Muchow v. Goding
| Decision Date | 07 December 1995 |
| Docket Number | No. 94-0160,94-0160 |
| Citation | 544 N.W.2d 218,198 Wis.2d 609 |
| Parties | Clifford MUCHOW, Individually and as Personal Representative of the Susan B. Muchow Estate, and Carol Muchow, Plaintiffs-Appellants, Electronic Data Systems Corporation, Subrogated Party-Plaintiff-Appellant, v. Richard GODING, and United Security Insurance Company, and American Family Mutual Insurance Company, Defendants-Respondents. |
| Court | Wisconsin Court of Appeals |
For the plaintiffs-appellants the cause was submitted on the brief of Richard R. Grant of Consigny, Andrews, Hemming & Grant, S.C. of Janesville.
For the defendants-respondents, Richard Goding and United Security Insurance Company, the cause was submitted on the brief of Francis J. Slattery of Hughes, Mathewson, Carns & Slattery of Oshkosh.
For the defendant-respondent, American Family Mutual Insurance Company, the cause was submitted on the brief of Mark A. Schulz of Hunsader & Schulz, S.C. of Janesville.
Appeal from a judgment of the circuit court for Rock County: John H. Lussow, Judge. Affirmed in part; reversed in part and cause remanded.
Before EICH, C.J., GARTZKE, P.J., and DYKMAN, J.
Clifford Muchow, individually and as the personal representative of the Susan B. Muchow estate, and Carol Muchow, appeal from a summary judgment entered by the Rock County circuit court dismissing their complaint against Richard Goding, American Family Mutual Insurance Company (American Family) and United Security Insurance Company (USIC). Electronic Data Systems Corporation (EDS), a subrogated party-plaintiff, appeals from the same order. We affirm in part and reverse in part and remand for further proceedings.
The Muchows are Susan's parents. She died several days after an automobile accident in Dodge County in September 1988, survived by her parents and leaving no spouse or children. Susan was a passenger in an automobile operated by Michael Lentz and insured by Dairyland Insurance Company (Dairyland) with limits of $25,000/$50,000. Lentz died in the accident. American Family had issued an underinsured motorist (UIM) policy with $50,000/$100,000 limits to Susan. EDS was Susan's health insurer. EDS paid $44,930.34 for Susan's medical expenses, and it asserts a subrogation claim for that amount. Richard Goding operated the automobile which collided with the Lentz automobile. Richard's wife, Patricia, was injured while a passenger in the vehicle. USIC insured the Goding vehicle, and its liability limits are $250,000 for bodily injuries to each person and $500,000 for each accident.
Before stating the issues, we review the procedural history. That history involves prior actions in Fond du Lac County and the action in Rock County which resulted in these appeals.
The Godings brought the prior actions in 1989. Patricia Goding commenced her action in Fond du Lac County against Michael Lentz's insurer, Dairyland, and Richard Goding's insurer, USIC. Richard Goding commenced his actions in that county against Dairyland. The two actions were consolidated, and we refer to them as the prior or Fond du Lac action.
In early 1990, Dairyland filed a third-party complaint against the estate of Susan Muchow in the prior action. The third-party complaint alleged that the estate had claimed entitlement to payment from Dairyland, the total value of all claims against Dairyland exceeded its $25,000/$50,000 policy limits, and Dairyland was in doubt as to which parties were entitled to the policy proceeds. Dairyland paid the $50,000 into court and prayed, among other things, that "all other parties be required to interplead and settle among themselves their rights" to the policy proceeds.
Attorney Grant wrote to counsel for Dairyland, thanking him for an extension to answer Dairyland's third-party complaint against the estate. Grant wrote,
My clients, Susan Muchow's parents and her estate, are limited to the $25,000 single person claim limit, which would still leave $25,000 available to the Goding family. I am contacting the attorneys for each of the Godings to see if we can agree and pay out that part of the case immediately.
No other persons were made parties to the prior action. In April, all parties to the action entered a stipulation which included a release. On April 26, 1990, attorney Grant signed the stipulation on behalf of the estate. The trial court entered an order on the stipulation "for Distribution of Settlement and Partial Dismissal." 1
Nothing in the stipulation, release or order describes whose claims (other than the estate's) are covered by Dairyland's $25,000 payment to Susan's estate. The documents make no reference to Susan's parents, to her health insurer, EDS, or to American Family, the UIM carrier. The estate reserved no rights. In accordance with the stipulation, Dairyland paid $25,000 to the Muchow estate and the remaining $25,000 on its policy limit to Patricia and Richard Goding. How the Muchow estate disbursed its $25,000 is not of record.
In 1991 Clifford Muchow, individually and as personal representative of the estate, Carol Muchow, and EDS, as a subrogated plaintiff, commenced this action in Rock County against Richard Goding and USIC, his insurer, and against American Family, the UIM carrier on the policy issued to Susan. Attorney Grant signed the complaint as attorney for the plaintiffs. The complaint alleges that EDS, as Susan's health insurer, is subrogated to her rights arising out of the $44,930.34 in benefits it paid for her. Her parents alleged that they have lost her society and companionship, she probably would have contributed to their support, and they have suffered a pecuniary loss. They also allege they paid her funeral and related expenses, and medical expenses.
Defendants moved to change venue to Fond du Lac County. The trial court denied the motion. Defendants later moved for summary judgment dismissing the Rock County action. When granting summary judgment dismissing the complaint as to all defendants, the court said that all claims should have been consolidated in the Fond du Lac action under § 895.04(3), STATS. The court added, without further analysis, that the issues are for the court of appeals to resolve. This appeal followed entry of judgment dismissing the complaint.
We deem the issues to be: (1) whether the Fond du Lac County order bars the Rock County action because of res judicata or collateral estoppel; (2) whether § 895.04(3), STATS., obligated the personal representative of the Susan Muchow estate to assert in the prior action all claims arising out of her death, including claims not belonging to the estate; (3) whether § 803.03(2)(a), STATS., obligated the personal representative in the prior action to join the parents, EDS and American Family; (4) whether the Rock County court should have consolidated this action with the Fond du Lac action and changed venue to Fond du Lac County; (5) whether the release and order entered in the Fond du Lac County action released the estate, the claims of the Muchow parents, and the EDS claim against Godings, USIC and American Family; (6) whether factual issues exist which must be tried between the Muchow parents, the estate and EDS, on one hand, and American Family, on the other hand, regarding the UIM notice required by Vogt v. Schroeder, 129 Wis.2d 3, 383 N.W.2d 876 (1986).
We conclude that res judicata and collateral estoppel do not protect the defendants in the Rock County action, the personal representative had no duty to assert in the prior action all claims arising out of Susan's death, failure to change venue and order consolidation was not error, and the estate has abandoned its claims against Goding for Susan's conscious pain and suffering and wage loss and its UIM claim against American Family. Whether the release and order in the prior action discharged the parents' claims depends on the intended scope of the release, a factual issue for the trial court. The release does not affect EDS's claim against Goding and his insurer. The Muchow parents never acquired a UIM claim against American Family. EDS's UIM claim remains intact against American Family. We therefore affirm in part and reverse in part and remand for further proceedings.
We issue caveats. Like the parties, we refer interchangeably to the Muchow estate and the personal representative of the estate. It is sometimes convenient to refer to one or the other. We confine our discussion to the issues directly related to the stipulation and release and to the order dismissing the complaint. For example, we have not touched conflict of interest issues.
When, as here, the trial court rendered a summary judgment, our review is de novo. Summary judgment must be granted if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Section 802.08(2), STATS.
Defendants assert that the Fond du Lac order dismissing the Muchow estate's claim against Dairyland bars this action by the parents of Susan Muchow, the personal representative of her estate and EDS against Richard Goding and his liability insurer, USIC, and against American Family. Defendants assert res judicata and collateral estoppel as defenses. Whether res judicata and collateral estoppel apply to a given set of facts is a question of law which we review de novo. A.B.C.G. Enterprises v. First Bank Southeast, 184 Wis.2d 465, 472, 515 N.W.2d 904, 906 (1994).
The doctrine of res judicata makes a final judgment conclusive in all subsequent actions between the same parties as to all matters which were or which might have been litigated in former proceedings. A.B.C.G. Enterprises, 184 Wis.2d at 472-73, 515 N.W.2d at 906. Res judicata applies not only to the parties but their privies. Universal Die & Stampings v. Justus, 174...
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