01-0724 Wischer et al. v. Mitsubishi Heavy Industries America, Inc. et al.

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In a separate case decided this day, Strenke v. Hogner, we overrule the court of appeals’ interpretation of the requirement in Wis. Stat. sec. 895.85(3) that the defendant act “in intentional disregard of the rights of the plaintiff” necessitates that the defendant act with a purpose to disregard the plaintiffs’ rights or be aware that his or her conduct is substantially certain to result in the plaintiffs’ rights being disregarded.” Rather, we conclude that Wis. Stat. sec. 895.85(3) requires a plaintiff to show that a defendant acted maliciously toward the plaintiff or intentionally disregarded the rights of the plaintiff, not that a defendant intended to cause harm or injury to the plaintiff.

We decline to review the constitutionaility of the $94 million punitive damages award.

Accordingly, the decision of the court of appeals is reversed and the cause is remanded to the court of appeals for resolution of the remaining and as yet unresolved issues.

CONCURRING OPINION: Crooks, J. “In the present case, the majority correctly interprets Wis. Stat. § 895.85(3) and correctly concludes that there was sufficient evidence to present the punitive damages issue to the jury. However, the majority then declines to address the constitutionality of the $94 million punitive damages award. Majority op., 9, 57. I would review the punitive damages award, using the factors articulated by this court in Trinity Evangelical Lutheran Church v. Tower Insurance Co., 2003 WI 46, 261 Wis. 2d 333, 661 N.W.2d 789, and by the United States Supreme Court in State Farm Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408 (2003) and BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996).”

CONCURRING OPINION: Roggensack, J. “The majority opinion concludes that the plaintiffs (collectively “Wischer”) submitted sufficient evidence for a question on punitive damages to go to the jury, a conclusion with which I agree. I write separately in concurrence because I disagree with the majority’s rationale. I also agree with the majority’s decision declining to address the issue of the constitutionality of the amount of the punitive damages award because of numerous unresolved issues that are not before us….

“The majority opinion focuses largely on the conduct of Grotlisch and on expert testimony showing that wind-load calculations should have been done, but were not. In so doing, it fails to show that MHIA had the requisite awareness of the wind speed at the time of the lift, which fact is necessary in order to prove the intentional state of mind required by Wis. Stat. § 895.85(3). However, there is testimony in the record that Noel [the crane operator] had the authority to stop the lift and also had the requisite awareness of wind speeds at the time of the lift….

“Therefore, the jury had before it testimony that Noel, who could have called off the lift, was aware that doing a lift in winds in excess of 20 miles per hour was unreasonably dangerous, even without doing any wind-load calculations. Additionally, the jury heard testimony that Noel was aware that at the time of the accident, wind speeds exceeded 20 miles per hour. This is sufficient evidence from which a reasonable jury could find, by the clear and convincing standard of proof, that MHIA was aware that its conduct was substantially certain to result in Wischer’s rights being disregarded.

Accordingly, I conclude that the question on punitive damages was properly submitted for jury consideration.”

DISSENTING OPINION: Wilcox, J. “The majority in this case and in Strenke v. Hogner, 2005 WI 25, ___Wis. 2d ___, ___N.W.2d ___, has written a duly enacted law of this state out of existence. It is undisputed that the clear intent of the legislature in enacting Wis. Stat. § 895.85(3) (1999-2000)92 was to restrict the number of cases in which punitive damages could be awarded by imposing a threshold for the recovery of such damages higher than that which was set under our common law. However, as this case illustrates, the majority has interpreted and applied § 895.85(3) in a manner that is indistinguishable from our common-law standard. In doing so, the majority has thwarted the will of the people of this state (as represented by the legislature) to make recovery of punitive damages more difficult.

“Although this case presents tragic facts, the actions of the defendant, at most, constitute reckless behavior. The plaintiffs are certainly entitled to be compensated for their losses occasioned by the defendant’s actions. However, the defendant’s conduct in this case, while sufficient to support an award of punitive damages under our common law, is simply no longer adequate to support an award of punitive damages following the legislature’s enactment of § 895.85(3).”

Court of Appeals, Abrahamson, Ch. J.

Attorneys:

For Patricia Wischer, Marjorie DeGrave and Ramona Dulde-Starr there were briefs by Robert L. Habush, Daniel A. Rottier, Mark S. Young, Virginia M. Antoine and Habush Habush & Rottier, S.C., Milwaukee, and David P. Lowe and Jacquart & Lowe, S.C., Milwaukee, and oral argument by Robert L. Habush.

For Mitsubishi Heavy Industries America, Inc., there were briefs by Ralph A. Weber, Amelia L. McCarthy and Gass Weber Mullins, LLC, Milwaukee; John W. Bell, Kevin G. Owens and Johnson & Bell, Ltd., Chicago, IL; and Colleen D. Ball and Appellate Counsel, S.C., Wauwatosa, and oral argument by Ralph A. Weber.

For The Travelers Indemnity Company of Illinois, there were briefs by Brady C. Williamson, Katherine Stadler, Jennifer L. Peterson and LaFollette Godfrey & Kahn, Madison, and oral argument by Brady C. Williamson.

For Federal Insurance Company, Inc., there was a brief by John A. Busch, Christopher C. Mohrman, Timothy M. Hansen, and Michael Best & Friedrich, LLP, Milwaukee and Edward B. Ruff III, Michael Clarke and Pretzel & Stouffer, Chartered, Chicago, IL, and oral argument by John A. Busch.

For Tokio Marine & Fire Insurance Company, there was a brief by Jeffrey S. Fertl and Hinshaw & Culberton LLP, Milwaukee.