Pachowitz v. LeDoux

• Decision Date: 28 May 2003
• Docket Number: No. 02-2100.,02-2100.
• Parties: Timothy A. PACHOWITZ, as Special Administrator of the Estate of Julie Lynn Pachowitz, Plaintiff-Respondent, v. Katherina R. LEDOUX, Tess Corners Volunteer Fire Department and Continental Western Insurance Company, Defendants-Appellants, ABC INSURANCE COMPANY, Defendant.
• Court: Wisconsin Court of Appeals

265 Wis.2d 631

2003 WI App 120

666 N.W.2d 88

Timothy A. PACHOWITZ, as Special Administrator of the Estate of Julie Lynn Pachowitz, Plaintiff-Respondent, v. Katherina R. LEDOUX, Tess Corners Volunteer Fire Department and Continental Western Insurance Company, Defendants-Appellants,¹ ABC INSURANCE COMPANY, Defendant.

No. 02-2100.

Court of Appeals of Wisconsin.

Submitted on briefs April 9, 2003.

Decided May 28, 2003.

On behalf of the defendants-appellants, the cause was submitted on the briefs of Emile H. Banks, Jr. and Vicki L. Arrowood, of Emile Banks & Associates, LLC. of Milwaukee, and Thomas A. Ogorchock of Miller & Ogorchock of Milwaukee.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Donald J. Murn and Michelle E. Martin, of Murn and Martin, S.C. of Waukesha.

Before Nettesheim, P.J., Brown and Anderson, JJ.

¶ 1. Nettesheim, P.J.

While employed by the Tess Corners Volunteer Fire Department as an emergency medical technician (EMT), Katherina R. LeDoux provided emergency medical attention to Julie Lynn Pachowitz. In this action, Pachowitz alleged that LeDoux invaded her privacy pursuant to WIS. STAT. § 895.50 (2001-02),² by disclosing to a third party the reason that Pachowitz required medical attention.³ A jury found in favor of Pachowitz and awarded her $3000 in compensatory damages. Pursuant to the fee shifting provisions of the statute, the trial court awarded Pachowitz $30,460 in attorney fees.

¶ 2. LeDoux and Tess Corners Volunteer Fire Department, together with their insurer, Continental Western Insurance Company, appeal from the judgment. They argue that the trial court erred in (1) denying their postverdict motion to change the jury's finding that LeDoux had invaded Pachowitz's privacy; (2) setting Pachowitz's reasonable attorney fees at $30,460; (3) holding LeDoux's offer of judgment defective, and (4) holding Pachowitz's offer of settlement valid and therefore awarding Pachowitz double costs and interest pursuant to WIS. STAT. § 807.01(3) and (4).

¶ 3. We uphold the trial court's rulings denying the appellants' motion to change the jury's answer and setting Pachowitz's reasonable attorney fees at $30,460. We also affirm the trial court's rejection of LeDoux's offer of judgment. However, we reverse the trial court's ruling that Pachowitz's offer of settlement was valid. We hold that Pachowitz's offer of settlement was defective because it was a single offer made to multiple defendants whose interests were then adverse. We remand for the entry of judgment in conformity with this opinion.

FACTS AND PROCEDURAL HISTORY

¶ 4. LeDoux was a volunteer EMT for the Tess Corners Volunteer Fire Department. On April 21, 2000, she and three other members of the department responded to an emergency 911 call at the Pachowitz residence regarding an overdose or possible overdose.

¶ 5. Upon arriving at the Pachowitz residence, the medical team discovered Julie Pachowitz unresponsive and with poor vital signs. At her husband's request, Pachowitz was transported to Waukesha Memorial Hospital. After completing the EMT response, LeDoux returned home and later spoke to a friend, Sally Slocomb, to discuss the fact that she had assisted in transporting Pachowitz to the hospital emergency room for a possible overdose.⁴

¶ 6. Prior to the emergency EMT response, LeDoux had never met Pachowitz. However, about two weeks prior to the incident, LeDoux was socializing with a group of people including Slocomb, when Slocomb and another woman spoke about Pachowitz and her medical condition. During this conversation, LeDoux learned that Slocomb worked with Pachowitz at West Allis Memorial Hospital. LeDoux also gained the impression that Slocomb and Pachowitz were very close friends.

¶ 7. LeDoux testified that she placed the telephone call to Slocomb after the EMT emergency response because she was concerned about Pachowitz and thought Slocomb could possibly be of assistance to Pachowitz. Following LeDoux's telephone call, Slocomb drove to West Allis Memorial Hospital where she revealed the EMT response to the Pachowitz home and discussed Pachowitz's situation with other staff. ¶ 8. On December 8, 2000, Pachowitz filed this action against the appellants alleging that LeDoux had defamed her and violated her privacy by publicizing information concerning her medical condition and making untrue statements indicating that she had attempted suicide.⁵ Pachowitz alleged that she had been and was continuing to undergo medical care due to bodily illness and that she had suffered a "reaction to medication" on April 21, 2000, when she was taken to Waukesha Memorial Hospital by LeDoux's EMT unit.

¶ 9. Tess Corners and Continental answered, raising an affirmative defense that LeDoux's communication to Slocomb was not made within the scope of her employment with Tess Corners. As a result of its position adverse to LeDoux's interests, Continental retained separate counsel for LeDoux. LeDoux's counsel then filed a separate answer on LeDoux's behalf and continued to represent LeDoux throughout all of the trial court proceedings.

¶ 10. Following her answer, LeDoux filed a motion to dismiss Pachowitz's action, contending that her statements to Slocomb did not satisfy the "publicity" element of an invasion of privacy claim under WIS. STAT. § 895.50(2)(c). LeDoux also argued that she had not acted recklessly or unreasonably in contacting Slocomb regarding Pachowitz's care.⁶ Because the parties referred to matters outside the pleadings, the trial court treated the motion as one for summary judgment. See WIS. STAT. § 802.06(3). The court rejected LeDoux's argument that her dissemination of information to only one person, Slocomb, did not satisfy the "publicity" element of an invasion of privacy claim as a matter of law. Instead the court held that whether the "publicity" element was satisfied required a full exploration at trial regarding the particular circumstances of the case and Slocomb's "character." The court similarly held that the reasonableness or recklessness of LeDoux's actions was an issue of fact for the jury.⁷

¶ 11. Prior to the summary judgment proceedings, LeDoux had made a timely offer of judgment pursuant to WIS. STAT. § 807.01(1), offering to "settle all of the plaintiff's claims with regard to the above matter for a total of Five Thousand Dollars ... together with statutory taxable costs and disbursements." Pachowitz did not accept LeDoux's offer. Instead, she later countered with her own offer of settlement pursuant to § 807.01(3), offering "to settle this matter with the Defendants, Katherina LeDoux, Tess Corners Volunteer Fire Department, and Continental Western Insurance Company, for the sum of Twenty Five Thousand Dollars ... which includes statutory attorneys' fees as allowed by Wis. Stats. 895.50, together with taxable costs." The appellants did not accept Pachowitz's offer.

¶ 12. The matter proceeded to a jury trial. At the close of the evidence, Continental advised the trial court that it was abandoning its affirmative defense that it did not owe coverage to LeDoux. As a result, the special verdict did not include any coverage questions. Instead, the verdict was limited to Pachowitz's invasion of privacy claim. The jury returned a verdict answering "yes" to the following question: "Did Katherina LeDoux violate Julie Pachowitz's right of privacy by publicizing a matter concerning her private life, namely that she had been taken from her home to the hospital by emergency personnel because of a possible drug overdose?" The jury also awarded Pachowitz $3000 in compensatory damages.

¶ 13. On May 29, 2002, the appellants filed motions after verdict requesting that the jury's answer be changed from "yes" to "no." In support, the appellants renewed LeDoux's pretrial arguments that LeDoux's communication to Slocomb did not constitute "publicity" and that LeDoux's conduct was not reckless or unreasonable. The appellants additionally sought costs pursuant to WIS. STAT. § 807.01(1) based on their contention that the jury's damage award of $3000 was less favorable than LeDoux's $5000 offer of judgment.

¶ 14. Pachowitz countered with her own motion for judgment on the verdict and for her reasonable attorney fees in the amount of $30,460 under the fee shifting provisions of WIS. STAT. § 895.50(1)(c). In addition, Pachowitz sought double costs pursuant to WIS. STAT. § 807.01(3) and 12% interest on the judgment pursuant to § 807.01(4) based on her contention that the judgment, including her reasonable attorney fees, exceeded her $25,000 offer of settlement.

¶ 15. The trial court denied the appellants' motion to change the jury's answer, finding that the evidence supported the verdict. The court also found that the Pachowitz's requested attorney fees in the amount of $30,460 was reasonable and the court awarded those fees under the fee shifting provisions of WIS. STAT. § 895.50(1)(c). The court further held that LeDoux's offer of judgment was invalid because it did not include an allowance for Pachowitz's attorney fees. When measuring LeDoux's offer of judgment and Pachowitz's offer of settlement against the judgment, the trial court included Pachowitz's reasonable attorney fees in the judgment. Since Pachowitz's total recovery exceeded the offer of settlement, the court awarded Pachowitz double costs pursuant to WIS. STAT. § 807.01(3) and 12% interest pursuant to WIS. STAT. § 807.01(4). The court entered a final judgment in favor of Pachowitz in the amount of $37,909.86. LeDoux, Tess Corners and Continental appeal.

DISCUSSION

Invasion of Privacy

1. Publicity

¶ 16. The appellants first argue that WIS. STAT. § 895.50 does not apply in this case because LeDoux's statement to one person, Slocomb, was not sufficient as a matter of law to constitute the necessary element of "publicity." Pachowitz responds that whether LeDoux's actions were sufficient to constitute "publicity" was a question...