Stanhope v. Brown County
| Citation | 280 N.W.2d 711,90 Wis.2d 823 |
| Decision Date | 29 June 1979 |
| Docket Number | No. 76-151,76-151 |
| Parties | Beverly STANHOPE, Plaintiff-Appellant and Cross-Respondent, Harley Stanhope, Plaintiff, v. BROWN COUNTY and Continental Casualty Insurance Company, Defendants- Respondents, Third-Party Plaintiffs and Cross-Appellants, Gordon J. Solomon, Jr., Third-Party Defendant and Cross-Appellant. |
| Court | Wisconsin Supreme Court |
David J. Condon (argued), and Condon & Hanaway, Ltd., Green Bay, on brief, for plaintiff-appellant and cross-respondent.
Lloyd J. Planert (argued), and Welsh, Trowbridge, Planert & Schaefer, S. C., Green Bay, on brief, for defendants-respondents, third-party plaintiffs and cross-appellants.
The trial court entered judgment for damages in the amount of $25,000 in favor of Beverly Stanhope (Stanhope) against defendants Brown County and Continental Casualty Insurance Company (Continental), Brown County's liability insurer, for injuries Stanhope suffered when an automobile in which she was a passenger went out of control on a Brown County highway. Stanhope appeals from that portion of the judgment limiting to $25,000 the damages she may recover from Brown County and Continental. Brown County and Continental cross-appeal from that portion of the judgment awarding any damages to Stanhope and from the trial court's order denying motions after verdict. We modify the trial court's judgment to award Stanhope damages against Brown County and Continental in excess of $25,000 up to Continental's policy limits and affirm the judgment as modified. We further affirm the orders from which Brown County and Continental cross-appeal.
On the evening of December 6, 1969, Gordon Solomon drove his 1968 Chevrolet, which was occupied by his wife Janice Solomon and Beverly and Harley Stanhope, out of the parking lot at the Brown County Airport and negotiated an S-curve leading into County Trunk Highway IA. The car skidded off Highway IA, turned over several times and came to rest upside down. Gordon Solomon and Beverly Stanhope were injured seriously.
In their complaint Harley and Beverly Stanhope alleged causal negligence on the part of Brown County in the design, construction and maintenance of the airport road and highway, and further alleged that Continental, Brown County's insurer, was liable to the Stanhopes for damages up to $100,000, the limit of the policy, and was a proper party to the action.
Brown County and Continental in their answer denied causal negligence by Brown County, alleged Stanhope's contributory negligence, and sought contribution from Gordon Solomon and his insurer, American Family Insurance, as third-party defendants. The circuit court dismissed American Family Insurance as third-party defendant, upon American Family's payment to Stanhope of $10,000, the limit of Solomon's liability policy.
In an amended complaint and second amended complaint, the Stanhopes alleged that General Motors Corporation (GM) was causally negligent in the design, manufacture and testing of the Chevrolet in which the accident had occurred. During trial GM settled with the Stanhopes for $45,000, in return for a Pierringer release. 1
In an answer to the Stanhopes' second amended complaint served on the Stanhopes on November 14, 1975, three days before the start of trial, Brown County and Continental raised for the first time the defense, under secs. 81.15 2 and 895.43, Stats., 3 that Stanhope could not recover more than $25,000 from Brown County. Over Stanhope's objection the trial court held that Brown County and Continental would be permitted to raise the defense, withholding its decision as to whether the defense was applicable to the case at bar.
The jury found Gordon Solomon, Brown County, and Beverly Stanhope each causally negligent, and apportioned their causal negligence as follows: Gordon Solomon, 80.5 percent; Brown County, 16.2 percent; Beverly Stanhope, 3.3 percent. The jury determined Beverly Stanhope's damages to be $250,000, and Harley Stanhope's $20,904.74.
The trial court denied Brown County and Continental's motion for credit for the $45,000 settlement between the Stanhopes and GM. It upheld the legislative power to enact limits on recovery in secs. 81.15 and 895.43, Stats., against Stanhope's constitutional challenges, and it held that the statutory defense of limits on recovery was available to Continental as well as to Brown County and was not waived by the policy.
The trial court entered judgment against Brown County and Continental and in favor of Beverly Stanhope in the amount of $25,000, with costs and disbursements. Harley Stanhope was paid $20,214.88, the amount awarded him, and his action was dismissed in lieu of entry of judgment. Further facts appear in the opinion.
Brown County and Continental first raised the defense of the $25,000 limitation on recovery under secs. 81.15 and 895.43, Stats., on November 14, 1975, three days before trial. Stanhope contends that it was error for the trial court to allow the defense to be raised at that time.
The Stanhopes began the action in July 1970. In a first amended complaint they added GM as a defendant. They served their second amended complaint on Brown County and Continental on November 20, 1972. The second amended complaint did not differ from the initial complaint as to the allegations regarding Brown County and Continental; it alleged additional grounds for recovery against GM. Under sec. 263.10, Stats.1971, Brown County and Continental were required to answer or demur to the second amended complaint within twenty days after service. If not interposed by demurrer or answer, objections to the complaint, except the objection to the jurisdiction over subject matter, are waived. Sec. 263.12, Stats.1971. Brown County and Continental served their answer to the second amended complaint on November 14, 1975, nearly three years after service of the amended complaint. The only difference between this amended answer and the prior answer was the allegation of the affirmative defense of the statutory limitation on recovery.
The trial court, relying Inter alia upon sec. 269.44, Stats.1971, regarding amendments of pleadings, allowed Brown County and Continental to raise the statutory defense.
"Sec. 269.44 The court may, at any stage of any action or special proceeding before or after judgment, in furtherance of justice and upon such terms as may be just, amend any process, pleading or proceeding, notwithstanding it may change the action from one at law to one in equity, or from one on contract to one in tort, or vice versa; provided, the amended pleading states a cause of action arising out of the contract, transaction or occurrence or is connected with the subject of the action upon which the original pleading is based."
We have said that "sec. 269.44, Stats., should be liberally construed to permit the amendment of the pleadings so as to present the entire controversy providing the amendment does not unfairly deprive the opposing party of timely opportunity to meet the issue created by the amendment." Wipfli v. Martin, 34 Wis.2d 169, 174, 148 N.W.2d 674, 677 (1967). It is within the discretion of the trial court to allow an amendment to the pleadings, and we will not reverse the trial court unless there has been a manifest abuse of discretion. Metro. Sew. Dist. v. Chic., Milw., St. Paul & Pac. R.R. Co., 69 Wis.2d 387, 412, 230 N.W.2d 651 (1975).
Stanhope argues that permitting Brown County and Continental to raise the statutory defense by amendment of their answer to the second amended complaint was not "in furtherance of justice and upon such terms as are just." She grounds this argument on the theory that the defense does not go to the merits but operates to deprive the injured party of a remedy and full recovery and should not be favored. 4 We find this argument misplaced.
Stanhope was not unfairly prejudiced by the trial court's decision to allow the statutory defense to be raised. The Stanhopes were aware of the availability of this defense well before trial and were planning to meet this defense. In their pre-trial statement dated February 11, 1971, the Stanhopes stated: "It is expected that defendants will claim that plaintiffs' total damages are limited by sec. 81.15, Stats." In their trial brief, dated November 13, 1975, the Stanhopes discussed both sec. 81.15 and sec. 895.43. In the trial brief, as in the pre-trial statement, they urged that the $25,000 limit applied separately to each of the plaintiffs and asserted the inapplicability of the statutory limits. In the trial brief they also asserted, for the first time, the invalidity of the statutes.
Thus Stanhope's pre-trial or trial strategy was not influenced by the mistaken belief that the county and insurance company were not going to assert the defense. The Stanhopes were not surprised by the revelation shortly before trial that Brown County and Continental actually intended to invoke the statutory defense. The validity and applicability of the defense were not issues before the jury, and they were not issues of law that had to be decided before submission of the case to the jury. After the jury returned its verdict, the trial court gave the parties an opportunity to brief the legal issues regarding the statutory $25,000 limit.
Under these circumstances we cannot say that the trial court abused its discretion in allowing the defense to be raised. Because of this conclusion we do not consider the contention of Brown County and Continental that the trial court could take judicial notice of secs. 81.15 and 895.43, Stats., and that the defense need not be raised by answer.
Stanhope asserts that the Wisconsin legislature has established two classes of plaintiffs (victims of governmental negligence and victims of non-governmental negligence) and two classes of defendants (governmental tortfeasors and non-governmental tortfeasors). She contends...
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