2006AP1229, 2006AP2512 & 2007AP369 Casper v. American International South Ins. Co.

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Civil Procedure
Excusable neglect

Where an amended complaint was lost in the mail, the defendant’s failure to file a timely answer was due to excusable neglect.

“At the court of appeals, the Caspers argued that ‘lost in the mail’ cannot constitute excusable neglect as a matter of law.  The court of appeals rejected this argument, and we agree.  We cannot reject out-of-hand the possibility that a packet was actually ‘lost in the mail,’ although courts should be skeptical of glib claims that attribute fault to the United States Postal Service.  Here, the affidavits from Weisinger and Lanphear show that these individuals acted in normal fashion and that their established routine worked previously to provide timely answers to the plaintiffs in this case.  When an entity is processing thousands of complaints, a few inadvertent mishaps are bound to occur.  Courts should carefully scrutinize what steps an organization has taken to avoid such mishaps, how quickly the organization responds when it discovers its delinquency, and whether its delay has caused prejudice to the plaintiffs.  The circuit court here considered these factors, and the Caspers have not shown that the circuit court erroneously exercised its discretion after considering all the circumstances involved.

Affirmed in part, and Reversed in part.

2006AP1229, 2006AP2512 & 2007AP369 Casper v. American International South Ins. Co.

Prosser, J.

For Plaintiffs: Monte E. Weiss, Charles W. Kramer, Milwaukee; For Defendants: Larry J. Britton, Shannon M. Trevithick, Ross A. Anderson, Timothy H. Posnanski, Robert J. Lauer, Patti J. Kurth.

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