00-0361 Schultz v. Natwick, M.D.

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“The parties here agree that Neiman [v. American National Prop. & Cas. Co., 2000 WI 83] does not expressly state whether the court was addressing a ‘facial’ or an ‘as applied’ challenge to retroactive application of the increased damages cap. However, for several reasons, we conclude that Neiman involved a facial challenge to the statute.

“First, we conclude that Neiman facially invalidated the Act’s retroactive increase in damages because to hold otherwise would suggest that tortfeasors’ maximum liability could be made to depend on the unique circumstances surrounding their insurance contracts, or that insured tortfeasors, uninsured tortfeasors and underinsured tortfeasors could incur different maximum liabilities for the same negligent act. …

“Second, although the Schultzes reasonably argue that the identification and balancing of “private interests” implies a fact-specific analysis and a case-by-case inquiry into actual harm, we conclude that the supreme court’s analysis in Neiman was a broader test of the statute itself. …

“The Neiman court’s analysis of the relevant interests was not fact-specific and did not inquire into the actual harm suffered by the defendant-insurer. Instead, the primary private interest identified by the court was an interest that is universal to all tort defendants: the substantive right, in cases where damages are specified by statute, to have the amount of liability fixed as of the date of injury.”

Accordingly, defendant’s liability for loss of society and companionship is capped at $150,000 under Wis. Stat. sec.895.04(4), which was the statute in effect on the date the plaintiffs’ cause of action accrued.

Judgment reversed.

Recommended for publication in the official reports.

Dist III, Dunn County, Smeltzer, J., Roggensack, J.

Attorneys:

For Appellant: Michael S. Heffernan, Madison; Michael B. Van Sicklen, Madison

For Respondent: Terry L. Wade, Minneapolis, Minn.; Howard R. Orenstein, Minneapolis, Minn.