Failure to State Claim – Court Error

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WI Court of Appeals – District II

Case Name: Thomas Esser, et al. v. Hawkeye-Security Insurance Company

Case No.: 2017AP1007

Officials: Neubauer, C.J., Reilly, P.J., and Gundrum, J.

Focus: Failure to State Claim – Court Error

Thomas and Karen Esser appeal from a final order of the circuit court dismissing with prejudice their complaint against the Hawkeye Security Insurance Company, Peerless Indemnity Insurance Company, Indiana Insurance Company and Safeco Insurance Company of America on the grounds that it failed to state a claim upon which relief may be granted and/or was barred by the applicable statute of limitations. The Essers assert the court erred in ordering the complaint dismissed in the first instance and further erred when it denied their motion for leave to amend the complaint, which motion they made at the hearing on the Insurers’ motion to dismiss. We conclude the court properly determined that, as written, the Essers’ complaint fails to state a claim upon which relief may be granted and/or the claims were untimely filed. We also conclude, however, that the court erred in denying the Essers’ motion for leave to amend their complaint because, at the time they made their motion, six months had not yet passed since they filed the complaint and they still had the right to amend it once as a matter of course.

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Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.