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Appeals Court Shifts Burden in $39 Million Ruling

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The Wisconsin Court of Appeals has just ruled in a complicated personal injury and wrongful death case stemming from a June 2010 accident at the O’Donnell Park parking structure in Milwaukee.

The ruling, which largely upholds the trial court results, paves the way for a shift in the liability for damages from the defendants’ insurance company to the defendants themselves.

Sudden Death and Injury on Way to Concert

At the time of the accident, fifteen-year-old Jared Kellner was on the way to the opening night of Summerfest with his best friend and his friend’s parents. As they walked from the parking structure, a thirty-foot-long slab of concrete that weighed more than thirteen tons fell from the building.

Jared was killed, his friend suffered a broken leg, and his friend’s mother was seriously injured and lost part of her leg from the injury.

An investigation revealed that the slab had been installed incorrectly. The builder, Advanced Cast Stone (ACS), not only did not use the mounting hardware specified by the designers, but had improperly installed the hardware it did use.

The changes were not communicated to county officials managing the project, and there was evidence that ACS has misled project managers and individual workers about the installation. These facts led the jury in the 2013 civil trial to find that ACS had acted deliberately to conceal and misrepresent a defect and potential hazards.

The project’s main contractor and the County of Milwaukee were also found to have some liability.

Insurer’s Role at Issue

ACS appealed the verdict and the $39.2 million judgement on numerous grounds. None of its claims were supported by the appeals court. But another issue in the appeal involved the insurance company for ACS.

ACS had claimed that its insurer, Liberty, had not provided an adequate defense in the trial because the insurer had made it known that it did not intend to pay certain damages on behalf of ACS if any fraud was found on the company’s part. The lower court judge had sided with ACS on this issue.

The appeals court sided with the Liberty. That means that, while the amounts awarded in the lower court stand, Liberty will not have to pay the full amount. Because ACS was found to have concealed and misrepresented events, Liberty’s contract with ACS requires it only to pay out the first $10 million of these judgements.

The rest of the amount still stands, but the burden has been shifted from Liberty to ACS. How that will affect payments to the plaintiffs isn’t yet known, and it’s possible that a further appeal will be made.

Milwaukee Wrongful Death Lawyer

Complicated and long-running cases like this one underscore why plaintiffs pursuing a personal injury or wrongful death case need to work with an experienced attorney. This case has been going on for seven years, and, by our count, the appeal consolidated issues from 15 separate legal actions involving numerous plaintiffs and defendants.

The team at the Law Offices of Gary S. Greenberg has the thorough understanding of wrongful death law necessary to deal with this kind of complexity. Give us a call today at 414-271-7007 or fill out the online contact form at the bottom of this page to get started.