2009AP1321 Zarnstorff v. Neenah Creek Custom Trucking

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Civil Procedure
Discovery; sanctions

It was not an abuse of discretion not to preclude an insurer from contesting coverage as a sanction for not producing the policy in response to discover requests.

“While the circuit court did not make an express determination on whether or not the conduct of Acuity was egregious, it is evident from the court’s decision that it did not view Acuity’s conduct to be egregious. This conclusion is supported by the record, including: the ambiguity of the discovery requests when considered together, the allegations in the complaint and amended complaint regarding the auto policy, Neenah Creek/Acuity’s counsel’s affidavit explaining why he believed the Zarnstorffs were concerned only with the auto policy, and that attorney’s willingness to inquire further about other Neenah Creek policies in response to a post-verdict letter from the Zarnstorffs and to produce the CGL policy he then learned about.”

“In addition, it is evident that the circuit court was influenced by the absence of prejudice to the Zarnstorffs. The existence or absence of prejudice is a relevant consideration in deciding whether a sanction is ‘just’ as required by Wis. Stat. § 804.12(2)(a). See Rupert v. Home Mut. Ins. Co., 138 Wis. 2d 1, 15, 405 N.W.2d 661 (Ct. App. 1987). The Zarnstorffs do not explain how they were prejudiced by the timing of learning about the CGL policy, and we can identify no prejudice. If the Zarnstorffs had learned of the existence of this policy from discovery responses, the same procedure would have occurred pre-trial as occurred after the verdict. The parties would have briefed the issue and the court would have decided as a matter of law whether the auto exclusion applied to Houle’s conduct. The court decided the policy did not apply, and we have affirmed that.”

“In short, the Zarnstorffs have not persuaded us that the circuit court erroneously exercised its discretion in deciding not to sanction Acuity by precluding it from contesting coverage under the CGL policy.”

Affirmed.

Recommended for publication in the official reports.

2009AP1321 Zarnstorff v. Neenah Creek Custom Trucking

Dist. IV, Adams County, Pollex, J., Vergeront, J.

Attorneys: For Appellant: Tyndall, Susan R., Waukesha; For Respondent: Curtis, James G., Jr., La Crosse; Simpson, Arthur P., Milwaukee; Johnson, Michelle D., Milwaukee

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