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

By: dmc-admin//November 25, 2002//

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

By: dmc-admin//November 25, 2002//

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“While the plaintiffs would have the court focus on the premiums, fees, and assessments charged by PIC and the Fund, the Neiman decision assessed private interests by focusing on the fact that insurers and insureds had a right to have their maximum damages fixed at the date the cause of action accrued and concluded that the retroactive increase of the maximum damages unsettled these private interests.

“Dr. Natwick, PIC, and the Fund in the present case similarly had a right to have their liability fixed on the date of injury and their private interests were unsettled by the retroactive increase of the cap.

“The court of appeals correctly noted that the Neiman decision assessed private interests ‘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.’…

“Although the result in Neiman is harsh for families of victims and contrary to the express direction of the legislature, the plaintiffs do not provide any justification, in this case, for overturning the Neiman decision. Their case does not introduce evidence of any changes in the law that might undermine the rationale behind the Neiman decision; it does not show how Neiman renders the law incoherent or inconsistent.

“In sum, the court affirms the decision of the court of appeals. We conclude, as did the court of appeals, that the Neiman decision governs this case. The retroactive increase of the cap on damages for the loss of society and companionship in wrongful death cases enacted by 1997 Wis. Act 89 is unconstitutional. It is unnecessary to apply the Martin balancing test anew to the particular facts of every case challenging the constitutionality of the retroactive increase of the cap.”

Affirmed.

Court of Appeals; Abrahamson, Ch. J.

Attorneys:

For Appellant: Michael B. Van Sicklen, Madison

For Respondent: Terry L. Wade Minneapolis, Minn.

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