Huggins By Huggins v. Sea Ins. Co., Ltd.

Decision Date12 April 1989
Docket NumberNo. 88-C-157.,88-C-157.
Citation710 F. Supp. 243
PartiesKimberly HUGGINS, a Minor, by her next friend, Alice HUGGINS, and Ronald Huggins, a Minor by his next friend, Alice Huggins, Plaintiffs, v. The SEA INSURANCE COMPANY, LTD., a corporation, Defendant.
CourtU.S. District Court — Eastern District of Wisconsin

Thomas E. Greenwald, Connolly, Oliver, Close & Warden, Rockford, Ill., for plaintiffs.

Robert Penegor, Brookfield, Wis., for defendant.


CURRAN, District Judge.


Kimberly and Ronald Huggins, the minor children of Terry Huggins, have commenced the above-captioned case seeking more than $50,000.00 in compensatory damages for loss of the society and companionship of their father, who was seriously injured in a motor vehicle accident in Waukesha County (Wisconsin) on March 24, 1985. The defendant, The Sea Insurance Company, Ltd. is the issuer of a policy of excess liability insurance to a service corporation, Dr. Bruce J. Barrette, D.D.S., S.C. An additional insured, under the policy, Dr. Bruce Barrette was involved in the March 24 accident. This court has diversity jurisdiction over the subject matter of the plaintiffs' claims because the amount in controversy for each plaintiff exceeds $10,000.00; the plaintiffs are citizens of Illinois; The Sea Insurance Company is incorporated in New Jersey and has its principal place of business in New Jersey; the defendant's insured, Dr. Bruce J. Barrette, D.D.S., S.C., is a Wisconsin professional corporation; and its additional insured, Dr. Bruce Barrette, is a citizen of the State of Wisconsin. See 28 U.S.C. § 1332(a) & (c).

The defendant answered the complaint denying liability and asserting as an affirmative defense that the plaintiffs are "estopped" from collecting damages because they did not join in the principal action brought by Terry Huggins in the Circuit Court of Waukesha County (Wisconsin). The state court entered final judgment in favor of Terry Huggins and against Sea Insurance and other defendants on December 1, 1987.

After the initial scheduling conference in this court, the defendant moved for summary judgment on the ground that there are no material issues of fact in dispute and that it is entitled to judgment as a matter of law on the basis of its affirmative defense. See Federal Rule of Civil Procedure 56(b). At the same time the plaintiffs moved for a partial summary judgment of liability on the ground that the defendant is estopped from relitigating those issues of liability determined against it in the Waukesha County action. The plaintiffs are asking for an order declaring that:

The Defendant is directly liable for the loss of society, companionship, love and affection of their father by reason of the negligence of Bruce J. Barrette with such liability not to exceed $532,734.75 plus taxable costs in this action and, furthermore, that the Defendant, Bruce J. Barrette,1 was, at the time and place in question, negligent and such negligence was a proximate cause of the bodily injuries to Terry Huggins, the father of the minor plaintiffs.

Motion for Partial Summary Judgment at 1. These motions are now fully briefed and ready for decision.


Under Federal Rule of Civil Procedure 56(c), a party moving for summary judgment must show that the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. See McGraw-Edison Company v. Walt Disney Productions, 787 F.2d 1163, 1167 (7th Cir.1986). Based on the state court pleadings and other documents which the parties have submitted in support of their motions, the material and undisputed facts pertaining to this controversy, as recounted by the plaintiffs, are that:

Kimberly and Ronald Huggins were minor children of Terry Huggins who was involved in an automobile accident on March 24, 1985. Mr. Huggins was a passenger in an automobile that had been parked along the side of Highway 15 (now Highway I43) in Waukesha County near the City of New Berlin. Bruce J. Barrette was, just before the accident, driving his vehicle in an easterly direction upon Highway 15. His vehicle left the traveled portion of the highway and struck the rear of the vehicle occupied by Terry Huggins.
Mr. Huggins subsequently brought suit in the Circuit Court of Waukesha County on his behalf, and only his behalf, seeking the recovery for injuries which he sustained in the accident. The trial in that matter was held in the Circuit Court of Waukesha County before Judge Wollenzien in late October and early November of 1987. The Defendants in that case included the driver of the vehicle being operated by Terry Huggins and his insurance carrier, State Farm Fire & Casualty Insurance Company, Bruce J. Barrette, his professional corporation known as Bruce J. Barrette, D.D.S., S.C., his primary automobile liability insurance carrier, State Farm Automobile Insurance Company and his excess liability insurance carrier, The Sea Insurance Company, a division of the Chubb Group of insurance companies. Before the trial began, the professional corporation was dismissed by order of the Court on a Motion of that Defendant for Summary Judgment asserting that the individual Defendant, Bruce J. Barrette, was not acting within the scope of his employment at the time of the occurrence. The driver of the Huggins' vehicle and its insurance carrier were dismissed prior to the lawsuit upon Stipulation and Order, it having been stipulated and so ordered that the driver of that vehicle was not negligent nor did any action or omission on his part contribute to cause the occurrence which was the subject of this suit or the injuries sustained by Terry Huggins. At the commencement of the trial, counsel for Bruce J. Barrette, State Farm Automobile Insurance Company and The Sea Insurance Company admitted on the record that Bruce J. Barrette was negligent in the operation of his vehicle and that such negligence was the sole and proximate cause of the occurrence in question and the injuries, if any, sustained by Terry Huggins following that accident.
The case proceeded to trial over the next 2½ weeks. A special verdict was returned in favor of the Plaintiff, Terry Huggins, for enumerated items of damages sustained solely and exclusively by Terry Huggins. On December 1, 1987, Judge Wollenzien entered judgment on behalf of the sic Terry Huggins and against the Defendants, Bruce J. Barrette, State Farm Automobile Insurance Company and The Sea Insurance Company for the sum of $567,265.25 which was a total of the Special Verdict which was an itemized verdict asking the jury to determine damages which would fairly and reasonably compensate Terry Huggins for the following:
(1) Medical and hospital expenses, past and future;
(2) Past and future loss of earning capacity; and
(3) Past and future pain, suffering, disability and disfigurement sustained by Terry Huggins.

Motion for Partial Summary Judgment at 1-3.


Given these undisputed facts, the threshold legal issue in this case is whether Kimberly and Ronald Huggins can maintain their claims for loss of their father's society and companionship in an independent action commenced after the entry of final judgment in their father's underlying case or whether they have waived their right to bring such claims because they failed to assert them in the principal action. Where, as here, the admitted or undisputed material facts present no conflicting inferences or conclusions, but only questions of legal consequences under the governing law, there is no barrier to summary judgment. See Fitzsimmons v. Greater St. Louis Sports Enterprises, Inc., 63 F.R.D. 620, 622 (S.D.Ill.1974).

In a diversity action a federal court must look to the substantive law of the forum for the governing law. See Erie Railroad Company v. Tompkins, 304 U.S. 64, 71-80, 58 S.Ct. 817, 818-23, 82 L.Ed. 1188 (1938). Thus, Wisconsin law should apply unless one of the parties argues that another state has a more substantial concern with the litigation and the laws of that state conflict with the relevant laws of the forum. In this case, although the plaintiffs are citizens of Illinois and Illinois does not recognize a cause of action for loss of parental consortium,2 the parties assume that Wisconsin law should apply and the court sees no reason to disturb that assumption. See Mucha v. King, 792 F.2d 602, 604 (7th Cir.1986); National Association of Sporting Goods Wholesalers, Inc. v. F.T.L. Marketing Corporation, 779 F.2d 1281, 1284-85 (7th Cir.1985).

In 1984 — one year before Terry Huggins was injured — the Wisconsin Supreme Court ruled in Theama v. City of Kenosha, 117 Wis.2d 508, 344 N.W.2d 513 (1984), that a "minor child may recover for the loss of care, society, companionship, training, and guidance of a parent due to the negligent acts of a third party." Id. at 519-20, 344 N.W.2d at 518-19. However, the Theama court specifically declined to address the question raised by the instant case — whether the child's claims must be joined with those of the parent. See Id. at 526, 344 N.W.2d at 521. During the years following Theama, no Wisconsin appellate courts have confronted this issue in a reported decision. Therefore, this is a case of first impression in this forum. In a diversity case, if the forum's highest court has not spoken on an issue, the federal court must review all available data and predict how the forum's courts would rule. See, e.g., Green v. J.C. Penney Auto Insurance Company, Inc., 806 F.2d 759, 761-65 (7th Cir.1986); Bornstein v. Fireman's Fund Insurance Company, 623 F.Supp. 814, 815 (E.D.Wis.1985).


In support of its motion The Sea Insurance Company argues that section 803.03(2)(a) of the Wisconsin Statutes should apply to require joinder of claims for loss of parental...

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