Peissig v. Wisconsin Gas Co.

• Decision Date: 14 June 1990
• Docket Number: No. 88-1611,88-1611
• Citation: Peissig v. Wisconsin Gas Co., 456 N.W.2d 348, 155 Wis.2d 686 (Wis. 1990)
• Parties: Franklin C. PEISSIG, Katherine J. Peissig, Marathon County Department of Social Services, Clark County Department of Social Services and State of Wisconsin Department of Social Services, Plaintiffs-Respondents, v. WISCONSIN GAS COMPANY, a Domestic Corporation, Defendant-Appellant, d ] Western National Mutual Insurance Company, and Threshermens Mutual Insurance Company, Wisconsin Corporation, Defendants-Subrogees-Respondents.
• Court: Wisconsin Supreme Court

Page 348

456 N.W.2d 348

155 Wis.2d 686

Franklin C. PEISSIG, Katherine J. Peissig, Marathon County Department of Social Services, Clark County Department of Social Services and State of Wisconsin Department of Social Services, Plaintiffs-Respondents, v. WISCONSIN GAS COMPANY, a Domestic Corporation Defendant-Appellant, ^d] Western National Mutual Insurance Company, and Threshermens Mutual Insurance Company, Wisconsin Corporation Defendants-Subrogees-Respondents No. 88-1611.

Supreme Court of Wisconsin.

Argued April 24, 1990.

Decided June 14, 1990.

James R. Clark and Foley & Lardner, Milwaukee, argued, Thomas Terwilliger, Jeffrey J. Strande and Terwilliger, Wakeen, Piehler & Conway, Wausau, on briefs (in court of appeals), for defendant-appellant.

Paul A. Nikolay, argued, Nikolay, Jensen, Scott, Gamoke & Grunewald, S.C., on brief (in court of appeals), Abbotsford, for plaintiffs-respondents.

Michael A. Schumacher, argued, Herrick, Hart, Duchemin, Danielson & Guettinger, S.C., on brief (in court of appeals), Eau Claire, for defendants-subrogees-respondents.

John E. Feldbruegge, Terrence C. Thom, Dorothy H. Dey and Quale, Feldbruegge, Calvelli, Thom & Croke, S.C., Milwaukee, amicus curiae (in the supreme court), for Wisconsin Utilities Ass'n.

BABLITCH, Justice.

This case is before the court on certification to determine whether a finding of willful, wanton, or reckless behavior is necessary to award treble damages against public utilities in negligence actions pursuant to sec. 196.64, Stats. We affirm the decision of the circuit court that such a finding is not necessary under sec. 196.64. We reverse the decision of the circuit court, however, on the issue whether a joint offer of settlement from multiple plaintiffs entitles the plaintiffs to double costs and interest from the date of the settlement offer under sec. 807.01. All remaining issues raised on appeal are affirmed.

The plaintiffs, Franklin and Katherine Peissig, were injured in an explosion and fire that destroyed their mobile home and its contents. The Peissigs commenced an action against Wisconsin Gas Company (Wisconsin Gas), alleging that the fire and explosion was caused by the negligent construction and/or maintenance of the natural gas pipeline feeding into the mobile home, for which Wisconsin Gas was charged with responsibility. According to the Peissigs, Wisconsin Gas became aware of the dangerous location of the service pipe several months prior to the explosion, yet did nothing to correct the defect. A Wisconsin Gas utility serviceman testified that he noticed the gas service pipe exited the ground beneath the mobile home. He also indicated that the better practice was to have service pipes exit the ground outside the perimeter of the mobile home, since a gas leak in a confined area is more dangerous than one in open air. Significantly, the Peissigs' mobile home had a skirting around its base which would prevent gas leaks from diffusing into the air. The serviceman further testified that he knew mobile homes were subject to movement from heaving and that he had seen frost heaving break gas pipes before. On the same day he discovered the problem, he indicated to the Peissigs that Wisconsin Gas would move the service pipes. However, for some reason this was never accomplished and the mobile home was thereafter destroyed by the explosion.

Prior to trial, Wisconsin Gas brought motions in limine arguing, among other things, that the plaintiffs and the defendant-subrogees were "united in interest," and should be treated as one party for purposes of trial procedures. Wisconsin Gas requested an order limiting the plaintiffs and the defendant-subrogees to three preemptory challenges, and further prohibiting them from engaging in multiple direct and/or cross-examination of any witnesses. The circuit court held these parties to three preemptory challenges, but allowed multiple direct and cross-examination of witnesses.

The jury found by special verdict that Wisconsin Gas was causally negligent with regard to the injuries sustained by the plaintiffs and awarded the plaintiffs a total of $91,602.53. Of that amount, Franklin Peissig was awarded $30,000 for his past pain and suffering, and $30,000 for past medical and nursing bills. Katherine Peissig was awarded $10,000 for her past pain and suffering. The subrogation property insurer received the remainder.

In motions after verdict, Wisconsin Gas moved the court to reduce Katherine Peissig's award to $500 and to reduce Franklin Peissig's award for past medical and nursing home bills to $11,176.74. The circuit court denied these motions.

The plaintiffs then moved the circuit court to treble the damages awarded by the jury pursuant to sec. 196.64, Stats. The circuit court granted the motion, resulting in a base judgment in the amount of $274,807.59. In addition, the circuit court granted the plaintiff's motion to award double costs and interest pursuant to sec. 807.01 on the ground that the amount of the judgment, as trebled, exceeded a settlement offer the plaintiffs had jointly submitted to the defendant prior to trial.

Wisconsin Gas opposed both the motion to treble damages as well as the various bills of costs submitted by the plaintiffs on the grounds that the plaintiffs were entitled to neither treble damages nor double costs and interest under the applicable statutes. The defendants also objected to the award of treble damages on the grounds that sec. 196.64, Stats, was unconstitutional. After arguments on the matter, the circuit court granted treble damages and double costs and interest. It is from these decisions that the present appeal was taken.

We turn first to the issue whether a finding of willful, wanton, or reckless behavior is necessary in order to award treble damages against public utilities in negligence actions brought under sec. 196.64, Stats. We agree with the circuit court that such a finding is not necessary under the statute.

Section 196.64, Stats, was originally enacted in 1907 as sec. 1797m-93 of the Public Utilities Law. The statute has undergone several minor revisions through the years, but has remained essentially unchanged. Section 196.64 reads as follows:

If a public utility does, causes or permits to be done any matter, act or thing prohibited or declared to be unlawful under this chapter or ch. 197, or fails to do any act, matter or thing required to be done by it, the public utility shall be liable to the person injured thereby in treble the amount of damages sustained in consequence of the violation.

In construing sec. 196.64, Stats, this court held in Krom v. Antigo Gas Co., 154 Wis. 528, 535, 140 N.W. 41, 143 N.W. 163 (1913), that although it was not expressly provided for, the statute allowing treble damages against a utility applied only to breaches in which there was " 'some element of wilfulness, wantonness, or evil design....' " This interpretation was later withdrawn upon rehearing. Id., 154 Wis. at 543, 140 N.W. 41, 143 N.W. 163. However, the original holding was reaffirmed in Chrome Plating Co. v. Wisconsin Electric Power Co., 241 Wis. 554, 561, 6 N.W.2d 692 (1942). In that case, this court rejected the plaintiff's argument that it was unnecessary to establish that the defendant's conduct was willful, wanton, or reckless. We quoted extensively from the first Krom decision, and repudiated the decision upon rehearing as "in the nature of but obiter dictum." Chrome Plating, 241 Wis. at 561, 6 N.W.2d 692. See also Reuling v. Chicago, St. P., M. & O.R. Co., 257 Wis. 485, 44 N.W.2d 253 (1950).

More recently, however, in Kania v. Chicago & North Western Railway Co., 57 Wis.2d 761, 204 N.W.2d 681 (1973) (Per Curiam), we questioned the Chrome Plating decision. We stated at 57 Wis.2d 761-62, 204 N.W.2d 681:

In the Chrome Plating Co. Case, as well as the other cases cited in that opinion, violation of a safety statute providing for treble damages was equated with gross negligence. We have since abolished the doctrine of gross negligence in Wisconsin, and have determined that a comparison can be made between all degrees of negligence. Bielski v. Schulze (1962), 16 Wis.2d 1, 114 N.W.2d 105. Since gross negligence is no longer a separate cause of action, there is no reason to hold that a treble damage claim is a separate cause of action.

The circuit court in the present case concluded that Kania essentially overruled the Chrome Plating decision, and eliminated the requirement of willful, wanton, or reckless behavior as a precondition to treble damages under sec. 196.64, Stats. The circuit court reasoned that since gross negligence was abolished, and gross negligence was necessary to support a finding for treble damages under sec. 196.64, then what constituted gross negligence is no longer necessary to support an award of statutory treble damages.

On appeal, Wisconsin Gas disputes the circuit court's interpretation of Kania, and insists the decision did not eliminate the requirement of willful, wanton, or reckless conduct. According to Wisconsin Gas, treble damages are equivalent to punitive damages, both serving the same purposes of punishment and deterrence. They note that recent cases have held punitive damages in negligence cases are available only upon proof of malice or willful, wanton, or reckless disregard of a plaintiff's rights. Those cases illustrate that although gross negligence is no longer applicable in Wisconsin, the conduct that served as a basis for a finding of gross negligence must still be proved before punitive damages are awarded. Therefore, Wisconsin Gas says it follows that statutory treble damages are also available only upon a showing of willful, wanton, or reckless conduct.

We agree with the decision of the circuit court. In Cieslewicz v. Mutual Service Cas. Co., 84 Wis.2d 91, 101-02, 267 N.W.2d 595 (1978), we distinguished statutorily imposed multiple damages from common law punitive damages, and pointed out...