01-1717 Batt v. Sweeney and Allstate Insurance Co.

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“We hold that Barbara Batt’s affidavit alleged fraud. In her affidavit, Batt stated that she told Kahn her income had been substantially reduced since the accident because of her injuries and that she was particularly concerned about the loss of overtime, which represented an important part of her income. Batt stated she voiced concern to Kahn about the coverage her health insurance would provide for future medical bills should her back problems continue. Batt said Kahn told her that her health insurance should cover those bills. Batt said she told Kahn that she was still being treated for her back and wanted to know what would happen if she ended up having major problems. Batt maintains that Kahn specifically told her, ‘We’ll cross that bridge when we come to it.’

“Finally, Batt’s affidavit states that she understood her communications with Kahn to mean that when she agreed to accept the $7700 check (and in fact did sign and cash the check) that she had accepted payment for her wage loss up until January and for her personal responsibility for medical expenses related to the accident. Batt stated that when the Sheboygan Clinic contacted her for payment of her medical expenses, she told it that Allstate had agreed to be responsible for those expenses. She was later told that Allstate had refused to pay. In short, Batt’s affidavit alleges these elements of fraud: that Kahn made a misrepresentation, one that he did not intend to back, and that she relied upon it when she accepted and cashed the check. Her affidavit sufficiently presents material issues of fact requiring a trial.”

Accordingly, we affirm the trial court’s denial of defendant’s claim that plaintiff’s suit was frivolous, but we reverse the trial court’s finding that there existed no material issues of fact in dispute that would entitle plaintiff to trial and we remand for further proceedings.

Recommended for publication in the official reports.

Dist II, Sheboygan County, Murphy, J., Anderson, J.

Attorneys:

For Appellant: James O. Conway, Sheboygan; Joseph J. Voelkner, Sheboygan; Timothy B. Gifford, Sheboygan

For Respondent: Christine M. Benson, Waukesha; John D. Surma, Brookfield