Tierney v. Lacenski

• Court: Wisconsin Court of Appeals
• Writing for the Court: CANE
• Citation: Tierney v. Lacenski, 114 Wis.2d 298, 338 N.W.2d 522 (Wis. App. 1983)
• Decision Date: 19 July 1983
• Docket Number: No. 82-853,82-853
• Parties: Kelly P. TIERNEY, Plaintiff, v. Lawrence J. LACENSKI, and American Family Mutual Insurance Company, a Wisconsin insurance corporation, Defendants-Respondents, Wisconsin Department of Transportation, a department of the State of Wisconsin, Defendant, Edward R. Bollenbeck, Attorney at Law, and St. Paul Fire and Marine Insurance Company, a Minnesota insurance corporation, Defendants-Appellants, Edward R. Bollenbeck, Attorney at Law, Defendant and Third-Party Plaintiff, Angus R. McIntyre, Bachman, Cummings, & McIntyre, S.C., and XYZ Insurance Company, Third-Party Defendants.

Page 522

338 N.W.2d 522

114 Wis.2d 298

Kelly P. TIERNEY, Plaintiff, v. Lawrence J. LACENSKI, and American Family Mutual Insurance Company, a Wisconsin insurance corporation Defendants-Respondents Wisconsin Department of Transportation, a department of the State of Wisconsin, Defendant Edward R. Bollenbeck, Attorney at Law, and St. Paul Fire and Marine Insurance Company, a Minnesota insurance corporation, Defendants-Appellants Edward R. Bollenbeck, Attorney at Law, Defendant and Third-Party Plaintiff, Angus R. McIntyre, Bachman, Cummings, & McIntyre, S.C., and XYZ Insurance Company, Third-Party Defendants.

No. 82-853.

Court of Appeals of Wisconsin.

Submitted on Briefs Nov. 8, 1982.

Opinion Released July 19, 1983.

Opinion Filed July 19, 1983.

James R. Gutglass and Law Offices Richard J. Palmersheim, Milwaukee, on briefs, for defendants-appellants.

Angus R. McIntyre and Bachman, Cummings & McIntyre, S.C., Appleton, on brief, for Kelly P. Tierney.

Joseph J. Beisenstein and Menn, Nelson, Sharratt, Teetaert & Beisenstein, Ltd., Appleton, on brief, for defendants-respondents.

Before FOLEY, P.J., and DEAN and CANE, JJ.

CANE, Judge. ¹

Kelly Tierney's former attorney, Edward Bollenbeck, appeals from an order dismissing Tierney's action against the American Family Mutual Insurance Company. The issues on appeal are (1) whether Bollenbeck has standing to appeal and (2) whether the dismissal of Tierney's action against a state employee for failure to comply with the notice requirements of sec. 893.82, Stats., (formerly sec. 895.45, Stats.,) ² requires the dismissal of Tierney's action against the state employee's liability insurance carrier. The circuit court concluded that such a dismissal was required. Although Bollenbeck is an aggrieved party and has standing to appeal, because the circuit court correctly concluded such a dismissal was required, we affirm.

On June 19, 1979, Lawrence Lacenski drove an automobile that collided with a motorcycle driven by Tierney. Lacenski was a Wisconsin Department of Transportation employee on state business when the accident occurred. He owned the automobile and received state reimbursement for his mileage. On February 27, 1980, Tierney commenced an action for damages because of injuries suffered from the accident against Lacenski and his insurer, American Family. On October 16, 1980, Tierney amended his complaint, adding the Department of Transportation; Bollenbeck, his previous attorney; and St. Paul Fire and Marine Insurance Co., Bollenbeck's insurance carrier, as parties. Lacenski alleges that Bollenbeck was negligent in failing to timely file the necessary notices under sec. 893.82.

The trial court dismissed Lacenski and the Department of Transportation because Tierney failed to comply with sec. 893.82. American Family subsequently moved to dismiss Tierney's action against it because its insured, Lacenski, was not legally obligated for any damages. Bollenbeck also moved to dismiss Tierney's action against him contending that Tierney still had an action against American Family with policy limits of $100,000, which Bollenbeck claims is the maximum amount Tierney could recover under sec. 893.82(4). ³

The trial court dismissed American Family, but denied Bollenbeck's motion to dismiss. American Family's insurance agreement with Lacenski provided that "the Company shall pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages ...." The trial court reasoned that because Lacenski cannot become legally obligated to pay any damages arising from the accident by virtue of Tierney failing to comply with sec. 893.82, American Family has no liability under the terms of its policy.

The initial issue is whether Bollenbeck ⁴ has standing to appeal the court's dismissal of Tierney's action against American Family. A right to appeal from a judgment or order, irrespective of statute, is confined to parties aggrieved in some appreciable manner by the court action. See Mutual Service Casualty Insurance Co. v. Koenigs, 110 Wis.2d 522, 526, 329 N.W.2d 157, 159 (1983); Powers v. Powers, 145 Wis. 671, 674, 130 N.W. 888, 889 (1911). In essence, the judgment or order appealed from must bear directly and injuriously upon the interests of the appellant; he must be adversely affected in some appreciable manner. State ex rel. Opelt v. Crisp, 81 Wis.2d 106, 113, 260 N.W.2d 25, 28 (1977).

We are satisfied that Bollenbeck falls within the meaning of an aggrieved party under the circumstances of this case. Tierney complains that he was injured because of Lacenski's negligence and that Lacenski was insured at the time by his private insurance carrier, American Family. His alternative cause of action is against Bollenbeck for failing to comply with sec. 893.82. Bollenbeck contends that the court's order dismissing American Family affects his rights and obligations. We agree. Whether Tierney has a direct action against American Family would directly affect any potential recovery against Bollenbeck. Obviously, he is therefore affected in some appreciable manner by the court's action dismissing American Family.

Bollenbeck contends (1) that the trial court ignored the holding of Shannon v. City of Milwaukee, 94 Wis.2d 364, 289 N.W.2d 564 (1980), that a liability insurer may be liable even though no judgment may be obtained against the insured; and (2) that the protections of sec. 893.82 are specifically limited to actions or proceedings against state officers, employees, or agents, and because the direct action against an insurer does not fall within any of those categories, it necessarily follows that American Family should not be dismissed.

Bollenbeck relies on Rabe v. Outagamie County, 72 Wis.2d 492, 241 N.W.2d 428 (1976), and Shannon for the proposition that a dismissal of the insured also does not discharge the insurer from liability. Reliance on Rabe and Shannon is misplaced. Those cases involved direct actions against a county's and city's insurers. The insurance policies covered the negligent acts of the county and city employees. Also, the relevant claim statutes applied only to the local government and not to its employees. In Rabe and Shannon, the injured parties had failed to comply with the claim statutes in their actions against the county and city. The insurers contended that because the county and city were therefore protected from the lawsuit, there could be no direct action against them. The supreme court concluded, however, that because the liability policies extended to county and city employees who were unprotected under the claim statutes, the claimants had a direct action against the insurers.

Rabe and Shannon therefore do not stand for the proposition that a liability insurer may be directly liable even though no judgment may be obtained against the insured. In fact, in those cases, the claimants would have been prohibited from commencing a direct action against the local government's insurers had it not been for the statutorily unprotected employees who were covered by the local government's insurance carrier.

Unlike the claim statutes in Rabe and Shannon, sec. 893.82 expressly protects state employees. Here, the state employee, Lacenski, is immune from liability because of Tierney's failure to comply with sec. 893.82. Even under the direct action statute, sec. 632.24, Stats., which makes an insurer liable up to the policy limits to "the persons entitled to recover against the insured for the death of any person or for injury to the person or property," it is clear from the statutory language that the liability to which the insurer is exposed is predicated upon the...