By CARRIE ANTLFINGER
MILWAUKEE (AP) — The Wisconsin Supreme Court ruled Wednesday that an elderly woman’s estate can pursue her claims that a former state insurance adjuster robbed and assaulted her in 2006.
The court’s decision fixed a procedural error by a Waukesha County circuit court judge and the court of appeals. It now allows the victim to appeal the judge’s decision that the state is not responsible for damages.
Evelyn Werner, who was 84 and in a wheelchair at the time, had filed a complaint in August 2005 with the state Office of the Commissioner of Insurance about her annuities. The state had sent insurance examiner Kenneth Hendree to her home.
According to court records, Werner said he would make frequent and unannounced visits asking her questions about her finances for over a year.
According to court records, Werner called to complain several times and spoke with his supervisor Michael Honeck, but nothing was done and no one told her he was not authorized to visit her after-hours or so frequently.
A few days after his final visit on Oct. 29, 2006, Hendree resigned. Court records do not state the reason.
On Dec. 13, 2006, two men and a woman broke into Werner’s home. A female attacker hit Werner on the head with the gun, and a man held a pillow over her face before taking her safe. Werner never saw faces, but claimed she recognized Hendree’s voice.
No one has been criminally charged. But Hendree had been charged in a separate Dane County case in 2005 with stalking and second-degree sexual assault. Hendree was later convicted of stalking and is currently in prison.
Werner alleged negligent hiring, retention, training, or supervision. She said the state should have suspended Hendree during his pending criminal charges and that had it done so, he never would have met Werner or targeted her home for robbery.
Werner died from natural causes this summer but attorney Joseph Owens is representing her estate.
Waukesha County Circuit Court Judge Kathryn Foster dismissed Werner’s complaint against Honeck on grounds of governmental immunity and later ruled the state would not be responsible for paying damages on behalf of Hendree.
Foster had agreed not to sign and file the orders until a trial was held as to Hendree’s personal liability and damages. But it was mistakenly signed a few months before a June 2008 trial, which determined Hendree was personally responsible for $170,000 in damages.
When Werner tried to appeal Foster’s order and the outcome of the Hendree trial, she couldn’t appeal Foster’s ruling because the 90-day deadline had passed.
Her attorney asked the circuit court to vacate and renter the two orders, but both denied it. The Wisconsin Supreme Court ruled the orders be re-entered, basically starting the process over and paving the way for Werner’s attorney to file an appeal.
Assistant Attorney General John Glinski said the state should not be held responsible because Hendree’s alleged criminal actions were not within the scope of his employment.