Kaminske v. Wisconsin Cent. Ltd., No. 99-C-0297.

CourtUnited States District Courts. 7th Circuit. United States District Court of Eastern District of Wisconsin
Writing for the CourtAdelman
Citation102 F.Supp.2d 1066
PartiesKim KAMINSKE, Plaintiff, v. WISCONSIN CENTRAL LTD., Defendant.
Decision Date03 July 2000
Docket NumberNo. 99-C-0297.
102 F.Supp.2d 1066
Kim KAMINSKE, Plaintiff,
v.
WISCONSIN CENTRAL LTD., Defendant.
No. 99-C-0297.
United States District Court, E.D. Wisconsin.
July 3, 2000.

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John C. Cabaniss, Milwaukee, WI, for Plaintiff.

James A. Fletcher, Chicago, IL, for Defendant.

DECISION AND ORDER

ADELMAN, District Judge.


On March 4, 1996, a train owned by defendant Wisconsin Central Ltd. (WCL) derailed in Weyauwega, Wisconsin, causing damage to the property of plaintiff Kim Kaminske and his wife Laurie. Ultimately the Kaminskes and defendant settled the Kaminskes' claim for damages. Subsequent to the settlement a dispute arose between the Kaminskes and defendant, and defendant reported to the district attorney of Waupaca County that the Kaminskes had defrauded the railroad. This led the district attorney to obtain a search warrant for the Kaminskes' home and ultimately to charge the Kaminskes with theft by fraud. After a trial to the court, the judge found the Kaminskes not guilty.

Plaintiff now sues WCL alleging that WCL committed the torts of (1) malicious prosecution, (2) abuse of process, and (3) defamation.

I. UNDISPUTED FACTS AND PROCEDURAL HISTORY

Unless otherwise noted, the following facts are undisputed and derive from the parties' submissions regarding defendant's proposed findings of fact under Local Rule § 6.05 (E.D.Wis.). Although plaintiff responded to defendant's proposed findings, he did not submit any of his own under Local Rule § 6.05(b)(2). His brief in opposition to defendant's motion for summary judgment, however, contains numerous references to other facts he deemed pertinent. While not required under the local rules to even consider such references because not addressed in any proposed findings, to the extent I believe relevant and possible I have nevertheless incorporated some of those factual assertions in making my decision. To the extent I have not referred to such facts in this section or in the discussion below, I did not deem them relevant or found them inadequately presented. See Hunt-Golliday v. Metropolitan Water Reclamation Dist., 104 F.3d 1004, 1010 n. 2 (7th Cir.1997) (stating that federal courts are not obliged to scour the record looking for factual disputes).

Plaintiff Kim Kaminske is a resident and citizen of the State of Wisconsin. WCL is a corporation incorporated under Illinois law with its principal place of business in Rosemont, Illinois. WCL is engaged in the business of providing interstate rail freight transportation service in the States of Wisconsin, Illinois, Michigan and Minnesota. The court has jurisdiction over this case pursuant to 28 U.S.C. § 1332, as the parties are diverse and the amount in controversy exceeds $75,000. Venue over this case is proper in the Eastern District of Wisconsin in that the events giving rise to plaintiff's claims occurred in this district.

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On March 4, 1996, a WCL train derailed in Weyauwega, Wisconsin. The derailment resulted in a fire involving tank cars carrying propane gas, forcing the evacuation of residents of Weyauwega, including the plaintiff and his wife Laurie.

Following the evacuation, WCL began negotiating settlements with Weyauwega residents in an effort to compensate them for costs and damages they had incurred as a result of the evacuation. Damages were sustained by Weyauwega residents, including among other things out of pocket expenses (for food and lodging for example) and the inconvenience of being away from their homes. There were, however, some residents who sustained damage to their homes and personal property, largely because of water pipes that had burst.

To assist in the settlement process, WCL retained Property Damage Appraisers (PDA). PDA was assigned to meet with Weyauwega residents who claimed damage to their homes and/or personal property. According to defendant, with respect to personal property PDA was to have the resident identify what items of property the resident claimed to have been damaged and to determine the cost of replacing those items. (DFOF1 ¶ 12.) According to plaintiff, however, WCL hired PDA to act as its agent in providing estimates of personal property damage. (PFOF at 2.)

In September 1996 plaintiff and his wife met with representatives of WCL on two occasions to negotiate a settlement of their claim: (1) on September 16, 1996 they met with Jeff Weliky, a WCL claims manager; and (2) on September 25, 1996 they met with Cecil Wingo, an employee of a contractor WCL had retained to assist it in the settlement process. Between the end of the evacuation and these two meetings, PDA representatives had been to the home of plaintiff and his wife to meet with them on at least three occasions. During the visits by the PDA representatives the Kaminskes were asked by the PDA representatives to point out what personal property had been damaged, and the Kaminskes did so. Among the items of personal property identified by the Kaminskes as having been damaged were a computer and various appliances, including a refrigerator, a freezer, a television, a VCR, a microwave oven, a washing machine and a water softener. PDA included these items on its lists of items for repair or replacement. (R. 33 Exs. A, B.)

Prior to meeting with Weliky on September 16, the Kaminskes were asked by WCL to furnish information concerning the expenses and damages that they had sustained as a result of the evacuation. According to defendant, the Kaminskes furnished a handwritten two-page list that included the computer and appliances. (DFOF ¶ 20.) The list showed the amount of money that would be needed in order to replace these items and also included an amount of $1,740.15 identified as money that plaintiff had spent to rent a camper during the evacuation period. (DFOF ¶ 18.) Plaintiff disagrees, however, stating that only Laurie furnished a two-page list including mileage, rental, food, tips, clothing and other expenses. (PFOF at 2.) During the meeting on September 16, plaintiff, plaintiff's wife and Weliky discussed the various items on plaintiff's two-page list, including the computer and appliances. No settlement was reached.

According to defendant, at the Kaminskes' September 25 meeting with Wingo they provided Wingo with another handwritten two-page list that again included the computer and appliances. (DFOF ¶ 20.) The list contained amounts that would be needed to replace these items. This second list also included the same amount for camper rental. Plaintiff, however, disagrees, saying that only he himself provided the list, and only at the request of someone at WCL. (PFOF at 2.) During

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the meeting, plaintiff discussed with Wingo the various items contained on the list, and Wingo explained which items WCL would be willing to pay for as part of a settlement. At the conclusion of the meeting, the Kaminskes and Wingo agreed to a payment by WCL of $30,000 to settle the plaintiff's claim for damages. Plaintiff had wanted $35,000; defendant had wanted to pay $25,000. (See R. 29 Ex. D at 138, Ex. F at 50-52, Ex. H at 14.) Whether the parties agreed on what claimed items the $30,000 was based on is disputed.

Following the settlement, on September 27, 1996 Weliky sent the Kaminskes a letter stating that WCL wanted to pick up several items, including the computer and refrigerator, because it had made an allowance for new items in the settlement agreement. (R. 33 Ex. F.) The settlement documents, however, did not contain any provision regarding WCL salvaging these items. (R. 33 Ex. D.)

Plaintiff and Weliky had several telephone conversations during October concerning WCL's taking possession of the computer and appliances. During their conversations plaintiff told Weliky that WCL had no right to possession of the items. He also told Weliky that the computer and various appliances had been thrown away. According to plaintiff, during one telephone conversation Weliky stated words to the effect that: "You'd better let us come in your house and pick them up or I'm going to get the D.A. involved, and he's going to make your life miserable." (R. 29 Ex. D at 174.)

The Kaminskes did not rent a camper during the evacuation, but instead stayed with Laurie Kaminske's brother, Steve Thomas. On December 31, 1996, Thomas informed Weliky that the Kaminskes had not rented a camper during the evacuation period but instead had stayed with him.

Weliky asked Gary Wait, a private investigator retained by WCL, and James MacFall, the investigator for the Waupaca County District Attorney, to investigate whether there had been a misrepresentation by plaintiff and his wife in connection with their claim for rental of a camper, and, according to plaintiff, the appliances. (See PFOF at 2.) Wait and MacFall went to plaintiff's home to discuss the camper rental and, according to plaintiff, possibly the appliances. (See id.) While Wait and MacFall were there, they saw several of the appliances that were part of the Kaminskes' claim. The appliances were still being used by the Kaminskes and appeared to be undamaged. Wait and MacFall told Weliky what they had observed at plaintiff's home and advised Weliky that they believed a crime had been committed with respect to representations that had been made by the Kaminskes concerning the computer and appliances. They also recommended to Weliky that WCL should ask the Waupaca County District Attorney to obtain a search warrant in order to seize the computer and appliances.

According to WCL, the information that it had obtained concerning the computer and appliances was turned over to the district attorney, who obtained a search warrant for these items. (DFOF ¶ 29.) Plaintiff, however, contends that WCL lied to the district attorney when it relayed certain representations allegedly made by plaintiff during the settlement process. (PFOF at 3.) On January 9, 1997, the search warrant was executed by the Weyauwega Police Department, and the...

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  • Lyons v. Midwest Glazing, L.L.C., No. C01-3071-MWB.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • December 18, 2002
    ...it was alleged that city officials gave false and misleading testimony in support of search warrant); Kaminske v. Wisconsin Cent. Ltd., 102 F.Supp.2d 1066 (E.D.Wis.2000) (denying summary judgment motion on claim of abuse of process arising from defendant's seeking search warrant); 1090 Jeri......
  • Young v. Allstate Ins. Co., No. 26887.
    • United States
    • Supreme Court of Hawai'i
    • December 26, 2008
    ...Clermont Environmental Reclamation Co. v. Hancock, 16 Ohio App.3d 9, 474 N.E.2d 357, 361 (1984); Kaminske v. Wisconsin Cent. Ltd., 102 F.Supp.2d 1066, 1078-79 Young urges this court to follow case law of other jurisdictions that have expanded the tort of abuse of process to encompass circum......
  • In The Matter Of Judicial Disciplinary Proceedings v. The Honorable Michael J. Gableman.Wis. Judicial Comm'n, No. 2008AP2458-J.
    • United States
    • United States State Supreme Court of Wisconsin
    • June 30, 2010
    ...Wis.2d 271, 276-77, 140 N.W.2d 259 (1966) (emphasis added) (relating to political speech); see also, e.g., Kaminske v. Wis. Cent. Ltd., 102 F.Supp.2d 1066, 1081 (E.D.Wis.2000) (same); Dilworth v. Dudley, 75 F.3d 307, 310 (7th Cir.1996) (applying Wisconsin law) (same). Defamation cases are i......
  • Windham v. City of Fairhope, Civil Action No. 13–0025–WS–N.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Southern District of Alabama
    • May 14, 2014
    ...burden to prove lack of probable cause; it cannot be merely inferred from the fact of acquittal.”); Kaminske v. Wisconsin Cent. Ltd., 102 F.Supp.2d 1066, 1074 (E.D.Wis.2000) (“Mere acquittal on the criminal charge does not establish a lack of probable cause.”); Ware v. United States, 971 F.......
  • Request a trial to view additional results
8 cases
  • Lyons v. Midwest Glazing, L.L.C., No. C01-3071-MWB.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • December 18, 2002
    ...it was alleged that city officials gave false and misleading testimony in support of search warrant); Kaminske v. Wisconsin Cent. Ltd., 102 F.Supp.2d 1066 (E.D.Wis.2000) (denying summary judgment motion on claim of abuse of process arising from defendant's seeking search warrant); 1090 Jeri......
  • Young v. Allstate Ins. Co., No. 26887.
    • United States
    • Supreme Court of Hawai'i
    • December 26, 2008
    ...Clermont Environmental Reclamation Co. v. Hancock, 16 Ohio App.3d 9, 474 N.E.2d 357, 361 (1984); Kaminske v. Wisconsin Cent. Ltd., 102 F.Supp.2d 1066, 1078-79 Young urges this court to follow case law of other jurisdictions that have expanded the tort of abuse of process to encompass circum......
  • In The Matter Of Judicial Disciplinary Proceedings v. The Honorable Michael J. Gableman.Wis. Judicial Comm'n, No. 2008AP2458-J.
    • United States
    • United States State Supreme Court of Wisconsin
    • June 30, 2010
    ...Wis.2d 271, 276-77, 140 N.W.2d 259 (1966) (emphasis added) (relating to political speech); see also, e.g., Kaminske v. Wis. Cent. Ltd., 102 F.Supp.2d 1066, 1081 (E.D.Wis.2000) (same); Dilworth v. Dudley, 75 F.3d 307, 310 (7th Cir.1996) (applying Wisconsin law) (same). Defamation cases are i......
  • Windham v. City of Fairhope, Civil Action No. 13–0025–WS–N.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Southern District of Alabama
    • May 14, 2014
    ...burden to prove lack of probable cause; it cannot be merely inferred from the fact of acquittal.”); Kaminske v. Wisconsin Cent. Ltd., 102 F.Supp.2d 1066, 1074 (E.D.Wis.2000) (“Mere acquittal on the criminal charge does not establish a lack of probable cause.”); Ware v. United States, 971 F.......
  • Request a trial to view additional results

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