Overbeek v. Heimbecker

• Court: U.S. Court of Appeals — Seventh Circuit
• Writing for the Court: Before POSNER, Chief Judge, and FLAUM and EVANS; TERENCE T. EVANS
• Citation: Overbeek v. Heimbecker, 101 F.3d 1225 (7th Cir. 1996)
• Decision Date: 09 December 1996
• Docket Number: No. 96-1957,96-1957
• Parties: Brian OVERBEEK, Plaintiff-Appellant, v. Charles HEIMBECKER, Richard Hellenbrand, and General Casualty Company of Wisconsin, Defendants-Appellees.

Page 1225

101 F.3d 1225

Brian OVERBEEK, Plaintiff-Appellant, v. Charles HEIMBECKER, Richard Hellenbrand, and General Casualty Company of Wisconsin, Defendants-Appellees.

No. 96-1957.

United States Court of Appeals Seventh Circuit.

Argued Oct. 31, 1996.

Decided Dec. 9, 1996.

Thomas A. Lockyear, Bell, Metzner, Gierhart & Moore, Madison, WI, John C. Ambrose, Thomas M. Cushing (argued), Marilyn J. Martin, Ambrose & Cushing , Chicago, IL, for Plaintiff-Appellant.

Harry Sauthoff, Jr., Larowe, Gerlach & Roy, Sauk City, WI, for Charles Heimbecker.

Mark W. Andrews (argued), Winner, Wixson & Pernitz, Madison, WI, for Richard Hellenbrand and General Casualty Company of Wisconsin.

Before POSNER, Chief Judge, and FLAUM and EVANS, Circuit Judges.

TERENCE T. EVANS, Circuit Judge.

Thirteen times General Casualty Company offered to settle a personal injury case against one of its insureds for the policy limit of $25,000. General Casualty made the offer before trial. General Casualty made the offer during the trial. General Casualty made the offer after trial. At times, General Casualty even offered double the policy limit to make the litigation go away. Thirteen times the plaintiff's counsel rejected the offers and insisted on a trial and various other proceedings. Now, over 9 years after the trial wrapped up, plaintiff's counsel has knocked on our door, asking for 12 percent interest on not just the $25,000 owed under General Casualty's policy but also on a $2.2 million verdict rendered against its insured. Some might find this argument creative; most would find it frivolous. None would find it persuasive.

The underlying facts of this case are tragic. On June 1, 1985, Richard Hellenbrand tossed his car keys to his buddy, Charles Heimbecker, and the two zoomed off in Hellenbrand's Trans-Am. The pair took the phrase "one for the road" to new depths, bringing a tapped beer keg along for the ride. While driving along Gannon Road in rural Columbia County, Wisconsin, Heimbecker crossed the centerline and struck 22-year-old Brian Overbeek's motorcycle. The accident left Overbeek quadriplegic.

Overbeek sued Hellenbrand, Heimbecker, and Hellenbrand's automobile insurer, General Casualty, in district court. Unfortunately, on top of being incredibly irresponsible, both men were broke. Added to this mix was the fact that Hellenbrand's policy with General Casualty topped out at only $25,000, a sum not even remotely adequate to compensate Overbeek for his loss. But all things said are not untrue. Realistically here, only $25,000 was available. Rather than accept reality, Overbeek's lawyer rejected General Casualty's repeated offers--including one before the case was even filed--to settle the case for the policy limit. Even offers of double the policy limit wouldn't do. Instead, Overbeek's counsel insisted on presenting the case to the jury. On October 7, 1987, after a 3-day trial, a jury found that Heimbecker was negligent, and because he was acting as Hellenbrand's servant, General Casualty was required to pay on its policy. Two days later the jury fixed compensatory damages against Hellenbrand and Heimbecker at a little over $2.2 million but denied punitive damages. Both during and after the trial, General Casualty's offer to settle for the policy limit was refused.

On October 28, 1987, the district court entered judgment against Hellenbrand and Heimbecker but inadvertently failed to name General Casualty in the judgment. Neither party caught the omission. Then, Overbeek's lawyer, apparently not believing that Hellenbrand and Heimbecker would be just as judgment-proof on an additional award as they were on a $2.2 million judgment, appealed the jury's decision to deny punitive damages. Almost 9 years ago, on December 17, 1987, we noted the apparent absence of a final judgment against General Casualty and asked the parties to brief whether jurisdiction was proper. Subsequently, the case went back to the district court.

In January 1988 Overbeek filed a motion in the district court to amend the judgment to include General Casualty "to the extent of its coverage therein" or "to the extent of its coverage as the parties may agree or as later may be determined." General Casualty objected to the somewhat wishy-washy language of the proposed amendment and asked the court to enter judgment against it for $25,000. In a hearing on Overbeek's motion in February 1988, the district court stayed entry of judgment against General Casualty at the request of Overbeek's local counsel. That same day, Overbeek's lawyer dashed off a letter, informing the court that the judgment would be inappropriate and he would try pushing his luck without it on appeal. Three and a half years then went by without so much as a peep from Overbeek's lead counsel. In March 1991 Overbeek's lawyer agreed to dismiss his appeals, but he didn't request the entry of judgment. Finally, in late 1995, after unsuccessfully suing General Casualty for $25,000 in Illinois state court, Overbeek's counsel resurfaced in district court, requesting entry of judgment against General Casualty for $50,000 plus over 8 years of prejudgment interest. Overbeek also requested that General Casualty fork over 12 percent interest on the $2.2 million judgment against Heimbecker and Hellenbrand. The district court rejected these arguments, entered judgment against General Casualty in the...