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01-0323 Zentgraf v. The Hanover Insurance Co.

By: dmc-admin//December 31, 2001//

01-0323 Zentgraf v. The Hanover Insurance Co.

By: dmc-admin//December 31, 2001//

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“The Zentgrafs rely entirely on portions of Mr. Zentgraf’s deposition. The brief portions to which they refer, however, aside from confirming that the Zentgrafs had a long-term marriage and two minor children, merely establish that although his treating physician had not restricted his activities, Mr. Zentgraf did not really want to do much other than sit back and ‘kind of’ relax. …

“Clearly, this testimony is insufficient to support Mrs. Zentgraf’s claim for deprivation of “the aid, society, companionship, services and consortium” of her husband. Even if Mr. and Mrs. Zentgraf had been doing more shopping and dining out together before the accident, Mr. Zentgraf attributed any change to his second-shift employment and his preference to stay home.

“Thus, Mr. Zentgraf’s testimony does not describe Mrs. Zentgraf’s loss of anything even on ‘a broad range of elements such as love, companionship, affection, society, sexual relations, and the right of support or the performance of marital services.'(citation omitted). Nor does our independent review of the record reveal that any other evidence was submitted to establish her claim. Thus, based upon the record before us, we conclude that the circuit court erroneously exercised discretion when it awarded damages to Mrs. Zentgraf as outlined in the Zentgrafs’ proposed order.”

Further, we conclude that the circuit court violated Wis. Stat. sec. 102.29(1) when it denied plaintiff’s worker’s compensation insurer’s request for attorneys’ fees because, under any number of definitions, the insurer’s attorneys took numerous actions to “join in pressing” the claim against the driver of the other vehicle which rear-ended plaintiff’s truck and his liability carrier.

“In addition to repeatedly notifying the circuit court of the amount of its lien claim and its intent to participate in the prosecution of the claim against Duame and his insurer, counsel for American: (1) was in frequent contact with attorneys for the other parties; (2) responded to requests from both defense counsel and plaintiffs’ counsel to produce documents; (3) requested, received, and reviewed medical records from multiple medical institutions; (4) spent time preparing for the final pretrial conference; (5) frequently reviewed the case file to determine the status of discovery and investigation; (6) prepared for and attended a mediation conference; (7) analyzed Wis. Stat. § 102.29 implications for settlement and repeatedly communicated with the Zentgrafs’ attorney regarding distribution of the settlement proceeds; (8) prepared a motion to postpone the hearing on the Zentgrafs’ motion to approve the settlement and distribution of its proceeds as outlined in their proposed order; (9) prepared a letter brief and affidavit with supporting documentation; and (10) prepared for and attended the motion hearing. Although the Zentgrafs emphasize that the action was settled in April 2000, substantial issues regarding distribution of the settlement funds remained until the circuit court signed the Zentgrafs’ proposed order on January 11, 2001.”

Order reversed and remanded with directions.

Recommended for publication in the official reports.

Dist I, Milwaukee County, Miller, J., Schudson, J.

Attorneys:

For Appellant: Michael J. Hicks, Waukesha; Cori Lynn Prahl, Waukesha; Sara J. Mulligan-Mauermann, Waukesha

For Respondent: James P. Maloney, Milwaukee

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