Lewandowski v. Continental Cas. Co.

• Decision Date: 27 March 1979
• Docket Number: No. 76-063,76-063
• Citation: 276 N.W.2d 284,88 Wis.2d 271
• Parties: Joseph A. LEWANDOWSKI and Nancy Lewandowski, Plaintiffs-Appellants, v. CONTINENTAL CASUALTY COMPANY, a Foreign Insurance Corporation, and Thomas M. Anich, Defendants-Respondents.
• Court: Wisconsin Supreme Court

Page 284

276 N.W.2d 284

88 Wis.2d 271

Joseph A. LEWANDOWSKI and Nancy Lewandowski, Plaintiffs-Appellants, v. CONTINENTAL CASUALTY COMPANY, a Foreign Insurance

Corporation, and Thomas M. Anich, Defendants-Respondents.

No. 76-063.

Supreme Court of Wisconsin.

Argued Jan. 30, 1979.

Decided March 27, 1979.

Joseph A. Lewandowski and Nancy Lewandowski, his wife, plaintiffs-appellants, commenced an action for damages against Thomas M. Anich and his errors and omissions insurer, Continental Casualty Company, defendants-respondents. Damages were sought because of the alleged legal malpractice of Anich, and the case was tried to a jury. The trial court entered judgment on the verdict and dismissed the plaintiffs' complaint. The plaintiffs bring this appeal.

Arthur DeBardeleben, Park Falls, argued, and DeBardeleben & Snyder, Park Falls, on briefs, for plaintiffs-appellants.

John E. Bliss, Wausau, argued, and Tinkham, Smith, Bliss, Patterson & Richards, Wausau, on briefs, for defendants-respondents.

CONNOR T. HANSEN, Justice.

On May 19, 1968, an automobile driven by Joseph A. Lewandowski was involved in an intersection accident in the city of Ashland. The driver of the second car was Gary Bratley, a police officer of the city of Ashland. Lewandowski was issued a traffic citation, which was subsequently dismissed. On the same day Lewandowski personally contacted Anich, a lawyer licensed to practice in Wisconsin, in regard to the traffic citation and his possible personal injury cause of action. ¹ There is no question that Lewandowski retained Anich to represent him.

Anich did not file the summons and complaint and claim against the city within the period of the statute of limitations, thus barring any action against the city.

In April, 1974, the plaintiffs commenced the instant action against Anich and his insurer. Their complaint alleges that as a result of the negligence of Anich their claim for damages sustained as a result of the automobile collision was barred.

In an amended answer Anich categorically admitted he was negligent in failing to timely file and in permitting the statute of limitations to run. The amended answer, however, denied that such an action caused any loss to the plaintiffs, denied that the May, 1968, accident was caused by the negligence of Gary Bratley, the driver of the second vehicle, denied that Lewandowski was injured in the accident and alleged affirmative negligence in that action on the part of Lewandowski.

In order to resolve the issue of damages and because of the posture of this particular case, the trial court, in the exercise of its discretion, proceeded with the trial of the negligence action as between the drivers of the two vehicles.

At trial Joseph A. Lewandowski and Gary Bratley, the drivers of the two vehicles involved in the accident, testified to the facts of the collision. The accident occurred on May 19, 1968, a clear, sunny Sunday, at approximately 2:30 p. m., in the city of Ashland, at an intersection controlled by traffic lights.

Lewandowski testified that as he was driving west on Third street he noticed, at a distance of 150 feet from the intersection with Vaughn avenue, that the traffic light was red. He said he had slowed to about five miles per hour when the light changed to green. He started to accelerate and glanced to the right as he entered the intersection. As he did not see any cars approaching he continued to accelerate into the intersection. Lewandowski said he first saw the police car approaching from the right when he was in the center of the intersection. He estimated the squad car's distance from the intersection at that point as approximately 100 feet, but could not estimate its speed beyond saying that it was going fast. He said he continued to accelerate and pulled toward the left curb of Third street to avoid a collision. He estimated his speed at approximately 17 miles per hour. The cars sideswiped one another just west of the intersection.

Bratley, the police officer who was driving the squad car, testified that he was patrolling on Highway 2, approximately seven or eight blocks from the intersection of Third and Vaughn, when he received a call to respond to an accident on Third street which involved personal injuries. He said that when responding to a call involving personal injury, department policy required activation of the red light and siren. He turned both on when he received the call and proceeded to Third street. He said he first saw Lewandowski's car five to ten feet east of the curb as he was driving south on Vaughn avenue about 150 feet north of the intersection. He said he thought Lewandowski had seen him because he was looking in Bratley's direction and as the nose of the car was pointed slightly downward he assumed Lewandowski was braking. He said he could not estimate his speed on Vaughn but did know that he had started to brake in mid-block because the traffic control light was against him. He said he signaled a right turn and was going 15 to 20 miles per hour as he entered the turn. He said Lewandowski proceeded through the intersection at the same time and at approximately the same speed. He agreed that the cars sideswiped just west of the intersection. He said Lewandowski was pulling toward the south lane of Third street and he was in the north lane. He said his car stopped about 35 feet from the intersection on the north side of the street and Lewandowski's car stopped about a car's length behind on the south side.

Bratley said he and another police officer returned to the scene about an hour and a half later. They measured a skid mark of 21 feet from the point Bratley began his turn to the point of impact and one of 36 feet from the impact to the point where his car stopped.

Both cars were driveable following the accident. Bratley stopped to talk with Lewandowski, both got out of their respective automobiles and neither appeared to be injured. Bratley advised Lewandowski to go to the police station and report the accident and then proceeded to the scene of the accident he had been called to investigate. Lewandowski drove both to the police station and to his mother's house, but could not remember which he went to first.

At the conclusion of the trial the trial court submitted a special verdict with the usual questions on negligence, causation and damages, and instructed the jury accordingly.

The jury found both Joseph Lewandowski and Gary Bratley causally negligent, assigned 65 percent of the negligence to Lewandowski and 35 percent to Bratley and determined the amount of damages.

When considering the various motions after verdict the trial court approved the jury's apportionment of negligence and in doing so stated:

"This Court has no difficulty in accepting the jury's conclusion as to this apportionment. It is not against the great weight and clear preponderance of the evidence. In the absence of the warning devices on the police car Lewandowski still had a somewhat limited duty to maintain a sufficient lookout even though the green light was in his favor. On his own testimony it must be inferred that he was negligent as to lookout. The movement of the police car was inconsistent with Lewandowski's testimony that, when he was in the middle of the intersection and first saw the police car, that it was about 100 feet north of the intersection. The physical facts of the collision do not support such a rate of speed as would be necessary to be consistent with Lewandowski's testimony. The collision was not very severe. Both cars were driven away. The record shows that the vehicle driven by Lewandowski was not repaired but that is not of great significance today when the costs of repairs are so great that it is often not worth while (sic) to repair an old car."

As we view this case in which the plaintiffs were seeking recovery from the defendant-lawyer for alleged malpractice, the principal issue is whether the trial court erred or abused its discretion in submitting special verdict questions typical of those used on a trial of a motor vehicle accident case.

As evidenced by authorities from other jurisdictions and legal commentaries on the subject, the burden of proof and method of procedure in legal malpractice actions are questions of difficult resolution.

In the case before us, the question of whether the respondent was negligent is not an issue. His answer admits he was negligent. Also, as the respondent's negligence barred the appellants' cause of action against Bratley, the trial court found cause in the instant action against Anich as a matter of law.

The appropriate method of procedure to determine the amount of damages sustained by the appellants presents the more difficult question. The appellants' damages must be based upon bodily injuries, if any, sustained as a result of the automobile accident. Obviously the respondent did not cause such injuries. However, in this suit the appellant is not seeking damages for those alleged bodily injuries, but rather he is seeking damages for the loss of the right to bring suit to recover on a bodily injury claim. Clearly the respondent was the cause of any damages which resulted from the inability of the appellants to institute suit against Bratley. Here the respondent, Anich, denies that he was causally responsible for any damages sustained by the appellant because (1) the appellant, in fact, sustained no bodily injuries, and (2) the negligence attributable to the appellant in the automobile accident was greater than that attributable to the other driver, Bratley.

Because of the admission of negligence by the respondent, the trial court correctly found causation in this malpractice action as a matter of law. Nevertheless, to some extent in a legal malpractice suit, the plaintiff is compelled to prove two cases in a single proceeding. ² The requirements of causation dictate that the merits of the malpractice action depend upon the merits of the...