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99-2944, 00-1304 City of West Allis v. Wisconsin Electric Power Co.

By: dmc-admin//September 10, 2001//

99-2944, 00-1304 City of West Allis v. Wisconsin Electric Power Co.

By: dmc-admin//September 10, 2001//

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“Unlike Mose [v. Tedco Equities-Potter Road Ltd. Partnership, 228 Wis.2d 848 (Ct. App. 1999)], neither G&L nor K&T knew that the land was going to be contaminated and neither party negotiated a compromised purchase price as a result. Thus, we find that the economic loss doctrine neither bars G&L’s claims nor precludes G&L from collecting punitive damages.”

However, we determine that because of the manner in which the jury answered the questions on the verdict regarding punitive damages, the answer to the punitive damages question violated the requirement that five-sixths of the jurors agree.

“Further, we conclude that WEPCO did not waive its right to raise a five-sixths verdict agreement objection by raising the issue for the first time in its motions after verdict. Consequently, we reverse the judgment as it pertains to punitive damages, and we remand for a new trial on this sole issue. …

“Upon review, we also conclude that the City and G&L presented a strong circumstantial case that WEPCO was responsible for the OBW buried on the properties. Here, it was undisputed that whoever placed the OBW on the lands did so intentionally. No testimony was presented that WEPCO had permission to dump any waste on the two properties. Indeed, WEPCO’s position at trial was that Wisconsin Gas was the guilty party. Further, the City and G&L proved that over 26,000 tons of OBW were deposited on their lands, an amount that could only have been placed by repeated dumpings. … In sum, there was ample evidence in the record, if believed, that WEPCO’s conduct was outrageous and that WEPCO intentionally disregarded the City’s and G&L’s rights. This evidence permitted the trial court to submit a punitive damages question to the jury. …

“Our review of the case law satisfies us that the trial court was mistaken in ruling that WEPCO waived its objection to the five-sixths rule because it failed to raise the issue until post-verdict motions.

“Therefore, while twelve jurors actually answered Question 21 awarding punitive damages, they were not the same twelve jurors who found WEPCO responsible for placing the OBW on the City’s land. Because the same five-sixths of the jurors did not concur in all of the answers to all the questions necessary to support the judgment, a five-sixths violation occurred and the verdict was defective.”

However, we determine that the trial court abused its discretion in imposing sanctions against WEPCO because: “(1) the trial court’s assumption that the existence of insurance covering a punitive damage award was admissible finds no support in Wisconsin’s case law; (2) the trial court’s subsequent legal conclusions, that WEPCO’s actions resulted in financial gain to WEPCO and were prejudicial because the actions denied the plaintiffs a fair trial, is also incorrect, rendering the imposed sanctions unfair and unreasonable; (3) the default judgment was grounded on the jury verdict of $104,500,000, $100,000,000 of which is no longer valid because, we have concluded, it violated the five-sixths juror agreement rule; and (4) finally, the trial court overstepped its authority in prohibiting WEPCO from submitting its punitive damages claims to its insurance carriers.”

Judgment affirmed in part, reversed in part and cause remanded with directions.

Recommended for publication in the official reports.

Dist I, Milwaukee County, McMahon, J., Curley, J.

Attorneys:

For Appellant: Barbara Wrubel, Chicago; R. Ryan Stoll, Chicago; Robert H. Friebert, Milwaukee; Matthew W. O’Neill, Milwaukee

For Respondent: James R. Gass, Milwaukee; Mark M. Leitner, Milwaukee

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