Wischer v. Mitsubishi Heavy Industries
| Decision Date | 30 September 2003 |
| Docket Number | No. 01-0724, No. 01-1031, No. 01-2486. |
| Parties | Patricia WISCHER, individually, and as Special Administrator of the Estate of Jeffrey A. Wischer, deceased, Marjorie DeGrave, individually, and as Special Administrator of the Estate of William R. DeGrave, deceased, and Ramona Dulde-Starr, individually, and as Special Administrator of the Estate of Jerome W. Starr, deceased, Plaintiffs-Intervenors-Respondents, v. MITSUBISHI HEAVY INDUSTRIES AMERICA, INC., Defendant-Appellant, The TRAVELERS INDEMNITY COMPANY OF ILLINOIS, Defendant, NEIL F. LAMPSON, INC., Defendant-Respondent, LAMPSON INTERNATIONAL LTD., Federal Insurance Company, and The Tokio Marine & Fire Insurance Company, Defendants. Patricia WISCHER, individually, and as Special Administrator of the Estate of Jeffrey A. Wischer, deceased, Marjorie DeGrave, individually, and as Special Administrator of the Estate of William R. DeGrave, deceased, and Ramona Dulde-Starr, individually, and as Special Administrator of the Estate of Jerome W. Starr, deceased, Plaintiffs-Respondents-Cross-Respondents, v. MITSUBISHI HEAVY INDUSTRIES AMERICA, INC., Defendant-Respondent-Cross-Appellant, The TRAVELERS INDEMNITY COMPANY OF ILLINOIS, Defendant-Appellant-Petitioner, NEIL F. LAMPSON, INC. and Lampson International Ltd., Defendants, FEDERAL INSURANCE COMPANY, Defendant-Co-Appellant, The TOKIO MARINE & FIRE INSURANCE COMPANY, Defendant. Patricia WISCHER, individually, and as Special Administrator of the Estate of Jeffrey A. Wischer, deceased, Marjorie DeGrave, individually, and as Special Administrator of the Estate of William R. DeGrave, deceased, and Ramona Dulde-Starr, individually, and as Special Administrator of the Estate of Jerome W. Starr, deceased, Plaintiffs-Respondents-Cross-Respondents, v. MITSUBISHI HEAVY INDUSTRIES AMERICA, INC., Defendant-Respondent-Cross-Appellant, The TRAVELERS INDEMNITY COMPANY OF ILLINOIS, Defendant-Appellant-Cross-Respondent, NEIL F. LAMPSON, INC. and Lampson International Ltd., Defendants, FEDERAL INSURANCE COMPANY and The Tokio Marine & Fire Insurance Company, Defendants-Respondents-Cross-Appellants. |
| Court | Wisconsin Court of Appeals |
On behalf of the defendant-appellant and defendant-respondent-cross-appellant Mitsubishi Heavy Industries America, Inc., the cause was submitted on the briefs of Ralph A. Weber, Amelia L. McCarthy and David E. Osswald of Reinhart Boerner Van Deuren S.C., Milwaukee, Colleen D. Ball of Appellate Counsel S.C., Wauwatosa and John W. Bell and Kevin G. Owens of Johnson & Bell, Ltd., Chicago, Illinois. There was oral argument by Ralph A. Weber.
On behalf of the defendant-respondent-cross-appellant Mitsubishi Heavy Industries America, Inc., the cause was submitted on the brief of Dean P. Laing and William A. Wiseman of O'Neil, Cannon & Hollman, S.C., Milwaukee. There was oral argument by Dean P. Laing.
On behalf of the defendant-respondent Neil F. Lampson, Inc., the cause was submitted on the brief of Donald H. Carlson, Jeffrey T. Nichols and Ryan G. Braithwaite of Crivello, Carlson & Mentkowski, S.C., Milwaukee. There was oral argument by Donald H. Carlson.
On behalf of the plaintiffs-intervenors-respondents and plaintiffs-respondents-cross-respondents, the cause was submitted on the briefs of Robert L. Habush, Daniel A. Rottier, Mark S. Young and Virginia M. Antoine, of Habush Habush & Rottier, S.C., Milwaukee and David P. Lowe of Jacquart & Lowe, S.C., Milwaukee. There was oral argument by Robert L. Habush.
On behalf of the defendant-appellant-petitioner and defendant-appellant-cross-respondent The Travelers Indemnity Company of Illinois, the cause was submitted on the briefs of Brady C. Williamson, James A. Friedman and Katherine Stadler, of La Follette Godfrey & Kahn, Madison. There was oral argument by Brady C. Williamson.
On behalf of the defendant, defendant-co-appellant and defendant-respondent-cross-appellant Federal Insurance Company, the cause was submitted on the briefs of John A. Busch and Christopher C. Mohrman of Michael Best & Friedrich LLP, Milwaukee and Edward B. Ruff III, Michael Clarke, pro hac vice and Benjamin A. Crane, pro hoc vice of Pretzel & Stouffer, Chartered, Chicago, Illinois. There was oral argument by John A. Busch.
On behalf of the defendant, defendant-respondent-cross appellant The Tokio Marine & Fire Insurance Company, the cause was submitted on the briefs of Jeffrey S. Fertl of Hinshaw & Culbertson, Milwaukee. There was oral argument by Jeffrey S. Fertl.
A nonparty brief was filed by Eric Englund, Madison, for Wisconsin Insurance Alliance.
An amicus curiae brief was filed by William C. Gleisner, III of Law Offices of William C. Gleisner, III, Milwaukee for the Wisconsin Academy of Trial Lawyers.
Before Wedemeyer, P.J., Fine and Schudson, JJ.
¶ 1.
This case involves three consolidated cases in the so-called "Miller Park" appeals.2 Although the cases underlying this consolidated appeal present many issues of varying complexity, there is one dispositive issue: whether, based on the facts as conceded by the plaintiffs, the $94,000,000 punitive-damage award is contrary to the calls of WIS. STAT. § 895.85(3) (1999-2000).3 We hold that it is. Accordingly, we reverse the punitive-damage award, and consequently do not address the other issues. See Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W. 663 (1938) (). The judgment relative to the compensatory damage award is affirmed.
¶ 2. In appeal number 01-0724, Mitsubishi Heavy Industries America, Inc., appeals from a judgment dismissing Neil F. Lampson, Inc. (the designer and manufacturer of the crane involved), following the trial court's decision directing a verdict in Neil F.'s favor. Patricia Wischer, Marjorie DeGrave and Ramona Dulde-Starr (the plaintiffs) filed a motion to intervene in this appeal, which was granted.4
¶ 3. In the other consolidated cases, The Travelers Indemnity Company of Illinois and Federal Insurance Company appeal from judgments entered against them and in favor of the plaintiffs and in favor of Mitsubishi, their insured. Mitsubishi filed a cross-appeal challenging the judgment rendered in favor of the plaintiffs following a seven-week jury trial. In addition, Travelers appeals from the trial court's judgment ordering it to pay the entire jury verdict as a consequence of its failure to plead and prove its policy limits during the trial. Federal and The Tokio Marine & Fire Insurance Company cross-appeal from the judgments rendered against them and in favor of the plaintiffs and Travelers, ordering the insurers to pay their policy limits of $50,000,000 and $2,000,000, respectively. In this case, Mitsubishi also maintains a cross-appeal against the plaintiffs.5
¶ 4. The dispositive issue in this appeal is governed by WIS. STAT. § 895.85(3), enacted by our legislature in 1995, which provides: "The plaintiff may receive punitive damages if evidence is submitted showing that the defendant acted maliciously toward the plaintiff or in an intentional disregard of the rights of the plaintiff."
[1]
¶ 5. Based upon our analysis of the statute, we hold that the phrase "intentional disregard of the rights of the plaintiff" in WIS. STAT. § 895.85(3) can only be reasonably interpreted to require either an intent by a defendant to cause injury to the plaintiffs or knowledge that the defendant's conduct was practically certain to cause the accident or injury to the plaintiffs. Based on this conclusion, together with the concession by both the plaintiffs and the trial court that there is no evidence demonstrating that Mitsubishi intended to cause injury or knew that its conduct was practically certain to cause injury, we reverse the award of punitive damages.6
¶ 6. Because we have reached this conclusion, it is not necessary for us to address any of the other issues raised in this appeal. All of the remaining issues are moot.
¶ 7. July 14, 1999, was to be an exciting day in the construction of Miller Park stadium, the home of the Milwaukee Brewers major league professional baseball team. On that day, a crane known as "Big Blue" was to lift a large piece of the retractable roof of the stadium so workers could bolt it into place. Unfortunately, the lift did not go as planned. Big Blue broke and its boom struck the crane holding three ironworkers who were to secure the roof. All three workers fell to their instant death.
¶ 8. In order to understand the events of July 14, 1999, it is important to know who the relevant parties and non-parties are and how they came to work together that fateful day.
¶ 9. The construction of Miller Park stadium was a joint effort involving many individuals and business organizations. The general contractor for the construction project was a joint venture of three companies: Hunzinger Construction Company, Clark Construction Builders, Inc., and Huber, Hunt & Nichols, Inc. ("general-contractor joint venture"). The general-contractor joint venture hired eighty contractors and those contractors hired approximately two hundred subcontractors.
¶ 10. One of the contractors hired by the general-contractor joint venture was Mitsubishi Heavy Industries America, Inc. Mitsubishi was hired to build the stadium roof according to an architectural design, to erect the roof, and to design, build, and install the drive system that moved the roof panels. Victor Grotlisch was Mitsubishi's site manager, and Wayne Noel was Mitsubishi's safety superintendent.
¶ 11. Mitsubishi hired Lampson International Ltd., an industry leader in performing heavy lifts, to help install the roof of the stadium. Lampson International leased a crane known as "Big Blue" to Mitsubishi. On April 22, 1998, Mitsubishi and Lampson International entered into an agreement for the lease of a crane to assist in the lift of the Miller...
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...an intentional disregard of the rights of the plaintiff' as provided in Wis. Stat. § 895.85(3) (2001-02)?3 i. If Wischer v. Mitsubishi Heavy Indus. Am., Inc., 2003 WI App 202, ¶ 40, 267 Wis. 2d 638, 673 N.W.2d 303, review granted (Wis. April 20, 2004) (Nos. 01-0724, 01-1031 & 01-2486), is c......
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...that the defendant's conduct was practically certain to cause the accident or injury to the plaintiffs." Wischer v. Mitsubishi Heavy Indus. Am., Inc., 2003 WI App 202, ¶ 5, 267 Wis. 2d 638, 673 N.W.2d 303. Applying this standard to the facts of this case, it is clear that the defendant's co......
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