Morgan v. Pennsylvania General Ins. Co.

Decision Date27 February 1979
Docket NumberNo. 76-542,76-542
Citation87 Wis.2d 723,275 N.W.2d 660
PartiesJames E. MORGAN, Plaintiff-Appellant, v. PENNSYLVANIA GENERAL INSURANCE COMPANY, a foreign insurance corporation, W. Rasmussen (alias) d/b/a Insurance Reconstruction Company, Defendants-Respondents.
CourtWisconsin Supreme Court

Charles Saggio, Milwaukee, for plaintiff-appellant.

Douglas J. Carroll (argued), Milwaukee, for defendants-respondents; James P. O'Neill and Arnold, Murray, O'Neill & Schimmel, Milwaukee, on the brief.


The appeal is from an order dismissing the plaintiff's complaint following a motion brought under sec. 802.06(2)(f), Stats., to dismiss for failure to state a claim upon which relief can be granted.

Because this appeal is from an order granting defendants' motions to dismiss for failure to state a claim upon which relief can be granted, the only facts are those pleaded in the complaint. The action was commenced with the filing of the complaint on May 19, 1976. The plaintiff, Dr. James E. Morgan, is a physician and homeowner in Whitefish Bay, Wisconsin. He alleges that, on or about June 16, 1973, Dr. James M. Sorenson negligently drove his car onto plaintiff's land and into a group of trees, damaging the trees and lawn in the amount of $3,000.

The defendants are Pennsylvania General Insurance Company, a foreign insurance corporation licensed to do business in Wisconsin, and W. Rasmussen, an insurance adjuster and agent of the insurance company, who was allegedly directed by the insurance company to investigate and settle plaintiff's claim for damage to his property.

Plaintiff alleges that Dr. Sorenson had purchased a policy of insurance from Pennsylvania General in which the company agreed to pay for property damage and personal injuries arising from use of his automobile and also agreed to control all investigation, payment and settlement of such claims, and defend any litigation growing out of them.

After the automobile accident described above, Rasmussen allegedly "directed" the plaintiff to drive stakes into the ground adjacent to the damaged trees to brace them. While personally hammering stakes into the ground next to the trees, the plaintiff allegedly suffered a hernia. Dr. Morgan claims damages of $503,000 for treatment, loss of income, and pain and suffering due to this personal injury. The complaint includes the allegation that:

" . . . Rasmussen, for and on behalf of Pennsylvania General Insurance Company, in mitigation of damages, directed plaintiff to drive stakes into the ground adjacent to said trees and brace the tree thereto and that the tree would thereby survive. Relying on said representation and being led to believe that such would be the extent of plaintiff's claim for damages to said trees, plaintiff followed said Rasmussen's direction, and while in the process of hammering stakes into the ground adjacent to said damaged trees, which trees eventually did die, said plaintiff suffered diaphramatic and inguinal hernia requiring medical treatment and hospitalization and resulted in disability of plaintiff, putting him to expense for treatment thereof and suffering loss of income and did suffer mental and physical pain and suffering as a direct result of the said concurrent negligence of Sorenson and Rasmussen growing out of and directly related to said negligence of Sorenson."

The defendants each moved to dismiss the complaint. The trial court rendered an oral decision on the motions on September 24, 1976. The court concluded that the complaint stated a cause of action against Pennsylvania General for damage to the plaintiff's property. This part of the decision is not challenged on appeal. The court dismissed the claim for personal injuries against both defendants, which meant that Rasmussen was dismissed as a party.

Plaintiff's claim for personal injuries against Pennsylvania General is based on the alleged negligence of both Dr. Sorenson, its policyholder, and of Rasmussen, the adjuster it allegedly retained.

Upon the pleadings, the court found as a matter of law, among other conclusions, that: (1) The alleged statement by Rasmussen could in no way constitute negligence; (2) reasonable men could not find that Dr. Sorenson's conduct was a substantial factor in causing physical injury to the plaintiff; (3) no causation could be attributed to either defendant; (4) reasonable men could only conclude that the conduct of the plaintiff was a substantial factor in producing his own injury; and (5) the plaintiff's reaction to the situation was "extraordinary."

The court found that the plaintiff failed to state a personal injury claim upon which relief could be granted and ordered the dismissal of the personal injury claim and dismissed Rasmussen as a party.

Although the trial court said it was construing the complaint most favorably to the plaintiff, the court in fact assumed, in its oral decision, facts which were not pleaded and which were the result of construing the complaint unfavorably to the plaintiff. The court said the plaintiff is "a college graduate and a competent medical practitioner, and certainly common sense would dictate that no insurance adjuster could order him to personally do this work." The court concluded that the direction to brace the trees was "only advisory as to what was necessary in order to save the trees." The court also said that Rasmussen "could not have reasonably concluded that in light of Dr. Morgan's age and knowledge of his own physical condition, (he) would have taken on the heavy chore of driving stakes into the ground in order to save the trees in question." Although the complaint does state that the plaintiff is a physician, so presumably he is a college graduate, his age and the nature of his medical expertise are not disclosed in the record.

There are three grounds on which the complaint in the instant case arguably could be considered to fail to state a claim for personal injury upon which relief can be granted. First, the acts alleged may not, as a matter of law, constitute negligent conduct. Second, from the complaint it may be clear as a matter of law that the conduct of the defendants, even if negligent, was not a substantial factor in producing the physical injury of the plaintiff. Third, even if negligent conduct as a cause-in-fact of plaintiff's physical injury could be found upon proof of certain facts, policy considerations may preclude liability. Any of these three grounds would be sufficient to dismiss the claim. We conclude, however, that, in the posture of this case, none of these grounds warrant a dismissal.

For the purpose of testing whether a claim has been stated pursuant to a motion to dismiss under sec. 802.06(2)(f), Stats., the facts pleaded must be taken as admitted. Anderson v. Continental Insurance Co.,85 Wis.2d 675, 683, 271 N.W.2d 368 (1978). The purpose of the complaint is to give notice of the nature of the claim; and, therefore, it is not necessary for the plaintiff to set out in the complaint all the facts which must eventually be proved to recover. Id. at 683-84, 271 N.W.2d 368. The purpose of a motion to dismiss for failure to state a claim is the same as the purpose of the old demurrer to test the legal sufficiency of the claim. Hartridge v. State Farm Mutual Automobile Ins. Co., 86 Wis. 1, 4-5, 271 N.W.2d 598 (1978); Anderson, supra, 85 Wis.2d at 683, 271 N.W.2d 368. Because the pleadings are to be liberally construed, a claim should be dismissed as legally insufficient only if "it is quite clear that under no conditions can the plaintiff recover." Clausen and Lowe, The New Wisconsin Rules of Civil Procedure, Chapters 801-803, 59 Marq.L.Rev. 1, 54 (1976). The facts pleaded and all reasonable inferences from the pleadings must be taken as true, but legal conclusions and unreasonable inferences need not be accepted. Hartridge, supra, 86 Wis. at 4-5, 271 N.W.2d 598.

Sec. 802.06(2)(f), Stats., on which the motions to dismiss were based, is similar to Rule 12(b)(6) of the Federal Rules of Civil Procedure. A claim should not be dismissed under the Wisconsin rule or the federal rule unless it appears to a certainty that no relief can be granted under any set of facts that plaintiff can prove in support of his allegations. See, Wright and Miller, 5 Federal Practice and Procedure, § 1215, p. 113; Conley v. Gibson, 355 U.S. 41, 47-8, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).

An essential element of a cause of action for negligence is negligent conduct. The Restatement (Second) of Torts, sec. 284(a) (1965), defines negligent conduct as "an act which the actor as a reasonable man should recognize as involving an unreasonable risk of causing an invasion of an interest of another." Equivalent formulations have been stated in a number of Wisconsin cases. The test of negligence is whether the conduct foreseeably creates an unreasonable risk to others. E. g., Coffey v. Milwaukee, 74 Wis.2d 526, 537, 247 N.W.2d 132 (1976); Antoniewicz v. Reszczynski, 70 Wis.2d 836, 857, 236 N.W.2d 1 (1975); A. E. Investment Corp. v. Link Builders, Inc., 62 Wis.2d 479, 484-85, 214 N.W.2d 764 (1974). The risk need not be to the particular plaintiff. The test is whether unreasonable risk to the world at large is created by the conduct. Coffey, supra, 74 Wis.2d at 537, 247 N.W.2d 132; A. E. Investment, supra, 62 Wis.2d at 484-84, 214 N.W.2d 764; Klassa v. Milwaukee Gas Light Co., 273 Wis. 176, 182, 77 N.W.2d 397 (1956).

The existence of negligence is a mixed question of law and fact. Prosser, Handbook of the Law of Torts (4th ed. 1971), sec. 37, p. 205. As a general rule, negligence is a jury question. Ceplina v. South Milwaukee School Board, 73 Wis.2d 338, 342, 243 N.W.2d 183 (1976); Padilla v. Bydalek, 56 Wis.2d 772, 776, 203 N.W.2d 15 (1973); Jones v. Pittsburgh Plate Glass Co., 246 Wis. 462, 469, 17 N.W.2d 562 (1945). The trial court, as well as this court on appeal, however, has the authority to...

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