in sec. 893.80(3).

The policy amendment language relied upon by the trial court for its conclusion of waiver reads as follows:

Any person or organization or the legal representative thereof who has secured a judgment against the insured shall be entitled to recover under this policy to the extent of the insurance afforded by this policy.

The trial court held that the "absolute absence of any limitation" upon liability in the above language satisfied the requirements of waiver of limits on municipal recovery. We disagree. The construction of an insurance policy is a question of law. Katze v. Randolph & Scott Mutual Fire Insurance Co., 116 Wis.2d 206, 212, 341 N.W.2d 689, 691 (1984). We owe no deference to the trial court's resolution of issues of law. Behnke v. Behnke, 103 Wis.2d 449, 452, 309 N.W.2d 21, 22 (Ct.App.1981).

Prior Wisconsin waiver cases indicate that, for waiver to lie, there must be more than a merely inferential statement of waiver. The amendment language here is insufficiently explicit to serve as a waiver.

In those two Wisconsin cases argued to us in which waiver was found, the expression of waiver was explicit and direct. In Stanhope v. Brown County, 90 Wis.2d 823, 847, 280 N.W.2d 711, 721 (1979), the pertinent language read: "It is agreed that to the extent legally possible, the Company will not avail itself of the defense that the Insured is not liable because of the performance of Governmental Functions." Our supreme court held that this waived the statutory defense of limitation of recovery under secs. 81.15 and 895.43, Stats. (1971). Id. at 852, 280 N.W.2d at 723. In Marshall v. City of Green Bay, 18 Wis.2d 496, 501, 118 N.W.2d 715, 718 (1963), our supreme court stated that "[t]he policy also provided the insurer would not raise the defense of governmental immunity." Further, "[t]he policy by its terms required ... that the company will not avail itself of the defense that the city is not liable because of the performance of governmental functions." Id. at 497, 118 N.W.2d at 716. The court construed the policy to set forth "a waiver of governmental immunity by the city recognized and agreed to by the insurer." Id. at 501, 118 N.W.2d at 718.

Conversely, the language in the amendment before us makes no reference to government or municipal immunity or limitations in any form, nor does it refer, obliquely or otherwise, to the insured's forgoing of any such immunity or limitation. Any relationship between the amendment and governmental immunity or limitation upon recovery is, at very best, inferential only. Such is not true of the policy language of Stanhope or the language inferred in Marshall.

We take further guidance from Sambs v. City of Brookfield, 66 Wis.2d 296, 224 N.W.2d 582 (1975). Beyond characterizing the policy in Marshall as "specifically provid[ing] that the insurer would not raise the defense of governmental immunity," the supreme court concluded that there was no waiver because "there is no clause in the insurance policy prohibiting either use of the immunity defense or reliance on the statutory liability limitation. " Sambs at 315, 224 N.W.2d at 592. (Emphasis added.)

The Sambs court was further unpersuaded by cases from other jurisdictions that "the defense of immunity can be waived without there being a specific clause in the insurance policy prohibiting the assertion of the defense." Id. at 316, 224 N.W.2d at 593. (Emphasis added.) The court in Stanhope, 90 Wis.2d at 851-52, 280 N.W.2d at 723, also required a "specific waiver endorsement" and stated that the statutory limitation on recovery serves no legitimate public purpose when a governmental body carries liability insurance in excess of the statutory limitation and "expressly waives its defense...." (Emphasis added.) We glean from these cases the requirement that the waiver must be specific or express. The language argued as constituting a waiver here is neither. It makes no reference to governmental functions or to the concept of waiver. As a result, we are unpersuaded that this language is reasonably or fairly susceptible to more than one construction. Id. at 848-49, 280 N.W.2d at 722. The amendment language does not constitute a waiver of governmental liability limits.

Next, Franklin challenges the sufficiency of the evidence with respect to the jury's negligence apportionments. We affirm those apportionments.

We begin this discussion by noting that we will sustain a jury's apportionment of negligence where there is any credible evidence that under any reasonable view supports the verdict and removes the question from the realm of conjecture. Johnson v. Misericordia Community Hospital, 97 Wis.2d 521, 566, 294 N.W.2d 501, 523 (Ct.App.1980), aff'd, 99 Wis.2d 708, 301 N.W.2d 156 (1981). The jury's assessment of 100% negligence to the City of Franklin is supported by evidence that the city was in charge of cleaning up after the fireworks show, that Galaxy was not obligated under its contract to clean up and that Franklin did not rake the firing range area. The jury's findings of no negligence on the part of Galaxy and Pyro are supported by evidence that fireworks were shot off by parties other than Galaxy in the park on July 4. Consequently, there was no incontrovertible proof that the offending bomb was produced by Pyro or used by Galaxy.

The jury's finding of no negligence on the part of the boy may be ascribable to the boy's extreme youth; a child of tender years is not held to the same degree of care as an adult. Rossow v. Lathrop, 20 Wis.2d 658, 663, 123 N.W.2d 523, 526 (1963). Evidently, the jury believed that a seven-year-old attempting to light what he believed was a smoke bomb was not negligent. We see no reason to alter that judgment. Nor, given the circumstances in which Gonzalez discovered the boy with...