FREQUENTLY ASKED QUESTIONS
I. What is Wisconsin's law on Comparative Negligence?
A. Wisconsin's comparative negligence statute - § 895.045, Wis. Stats. - creates a favorable venue for Defendants faced with the prospect of defending a lawsuit for damages sustained by the Plaintiff. Under that statute, A plaintiff may recover damages only if the defendant's negligence is greater than that of the plaintiff's negligence. Thus, if the plaintiff's causal negligence is determined to be 51% or greater than the total negligence attributable for the accident, then the Plaintiff is barred from recovery. In cases involving multiple defendants, the plaintiff's negligence is compared to individual negligence of each defendant separately, rather than combined negligence of all defendants, to determine whether plaintiff is entitled to recover damages. Thus, the Plaintiff can only recover against a defendant if that particular defendant's negligence exceeds the negligence of the Plaintiff. See § 895.045, Wis. Stats.
II. What is Wisconsin's law on joint and several liability?
A. Consistent with Wisconsin's defendant friendly comparative negligence law, Wisconsin law provides for "joint and several liability" of defendants only in limited circumstances. Joint and several liability refers to an instance where, in a multiple defendant case, one defendant becomes liable for the entire amount of damages recoverable because the other defendants cannot pay their portion of the damages (i.e. insolvency of the other Defendants). Under § 895.045, Wis. Stats., only a defendant who is found to be 51% or more liable can be found jointly and severally liable for all damages awarded by the jury, and thus liable for all damages awarded by the jury in the event that the other defendants to the action cannot pay their portion of the damages. Accordingly, a Defendant found 50% or less liable will be responsible for only his percentage of the total amount of damages. See § 895.045, Wis. Stats.
III. How does Wisconsin's Direct Action Statute affect litigation?
A. Under the Wisconsin "direct action" statute, the Plaintiff can bring an action directly against the insurer for the actions of its insured. Under § 632.34, Wis. Stats., the mere existence of a policy of liability insurance covering the negligent actions of its insured makes the insurer liable for the negligent acts of its insured up to the policy limits of the policy, and in accordance with the terms and limitations of the policy. Thus, when a plaintiff files an action against an insured, the action is also brought against the insurer without having to name the insurer. However, from a practical standpoint, the most significant effect of the statute is that the Plaintiff can bring an action directly against the insurer, without naming the insured as a Defendant. In most cases, the Plaintiff will name both the insurer and the insured as Defendants. However, while the Plaintiff who only names the insurer is limited in recovery to the terms and conditions (and recovery limits) contained in the policy, the statute allows the Plaintiff to merely sue an insurer in the event that the Plaintiff does not, for any reason, want to name the insured directly in the lawsuit. See § 632.34, Wis. Stats.
