Farmer Suffers Injuries Affecting Ability to Milk Herd
Driving back to his farm one day, Mr. Albrecht was rear ended by an uninsured vehicle at highway speeds while he was waiting to turn left onto his road. His knee was jarred severely since his foot was on the break. He started to experience problems with the knee immediately and went to see his chiropractor. Eventually he was referred to a surgeon who performed repair of his ACL. The first party insurer who provided UM (Uninsured Motorist) coverage undervalued the claim; it argued he had not struck his knee against the dashboard. It pointed to medical records for treatment of gout. It took the filing of a lawsuit in circuit court by Greg Cook Law Offices before the carrier agreed to settle the case at mediation for $120,000.
Albrecht v. Rural Mutual Insurance Fond du Lac County
Grain Bin Death Cases Becoming More Common
Farmers and elevator companies as well as ethanol plants store millions of bushels of grain each year. The way the product is controlled and preserved is critically important. If the grain becomes out of condition, it can be difficult to remove from the bins. Some bins hold over a half million bushels. In some cases, workers have become engulfed “walking down” the grain in order to allow it to flow. Once trapped under the grain, it becomes a life and death struggle. In cases filed in the Midwest, lawsuits have resulted in significant verdicts and settlements. Nationwide, the total number of deaths occurring in grain silos would surprise you. The public awareness of the danger to farmers and grain workers must never be forgotten.
Pedestrian Walking with Traffic at Night Fatally Injured
Heading home at night from the hospital on a divided multi-lane county road, a wife and mother of three was killed while walking on the right edge of the road in the same direction as traffic. She was struck by a vehicle approaching her from the rear, tossed in the air and critically injured. She languished in the hospital for a few days before dying. She left three minor children and a grieving husband. The insurer for the driver claimed the deceased was walking on the wrong side of the road in violation of municipal traffic regulations, and claimed she was in the act of crossing the road when struck. Forensics revealed this was not the case. Two witnesses who had driven in the same direction just minutes before had seen the woman on the far edge of the road and had easily avoided her. The driver of the car retained an attorney to defend on potential traffic charges. The driver was not charged with a violation eventually but had admitted she never saw the pedestrian. The family of the deceased retained the firm of Greg Cook Law Offices and Carlson, Blau and Clemons. A demand for the policy limits was made. Once the insurer for the driver admitted that the case was a potential “50-50” result, it did not take long to receive full policy limits from both the driver’s insurance and the UIM [underinsured motorist] carrier providing coverage on the deceased pedestrian. The case settled for $500,000, the available limits of insurance. Despite initial indications that it was a defensible case, both carriers realized the adverse consequences of losing a wrongful death case under these facts and settled promptly.
Names of parties kept confidential at the request of the surviving spouse
Pedestrian Struck by Driver With Mistaken Impression of the Law
Ms. Litjens was operating her bicycle legally on the streets of Milwaukee in the downtown district as she approached the intersection of Buffalo and Water Streets. She had a green light and proceeded through. She was struck on her left by a car in the act of turning and was tossed to road. The driver, a naturalized citizen from Japan, argued with the police that she had the right of way, the bicycle should have but did not yield to her. Despite having a valid license, the cultural background of the driver (an elderly woman who had survived the bombing of Hiroshima), led her to believe that she had no duty to yield and hence the accident was not her fault. The law is clear, a motorist must yield to another vehicle of any type when turning across its path. Litjens went through several years of conservative therapy but eventually was required to undergo surgery to replace damaged disks in her back. She retained the services of Greg Cook Law Offices and a lawsuit was commenced. The carrier tried to impeach an eye witness as well as the plaintiff at both their depositions, but to no avail. The deposition of the driver was conducted wherein she continued to state her mistaken assumption of the law. Following that, the case went to mediation and settled for $450,000.
Litjens v. Erie Insurance Milwaukee County
Fire Loss Leads to EUO and Lengthy Negotiations
Mr. Zimanek owned a home in Green Bay that suffered an accidental fire. It was wholly destroyed. Upon meeting the adjuster for the company, he was immediately befriended and told that he would be taken care of. This turned out to be false, as the carrier was investigating the remote possibility of arson. Lengthy negotiations occurred, he was required to given an examination under oath, and could not obtain a fair payout on his personal property and other coverages. He hired the firm of Greg Cook Law Offices and a lawsuit was commenced. Following extensive negotiations, the case was settled to his satisfaction.
Zimanek v. American Family Milwaukee County
Family and Building Inspector Forced to Defend Raze Order Successfully, Insurance Carrier Subsequently Sued for Bad Faith
The Repka family home was struck by tornado winds and damaged. Torrential rains soaked the interior. The local building inspector eventually declared the home a total loss. Barron Mutual retained a local adjuster to deal with the Repkas. The adjuster failed to treat them fairly. The local contractor selected by Barron was not well versed in repair work, was slow to respond, and was unable to perform the necessary work due to lack of skilled workers, lack of time and lack of enthusiasm. After the raze order was issued by the building inspector, Barron hired an attorney who retained an engineer to testify that it would be unreasonable to tear the home down. Barron sued the Repkas and the building inspector seeking an injunction to prevent the property from being razed. The Repkas retained Greg Cook Law Offices. After defeating the injunction following a one-day hearing, the Repkas asserted that Barron had committed bad faith in the handling of their claim. The matter settled at mediation for a confidential sum. The Repkas obtained payments enough to allow them to build a new home, pay their attorneys and their adjusters.
Barron Mutual v. Repka Barron County
William Gleisner Joins Firm of Counsel
William Gleisner, who has written more briefs before the Wisconsin Supreme Court than any other appellate attorney, has joined the firm of Greg Cook Law Offices and will act of Counsel to provide his unique skills for the firm’s clients on a number of cases. Gleisner is a long-time member of the Wisconsin Judicial Counsel. His addition to the Cook firm is of great value.
Insurer Refuses to Adhere to Raze Order
The Martin family suffered a devastating fire and obtained a raze order on their structure. The insurer provided a “guaranteed replacement cost” policy. However, its adjuster told the Martins that an engineering report supported its position that the Martins could still use the basement foundation and the chimney of the old home and refused to pay for the new costs on these elements. This position was challenged in court after the Martins retained Greg Cook Law Offices. After suit and legal briefing were accomplished, the carrier agreed to pay full policy limits, attorney fees, interest on funds withheld, public adjusting fees, and consequential damages incurred by the Martins.
Martin v. Erie Insurance Milwaukee County
Boating Cases in Wisconsin
On several cases, owners of pleasure craft have retained the services of Greg Cook Law Offices. Mr. Strautmanis suffered the near sinking of his 43-foot power boat because the local marina had failed to properly secure the washer nut to a fitting around the power shaft. Mr. Strasser suffered a sinking of his ski boat when another boat ran over his tow rope with his propeller. In reversing the engine, the rope tightened around the shaft and sank Strasser’s boat. Both Strautmanis and Strasser needed legal help in order to recover their losses from the insurers. The firm of Greg Cook Law Offices has maritime experience in the name of David Berg, who practiced on the east coast of the United States for many years. He serves of Counsel to the firm.
Strautmanis v. CNA
Strasser v. Progressive
Water Damage Claim Summarily Denied, Settled for Full Costs and Attorney Fees
Mr. and Mrs. Salza have a beautiful home with expensive flooring. They suffered a water loss due to an appliance and American Family adjusted it while paying for the complete repair to the flooring for thousands of dollars. When reinstalling a dishwasher, a contractor “pinched” a supply line. Several months later, that line failed and caused more extensive damage due to water. Because the Brazilian wood flooring had been sanded and stained once before due to the prior loss, it needed to be replaced. Upon investigation of the loss the claim was summarily denied by the adjuster for the insurer. A written denial was sent. The Salza family complained and offered to show the damaged item. To no avail, they were forced to hire Greg Cook Law Offices. Upon filing the case and learning the facts surrounding the denial, the carrier agreed to pay for the full loss, the public adjuster fees, and the legal fees.
Salza v. American Family Insurance Waukesha County
David Styer Joins Firm of Counsel
David L. Styer has joined Greg Cook Law Offices. David has nearly 40 years’ experience in dealing with worker injuries. David retired from his former firm where he served as a shareholder since the late 1980’s. His experience in dealing with worker related injuries is well known and respected throughout the state. He will serve of Counsel on selected matters with the firm.
Trucking Company Settles Accident Causing TBI
A truck owned and operated by SAIA disregarded a traffic light on a 2014 January morning in Milwaukee because the driver was too busy cleaning ice from his front windshield. Distracted driving resulted in a severe T-bone collision. Despite the obvious negligent act, the company resisted settlement before trial. At his deposition, the driver testified contrary to admissions made to the police and to SAIA. Despite notices and requests to depose SAIA supervisors who investigated the accident, the company delayed and ignored requests. Finally forced to mediation, SAIA was ready and the case settled for $260,000. The plaintiff suffered a mild TBI which had essentially resolved, along with several broken ribs and some facial scarring that had healed nicely, fortunately. Greg Cook was selected by referring counsel to act as trial counsel in the matter.
McDowell v. SAIA Milwaukee County Circuit Court
Insurance Companies Sued for Water Fire and Storm Damage to Homes
More often in these economic times well recognized insurance companies are increasing efforts to either minimize or deny first party claims for property losses caused by fire, windstorm, hail, and other casualties well-defined as covered items in their policies. Even when conceding coverage, companies then attempt to reduce the fair cost of restoration by hiring pre-selected contractors who have a reputation to produce low bids and less that workmanlike results. The property owner is told that he can hire his own contractor but the company stipulates that it will never pay more than what its selectied contractor has estimated the work to be. In some cases, the insurer initially grants coverage but when its insured complains that the scope and cost of repairs are unreasonably low, it tries to justify the inadequate scope of restoration by hiring “experts” of its choice to provide reports in support of a position it has already asserted. These actions are usually done in disregard of its duty to act in good faith and to provide fair treatment toward claims it has been paid to indemnify. Please consider consulting an attorney whenever a large property loss has occurred. Greg Cook Law Offices provides free consultation on these cases. In those cases that are accepted, successful settlements usually are obtained.
Varnes v. Erie Insurance Company Milwaukee County Circuit Court
Schuessler v. Erie Insurance Company Fond du Lac County
Turley v. Western National Insurance Milwaukee County
Jerzak v. American Family Insurance Brown County
Subert v. American Family Home Insurance Iron County
Dog Bite Cases Involving Minor Children
The ownership of a dog can bring joy and happiness into a home. But it also carries with it a responsibility to care and treat for the animal, including proper training and obedience. When a dog causes injury to anyone, especially a child, the owner is liable under law. Most homeowner policies now contain provisions that a homeowner must adhere to in case of damage claims. Thus it is critical that every owner take steps to insure against injury. In 2016, Greg Cook Law Offices handled the case of a minor child who suffered scarring as a result of not one, but two injuries by the same dog in an eight week period. The child’s mother was not capable of providing competent child care, for various reasons. The owner claimed to authorities that he was going to get rid of the dog after the first attack. He did not do so. After the second bite, the child’s grandmother was able to provide a more safe environment in order to prevent any further danger. The case could not be settled before suit. The referring attorney hired Greg Cook to litigate the case. A few weeks before trial, the insurer agreed to settle and a minor child settlement was approved by the court.
Terms of settlement confidential Milwaukee County Circuit Court
Plane Crash Caused by Faulty Inspection Settled
A fixed base operator (FBO) was hired to service and inspect the plaintiff’s new single engine aircraft. An annual inspection was performed along maintenance being performed on the fuel tanks. The plaintiff was seriously injured in a forced landing when the plane suffered fuel starvation after only a few hours of operation since the FBO had completed the work. NTSB concluded that the fuel line had come loose during flight. The insurer for the defendant adamantly denied that any work had been done near the fitting and that the fitting had been properly inspected and tightened, alleging it must have come loose from the impact of the crash. Discovery depositions and expert testimony proved the contrary. Not only had the fitting been improperly inspected, the maintenance employee had removed the fitting when testing for fuel capacitance. Despite this, the carrier resisted settlement, offering less than the medical expenses at mediation. Shortly before trial, the insurance carrier capitulated, paid the policy limits and the case was settled. Greg Cook Law Offices assisted retained counsel on the case.
Terms of settlement confidential U.S. District Court for E.D. Wisconsin
Denial of Death Benefits by Life Insurance Company
The death of a loved one causes an emotional loss that is hard to overcome. Making matters worse is the denial of death benefits by a company based on alleged misrepresentations in an insurance policy. In this case, the deceased had applied for insurance and indicated he had never been treated for C.O.P.D. and obstructive airway condition. After he was killed, the Mutual of Omaha’s affiliate insurer obtained his treatment records and claimed that he lied in his application, finding a reference in a note by a treating doctor that stated “possible COPD.” It then claimed that had it known it would not have issued the policy. This was untrue. Had it known, the company would simply have included a rider that would prevent payment only if the policy holder died of COPD within two years of the inception date. In this case, the death had nothing to do with COPD. The beneficiary retained Greg Cook to sue the company. A lawsuit was brought, including claims for bad faith and breach of contract. When the company successfully moved for summary judgment to dismiss the bad faith portion, it promptly settled for a confidential amount plus 12% interest from the date of denial pursuant to the rule regarding timely payment of claims, Wisconsin Statute 628.46. The denial of the bad faith was contested, but a federal judge ruled that the company had an objective basis for contesting the claim, even though it was incorrect.
Smith v. Mutual of Omaha
Terms of settlement confidential U.S. District Court for E.D. Wisconsin
Advertising Sign Defectively Installed Causes Water Damage to Building
A giant billboard with an advertising sign on top of the client’s building was improperly installed years before the building was purchased by the Rosenberg family. They spend hundreds of thousands in remodeling, making the first floor a venue for the best soccer tavern in the city. On a November night in 2015, rain invaded the second and first floors. The sign company, a national concern out of Texas, initially offered to pay for the damages. But when it received the scope of work, it balked. Greg Cook Law Offices was retained to commence suit. After a year of litigation and several depositions, the clients obtained a six-figure settlement. The terms of the lease, while ambiguous, were sufficient to cause concern, and despite the fact that the company had never paid attorney fees, it avoided that in this case by settling before trial.
Terms of settlement confidential Milwaukee County Circuit Court
Sexually Transmitted Disease Claims
When a marital partner or significant other transfers an SDT to their partner because of illicit contact with others, and the person who sustains injury as a result has never been made aware of the risk, a case can be made for the physical and emotional damage caused by such reckless behavior. The cases require medical testimony establishing a causal connection. Most insurance policies will exclude damages caused by transmission of sexual diseases. But if the wrongful party is collectable, or the marital assets are significant, then a viable case can be brought. This case involved a wealthy spouse who had secretly maintained an affair with a co-worker, and in the process transmitted an SDT. The innocent spouse only discovered the SDT when treated by a doctor for an unrelated matter. The divorce action contained a claim for those damages caused by the transmission; the client was successful in obtaining a recovery in excess of 50% of the marital assets resulting from the tortious conduct of the adulterous spouse. Greg Cook has co-counseled with attorneys in cases involving these very sensitive topics and will provide free consultation in the appropriate case.
Terms of settlement confidential
David Berg Joins Firm
David J. Berg has joined Greg Cook Law Offices on an of counsel capacity. David currently works as a lawyer and legal writer providing legal research and writing services to small firm lawyers nationwide in areas of civil and criminal pre- and post-trial procedure and substantive law. He is a skilled legal writer, having written hundreds of successful trial and appellate motions, objections, and briefs in courts all around the country on numerous aspects of civil and criminal law and procedure.
David spent almost two decades at the maritime personal injury firm of Latti & Anderson LLP in Boston, where, in addition to general personal injury cases, he represented injured commercial fishermen, merchant mariners, marine construction workers, longshoremen, pleasure boaters, and cruise ship, ferry, and whale watch passengers in federal and state courts nationwide.
After more than two decades practicing law in Boston and New Hampshire, David relocated to Milwaukee several years ago with his wife, who was attending graduate school at UWM. As part of his practice, he serves as a volunteer attorney representing veterans through the Veterans Consortium Pro Bono Program in appeals before the United States Court of Appeals for Veterans Claims.
David is currently an active member of the Wisconsin State Bar and the Bars of the United States District Court for the Eastern District of Wisconsin, the First, Fourth, Seventh, and Eighth Circuit Courts of Appeals, and the Court of Appeals for Veterans Claims.
He will continue his private practice while offering consultation to the Cook firm in many matters.
Fire Loss Claims and the Valued Policy Law
Under chapter 632 of the Wisconsin statutes, when a property used primarily as a dwelling is destroyed by fire, the insurance company must pay the policy limits of the coverage. In many fires, the homes suffer extensive heat and smoke damage but the companies try to assert that the home can be repaired and resist paying the policy limits. However, when the municipal building inspector determines that the cost of repair is more than 50% of the assessed value of the structure, then a raze order usually follows. When that happens, the insurance companies employ various tactics to challenge the raze order, such as trying to through the matter into binding appraisal, or insisting that the order is unreasonable. In some cases, this conduct can amount to abuse of process leading to bad faith. Consultation with counsel can be invaluable to insure that the contract is enforced properly and the insureds receive the coverage they have paid for. Greg Cook Law Offices has been hired by homeowners in cases throughout the state in order to assert right to the policy limits.
Olivarez v. Seneca Sigel Insurance Portage County
Zipp v. American Family Insurance Lincoln County
Grant v. State Farm Insurance Company Milwaukee County
Legal Malpractice Can and Does Occur
While rarely asked, Greg Cook Law Offices has become involved in legal malpractice cases of personal injury victims who lost their legal right to commence a law suit as a result of legal malpractice. These cases can be very difficult to prove because they involve the loss of evidence through spoliation. Many times, years of delay have prevented the ability to prove a case. But claims can be asserted due to improper investigation, lack of investigation and loss of opportunity that may create the basis for a malpractice case. Recently the firm was successful in obtaining a $400,000 settlement which was effectuated before suit was commenced. Anyone who feels their rights have been lost because of legal malpractice should consult with an attorney.
Wisconsin claim settled confidentially prior to lawsuit
Integrity Mutual Countersued for Bad Faith
Aimee Reinke was working with her husband’s towing business when a driver operated his vehicle recklessly and drove over her foot. The driver was uninsured. Integrity insured the business for workman’s compensation and for uninsured motorist coverage. The company denied paying workman’s compensation alleging that Reinke was an owner of the company [she was a member of the LLC]. But then it denied coverage under UM benefits claiming she was an employee. It then commenced suit against the Reinkes and their business seeking a declaratory judgment that it had no coverage. Greg Cook Law Offices was retained and commenced a counterclaim for coverage and bad faith. The court ruled that Aimee Reinke was entitled to coverage for UM benefits. Reinke was a diabetic and the damage to her foot eventually resulted in the amputation of two toes. The company challenged the causal connecting because the loss of the toes did not occur until several years after the accident. Reinke’s treating doctors and experts concluded that the accident was a substantial factor in causing the loss of her toes. The worst thing that can happen to a diabetic is to suffer trauma to an extremity since the diabetic condition restricts blood flow to fingers and toes. After two mediations sessions, the case settle for $320,000.
Integrity Mutual v. Reinke Milwaukee County
American Family Settles in Abuse of Process Case
Greg Zipp suffered damage to his property due to heavy snow loads on the roof, a covered item under his homeowner’s policy. American Family tried to close out the file with a minor payment of about $10,000 but the contractor told Zipp that would not cover expenses. American Family finally agreed, after an engineer examined the home, to pay $90,000 to repair the home. But the building inspector for the municipality rejected the repair and ordered the home razed. This would mean that American Family would have to pay the policy limits to Zipp. Zipp filed a proof of loss for the limits due him. American Family instead brought a lawsuit against the city and included Zipp as a plaintiff, alleging that both Zipp and the company disagreed with the raze order. Zipp had never given the company authority to name him as a plaintiff nor to the law firm that filed the complaint. Zipp wanted the raze order to apply since he knew the house could not be repaired and had to be torn down. The house was torn down. Zipp countersued for abuse of process including bad faith. The company paid the policy limits about six months later. Zipp pressed his claim for additional damages. One week before the pretrial conference, the company agreed to pay Zipp delay damages including his attorney fees and other costs he incurred as a result of adjusting the claim and borrowing funds to find suitable housing.
Zipp v. American Family Insurance Price County
Fire at Home Caused by Defective Humidifier
Several humidifier manufacturers have incurred recalls over the last fifteen years for defective components which caused house fires exceeding several million dollars in damages. This Wisconsin family suffered a fire and severe smoke damage caused by electrical arcing. Fortunately, there were no personal injuries. After the insurance company had paid for the losses, it had the dehumidifier inspected by a safety research company and learned that the wiring in the unit tended to become loose and began arcing from normal vibration of the unit. The manufacturer agreed to settle with the insurer. When the client approached the manufacturer to recover for damages not covered in the insurance settlement, the insurer for the manufacturer initially denied the claim and alleged that the subrogation had “released everything.” This position was contrary to Wisconsin law. The insured commenced action and cited the recalls issued by the Consumer Product Safety Commission for near identical models back in 2009. The complaint alleged that the manufacturer failed to disclose this fire in order to avoid yet another recall [it had two previous recalls]. Once the complaint was filed, the manufacturer negotiated a confidential settlement.
Settlement confidential, case filed in Milwaukee County.
Second Ground Water Pollution Settlement
Columbia County property that had been previously identified as having groundwater contaminated by volatile organic compounds [VOC] allegedly coming from a factory located in area was adjacent to other properties that had also been identified. After eight years of learning the problem, Kids V LLC negotiated a settlement with the insurer for the company who owned the plant. The land was de- valued after the contamination but Greg Cook Law Offices was able to recover the original value on top of attorney fees for a confidential amount. No litigation was been commenced due to the concern that the statute of limitations may have expired.
Settlement confidential, prior to commencement of suit
American Family Settles Quickly After Lawyers Get Involved
Steven Pope lived in Brookfield when a severe storm passed by in the summer of 2014 causing hail damage. Steven did not notice the damage until his brother pointed it out to him about eight months later. Pope had been ill and hospitalized during part of the year. He called his American Family agent and an adjuster came to the property. The adjuster told him the damage was “mechanical,” meaning it was caused by ladders against the siding and said there was mechanical damage to the roof but did not explain how it was caused. Pope had a roofing contractor come to the home, who refuted what the adjuster said. Furthermore, he told Pope that due to the storm in August of 2014, his company repaired several houses on his block. Pope then contacted the adjuster and complained that he was being lied to. The adjuster then wrote a letter to him telling him that he could see no “recent” hail damage and denied the claim on that basis. Pope hired Greg Cook Law Offices. A suit was filed and provided evidence that there was a severe hail storm on the August date and that it caused damage in the area. The suit also alleged that Pope and his father before him had insured the home for over 20 years. American Family was alleged to have breached the contract and committed bad faith in its actions of denying the claim for not one, but two false assertions. After the complaint was served, American family quickly offered to pay the entire cost of the roof and siding replacement along with Pope’s legal fees.
In another case, Beth Wilson suffered severe damage to her legally parked car when an American Family insured driver had lost control while travelling at excessive speeds in Pewaukee, leaving the road and damaging six parked cars and a telephone pole. Wilson’s cars were older models so she had no collision coverage. American Family denied the claim, alleging that the driver had been confronted with an emergency medical condition, and had passed out at the wheel. Wilson was forced to commence a small claims action. She did not understand the emergency defense and hired Greg Cook Law Offices. Investigation revealed that the driver had sped off recklessly from a stopped position on the road just prior to the accident after having an altercation with another person, which would establish that he was not confronted with an “emergency.” Cook advised American Family that a frivolous defense motion would be filed with the court unless the company agreed to pay the full value of the loss along with attorney fees. American Family agreed to do so.
These two cases illustrate a disturbing trend occurring in the state, even with established companies like American Family. Claims are denied without a reasonable basis for doing so, and in these cases, it becomes difficult to hire an attorney, because the amount in controversy is small. However, in the right case, attorney fees can be collected.
Pope v. American Family Insurance
Wilson v. American Family Insurance both cases filed in Waukesha County
Ozaukee County Settlement
On his way to work in a hurry an owner of a temporary help agency blew a stop sign and rammed into the rear of Bruce’s truck. It took a bystander and tools to separate the vehicles. The owner, who knew Bruce, then left the scene in a hurry and said “contact my insurance company.” A police report was filed and the company was sued after it was discovered that Bruce had activated a dormant pre-existing condition in his back which now required expensive surgery in order to alleviate the pain and deaden the nerve endings. This procedure conducted will be only temporary as an MRI and EMG nerve studies revealed structural damage. Surgery will be needed to remove or repair damaged discs in his back. After filing suit and conducting limited discovery, the case settled for mid six figures.
Settlement confidential, case filed in Ozaukee County
Insurance Carrier Improperly Challenges Raze Order
After a fire and extensive smoke damage in their home, Todd and Melissa Puchalla were contacted by their home owner insurance company. Upon arrival at the scene of the fire the adjuster said, “this is not a total loss” upon entering the property. After the first cost of repairs were provided by the company, the township declared a Raze order on the property. Under Wisconsin law, this means that the homeowner is entitled to recover the entire policy limits. Rather than pay the limits, Auto Club Insurance then hired counsel and filed a lawsuit in Manitowoc County seeking a temporary restraining order asking the court to allow an appraisal of the property under its contract. This tactic is used by carriers to avoid paying the limits under the policy, rather the lessor sum to repair. The Puchallas were forced to hire an appraiser and an attorney. Greg Cook Law Offices then filed a counterclaim, alleging that the insurer had committed abuse of process by filing the law suit for an improper purpose. When challenging a raze order, the sole issue is to determine whether it is reasonable or not. There is no right to appraisal. Auto Club was forced to tender its policy limits as required by law. Eventually it agreed to pay the costs and attorney fees the Puchallas incurred as well as all remaining coverage for personal property, demolition of the fire damaged structure, and landscaping.
Auto Club Insurance v. Puchalla, Manitowoc County
Banker’s Error Causes Loss to Dairy Herd
Kurt and Sherri Albrecht had a nice dairy farm in Fond du Lac County. They were good herd custodians, and their cows were producing over eighty pounds of milk per day. When a fire destroyed their barn, they were fortunate to have a good insurer [Rural Mutual Insurance Company] here in Wisconsin and an agent who made certain they were adequately insured before the fire. The proceeds were paid promptly and the family was ready to rebuild. However, someone on the board of directors at their bank had objected to the rebuild. While the bank eventually agreed to allow them to use the insurance proceeds to rebuild [rather than pay off the farm debt], it showed reluctance to see the project completed timely. For the entire summer, the bank kept dragging its feet on the completion of the barn, telling the contractor to hold off going further while at the same time trying to convince the farmer that he didn’t have enough money to complete the barn as intended. In the end, the bank sent the contractor off the job. When the late fall came and barn was not completed, the bank misrepresented the facts to the insurer and to the Farm Credit Services of the U.S. Department of Agriculture, claiming everything would be completed before the snow came. Instead, the entire west end of the barn remained open all winter. Snow and wind caused the herd to suffer, eventually over a third of the herd had to be culled, and milk production dropped. The funds that were intended for the construction were instead used to keep the farm in operation. The firm of Greg Cook Law Offices along with co-counsel Lawrence Law Offices sued the bank for breach of contract, breach of fiduciary duty and tortious interference of contract. The case was settled for a confidential sum two months before trial.
Albrecht v. TSB Bank, case filed in Fond du Lac County
Denial By Erie Insurance Leads to Lawsuit and Successful Recovery
Mr. and Mrs. Varnes owned a cabin in mid-central Wisconsin. They had winterized it for the winter and set their furnace to 50 degrees. Sometime in January, the furnace failed, leading to frozen pipes. A pipe burst in the basement and water gushed into the drain. The home was supplied by a well and the well pump continued to operate for the next few months until the problem was discovered in early May. The home had suffered some damage due to dampness and the contents in the basement were ruined. The loss was about $50,000. After sending in a company to do the clean-up, Erie’s adjuster told the Varnes they had no coverage since they had not done their best to keep the home heated. The contractor put a lien on the property. After retaining Greg Cook Law Offices, the Varnes sued Erie for bad faith, stating that the loss occurred because of a furnace component failure and that they had indeed done their best to keep the home heated. The energy bills Erie was trying to use to prove they had done nothing after they “should have” discovered the problem were of no use in proving same. The bills had stayed the same, while the gas consumption was down, the electric consumption more than made up for it. After the first scheduling conference, Erie settled the claim, paying attorney fees and costs and the entire amount of the loss to the Varnes.
Varnes vs. Erie Insurance, Milwaukee County
Pro Bono Article on Attorneys Features Greg Cook
The Wisconsin law journal featured three attorneys who had received award and recognition for pro bono legal work in the state. Greg Cook was honored for his work in helping neighborhood citizen organizations sue recalcitrant landlords for nuisance because they allowed drug dealing and other illegal activities to occur on their properties. This effort lead to the Landlord Training program adopted by the city of Milwaukee and still in use today. Cook described how he found the work rewarding and how it influenced a career change. Having worked at a large law firm and becoming a senior partner after 29 years, he left to form his own firm. He described how the experience of representing plaintiffs helped him understand that it was more rewarding, that he would rather help people pursue legitimate claims in courts of law.
Beware of Town Mutual Insurance Company Dishonesty in Rural Wisconsin
Insurance companies can make mistakes. Sometimes they are wrong. That doesn’t necessarily mean the company has committed bad faith. A company can be wrong in its decision but still act honestly. It is when dishonesty comes into play where bad faith is an issue. In several cases litigated in the past ten years with small town mutual insurance companies [Wisconsin still has many], Greg Cook Law Offices have uncovered cases of dishonest conduct. Companies follow traditions of past bad practices because they have been able to get away with it. Many insureds in rural areas either do not obtain legal advice or get bad advice. In these cases, evidence has come to light that demonstrated dishonest practices by these companies in denying claims outright or minimizing the payouts. When the company deals with the insured, it must practice the golden rule. It must treat the insured as they would want to be treated. In many instances, this does not occur. Misrepresentations are made on coverage, insureds are told “this is the way it is going to be handled,” and if unchallenged, the wrongful conduct cannot be corrected. If you are dealing with an insurance company on a large loss, it makes sense to consult someone who knows the law and can advise if you are being treated fairly. Bad faith practices exist in Dairyland, and they can come from your town mutual more often than with the bigger national companies.
Loss of Hand in Textile Machine Produces $ 2,150,000 Settlement
Erik Johnson lost part of his dominant hand when he was servicing a machine at work. The machine had a long wind-down time and despite following Lockout Tag-out procedures, he sustained the catastrophic injury while cleaning out debris in a service chute, coming in contact with the moving part. OSHA violations were imposed. The manufacturer of the equipment knew these machines had long wind-down times and had placed warning lights on similar machines at other plants. The case was commenced by Will Techmeier but when the case did not settle in mediation, Greg Cook agreed to act as co-trial counsel. The case was worked up for trial with almost twenty lay and expert witnesses prepared for presentation. One week before the trial was to start, Liberty Mutual agreed to pay the lion’s share of the settlement.
Johnson v. Tex-Mach [Jefferson County]
Integrity Insurance Loses Declaratory Judgment Action on Uninsured Motorist Claim Which Now Proceeds to Damage Phase
Aimee Reinke was helping her husband attempting to replevin a vehicle when the uninsured motorist recklessly drove off, crushing her foot. She eventually incurred medical expenses as a result of a chronic wound that would not heal due to her diabetic condition. She suffered a partial amputation of her foot despite excellent medical care. Integrity was the insurer of the company her husband owned. It denied that it owed her UM benefits and even denied paying much needed medical expenses under the Medical Payments provision of the policy. The basis for the denial was contrary to Wisconsin cases holding that she was entitled to coverage. Integrity commenced a declaratory judgment action seeking a ruling that it owed no coverage. Greg Cook agreed to represent Reinke and counterclaimed for bad faith and breach of contract. The court found that Reinke was entitled to coverage. The matter is now set for trial on her damage claims.
Integrity Insurance v. Reinke [Milwaukee County]
Passenger Recovers $240,000 for Knee Injury in Highway Intersection Accident
Judy Woelfel sustained serious injuries to her knee when the vehicle she was a passenger in was involved in an accident traveling at highway speeds. The offending driver had been drinking but the defense wanted to argue that despite the fact she failed to yield the right of way, the driver in Woelfel’s car was negligent as well. The driver’s attorneys sought to preclude the jury from hearing testimony on the drinking by stipulating to negligence. However, the trial court ruled that unless the defense agreed to accept complete responsibility for the accident, the drinking evidence may be relevant. The insurers for the driver agreed to accept complete responsibility and paid Woelfel for her knee injury, which resulted in surgery and removal of crushed cartilage. Greg Cook represented Judy Woelfel and Scott Lawrence represented her husband whose case went to trial and he recovered for his damages.
Woelfel v. Secura Insurance [Calumet County]
Target Wins Premises Liability Case for Accident Captured on Video
After a snowfall, the snow removal company hired by the landlord for the shopping center that had a Target store began the job of cleaning the area. The whole process was captured on videotape taken by cameras placed by Target store. The plaintiff was depicted trying to step over a snow furrow when she fell and damaged her knee requiring surgery. There were several clear pathways to the store. Greg Cook defended the landlord and Target. This is the first case handled by Cook where video evidence had captured the moment of the accident. It was invaluable to the jury, which took less than 30 minutes to return its verdict in favor of the defense.
Keske v. Gershman Brown [Kenosha County]
Carrier Settles for $725,000 after Denying UIM Coverage
After settling with the under-insured motorist on a case involving injuries resulting in neck fusion surgery, Frankenmuth Mutual was presented with an under-insured motorist claim. Dan Tillidetzke was a passenger in the automobile driven off the road by the UIM driver. Frankenmuth denied the UIM claim, alleging that Tillidetzke had not preserved his rights against the UIM driver. Greg Cook Law Offices was contacted to help the referring firm resolve the case. As it turned out, evidence established that Frankenmuth had waived its right to sue the driver, hence its denial was without a reasonable basis. The complaint was amended to include a claim of bad faith. Following one deposition and then mediation, the case was resolved.
Tillidetzke v. Frankenmuth Mutual [Waukesha County]
Ground Water Pollution Settlements
Charles Yeager and his wife lived in Columbia County on their property for many years before learning that the groundwater was contaminated by volatile organic compounds [VOC] allegedly coming from a factory located in the rural area they lived and about a mile away. After several years of bottled water and filters, the insurer for the company who owned the plant, BLIN, began offering money for their property. The land was valued at about $70,000 and that is where the offer began. Retaining the services of Doug Kammer and Greg Cook, and asserting nuisance claims, they settled for $250,000. Other settlements over the same contamination are pending. No litigation has been commenced.
Hail damage Claims: Weather or ‘Mechanical Damage’?
If after a hail storm your insurer attempts to deny the claim based on mechanical damage allegedly caused by the homeowner’s contractors who provided job estimates for repairs, please consider seeking legal advice. While there are some unscrupulous contractors, Wisconsin has not been presented the problem. Responding to reports from other states, insurers in Wisconsin have tried to deny claims or call them vandalism by obtaining reports from unqualified ‘experts’ it hires. In several cases, Greg Cook Law Offices has been able to get the damages paid under the policy. The practice of calling every hail damage claim a fraud of the contractor has become widespread and has been proven to be unfounded.
Schaus v. Secura [Milwaukee County]
Pedestrian Suffers TBI Settles with UM Carrier for $300,000
Jesus Pagan had just exited his car with his brother and was trying to cross in midblock on a city street in Milwaukee. Traffic stopped to allow them to cross. When they got to the centerline, they looked to the right to see if cars were approaching from the opposite lane, and seeing none, began to cross. At that instant, a car passed the stopped vehicle that had allowed them to cross and entered the oncoming lane. The right side struck the plaintiff throwing him 75 feet and caused severe head injuries. The brother could not speak English and while he was able to have his version given to the police, the driver of the car told police he was in his lane of traffic. The driver was uninsured. Erie Insurance provided UM coverage but denied the case, claiming the plaintiff was crossing in mid-block and was primarily at fault. Greg Cook Law Offices was asked to get involved in the case and learned from investigation that the UM driver had gone to the hospital after the accident, and admitted his fault, begging the plaintiff’s wife for forgiveness. He admitted he was late and traveling too fast. While he denied this at his deposition, the wife, her sister, and her mother all testified to what they heard at the hospital, when the driver was mournful and at a time when the plaintiff was still in the ICU. After being presented with a time limit demand to settle the case following the depositions, the carrier agreed to pay its policy limits.
Pagan v. Erie Insurance [Milwaukee County]
Carrier Delays Paying Life Insurance Proceeds and Draws Bad Faith Claim
This company insures many large employers and provides modest limit policies for life insurance to employees. Numerous state of Wisconsin employees have policies provided for themselves and spouses by this company. The client was employed with the state and had such a policy. Her husband committed suicide. The evidence was fairly clear, but an overzealous police investigation delayed placing the cause of death and while the investigation went nowhere, months went by. The carrier refused to pay on the policy claiming it was their discretion not to unless a cause of death was completed. The court disagreed and ordered the Insurer to pay the death benefit of $25,000 after several years of delay. The case for bad faith remained to be tried. Greg Cook Law Offices appeared as co-counsel on the case as it proceeded to trial. Internal memos from the company files prompted a confidential settlement to be reached.
Confidential terms of the settlement prevent identifying the parties in the case
Wisconsin Mutual Denies Basement Water Claim Over the Telephone
Mr. and Mrs. Kennedy had an insurance policy with Wisconsin Mutual Insurance Company that provided a special rider for water back up in the basement. Despite water coming from the sump pump after a large rainfall, the adjuster summarily denied the claim over the phone. The Kennedy’s retained counsel to seek recovery. After a favorable ruling from the trial court that coverage applied, the bad faith claim remained. Greg Cook Law Offices then appeared as co-counsel. Depositions of the claims manager and the adjuster were completed after which the case went to mediation. It was settled at mediation for an undisclosed amount.
Kennedy v. Wisconsin Mutual [Fond du Lac County}
Abota Presentation Features Trial of Lawrence and Cook
The Wisconsin Chapter of the American Board of Trial attorneys chose to use the Woelfel v. Homestead Mutual case as a mock trial involving an explosion in a farm silo, the resulting denial of coverage and a bad faith claim. The event was one of the highest attended in programs in recent memory offered by the State Bar of Wisconsin. Greg Cook played one of the witnesses, the farmer who was represented by Scott Lawrence and the Cook firm at the trial in Calumet County in 2009 that resulted in a $1.9 Million dollar award.
Farmer’s Insurance Denies Homeowner Claim for Lightning Damage
The Wilke family had a lightning strike that damaged the components of their heating and cooling system. Farmer’s Insurance retained a local heating and ventilating contractor to do the inspection. As he was leaving the house, the contractor told the insureds “don’t let the company tell you it wasn’t lightning.” That is exactly what Farmer’s did, denying the claim based on a report from an out of state expert way who had never visited the scene. The policy holders were left to heat the house with propane that was extremely expensive. They hired Greg Cook Law Offices. Cook contacted Farmers and persuaded them to reconsider and obtained a settlement that allowed the unit to be replaced and provided extra to cover attorney fees and increased heating costs. The case demonstrated that some insurers will deny small claims thinking they can do so since the insured cannot find someone to help them. The contractor in Wisconsin had the integrity to tell the insured the truth despite the fact that he may never again be hired by this insurance company to do investigative work.
Progressive Northern Denies Uninsured Motorist Claim Despite Elasticity Clause in its Policy
Richard Porto suffered a severe leg injury when his motorcycle was forced off the road by an unidentified vehicle that did not make physical contact with his bike. Progressive Northern Insurance Company, his Uninsured Motorist carrier, denied his claim. While the law in Wisconsin had changed months before, it claimed the new law only came into effect for new policies. Since Porto’s policy was not renewed yet [it would have renewed 20 hours after the accident], it denied coverage. Porto hired counsel who referred the case to Greg Cook Law Offices. The insurance policy contained an “elasticity clause” that provided whenever the company expanded coverage without an increase in premium, the policy would automatically extend the expanded coverage to existing policies. After filing suit and getting a favorable ruling for Porto, the case was proceeding to a determination of damages and then rulings on breach of contract and bad faith. The case settled for the policy limits of $250,000 plus taxable costs.
Porto v. Progressive Northern [Milwaukee County]
Andrea Goode Leaves Firm to Join American Family Insurance
Andrea Goode has decided to continue her career with American Family Insurance as staff counsel in the litigation department. She will be missed. She started with the firm in 2006 and earned the respect of her peers quickly. She will continue to work on cases in the southeast Wisconsin Area. To fill the vacancy, the firm hired Brian Wayman, Marquette Law 2012.
Milking Equipment Defense Verdict
Krueger Sign and Electric from Clintonville has been a Boumatic distributor for dairy herd milking equipment for over 50 years. In 2009, it was hired by a local farmer to get a moth-balled farm ready for operation again. The farm had been equipped with Boumatic pulsators and pulsation controller box years ago by Krueger and the farmer had inherited the property following the death of his father in law. He moved his dairy operation, approximately 60 cows, to the refurbished facility and began operation in May of 2009.
The equipment did fine that summer but by early fall the somatic cell counts were rising to high levels. The farmer did not test the herd until November by which time he was taken off Grade A milk standards. The equipment was tested in December by a competitor who claimed that the system was faulty and had caused damage to the herd due to inconsistent pulsation.
After a five day trial in December, a Waupaca jury found that while both parties were causally at fault, the farmer bore the brunt of it with 62% comparative causal negligence as against Krueger’s 38%.
The evidence established that the inspection was done by a man who had no experience with Boumatic equipment and did not understand the results. Testimony from experts asserted that the farmer had been over-milking his herd. Finally, there were environmental issues regarding the herd’s housing and the resultant high levels of bacteria in the bulk tank that led to high somatic cells at the time of the inspection and a year later.
Krueger won on its claim for unpaid services and will pay nothing to the farmer. Krueger, who was insured with Cincinnati Insurance Company, was represented by the Greg Cook firm.
Krueger Sign and Electric v. Much [Waupaca County]
Silo Collapse Insurance Recovery for Wisconsin Dairy
After a stave silo began to lean, Dean and Rosemary Dorow called in an expert and their insurance adjuster to inspect. The insurance company initially denied the claim, asserting that the silo was not collapsed, just leaning. The expert concluded that unless a controlled drop was made, the silo could cause significant damage to other buildings. So while the Insurer refused to return, the Dorows hired someone to take it down, causing relatively minimal damage to other structures. The expert paid by the company told the Dorows that the foundation was bad. But the pad remained and a survey showed it was virtually level, a small depression existed but in the direction away from the lean.
After the denial of coverage, the Dorows retained the Cook firm. After intense negotiations over three weeks, the carrier agreed to pay the bulk of the claim but still resisted paying under a catch-all coverage for any expenses incurred to avoid delay or disruption of the business. The Dorows are currently considering their options to sue for a declaratory judgment that the company’s interpretation is too narrow and that they are entitled to another $10,000 as well as actual attorney fees for the effort.
Damage to Home by Utility Goes to Trial
During rewiring of a line leading to a farm house in 2007, Wisconsin Power and Light installers caused the line to suddenly jerk, almost knocking a worker out of a bucket truck and pulling a pole off by 35 degrees which was wired to the side of the homeowner’s premises. The sound inside the house was like an explosion as the side of the home was partially pulled away. Over time, the building roof began to sag and structural experts warned of its eventual collapse. After resolving the claim with the Homeowner carrier, the homeowner proceeded to trial by the court on the damage claim. The court awarded close to $120,000 for the damages in a case the Cook firm worked up but withdrew from prior to trial. The law firm of Dan Stevens worked with Greg Cook to be brought up to speed and using the same experts, won the case.
Lisko v. Wisconsin Power & Light Alliant Energy [Fond du Lac County]
Watrings Lose Appeal
Robert and Marianne Watring had countersued Baytree National Bank in a foreclosure action for misrepresentation. The trial court granted summary judgment stating there were no issues of fact. On appeal, the court ruled that by signing a waiver agreement at the time the bank agreed to hold off on foreclosure, the Watrings lost all right to sue. The decision to sign the waiver agreement was not properly explained to Watring at the time he was being advised by his then counsel, so the litigation effort was essentially dead on arrival. The building still sits vacant and efforts to sell it are currently on hold. Baytree Bank and Watring had signed an agreement with the City of Kenosha at the time the city granted variances that if the building was not fully leased in three years, then the entire property would revert to the municipality. This unique feature to the agreement is now the major sticking point in a proposed sale to an investor who will convert the properties to low-income housing. The city appears unwilling and unable to manage such a property and is looking for a way out of this property development mess.
Former Party Who Sued Client Loses Hotel Complex
In one of the most complex property development failures of the 2008 real estate crash, the Staybridge Suites Hotel has now been assumed by the successor to the mortgage bank. In 2009, the Cook firm represented the architects and construction managers who were part owners in the complex with Icelandic investors and a company out of Pittsburgh.
Despite investing over $20,000,000 in the deal, the effort fell short when the former bank refused to lend additional money to finish the complex. It turned out that the Pittsburgh investor was paid for questionable charges on the project. The Icelandic investors went out of business and the Icelandic government then stepped in to preserve the interest. The matter was thrown into voluntary receivership in Wisconsin courts. At the same time, the Icelandic Partners sued Cook’s clients and the Pittsburgh entity in two federal suits seeking a declaratory ruling that it was the controlling partner and for fraud.
The Pittsburgh entity entered into a Pierringer release shortly after suit but the architects fought back and defeated motions for summary judgment. Cook’s clients also alleged that the Icelandic entity was taking inconsistent positions in the three cases, alleging in some that it was the chief investor on the project and in others that it was the chief lender. This was taken up and developed by attorneys for the bank’s successors and was successful.
Meanwhile, the state court receivership was complicated by the fact that contractors holding over $3,000,000 in construction liens had filed them six months prior to the time the mortgage of the lending bank was recorded. The lending bank had long since gone out of business and a consortium of investors from New York in conjunction with the FDIC bought the note and commenced foreclosure in federal court, Eastern District of Wisconsin. That suit was dismissed since the state action already was started and had established in rem jurisdiction over the property.
The successors to the bank then entered the state receivership. The Icelandic entity had already paid a six figure sum to the receiver in order to become the “stalking horse” to acquire the property out of receivership. But the contractor liens were determined to have priority over the bank note. Any successful bidder would be required to pay the contractors first before obtaining clear title. The matter then went to bid at sheriff sale. The successors bid the amount of the original note and the lien payments it made to the contractors and easily outbid the Icelandic entity. The receiver refused to pay the stalking horse fee back to Iceland. The Icelandic entity then ended its litigation efforts. The matter is on appeal to determine the issue of priority. The property on Water Street sits vacant save a small sandwich shop on the first floor.
The Cook clients had to drop out of the litigation due to financial distress. No excess judgments were entered against the individuals who had signed multi-million dollar guarantees when all of them filed bankruptcy.
SJ Properties v. DOC Milwaukee, LP [Milwaukee County]
Greg Cook Set to Try 150th Jury Trial Sometime in 2013 or 2014
It is always hard to predict the number of cases actually tried to verdict as compared to those currently set for trial. Rarely one in ten civil cases actually get tried to conclusion these days, as most of them settle through the process of mediation. So to say he has fifteen cases set for trial in 2013-14 does not necessarily mean he will try his 150th case sometime during the next two calendar years.
Cook just completed his 145th trial in Waupaca County in December of 2012. His first case was tried back in 1979 when President Carter was in office. “Most people brag about the number of cases they have tried and won,” said Emile Banks, a highly respected Milwaukee attorney and former partner with Cook. “But Greg has copies of all the verdicts to prove it. I have seen the ring binder he keeps them in.” Not just the ones he won, either. Cook has a winning percentage on his cases that would be the envy of many but he is the first to admit that any attorney who claims to have always won has not tried more than a handful or is not being truthful about it. He learned a long time ago that losing is the best way to evaluate case outcomes and to pass the best possible judgment on to the client regarding the expected outcome. Juries are very complex institutions and while it is impossible to predict, you can usually give the client a good parameter of outcome scenarios that is fairly accurate.
Cook rarely likes to brag about his victories. A recent story in a Wisconsin legal publication featured a well-known trial attorney who took total credit for a case he actually co-counseled with Cook back in the 1990’s. Cook had worked up the case for trial and stayed very close to the clients who faced the loss of their business. He tried the case side by side with his former partner. Together, they won a defense verdict on a serious brain damage case. But Cook was only amused that he was not mentioned in the story. “One of the biggest problems being a trial lawyer is getting a big ego. Winning a case can do that and I have seen many lawyers suffer from it.” Cook has seen it happen to good lawyers, some colleagues, as well as some adversaries. “You can tell your partner they are acting like an arrogant ass. It is harder to tell someone you are up against, so it is better to keep your mouth shut.”
Interestingly, Cook aided a top Wisconsin plaintiff lawyer in a mediation involving a legal malpractice claim against a well-known New York firm. That law firm was defended by this same former partner who had taken full credit for the case he tried with Cook. From the early stages of the malpractice case, the issue was, what had the lawyer done on the case? The client testified they signed two separate contracts to prosecute a complex mesothelioma case which elapsed when the statute of limitations expired. The NY firm claimed it had turned down the case and had no record of the contracts or any work it had done. Cook’s former partner had insisted to the court quite vehemently and arrogantly that “all” the law firm records had been turned over in discovery. He accused the plaintiff’s lawyer of going on a witch hunt. The court granted the plaintiff’s motion to travel to New York with information technology specialists in order to view the computer records. As it turned out, the New York firm hid hundreds of pages of records including the two signed agreements. What was worse, a lead NY attorney perjured himself during his video-taped deposition when he denied the existence of the retainers even though he was the one who obtained them. The case was mediated shortly thereafter and settled for a substantial sum. “I am sure this little episode was quite embarrassing for my former partner, especially after he learned that the trial judge had gone around the state tutoring other judges on the case,” Cook remarked. “Being arrogant in court is a trial lawyer’s worst character trait. I have fallen victim to it a time or two.”
A few years earlier Cook won a similar severe brain damage case in Walworth county, thereby becoming the only attorney in his former firm to win two complete defense verdicts in multimillion dollar damage cases. Cook actually tried this case twice since the first verdict was returned on appeal. The re-trial verdict was also a defense win.
What would trying 150 cases to verdict be like, over 34 years, in over half of Wisconsin’s counties, as well as Illinois jurisdictions and federal courts in two states? “Very humbling. As each year goes by I recall a remark by a good friend and former partner Robert Lauer, who said that litigation is a young attorney’s sport. When you are younger you think you are invincible, but you hopefully get wise over time. I think it is the wise trial attorney who wins, who knows when to be quiet and listen and who can trust a jury to do the right thing without talking them to death.”
Over the years, he has represented both plaintiffs and defendants with a wide variety of cases from complex business disputes to automobile rear-end accidents. He has tried slip and fall cases as well as falls from 140 foot tall grain elevators under construction [the client survived, miraculously]. He has co-counseled with the best lawyer in the country on complex dairy farm stray voltage cases, too complex for even the best in-state trial attorneys. He and his co-counsel have the last stray voltage case that has been decided by the Wisconsin Supreme Court, Gumz vs. NSP (2008). “I have had a Habush partner tell me he would never try another stray voltage case again because they were not worth the time you had to put into them, and he won a multimillion dollar verdict,” Cook commented.
In analyzing the verdicts, one can calculate that Cook saved businesses and insurers over $15,000,000 in damages, while also recovering over $8,000,000 in plaintiffs’ verdicts and settlements. “You always want to settle the plaintiff cases if you get a solid offer, because it is too difficult for the client to turn down a good offer and then lose.” That has happened and invariably, it was with a client who failed to heed solid advice. Trying the cases for the defense on the other hand means you have to have ice water in your veins. “I learned the two principle rules for a defense attorney told me once by Joe McDevitt, who probably tried well over 200 cases in his career: ‘Rule Number One, it is not your money. Rule Number Two, it is not your money’. Better advice could never be given to a new lawyer starting out,” Cook concluded.
Broken Hip Caused by Advertising Sign Which Fell Due to Improper Installation
Janet Mieszkowski worked at the airport at a food kiosk. The company had a new sign installed by Miller Electric on the day of the accident. When she reported for work, she took her usual spot at a chair by the display and under the new sign. A few hours after it was installed, the sign fell on her breaking her hip. When contacted, the electric sign installer denied it was even on the job, and refused to turn over records. With the help of her employer, Janet’s attorneys collected enough information to identify the parties. After Miller Electric and its insurer continued to deny Miller had done the work, the Cook firm was retained to commence suit under the Safe Place statute. Despite delays, the records were eventually produced that established the fact that Miller had indeed installed this sign. Its insurer then began settlement negotiations. Despite a failed mediation session, the parties kept in contact and Janet’s demand was eventually met. The case settled for $160,000.
Mieszkowski v.Miller Electric [Milwaukee County]
Bicyclist Struck on UWM Campus Recovers for Knee Injury
Florian Sebert was a student from Germany attending University of Milwaukee and had just got on his bike, crossing a busy street with the green light and walk sign and while he was in the crosswalk. Donald Klousnitzer was operating a motor vehicle approaching the red light but proceeded to turn right despite a sign prohibiting turn on red. He struck Sebert and knocked him off his bike. Klousnitzer moved the vehicle and the bike before the police arrived and claimed to the officer that it was Sebert who hit him. The officer failed to see that there was a no turn on red so he cited Sebert for riding his bike on the sidewalk. Sebert was in such severe pain, his story was never obtained. Fortunately a nursing student gave the police officer the information of what she had seen. The insurance company flatly denied the claim based on the police report, even after it was corrected to indicate Klousnitzer had failed to keep the right of way. The nurse was deposed and supported the true facts that Klousnitzer knocked Sebert down and ran over the bike. Sebert required knee surgery and will require a replacement in his lifetime given his young age. Just prior to selecting a jury, the trial court called the parties in and said he felt the case should settle for between $150,000 and $175,000. No offer had been made prior to this by the carrier for the driver. The plaintiff accepted $162,500 and the case was settled.
Sebert v. Klousnitzer [Milwaukee County]
Women Struck by Semi-trailer Truck Running Red Light Recover Close to One Million
Wendy Peterson and Sheryl Groenewoud were on their way shopping, Sheryl driving, when they proceeded from a stop light after it turned green. Several seconds later, a truck owned by Swiss Valley Farms entered the intersection on red [at least four seconds after it turned red according to accident reconstruction] and a severe collision occurred. Peterson had to be removed by Jaws of Life. Both were hospitalized in intensive care for two weeks or longer and Wendy eventually had to undergo a total knee replacement. Both suffered broken limbs, and fractured internal organs. The carrier for the trucking company relied on the statement of the driver that he entered on a yellow [despite two eye witnesses who said the plaintiffs only proceeded when they had the green] and asserted the driver had the legal right to “clear” the intersection. Even the passenger claim was denied. Eventually, after the carriers for both Groenewoud and Swiss Valley met and negotiated at and after mediation, the combined claims for the women were settled for $990,000.
Peterson and Groenewoud, et al v. Swiss Valley Farms and Liberty Mutual [Milwaukee County]
Andrea Goode Selected to Serve on State Bar Committee
Andrea Goode was selected to serve on the Bench and Bar Committee for the State of Wisconsin, and continues to do so through 2012. She has been practicing with the Cook firm since 2006 and previously practiced with two large firms, one in Milwaukee and one out of state.
Stray Voltage Settlement
The herd was one of the finest in the county. The farmers were advocates of grazing and had pastureland to accommodate their 250 plus cow herd. But they were plagued with high somatic cell counts and poor body condition of their cows. The utility finally checked the property after numerous complaints and it was discovered the electrical levels of neutral current were well in excess of those permitted by the Public Service Commission. They were told by the PSC farm coordinator never to stop using the isolator that was immediately installed by the utility. But the problems continued and they were forced to hire their own experts as well as go on generator power, seeing herd improvement as a result. Finally, through the process of mediation and before the high expense of a protracted litigation was going to be incurred, the utility made some changes to the line and offered a monetary settlement. The farmers accepted and hope they have solved the problem, at least for now.
Confidential terms of settlement prevent identifying the parties in the case
East Troy Fire Loss Claims Settled for Raab Investments
Rudy Raab owned a large industrial building near East Troy which housed U.S. Packaging Company, who stored chemicals and other products on the site. In April of 2006, a delivery of a product arrived. It was not properly labeled, there appeared to be powder escaping from the containers when the shipment was opened, and the company had an inexperienced fork lift operator working that day. Despite the fact that these warnings would have required the company to reject the load, according to its own safety rules, the operator began unloading. Within minutes, his tong punctured a container and a spark from the steel on the forklift striking the steel floor caused a rapid progressing fire that enveloped the truck and shipment container and raced from the loading dock into the warehouse. Within a short time, the fire was spread throughout. Over 200 firemen from a dozen departments responded. The fire was a total loss which exceeded one million dollars. Raab’s insurance carrier paid to rebuild the structure. It had hired other counsel to pursue subrogation. The Cook firm was hired to represent accompany that lost rental equipment in the fire. Cook also was retained by Raab to represent him for uncovered losses. Cook contacted attorneys who had represented two insurance carriers for the content claims of two insureds and who had settled for about $400,000 previously. He proposed the two firms combine forces seeking recovery for the major portion of the loss. The lawsuit was filed against the exact same defendants, and written discovery was sent. Since the earlier case had settled, Cook and co-counsel worked to develop a strategy to  offer these defendants access to any and all new evidence on a formal or informal basis  point out the new claims arose out of the same facts as the settled claim and  advocate that since the parties were already aware of the facts and law, an early settlement might be in everyone’s best interest. After three expert depositions, the defendants agreed to go to mediation at which time the parties settled for $675,000.
Raab v. U.S.P. et al [Walworth County]
Real Estate Developer Suit by Homeowners Successfully Resolved
The subdivision looks like an ordinary upscale neighborhood of newly built homes. Numerous builders bought lots for spec homes and placed them for sale. Homeowners bought lots and built as well. After some construction, problems arose after rain storms. Basement sump pumps could not keep up with ground water infiltration into the basements and flooding became a common occurrence. Flooding has continued since 2008 with heavy rains and some homes suffer with continuous running sump systems during the spring, summer, and into the late fall. Some even operate regularly during the winter months. Investigation by the Town’s hired engineers revealed that the most likely solution to preventing the continuous nuisance is to raise the basement floors.
Engineering experts opined that the basements were set within the limiting factor, the high-water mark for the groundwater, and thus were destined to have this problem. This negligence was a direct cause of the homeowner damages. In some cases, the ground water can rise nearly five feet about the basement floors and create sufficient pressure to force its way through cracks in the poured concrete basement despite larger pumps in the sump crocks. In some cases, homeowners have received assistance from the local fire department to remove the excessive water after rainfalls since the Town levies fines if any of the ground water that infiltrates into the home enters the sanitary sewer system through the basement drains. A building moratorium was ordered because its water treatment plant cannot handle the heavy loads after rainfall.
Faced with property damage, municipal fines, the loss of value to their home and the continuing nuisance resulting in the loss of use of their basements, several homeowners hired the Cook firm to sue the builders, the developer and the engineering company that prepared the water run-off design. Experts were retained to render opinions on the design deficiencies and negligence of the defendants. After several years of litigation, all claims have been resolved.
Confidential terms of settlement prevent identifying parties in the case
Motorcycle Operator Settles Despite Preexisting Condition Defense
Fred Sowatzka was operating a small scooter legally on the streets of Appleton when a vehicle ignored his right of way and collided with him. Fred was an avid runner but had numerous problems that predated the accident. His knees were degenerating, and it was likely he was going to need a knee replacement anyway, according to the defense. Nonetheless, his doctor testified that he would not have needed such a procedure at the time it was performed but for the collision which aggravated the underlying condition to the point that knee replacement was performed. Despite continued claims by the defense that the case had little or no value beyond the medical expenses incurred, the case was successfully mediated for $85,000.
Sowatzka v. Wheeler, et al [Outagamie County]
Stud Pony Runs Loose and Causes Rotator Cuff Tear
Pat Corrao was only trying to help a neighbor. The neighbor’s Shetland pony had escaped from its enclosure. The neighbor was away from home and asked Pat and her husband to help corral the animal. The horse named Pepper was a stud pony and had become quite agitated because another horse, a full-sized gelding, was also being kept on the neighbor’s land. The pony broke loose from its enclosure and tried to get inside the gelding’s enclosure. In an attempt to capture Pepper, Pat’s husband John tried to get close enough to rope the Shetland. The pony ran away from him and toward the road. Pat, standing on the driveway, tried to get out of the way but the pony charged her and knocked her down causing a rotator cuff tear.
Initially, the homeowner’s insurer denied coverage claiming the policy had lapsed. A deposition was taken of the bank officer who paid the policy premium every year from the escrowed mortgage funds. Records revealed that a letter had been sent to the insured which claimed coverage had lapsed several days before the loss although an identical letter had been sent to the bank showing a different lapse date within the coverage period. After arrangements were made to depose the underwriter on the case, the carrier moved to resolve the claim and settled for $90,000 before the plaintiff was deposed. It also agreed to pay the defense costs of the insured homeowner who had been forced to defend the case after coverage was initially declined.
Corrao v. Layhew, et al [Waukesha County]
Foreclosure Action Abated in Lender Liability Case
A restaurant newly constructed and up and running was foreclosed on when the original bank was bought out by a large out-of-state bank. The new bank told the owners that despite what the original bank may have promised, it was not going to finance the long-term debt and gave them a very short time to obtain financing. Declaring a term default [the note was being serviced but the time due for renewal had come], the bank seized the collateral backing the loan and then sued for the balance, seeking foreclosure on the property. The owners countersued based on lender liability claims which bought time while they tried to refinance. Despite adverse rulings from the court on the eve of trial, the parties reached an accord. This was most difficult since some of the owners had defaulted on internal agreements and filed bankruptcy. Some of the ownership was able to obtain alternate financing and continue operation. The Cook firm was able to negotiate a reduction in the debt due, satisfaction of an outstanding judgment on a related property, which allowed the current ownership to repair credit and avoid collection efforts.
Confidential terms of settlement prevent identifying the parties in the case
Apartment Complex Slip and Fall on Ice Settled Before Suit
The apartment complex Peggy Salamone lived in had terrible maintenance of walks and drives. In the middle of the winter, ice and snow built up around the walkways and near the garbage cans. She slipped and fell and suffered a serious ankle fracture. Despite lack of photographic evidence corroborating her claim, but with weather records from the area covering the time period, the Cook firm was able to obtain a $73,000 settlement before litigation was commenced. Travelers Insurance Company paid the claim after it was presented with medical records and other supporting data.
[Fond du Lac County]
Stray Voltage Case Resolved Prior to Trial
While the dairy farming family struggled to keep production up in 2003 on its northern Wisconsin dairy farm, the owner had contacted the utility servicing the farm and asked for stray voltage testing. He was told the farm was fine. But he did not believe it and asked the utility to replace buried underground cable, known as bare concentric neutral, providing electrical service to the farm. This cable permits the utility to use the earth as a continuous ground. The utility told him he would have to pay, even though it was entirely the utility’s property, and the cost was estimated to be over half a million dollars. The utility advised that he would first have to pay for engineering costs to determine if the cable was deteriorated and that amount would not be refunded even if the utility concluded it would not need replacing. The dairy ceased operation and sold the herd due to continued poor production. The farmer filed for bankruptcy.
Interestingly, a large contingent of the herd sold to another dairy operation out of state began to respond and produce much better once it had left the farm. Testing done by experts for the farmer revealed levels of ground current in and around the facility that were harmful to cattle. Proof the utility had known since the 1980’s that BCN deteriorates over years was obtained. Even some of the buried cable near the farm had failed previously causing the utility to replace large sections of it after the farm ceased operation. Evidence established that the utility replaced BCN with fully jacketed cable that does not use the earth as a ground.
Further proof established that university research done around 2000 was seriously flawed and that when correct statistical analysis is applied to the raw data, it proves cows suffer stress to their immune systems when exposed to low levels of current even before they exhibit behavior commonly associated with such exposure.
After three years of litigation, nearly 20 depositions, and various motions filed by the utility seeking to dismiss portions of the claim, the dairy accepted a confidential sum in settlement of the case.
Confidential terms of settlement prevent identifying the parties in the case
Bad faith case in Calumet County Affirmed on Appeal
Kris and Julie Woelfel suffered a total loss on the night of September 15, 2006 when their barn was destroyed after a 70 foot high concrete silo holding corn silage collapsed. Evidence showed that a fire had occurred and that an explosion followed which damaged the silo enough to cause it to fail, spilling over 300 tons of silage onto the barn feed room, quenching the fire and killing several dairy cattle.
Despite performing an investigation at their expense with competent experts they hired, the property insurance company denied their claim. Evidence at trial established that the internal decision to deny the claim was made very early, within a few weeks of the loss. The company president prepared a “pre-denial” letter to them misleading them into believing the company was continuing to investigate, all the while planning to deny the claim. He disregarded evidence that favored coverage misled the Woelfels as to what he knew, accused them of failing to provide him with information and even refused to change his denial position at trial when shown clear evidence of a fire that preceded the explosion.
The judgment rendered after the jury found bad faith amounted to $1.5 million. The Court of Appeals [District II] issued a 23 paragraph per curiam decision in March 2011 that affirmed the trial court on all points. The total judgment with interest came to $1.98 million which was satisfied by the insurance companies [reinsurer, bad faith insurance carrier and Homestead]. Greg Cook and Scott Lawrence of St. Nazianz, Wisconsin tried the case and handled the appeal.
Woelfel, et al v. Homestead Mutual Insurance 2009-AP-2104
Bad Faith and Legal Malpractice Case Settled and Tried Successfully for Plaintiff
Dr. Prodinger had a successful emergency physician practice near Battle Creek, Michigan until he was sued for malpractice because a Physician’s Assistant employed with his practice failed to diagnose classic signs of a heart attack to a 35 year old married father of two minor children who died several hours after being discharged from the emergency room with a diagnosis of a sore back. Despite having only $300,000 in liability coverage, the insurance carrier decided to take a chance and risk trial, figuring it would win the case seven times out of ten but with no justifiable reason to conclude so. It was aware that experts had already testified to the standard of care and that if the jury believed the widow’s account of what was conveyed to the medical staff, then there was sufficient evidence to support a jury finding of malpractice. But it refused to offer the policy limits which were demanded by the plaintiff counsel, offering only $100,000 during trial. The jury returned a verdict of $1.3 million in favor of the widow. Prodinger was forced to file bankruptcy. Since he had written the company and told them to settle before trial because he was worried about the case, and since his attorney failed to properly object when he was included on the judgment [he was never sued for failing to properly supervise the P.A.] his bankruptcy estate brought suit against the insurer for bad faith and against the attorney for malpractice.
Greg Cook testified as to the standard of care for the trial attorney and also testified as to the duty of the insurance company to reasonably assess the risk and determine the case should have been settled before trial in the best interest of the insured. The trial court had already issued summary judgment in Prodinger’s favor on some issues and following further rulings that partially favored attorney Hackney, Prodinger settled with his trial attorney’s malpractice carrier for a confidential figure before trial. The case against Prodinger’s insurer went to trial in March 2011. The insurer again refused to consider settlement despite pre-trial mediation required under Michigan law in favor of Prodinger. The most it offered before verdict was $200,000. At trial one of its own experts testified under cross-exam that the case could have and should have been settled. After a one week trial, the jury deliberated less than two hours and returned a verdict in Prodinger’s favor for $1.7 million. In addition, Prodinger will recover pre-verdict interest and actual costs of trial under Michigan law. Cook’s deposition was taken but he did not testify at the trial.
Prodinger v. Hackney [Calhoun County Michigan]
Greg Cook was selected again by Super-Lawyers for 2010. His firm specializes in civil litigation for individuals, businesses and insurance corporations. He recently tried his 142nd civil jury trial to verdict in Lake County, Illinois. The firm is also listed in Best’s Directory of recommended Insurance Attorneys. Andrea Goode continues to concentrate in defense trial work and Lisa Paul remains of counsel, assisting in civil trial work along with an employment law practice. Paul also recently published a book due out next spring.
Lender Liability Case Goes on Appeal
When times were good Robert Watring had no trouble convincing his banker to invest in his projects, including a nine story condominium complex in Kenosha. Next to the hottest development in the USA in 2004, Baytree National Bank was excited to get involved with this high rise near the lake and lent over seven million dollars in a project that Watring himself spent more than five million dollars to construct. Despite a promise to help finance sales to purchasers when the project was completed in 2009, Baytree reneged and sought foreclosure. Despite evidence that the bank had its own financial problems which led it to declare Watring in default on a forbearance agreement, the trial court dismissed Watring’s counterclaim to the foreclosure. The matter now moves to the Wisconsin Court of Appeals District II. In the meantime, Watring has not given up, refusing to abandon the property.
Baytree National Bank v. Watring [Kenosha County]
Fond Du Lac Auto Case Resolves in Mediation
While driving down the highway on a country road, Doug Hammes was confronted with an emergency as a skid steer loading plowing snow from a farm driveway across the road appeared in front of him. Despite trying to swerve, the vehicles collided. Doug had previous back surgery and degenerative arthritis but had been gainfully employed over 15 years since the previous medical procedures. Within a month of the accident, he was experiencing problems which led to more surgery, this time at a different part of his lumbar spine. He missed almost a half year of work. The defense hired experts who opined that the back problem was not related to the accident, that the force of the accident could not have caused injury, and that the accident could not have happened the way Doug had testified. Despite these obstacles, the case settled for $160,000 in mediation.
Hammes v. Rural Mutual Insurance [Fond Du Lac County]
Cook Serves as Expert Witness in Bad Faith and Legal Malpractice Case
Dr. Prodinger had a successful emergency physician practice near Battle Creek, Michigan until he was sued for malpractice because a Physician’s Assistant employed with his practice failed to diagnose classic signs of a heart attack to a 35 year old married father of two minor children who died several hours after being discharged from the emergency room with a diagnosis of a sore back. Despite having only $300,000 in liability coverage, the insurance carrier decided to take a chance and risk trial, figuring it would win the case seven times out of ten but with no justifiable reason to conclude so. It was aware that experts had already testified to the standard of care and that if the jury believed the widow’s account of what was conveyed to the medical staff, then there was sufficient evidence to support a jury finding of malpractice. But it steadfastly refused to offer the policy limits which were demanded by the plaintiff counsel, offering only $100,000 during trial. The jury returned a verdict of $1.3 million in favor of the widow. Prodinger was forced to file bankruptcy. Since he had written the company and told them to settle before trial because he was worried about the case, and since his attorney failed to properly object when he was included on the judgment [he was never sued for failing to properly supervise the P.A.] his bankruptcy estate brought suit against the insurer for bad faith and against the attorney for malpractice.
Cook testified as to the standard of care for the trial attorney and also testified as to the duty of the insurance company to reasonably assess the risk and determine the case should have been settled before trial in the best interest of the insured. The trial court has already issued summary judgment in Prodinger’s favor on some of the issues. The case will be tried in 2011.
Prodinger v. Hackney [Calhoun County Michigan]
Bad Faith Case in Calumet County Now Awaits Appellate Decision
Kris and Julie Woelfel suffered a total loss on the night of September 15, 2006, when their barn was destroyed after a 70-foot high concrete silo holding corn silage collapsed. Evidence showed that a fire had occurred and that an explosion followed that damaged the silo enough to cause it to fail, spilling over 300 tons of silage onto the barn feed room, quenching the fire and killing several dairy cattle.
Despite performing an investigation at their expense with competent experts that they had hired, the property insurance company denied the Woelfels’ claim. Evidence at trial established that the internal decision to deny the claim was made very early, within a few weeks of the loss. The company president prepared a “pre-denial” letter to them, misleading them into believing the company was continuing to investigate, all the while planning to deny the claim. He disregarded evidence that favored coverage, misled the Woelfels as to what he knew, accused them of failing to provide him with information, and even refused to change his denial position at trial when shown clear evidence of a fire that preceded the explosion.
The judgment rendered after the jury found bad faith has been appealed, and the briefing completed now awaits the Court of Appeals [District II], which will decide the case sometime later this year or early next. The judgment will soon reach $2,000,000 as interest continues to accrue.
While they wait to rebuild, the Woelfels are keeping busy in other pursuits. Their goal is to build a new dairy facility and raise cows again, hopefully soon. Greg Cook and Scott Lawrence of St. Nazianz, Wisconsin, tried the case together.
Greg Cook was selected by his peers as a Super Lawyer in Wisconsin and joins a heady list of trial counsel with outstanding careers. Cook has tried 142 jury cases as of March 2010 in the following venues: 29 counties in Wisconsin, the Eastern and Western Districts for the U.S. District Court in Wisconsin, the Northern District for the U.S. District Court in Illinois, and the state court of Illinois.
Lisa Paul, Esq., has joined the firm as counsel. Lisa will be concentrating her practice in employment law and also civil trial work for the Cook firm in all areas of personal injury.
Lisa Kritske, Esq., has joined the firm as associate counsel, concentrating her work in federal civil litigation and insurance defense. Andrea Goode, Esq., continues her association with the firm, having successfully defended a personal injury case in Milwaukee County before the Hon. William Pocan. She continues to concentrate in personal injury.
Cook Serves as Bad Faith Expert in Case Involving the Good Hands People
Greg Cook was retained to testify in a bad faith case against Allstate Insurance Company, which had refused to offer the policy limits on a closed head injury case involving its own insured, who sought recovery for damages from an under-insured motorist. Despite clear evidence of concussion, the company steadfastly refused to pay its limits of $25,000 and went so far as to spend more than its limits in defending the case. An arbitrator awarded over $130,000 to the insured. Cook testified that it was per se bad faith for a publicly held company like Allstate to spend more money defending a case than simply paying its limits because it did not look out for its insured or its stockholders. He also opined that an objectively reasonable review of the facts would lead to the conclusion that the claim was worth much more than the limits. Cook’s testimony was not so devastating as a second expert for the plaintiff, a former Allstate adjuster who had reviewed the file and concluded that the company didn’t follow its own guidelines when adjusting the loss. The case was settled for a confidential amount.
Stacie Schmidt v. Allstate Ins. [Rock County]
Drunk Driver Fatality Accident Resolved
In a case arising in Brown County, the client was killed after his truck collided with a vehicle early one winter morning at a controlled intersection. While the client had a duty to yield, the police also concluded the other driver was exceeding the speed limit. The impact was so severe, the police could not discern who was driving and at first charged the deceased client’s wife with negligent homicide. The other driver had been drinking as well as the client, each posting a B.A.C. well in excess of the legal level. The wife was also in excess but to a much lower degree. The charges against her were eventually dropped.
The insurance carrier for the striking vehicle denied liability and asserted the surviving wife was indeed the driver. In the alternative, it asserted that the deceased was more at fault for failing to yield and for being drunk. After Lisa Paul took a deposition of the defendant driver to establish his fault and his drunkenness, she then deposed the bartender who had witnessed the deceased husband drive away from the tavern just minutes before the accident. Following mediation, the case settled for $85,000.
Susan Betters, et al v. American Family Insurance [Brown County]
Family of Three Settles for $235,000 Following Coverage Determination
In a case from Waukesha where a truck towing a tractor crossed the center line and caused serious injuries to a father, son, and wife, the insurer for the truck first denied coverage, claiming it had not insured the vehicle. After collecting money from the truck driver’s personal insurer, Cook filed suit against the driver’s company and its insurer. Discovery revealed that the trailer being towed was listed as a covered vehicle but the truck was not. The trial court ruled that the carrier was not entitled to summary judgment when it declined coverage. Andrea Goode wrote the brief that asserted the trailer was a covered vehicle “in use” at the time of the accident and coverage should then be afforded under the contract language. Despite this, the carrier initially resisted and named an expert witness to opine that the trailer didn’t cause the accident, rather, the truck did. Before trial, the cases were resolved for a total payment covering all the injuries in the amount of $235,000.
Raymundo Gonzalez, et al v. Huss Drilling and Pekin Insurancer [Milwaukee County]
Elderly Couple Recovers $95,000
A pharmacy van T-boned the client’s vehicle causing rib fractures and severe soft tissue injuries to a 65-year-old husband and his 64-year-old wife requiring the “Jaws of Life” to extricate them from the vehicle. Fortunately, they made a complete recovery. Even more fortunately, a breast scan of the wife detected early onset of cancer that was also successfully treated. The insurer made an inadequate offer prior to trial. After suit was commenced, the Cook firm was able to discount the medical liens from cooperative insurers and a union health benefit fund. After their depositions were taken, the claims of the husband and wife were settled for $95,000. They were able to net close to $65,000.
Theo Sheedy, et al v. AIG [Milwaukee County]
Bad Faith Case Resolves Against Insurer as Claim Moves to Second Phase
In May of 2007, while stringing new service to the home, Alliant Energy pulled the service wire from the client’s home so suddenly and violently that it caused thousands of dollars in damage to personal property inside the house. Alliant employees then tried to use the bucket truck to push the side wall of the house back into place, causing further structural damage to the home. The insurance carrier first denied the loss based on “deterioration and wear and tear.” After being sued for bad faith and breach of contract, the claim was arbitrated under the terms of the insurance policy. After arbitration awarded damages, the client was paid for certain costs and attorney fees incurred and received a complete assignment of the subrogation claim, a settlement worth over $135,000. He has now commenced suit against Alliant for the near total destruction of his home including chronic problems with electrical service that have plagued the property for the last several years.
Richard Lisko v. Wilson Mutual [Fond du Lac County]
Richard Lisko v. Alliant Energy Company [Fond du Lac County]
Trial Court affirms breach of contract/bad faith verdict in Calumet County
Trial Judge Donald Poppy affirmed a jury verdict in February of 2009 finding Homestead Mutual Insurance Company of Larson, Wisconsin guilty of breach of contract and bad faith in the adjustment of a casualty loss claim for a concrete silo explosion which occurred Kris and Julie Woelfel’s farm near New Holstein, Wisconsin. The court also added pre-verdict interest, attorney fees and actual costs which increased the award to just under 1.7 million dollars. With interest accruing on the base judgment at 12% per year, the judgment currently sits at over 1.8 million dollars. Homestead Mutual has appealed the judgment.
Poppy ruled that the jury instruction on “explosion” was proper, that the conduct of George Tipler, president of Homestead was sufficient to support an award for bad faith and punitive damages and that any objection to closing remarks from plaintiffs’ counsel was unfounded. The defense had argued that counsel had told the jury the effect of its verdict if it answered “yes” to whether an explosion occurred. Because both bad faith and coverage were tried at the same time, the judge opined that the jury would have had to been asleep during the trial not to realize that if it found an explosion had occurred, coverage would be afforded.
Cook co-counseled the case with attorney Scott Lawrence of St. Nazianz, Wisconsin. The case will be reviewed by the District IV Court of Appeals.
Ozaukee County Jury awards $456,000 for damages from auto accident
In June of 2009, an Ozaukee County jury presided over by judge Tom Wolfgram awarded damages to Andreas Stoike Siebrands for injuries he sustained when a truck owned and operated by Arby Construction Company failed to yield for a stop sign on a county highway. Seibrands complained of injuries at the scene but declined medical attention. Later that night he was admitted due to nausea and vomiting. Eventually, he was diagnosed with occipital nerve injury that caused intractable headaches which affected his work performance. He turned down a promotion at work due to the injuries, underwent numerous injections and a painful nerve ablation. He was recommended by his surgeon to have electrodes implanted in order to treat the condition.
The defense relied exclusively on a medical expert hired by the defense who tried to convince the jury that the proposed surgery was not approved by the FDA, that there were no objective tests which demonstrated any nerve injury, and therefore the problems should have cleared up in a few weeks. He was at a loss to explain why family members and company employees vouched for the plaintiff’s injuries. He was also impeached when it was disclosed that he had hired the defense attorney to represent him in an unrelated case after denying under oath that he had any professional connection with counsel. Arby paid the verdict award after the trial.
Brookfield Police Officer recovers $95,000 settlement from injuries from drunk driver
Grant Palick was riding his bike to work in New Berlin last year when a car cut in front of him causing him to collide with the vehicle. He suffered a broken shoulder. The driver slowed, but then drove away from the accident scene. Palick was able to tell investigating officers that the driver appeared to pull into a driveway in a home nearby. Police found the driver, questioned him, and although he denied driving at all, they found evidence of the damage to the care from the accident and proof that he had just left the house to buy gasoline. The driver was legally intoxicated at the time and had three prior convictions. He admitted that he knew he had left the scene but blamed the bicyclist for the collision. He was sentenced to prison following a plea of no-contest. Palick’s claim was settled with the driver’s carrier whose policy provided coverage for exemplary damages.
Injured worker recovers $120,000 settlement in Milwaukee County case
Fidel Diaz Avalos was cleaning pigeon feces which had accumulated over the years on the floor of an old building on the Continental Can site which was being remodeled for Aldrich Chemical Company in Milwaukee. Even though the engineer for Aldrich and the engineer for the general contractor C.G. Schmidt both knew there was an unsecured metal cover on the undisclosed manhole, nothing was done to fasten it to the floor or to warn workers of its presence, which violated OSHA. Avalos, a contracted employee of Balestrieri Environmental, pushed the cover aside and fell into the hole. He suffered serious injuries including a torn rotator cuff.
Aldrich, Schmidt and Balestrieri were sued in state court for negligence and safe place violations. Aldrich’s and Schmidt’s main defense was that Avalos, an undocumented worker, could not make a claim for future wage loss since there was no guarantee he would be allowed to stay in the United States. They also argued that he should have seen the hole and avoided falling in. Balestrieri’s owner testified that this was such a dangerous condition he would have never let Avalos work in the area without first locating, marking, and securing the hole. After numerous depositions, and following the deposition of plaintiff’s expert witness, the matter settled in mediation for $120,000.
Attorney in Legal Malpractice case settles for $550,000
Marc J. Bern, a New York attorney also licensed in Wisconsin, was contacted by Wisconsin counsel to represent a man who had developed mesothelioma, a devastating cancer that is always fatal and comes from working with asbestos. The man had worked in construction all his life and was exposed to asbestos on several jobs many years ago. Bern agreed to represent him and sent an engagement agreement along with documents seeking information to be supplied by the worker. He then proceeded to do nothing until the Wisconsin attorney contacted him a year later to advise that the man had now died. Bern sent out new engagement documents to sign up the estate in order to bring a wrongful death claim.
Unbeknownst to the family, Bern did not do asbestos work. He tried to farm out the case to at least one firm on the east coast who told him that jurisdiction was in Wisconsin and declined the case for that reason. He then dropped the case without telling the family. About two weeks before the statute of limitations was to expire, Wisconsin counsel called Bern who advised that he did not want the case. Counsel then directed the widow of the dead worker to Will Techmeier, an attorney with experience in mesothelioma cases. The widow met with Techmeier and then engaged his services to bring a claim for legal malpractice against both attorneys.
After litigation was started, the Wisconsin lawyer settled the malpractice case against him for an undisclosed amount. However, Bern denied any liability and claimed he never signed the client to a retainer agreement and was therefore never her attorney. His counsel filed an answer denying any lawyer client relationship had existed, provided written discovery claiming Bern’s entire file consisted of just a few pages of notes and represented repeatedly to the court that the plaintiff was on a fishing expedition. Bern was presented for videotape testimony where he unequivocally stated that he never retained the client.
After protracted discovery motions and attempts to obtain protective orders, Judge Dugan in Milwaukee County ordered that the computer files of the Bern firm be discovered. With special IT counsel and an IT expert, Techmeier traveled to New York to depose a partner in Bern’s firm as well as their office staff and computer personnel. The partner supported Bern’s story that there was never any engagement agreement and asserted the firm had no relationship with the widow or her husband.
After a two hour deposition, documents were discovered on the firm’s computer filing system, eventually over 200 pages, which evidenced a retainer agreement that had been signed by the worker and his wife. Techmeier returned to Wisconsin to prepare a motion on sanctions against Bern. Techmeier then retained Greg Cook to attend a mediation on the case and in order to represent the plaintiff in the event the matter did not settle and would go to trial. The mediation was held prior to the motion for sanctions against Bern for misrepresenting the nature of his involvement. Bern’s defense counsel would be forced to disclose what he knew and when he knew that Bern was testifying falsely and hiding documents at such a hearing. Despite an earlier mediation where the attorney asserted there was no viable case against his client and Bern was only willing to offer $40,000, now the same insurance carrier came to the mediation to pay its full authority and then some in order to settle the claim for $550,000. No confidentiality agreement was obtained.
Stray Voltage Verdict affirmed by Wisconsin Supreme Court in Gumz v. Northern States Power (2007 WI 135)
The verdict in favor of farmers Mike and James Gumz was affirmed by the Wisconsin Supreme Court and resulted in a payout of over $750,000 by Northern States Power Company, with home offices in Chippewa Falls, Wisconsin. The court affirmed a Court of Appeals’ ruling that had affirmed the jury verdict and in the process clarified the law on statute of limitations. It also approved the use of a verdict that specifically inquires into the negligent installation, delivery, maintenance, and use of electrical services as compared to the utility and the farmer.
This case was tried with co-counsel Scott Lawrence, who is known nationally as one of the premier attorneys handling these types of cases for dairy farmers. Cook and Lawrence have other cases they are cooperating on and that are pending in state courts.
Greg Cook inducted into ABOTA
Greg Cook was admitted into membership in the American Board of Trial Attorneys (ABOTA) in November of 2008. Cook had over 500 trial days logged in the many cases he had tried in his career, and that was one of the criteria for membership. ABOTA consists of those trial attorneys who have been recognized by their peers as meeting the highest standards of trial proficiency.
Former Olympian awarded $210,000 in Milwaukee County
In September of 2008, Patrick Moore was awarded over $210,000 in a personal injury case tried in Milwaukee County before the Hon. John Dimotto. Moore had been injured several years before in an automobile/motorcycle accident. He suffered a torn biceps tendon and muscle. Moore was on the U.S. Speed Skating Team in the 1988 Olympics. He was a contractor and landlord and used his arms in strenuous labor. He was awarded damages for lost income, medical expenses and pain, suffering and disability. The verdict was influenced by the fact that the insurer, Safeco, had chosen to use a doctor to perform a medical exam on the plaintiff. The doctor had lied about his qualifications as an orthopedic physician and had denied that the plaintiff suffered any injury in the accident. Judge Dimotto gave the falsus-in-uno instruction, the first ever in any case Cook had tried that involved an untruthful expert witness.
Masonry Contractor found not to have breached contract in Washington County
In January of 2009, Graff Masonry of Jackson, Wisconsin, successfully defended a breach of contract claim brought by Accord Manufacturing Company. Graff had installed a poured-concrete floor for a new plant facility. There were complaints of excessive cracking. Graff offered to repair, but Accord rejected and sued for $1.3 million dollars, which included the costs of a new floor, removing and storing equipment, and lost profits. After a seven-day trial, the jury returned a verdict finding that neither the general contractor nor Graff had breached the contract. Greg Cook represented Graff initially under indemnity terms provided by the insurance company and continued after the Court of Appeals determined Graff had no coverage for the losses by virtue of the workmanship exclusion contained in all business-insurance policies. The case was not appealed.
Farmer wins breach of contract and bad faith case in Calumet County
Kris Woelfel suffered a total loss on the night of September 15, 2006, when his barn was destroyed after a 70-foot-high, concrete silo holding corn silage collapsed. Evidence showed that a fire had occurred, and that an explosion followed that damaged the silo enough to cause it to fail, spilling over 300 tons of silage onto the barn feed room, quenching the fire and killing several dairy cattle.
In February of 2009, a Calumet County jury awarded the New Holstein farmer $1.2 million dollars as a result of his insurance company’s breach of contract and bad faith in refusing to cover the loss. The company, Homestead Mutual of Larsen, Wis., had denied the claim, stating that the silo had simply collapsed, and that there was no coverage for collapse, even though there was no definition of that term in the policy nor was there any exclusion for collapse. Seven expert witnesses testified on the loss and the handling of the claim. After six days of trial, the jury ruled in favor of the dairy farmer, finding over $700,000 in punitive damages together with consequential damages. On motions after the verdict, the court will decide if actual attorney fees and costs will be awarded, along with pre-verdict interest. The judgment could ultimately total over $1.7 million dollars. Greg Cook and Scott Lawrence of St. Nazianz, Wisconsin, tried the case together.
Stray Voltage Case goes to Supreme Court
Greg Cook and co-counsel, Scott Lawrence obtained a $600,000, jury verdict in Marathon County, Wisconsin, against Northern States Power Company in March of 2005. James and Michael Gumz were awarded damages against the power company for negligent maintenance of its system and for nuisance.
Counsel successfully argued that Northern States Power Company’s negligence caused harmful levels of electricity to reach the dairy barn, which resulted in increased abortions, reduced fertility, hoof and stomach disorders, cow and calf deaths, and reduced milk production. The harmful levels of electricity were also determined to be a nuisance. The Gumz’s where found not to be negligent in there use of electrical power from the utility.
After the Court of Appeals affirmed the case in July of 2006, Northern States petitioned to the Wisconsin Supreme Court, which accepted the case for review. This matter was argued on September 11, 2007. [2005 AP 1424]
Issues before the Supreme Court, involve  whether the verdict was properly formulated,  on the statute of limitations, whether the Gumz’s should have discovered the stray voltage problem earlier, and  whether the utility is liable for damages that occurred. before it was notified to come onto the farm and perform testing. A decision is expected sometime in the winter of 2007/2008.
Premises Liability Case Settled
Greg Cook acted as co-counsel and assisted Will Techmeier when they successfully settled a premise liability case. Jean Hobbs sustained injuries when a large bathroom mirror in a public restroom fell on her head. The Milwaukee County case [2001CV7558] had been appealed once on Safe Place issues. After mediation, it settled for $125,000. This is the largest plaintiff’s premises liability settlement Mr. Cook has been involved in.
Stray voltage Cases Successfully Tried and Resolved
After successfully transferring four dairy farm stray voltage cases out of Clark County, Wisconsin, Greg Cook successfully tried and resolved all of them against Clark Electric Cooperative and its liability insurance company.
The cases had been transferred to Portage County on a motion for recusal against the Honorable Jon Counsell. They where scheduled for trial as individual ‘mini trials’ before the Honorable John Finn. Finn had ordered advisory trials in this fashion followed by mediation for each of the four cases. The first such mini trial, Pescinski versus Clark Electric Cooperative, [Clark County Case 02CV82] resulted in a successful jury verdict on January 17, 2007. Clark Electric was found negligent with respect to the electrical service it provided to the farm which caused damages attributable to harmful levels of electricity to the Pescinski dairy herd. The Pescinski’s where not found negligent. In addition, Clark was found to have interfered with the use and enjoyment of the Pescinski’s land therefore constituting a nuisance.
Following the Pescinski trial the case was successfully mediated for an undisclosed amount. The remaining three farms where then successfully mediated over the course of the next six months. All settlement amounts where confidential, as insisted by the insurance carrier for Clark Electric Cooperative.
Road Contractor Wins Against Wisconsin Department of Transportation in Contract Dispute
In a case tried in Oneida County in September of 2007. Pagel Construction Company, located near Steven Point Wisconsin, successfully defeated the Department of Transportation in a claim brought against Pagel seeking cleanup costs exceeding $150,000 for damage to wetlands adjacent to construction of a newly widened highway.
Cook successfully defended Pagel in this claim [Osberg v. Kleinetz Oneida case 03CV102] and also won on its counterclaim for contract amounts withheld by the DOT. The jury deliberated for less than an hour, awarding Pagel $71,000 in payments withheld. Currently the matter is on Motions after Verdict where Pagel is seeking actual attorney fees and interest.
The key testimony in the case came from a sub-contractor for Pagel Construction Company who had obtained an agreement from the state engineers at the time of the erosion problem wherein the state agreed it would not seek recourse against Pagel or any of its sub-contractors. Engineering witnesses for the State were impeached at trial concerning their opinions previously given in deposition. If the court awards attorney fees and interest, the recovery could amount to over $165,000 for Pagel. Pagel’s insurer, Cincinnati Insurance Company provided for the legal expenses and will receive reimbursement in the event the motion is granted.