James v. Aetna Life and Cas. Co.
| Decision Date | 10 September 1982 |
| Docket Number | No. 81-1988,81-1988 |
| Citation | 109 Wis.2d 363,326 N.W.2d 114 |
| Parties | Richard JAMES, Plaintiff-Appellant, v. AETNA LIFE AND CASUALTY COMPANY, Defendant-Respondent. |
| Court | Wisconsin Court of Appeals |
Marjan R. Kmiec Law Offices by Marjan R. Kmiec and Richard A. Sachs, Jr., Milwaukee, for plaintiff-appellant.
Borgelt, Powell, Peterson & Frauen, S.C., by Thomas L. Smallwood and W. Ted Tornehl, Milwaukee, for defendant-respondent.
Before DECKER, C.J., MOSER, P.J., and WEDEMEYER, J MOSER, Presiding Judge.
This is an appeal from a summary judgment in favor of Aetna Life and Casualty Company (Aetna) dismissing the complaint of Richard James (James). We affirm.
James filed a worker's compensation application with the Department of Industry, Labor and Human Relations alleging a work-related back injury on or about April 5, 1979. He claimed that the injury occurred while he was throwing a concrete block onto scaffolding which was approximately six feet high.
On May 12, 1980, James filed his first circuit court complaint against Aetna alleging that they had acted in bad faith in discontinuing his benefits. This complaint alleged the following four "rights of action:" (1) bad faith causing injury; (2) intentional conduct causing emotional distress and economic loss; (3) fraud and misrepresentation by Aetna in denying benefits; and (4) outrageous conduct by Aetna causing injury and loss. James sought $500,000 in compensatory damages and $5,000,000 in punitive damages. On July 17, 1980, a hearing was held before an examiner on James' worker's compensation application, but no findings or conclusions were made. Following this hearing, the circuit court action was settled. A stipulation and order for dismissal was entered in the trial court on September 24, 1980.
The terms of the settlement of the circuit court action were as follows: (1) James and his attorney received $11,772; (2) Aetna was to pay all James' outstanding medical bills; (3) the worker's compensation claim was held open; and (4) all bad faith claims and other claims relating to the April 5, 1979, incident were to be dismissed on the merits. These terms were enunciated in the release executed by James and his wife.
Following the dismissal of the circuit court action, Aetna paid all the outstanding medical bills and also paid $3,588 in temporary total disability benefits to James. After December 26, 1980, Aetna refused to pay any more temporary total disability benefits. This refusal was based on a report of Dr. Jon Rupsis dated November 26, 1980, which concluded that Dr. Rupsis was "unable to assign any permanent partial disability as a result of this injury" and that he was also "unable to understand why this patient [James] is incapable of working." Dr. Rupsis' report was contrary to the reports of James' then-attending physician, Dr. Gerald L. Harned. Dr. Harned, in a May 5, 1980, report, concluded that James was in need of vocational rehabilitation and in a February 16, 1981, report, concluded that James' condition was permanent.
On March 6, 1981, James commenced a new circuit court action against Aetna, alleging the same four "rights of action" made in the settled case, but based on facts occurring after the settlement. Following its answer to this complaint, Aetna moved for summary judgment, which was granted by the trial court in a decision entered September 11, 1981. After reviewing the pleadings, the motion for summary judgment and the affidavits and counteraffidavits, the trial court rendered the following decision:
DECISION
Plaintiff contends defendant, since the 1980 compromise, has been guilty of bad faith in purposefully failing to carry out its terms with respect to: (1) payment of bills; (2) payment of temporary total disability; (3) furnishing vocational rehabilitations. This has given rise to a new cause of action.
The Court believes summary judgment should be granted because:
1. All bills have been paid as provided by the release.
2. Defendant never agreed to pay temporary total disability indefinitely. It did pay until advised by a physician that plaintiff no longer suffered from disability. This raised an issue between plaintiff's and defendant's respective physicians for resolution in a proper proceeding under Ch. 102, Stats.
3. Defendant never agreed to furnish vocational rehabilitation. Its physician indicates none is needed. Again this raises an issue for the Commission. No issue or conflicting inference of fact is presented.
As the Court views this matter, plaintiff has a right granted by law and honored in the release to air these matters before the Commission. Coleman v. American Universal Ins. Co., 86 Wis.2d 615, does not apply because there is nothing arbitrary about defendant's refusal to continue temporary total disability payments or to provide rehabilitation training in view of its physician's opinion. Plaintiff accepted and received the benefits of a settlement in which both parties left open the door to these denied benefits by way of a Ch. 102, Stats. proceeding.
This decision was reduced to a judgment entered in the trial court on October 1, 1981. James appeals from this judgment.
The sole issue on appeal is whether the trial court erred in granting summary judgment to Aetna.
Both parties to this appeal have extensively briefed subsidiary issues concerning whether the release and stipulation and order for dismissal of the first circuit court action was an accord and satisfaction, whether James was estopped from bringing a new action because of this settlement, and whether the release foreclosed James from bringing this new action. We disagree with this analysis of the trial court's decision. Although the decision discusses these issues, nowhere in it does the trial court grant summary judgment on the basis of accord and satisfaction, estoppel, or foreclosure of a new action because of a release of future liability.
The trial court merely granted summary judgment because Aetna had paid all bills pursuant to the release, contrary to James' assertions; Aetna never agreed in the release to pay temporary total disability indefinitely; Aetna's refusal to pay this disability, being based on Dr. Rupsis' report, presented an issue of fact between the parties to be resolved at the ch. 102 worker's compensation proceeding; and, Aetna never agreed to furnish vocational rehabilitation. The trial court concluded that Aetna's refusal to continue disability benefits and to provide vocational rehabilitation, in view of Dr. Rupsis' report, was not arbitrary...
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