02-1553 Traynor v. Thomas & Betts Corp.

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Employee was injured in a car accident, his employer’s ERISA plan made payments, and he then settled with the tortfeasor; the employer joined that settlement stipulation, which also provided that the settlement had not made employee whole, and that employer was barred from sharing in the settlement fund.

After the stipulation, employer acquiesced in employee’s motion to dismiss employer; employer may not now raise the subrogation claims it filed prior to the stipulation and dismissal.

Where employer’s answers to requests for admissions and interrogatories were made in bad faith, we affirm the award of attorney fees and costs against employer pursuant to Wis. Stat. § 804.12(3) and 29 U.S.C. § 1132(g)(1).

The ERISA Plan provided that amendments (here, relating to subrogation) could only be approved by an executive officer. In answer to a request for admission, employer admitted that Judith Hines was not an executive officer. In a later interrogatory, employer stated that Hines was the person who approved the 1995 subrogation amendment. The court concluded it was bad faith to later argue that Hines validly approved the amendment when employer knew she was not an executive officer and, in fact, had already admitted she was not an executive officer.

Further, we deem this appeal frivolous, because employer has tried to argue to us a position that is contrary to facts conclusively established through the requests for admission and interrogatories, and employer has also shown bad faith by reasserting its summary judgment arguments, when it did not object to dismissal of the case after entering the stipulation.

Under Wis. Stat. § 814.025(3)(b), we remand to the circuit court to determine the amount of fees and costs that should be awarded.

Affirmed.

Recommended for publication in the official reports.

Dist III, Pierce County, Wing, J., Peterson, J.

Attorneys:

For Appellant: Donald C. Mark, Eden Prairie

For Respondent: Ardell W. Skow, Baldwin; Martha H. Heidt, Baldwin