Relation Back Case Analysis

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The opinion in this case should be considered a good candidate for reversal, were the Supreme Court to accept review. The circumstances are far more similar to Korkow v. General Casualty Co. of Wisconsin, 117 Wis.2d 187, 344 N.W.2d 108 (1984), in which amendment was held proper, than to Biggart v. Barstad, 182 Wis.2d 421, 513 N.W.2d 681 (Ct.App.1984), in which amendment was not allowed.

The most relevant fact regarding the Biggart case is that it was pure coincidence that American Family was the insurer of both purportedly negligent persons.

A holding that would have allowed the plaintiff to amend the complaint solely because of that coincidence would have been patently arbitrary.

In contrast, it is no coincidence that the insurer in the case at bar is both the UIM insurer, and the liability insurer, for Jean Thom — on the contrary, state law makes it mandatory that liability insurers make UIM coverage available to their insureds.

Thus, the question whether a plaintiff can amend a complaint does not rest on mere fortuity in two other persons’ choice of insurers.

Section 802.09(3) provides two separate standards for when an amended complaint relate back to a previously filed complaint: if the defendant is the same, amendment is allowed liberally; if the complaint adds a new defendant, then the requirements are stringent.

In Biggart, the court analyzed the case as if the defendant were the same in both the amended and the original complaint. In one respect, though, that was merely a legal fiction; it is only because Wiscon-sin is a direct action state, which allows insurers to be named directly as defendants, that there was no new defendant named, with the more stringent requirements applicable.

The case at bar is more similar to Korkow, in which the same insurer was still being sued on the same insurance policy in both the original and amended complaints.

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Admittedly, the case at bar involves liability coverage in the amended complaint and UIM coverage in the original one, whereas, in Korkow, both complaints involved the same coverage (fire insurance).

Nevertheless, the facts in Korkow are closer to those in the case at bar than in Biggart.

If there is one reason why the Supreme Court should affirm the court of appeals, or deny review altogether, it is public policy, more so than the language of the statute or the existing case law.

The plaintiff in this case was involved in an automobile accident as a passenger. Common sense dictates that the original suit should have alleged negligence on the part of both drivers. There is no rule against pleading coverage in the alternative, either under the UIM coverage or the liability coverage.

Allowing amendment would give the plaintiff two bites at the apple, when the plaintiff made a conscious choice not to plead liability in the alternative, but to put all her eggs in one basket.

Ultimately, though, that is a policy reason to support the holding in this case, and is not grounded in statute or precedent.

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David Ziemer can be reached by email.