*1 DeChant, Plaintiff-Respondent, Keric T.
v. Company, Defendant- Life Insurance Appellant.
Supreme Court September on Submitted No. 93-2220. briefs 8, 1996. May 1995. Decided 592.) (Also N.W.2d reported *4 were briefs there defendant-appellant For the Chorpenning, Co., & Mancuso Good Eliott R. Good and Derzon, Alan Derzon LPA, Columbus, OH and S.C., Noonan, & Menard Milwaukee. *5 there were briefs
For the plaintiff-respondent John, Farris, S. Mun- St. S. Todd Cordelia Thomas W. S.C., Friebert, John, & St. Milwaukee. Finerty roe and BABLITCH, J. Monarch Life WILLIAM A. (Monarch) a judg- from appeals Insurance Company million faith and breach ment in of for bad excess $2.5 a that disability with to it respect policy of contract (DeChant). Two issues are Keric T. DeChant issued to is attorney's The issue whether fees first presented. in prosecut- incurred DeChant premiums and bond action a of and insurance bad faith ing breach contract We hold for bad faith. compensable damages constitute is and that entitled recover DeChant faith as com- bad action premiums first-party bond Monarch's bad faith. damages flowing from pensatory testimony is expert The second issue is whether of faith an against a claim required prove not neces- testimony We hold that was expert insurer. sary case. present dispute. are not
The relevant facts insurance to Keric T. policy issued a disability time, At that DeChant in December of 1984. The Monarch representative. was as a sales employed of "residual"1 or "total" policy provides payment benefits, the disa- degree on the disability depending "to disability inability is defined as do bility. Total regular of your the substantial and material duties after 60 The also occupation." policy provides ability disability as "to do policy defines residual The your all of and material duties some but not the substantial all of regular occupation, you or are able to do the substantial your regular occupation but for less than duties of material Regular occupation "your usual work when total full-time." disability starts."
months of continuous total disability, the insured must meet the condition of not working any reasonable *6 occupation. Under the a policy, "reasonable occupation is any gainful work you can do based on your education, or training experience, and with due to regard your earnings before total starts." disability
DeChant injured was in an automobile accident in June 1985. After an initial to attempt work, return to although on a less than basis, full-time DeChant was advised to either or stop cut back on driving due to nerve damage legs. that, his After he secured a man- agement position which did not require extensive driving, but did $50,000 entail a taking pay cut. DeChant then to applied Monarch for total disability
benefits on the basis that he had accepted the new position because he was no longer able to his perform duties as a representative. sales
The total disability benefits continued until early 1990 when Monarch notified DeChant that under its 60-month limitation, total would be disability discon- tinued in 23 because, months as a sales he manager, was employed a "reasonable occupation." Having previously received communication from Monarch that he would receive total disability benefits for his life- time, DeChant contacted Monarch protest. to initially told DeChant the 60-month limitation 1990, however, would be waived. In April Monarch sub- sequently informed him that it was changing his status from to totally residually disabled. This change sta- tus meant that DeChant would receive no more money.
DeChant filed a breach of contract and bad faith action against Monarch. he Additionally, sought a pre- liminary injunction to Monarch to resume the require disability The payments. injunction granted, was but $24,000 to to bond of
DeChant was required post of the benefits. payment secure case-in-chief, Mon- presented After DeChant his of grounds insufficiency to dismiss on the arch moved to exis- failure prove evidence due to DeChant's The bad faith. any tence of compensable denied Monarch's motion to dismiss circuit court matter to the go jury. permitted to the a series of jury upon The case was submitted The special interrogatories. jury responded seven affirmative, finding that in the interrogatory each finding and further policy, Monarch had breached in bad faith. As dam- to have been Monarch's conduct faith, "100 jury awarded ages for Monarch's bad fees incurred percent" *7 lawsuit, pre- of the bond percent" the "100 prosecuting to in order to required pay miums had been DeChant $300,000 "for all and injunction, the preliminary obtain addition, jury the damages. faith other" bad damages. $1,000,000 punitive DeChant awarded of prior entry and to Following jury's verdict seeking to set filed various motions judgment, enter accordance judgment the verdict and aside dismiss, not- judgment to previous with its motion verdict, of jury's to strike certain withstanding a new trial. responses, and for seeking motions filed post-trial for attorney's into the verdict form "insert" amounts an damages, requesting and fees and bond premium for Mon- damages value award present accelerated arch's breach of contract. the circuit court hearing, motion
At the post-trial and motions post-trial each of Monarch's denied awarded motions. The court of DeChant's granted each $1,175,832.85, amount representing an to DeChant lump-sum present projected value of all future disabil- ity payments policy upon due under based expectancy. DeChant's life DeChant was awarded punitive damages. $1,000,000 in In addition, based upon post-trial affidavit of DeChant's counsel, the attorney's court awarded the amount of premiums, $82,855.58, $1,440.00 for the bond "inserting" these amounts into the verdict form as appealed. for bad faith. Monarch The court of appeals certified the case to this court to resolve the following two issues:2
(1) Donahue, Under Elliott v. 310, 485 169 Wis. 2d (1992),
N.W.2d 403 can a successful insured a breach of contract and bad faith action recover fees and bond premiums damages?
(2) expert Is testimony required predicate as a
instructing jury in a bad faith action in conformity with pattern jury instruction, Wis. JI —Civil as to the conduct of a rea- sonable insurer?
Upon further review of the issues and the briefs unduly filed, we determined that the first issue was limited to our decision in Elliot v. Therefore, Donahue. separate Monarch identified five on appeal. issues We accepted for consideration the two issues certified the court appeals. The other accepted. three issues were not We note *8 that, in response to accepting review, this court's order Justice Abrahamson and Justice portion Geske dissented to that order which limited the court's consideration of appeal only the two certified issues.
Because the depends, resolution of the other three issues part, court, on the two issues certified to this we remand the case appeals to the court of remaining to resolve the issues. 19, sub- 1996, parties we ordered that January
on issue: following mit additional briefs on attorney's premiums fees and bond Whether a of by prosecuting a breach plaintiff incurred constitute and insurance bad faith action contract faith. compensable damages for bad attorney's The first issue we address whether prose- incurred premiums fees and bond faith of and insurance bad a breach contract cuting compensa- Monarch are recoverable as against action can recover Whether an insured tory damages. damages is a of law which attorney's question fees as and without deference independently this court decides Security v. Citizens Mut. Newhouse courts. to the lower (1993). 837, Ins., 176 Wis. 2d 501 N.W.2d this case terms appeals The court of certified Elliott, in Elliott. an automobile liabil- our decision suit and party's denied defense of a third ity insurer a action to establish declaratory judgment brought not The insured was therefore coverage. it did owe and ultimately to obtain counsel independent forced The insured coverage policy. under established litiga- his fees for the sought then recover provision relief tion on the basis of the supplemental 806.04(8).3 in Wis. Stat. declaratory judgment act § 806.04(8). Wisconsin Stat. § Supplemental declaratory judg- relief on a Further based Relief. necessary granted proper. may The whenever or or decree be ment having jurisdic- petition application therefor shall be to court sufficient, grant application be deemed tion to the relief. If the notice, any party shall, require whose adverse court on reasonable declaratory adjudicated by judgment or rights have been granted decree, why not be to show cause further relief should forthwith. *9 806.04(8)
This court found that
"permits
§
a
recovery
attorney fees . .. because the recovery is proper under
principles
. .
equity
Therefore,
.
we need not
fashion an exception to the American
...Elliot,
Rule
We with agree that our decision in Elliott stands for the proposition that courts have the equita- ble to power award attorney's fees to insureds limited Elliott However, circumstances. our result was firmly grounded within the statutory authority 806.04(8) (1993-94).4 found Wis. Stat. § Elliott involved a declaratory judgment action in which the insurer breached its duty Therefore, defend. although some of the rationale expressed in Elliott is supportive, we decline to extend Elliott beyond its par- ticular facts and circumstances.
Instead, we base our present decision on the tort of
first-party
faith. It is well-settled that if an insurer
fails to deal in good faith with its insured by refusing,
without
cause,
proper
its insured
compensate
for a
loss covered
by
policy, such conduct may
rise to
give
Gruenberg
v.
a cause of action in tort for bad faith.
Co.,
Aetna
(Cal. 1973).
Ins.
510 P.2d
By
virtue of the relationship
between the
created
parties
contract,
an insurance
arises,
a special duty
breach of which duty is a tort and is unrelated to con-
Co.,
Anderson v. Continental Ins.
tract damages.
(1978).
675, 686,
Wis. 2d
When
of that breach.
result
proximate
which are
*10
protect
of
faith was created to
The tort
bad
Fee
Rose, Attorney's
Recovery
insured. See Lawrence
D.
For
S.
Change,
Faith Cases: New Directions
57
Bad
(1984).
is to
primary purpose
Cal. L. Rev. 503
Its
by
caused
an
proximately
redress all economic harm
Gruenberg,
P.2d at 1040-41.
insurer's
faith.
510
as follows:
policy
One
states the
commentator
of
consequences
from the
protect
To
insureds
claims,
to honor valid
wrongful refusal
an insurer's
sue
courts now allow insureds to
majority
of
Permitting
faith."
for the tort of "bad
their insurers
to obtain extracontrac-
aggrieved policyholder
faith action is
the forefront
damages, the bad
tual
Insureds who
litigation.
protection
of consumer
may
faith
acted in bad
that
their insurers
prove
distress,
rep-
for
loss of
emotional
recover
utation,
injury.
and economic
(citations omitted).
Rose, supra,
at
503-04
represents
policy
that an insurance
recognize
We
Elliott, 169
of
enforceable contract.
legally
unique type
"fiduciary"
has a special
2d
320. An insurer
Wis.
at
great
from the
which derives
its insured
relationship
Ander
positions
parties.
disparity
bargaining
son,
relationship
is
fiduciary
2d at 688. It
this
85 Wis.
key
the insurer
that
is
between the insured and
for the
use of
remedies
tort
justifying
element
obligation.
contractual
insurer's
breach
Third
in Cali
Injured
Party
The
Lass,
M. L.
Christina
Full Compensation,
Bad Faith
Extending
fornia:
(1992).
Val. U. L. Rev.
argues
recovery
Monarch
by
fees
DeChant is foreclosed
the American Rule.
parties
Under the well-established
Rule,
American
litigation
generally responsible
are
for their own attor-
ney's
recovery expressly
unless
allowed
either
recovery
contract
statute,
or
or when
results from
third-party litigation. Kremers-Urban Co. v. American
Employers Ins., 119 Wis.
722, 744-45,
2d
351 N.W. 2d
(1984).
See also Baker v. Northwestern Nat. Casu-
alty
(1965).
Co., 26
306, 318,
Wis. 2d
However, in the case, the American Rule prevent recovering attorney's does not DeChant from premiums. fees and bond We conclude that when an by denying insurer acts bad faith benefits, it is liable any damages to the insured in tort for which are the proximate Gruenberg, result of that conduct. See P.2d at 1037. present undisputed case,
In the
it is
that Monarch
provide
acted in bad faith when it refused to
DeChant
disability policy.
with benefits due to him under his
It
equally
clear that Monarch's bad faith caused
legal expenses.
to incur
If Monarch had
timely paid
claims,
DeChant's
DeChant would not
attorney.
have had to seek the assistance of an
Instead,
attorney
DeChant was forced to retain an
to obtain the
policy.
benefits,
faith,
withheld in bad
under his
Supreme
The California
Court came to this same
(Cal.
Superior
Ct.,
conclusion Brandt v.
The Brandt court drew a a distinction between fees, such as "attorney's qua recovery the bad faith bringing to the those attributable are recoverable itself' fees that "attorney's action damages in the same way from a tort resulting personal in a be part medical fees would added). The Brandt at 798 (emphasis injury action." court that: explained car, goes a he is struck pedestrian
"When and the injuries, for treatment of his physician to a tort, pedestrian's motorist, pay if must liable case, Similarly, present in the an fees. medical has pay benefits company's refusal insurance *12 attor- to services of an the insured seek the required insurer, benefits, to ney obtain those tortious, pay should because its conduct was legal fees." insured's
Id. at California reasoning adopt 799. We faith, a an insurer acts Court. When Supreme all proxi- is recover for detriment allowed to plaintiff mately from resulting faith, the insurer's bad which includes both bond premiums5 and those attorney's fees that were incurred to obtain the policy benefits that would not have been incurred but for the insurer's tortious conduct. Id. at 800.
In response to the Rule, American many state leg- islatures have enacted entitling statutes prevailing insureds to attorney's fees when the insurer refuses to cause. See 22A J. Appleman, a settle claim just without Insurance Practice, Law and 14532 and cases § there cited. These statutes often make the award of fees to the successful claimant automatic. statutes, states without the recent trend has that,
been even statutory absence of a or contrac- tual provision, attorney's fees can be to awarded bad faith. See when claimant the insurer has acted Hayseeds, Cas., Inc. v. State & Farm Fire S.E.2d (W.Va. 1986). 73, 79 Group, Trimble, Farmers Inc. v.
For
example,
(Co.
1988),
and are recoverable
(1985)).
Brandt,
P.2d
693
at 798
v.
Filasky
in
The Arizona
Court
Supreme
Preferred
(Ariz.
Company,
Risk Mutual Insurance
734 P.2d
its
1987),
company
that
the insurance
breached
found
delayed
when it
good
improperly
to deal in
faith
duty
the insured's
investigated
settlement and inadequately
humilia-
damages
pain,
for
claim. The court stated
inconvenience,
losses for
tion,
pecuniary
or
as well as
fees,
an invasion
attorney's
triggered
such as
expenses
Id. at 82.
rights.
of protected property
our conclu-
of these cases
reasoning
supports
The
to retain an
sion. Monarch's bad faith forced
The
to the
benefits.
right
policy
his
attorney
litigate
were
to obtain
expended
incurred for that service
fees
faith.
withheld in bad
that were wrongfully
benefits
trend,
that,
this recent
argues
despite
Cas
v. Northeastern Nat'l
this court's decision Baker
in
(1965)
Co.,
N.W.2d 493
ualty
26 Wis. 2d
in a
faith
fees
attorney's
an award
precludes
one of three narrow
action unless the case falls within
Rule.
Mon
According
to the American
exceptions
(1)
if:
authorized
arch,
only
are allowed
attorney's
(3)
(2)
or,
if
statute;
so
incurred
provides;
a contract
by
from
litigation
party
in
caused
third-party
Fade,
v.
See Widemshek
17 Wis.
sought.
whom fees are
(1962).
Baker involved an
2d
337, 342, 117
2d
N.W.
liability
an
an insured
automobile
against
action
faith
resulting from the bad
insurer to recover
limits.
policy
insurer
to settle within
failing
Baker,
litigation"
the "third-party
this court discussed
if the
Rule. We stated that
to the American
exception
with
litigation
has
wronged
been involved
person
fraud,
defrauding party
because of the
parties
third
may later be
held liable
an
against
action
him
reasonable
fees incurred
such other litiga-
*14
Baker,
tion.
Relying Monarch criticizes DeChant attempting to attorney's recover fees in the same action in which the fees were incurred. We find that the third- litigation party does exception operate not as a bar in this case.
In the present case, we are not dealing with the
compensation of
we
attorneys;
are
with
dealing
those
damages wrongfully caused
the
by
insurer's
improper
Brandt,
actions. See
For if example, the insured were to recover bene- fits under in a action policy separate suing before tort, on the the distinction between fees incurred in action policy and those tort incurred action would As recog- be unmistakable. other courts have nized: case,
"In the usual fees will have been action; incurred connection with a prior but there why recovery is no reason of such fees should be simply denied because two causes .. . are tried in the same court at the same time. There was no disadvantage [the in the insurer] fact that causes, although separate, concurrently were tried."
Brandt, Prentice v. North
at
P.2d
(quoting
(Ca. 1963)).
Amer.
Corp.,
Title Guar.
645,
381 P.2d
principle
recognized
appeals
this
court of
Our
(Ct.
Young,
95,
We also Republic 299, N.W. 2d 595 Co., 118 Wis. 2d Ins. (1984) today. In Fehr- we reach contradicts the result ing, faith when it acted in bad that an insurer we found in settlement offer a reasonable amount refused to casualty policy. insurance under a insureds' claim its attorney's granted insureds' The circuit court the insurance $23,252.53 because the in the amount of refusing pay company's conduct of to "intentional compensation policy Fehrings adequate under Fehrings expend attorney Id. at fees." 315. forced exclusively Relying disagreed. on the lan- This court attorney's guage Baker, fees were not we held that against by an insured in bad faith actions recoverable 317. the insurer. Id. at
Although parties Fehring neither of addressed compelled any in their language briefs,6 we are to do so: Fehring contrary holding today to our is overruled. summary, acting when Monarch, faith, in bad pay disability refused to benefits due to DeChant policy, equation under his emerged: insurance a new exposed Monarch's bad faith refusal to an by additional policy. set of harms not covered his Unless DeChant is able to obtain relief in the form of attorney's damages, fees and other the bad faith denial policy expose of his benefits will him to numerous uncompensable harms.
Therefore, we conclude that fees and premiums bond prevailing party are recoverable first-party part in a bad faith action as of those com- pensatory damages resulting from the insurer's bad faith.
We now turn to the second issue certified appeals: court of expert
Is testimony required predicate as a instructing jury in a bad faith action in conform- ity with the Wis. JI-CIVIL as to the conduct of a reasonable insurer? argues that DeChant could not recover present any
on his bad faith claim because he failed to expert testimony as to what a reasonable insurer *16 would have done under the circumstances. Monarch expert testimony necessary further contends that is a prerequisite question to submission of the of bad faith
6 only cites appeals to the court of decision of Fehr ing Co., Republic 299, 347 v. Insurance 118 Wis. 2d N.W. 2d 595 (Ct. 1984). App. DeChant limits his Fehring discussion of to the involving expert second issue testimony. witness
577 Instead, Monarch. we with jury. disagree to the We court determined correctly that the circuit conclude not in the testimony required present was expert case. faith, for the insured a claim
To establish deny- a reasonable basis for show the absence of "must the defendant's and policy benefits ing of a reason- lack disregard or reckless knowledge claim." Anderson v. denying able basis Co., 85 Wis. 2d 675, 691, 271 N.W.2d Continental Ins. (1978). that, must establish under The insured circumstances, insurer could not a reasonable facts and v. of the claim. James payment denied or delayed have 370, Co., 109 Wis. 363, 2d Casualty & Aetna Life (Ct. 1982). words, the trier of other App. N.W.2d 114 a against what the insurer's conduct fact measures the particu- would have done under reasonable insurer lar facts and circumstances. Co., 197 Wis. 2d Casualty United Fire &
In Weiss v. (1995), addressed the this court 541 N.W.2d a bad prevail an insured can on of whether question intro- insurer without first against tort claim an faith rule categorical We a testimony. rejected ducing expert claims. all bad faith tort testimony expert requiring Instead, we that: held cir- complex facts and presenting particularly
Cases knowledge the common cumstances outside average juror will ordina- ordinary of an experience expert to introduce rily require an insured for bad testimony prima facie case to establish of other facts and circumstances faith. Under however, whether an insurer cases, question of duty a reasonable insurer its has breached *17 fairly neutrally evaluate its insured's will claim and experi- remain well within the of the ordinary realm average juror ence of an and therefore will not require expert testimony.
Id. at 374.
In Weiss, the insurance company plain- denied tiffs property damage claim he had stating that set intentionally fire to his house. The concluded jury that did not fire to and plaintiff set his residence the insurance denied company his claim faith. This court held that the factual circumstances " not present case did or eso- 'unusually complex " Id. teric' issues at requiring testimony. 382. expert We found that "the deter- average might readily juror mine, without expert benefit of whether testimony, [the company] insurance had reasonable basis for denying policy benefits." Weiss at 383. Weiss, case,
The like present facts those were well experience. within the jury's ordinary allegations DeChant's of bad faith did implicate not addition, complex industry practices procedures. or jury heard from Monarch's claims testimony repre- sentative The disability jury and claims consultant. heard evidence that was undisputed totally disabled meaning within Monarch's The policy. jury also heard evidence that Monarch undisputed reclassified DeChant and ended total disa- his soon bility benefits thereafter. facts, these did jury "special
Based on not need properly or skill or order to knowledge experience" Cramer v. analyze understand Monarch's conduct. Theda Clark Mem. 147, 150, 172 Hosp., 45 Wis. 2d (1969). its N.W.2d 427 Whether breached ordi- was well within the as a reasonable insurer duty *18 juror. nary experience average Therefore, the circuit court cor- we conclude that not to required DeChant was determined rectly of to establish cause expert testimony introduce of in Monarch for bad faith denial against action tort to court we the case Accordingly, his remand claim. issues that were remaining resolve those of to appeals this not certified to court. Case remanded
By Declared. Rights Court. — of appeals. the court {concurring). I ABRAHAMSON, J. S.
SHIRLEY I to discuss separately write join majority opinion. opinion. the majority two issues not addressed
h—I
observes,
an insurer
majority opinion
As the
result of
proximate
which are
damages
liable for all
in
fees incurred
Attorney
its tortious bad faith conduct.
attorney
as
claim are not awarded
a bad faith
proving
an
damages
an item
caused
fees,
rather as
of
but
owed.
benefits
pay
insurer's bad faith refusal
of attor-
an award
very theory supporting
But the
from an insurer's bad
resulting
as
ney
damages
attorney
of
fees incurred
an award
precludes
faith
are
damages
Punitive
damages.
punitive
proving
for
damages
in addition to compensatory
"awarded
Co.,
675,
Ins.
2d
Anderson v. Continental
85 Wis.
tort."
(1978).
dam-
To assess
punitive
271
368
N.W.2d
and above
must be shown over
then, "something
ages,
dam-
compensatory
of
which
duty
the mere breach
Co., 97
Wis.
v. Ford Motor
Wangen
can be
ages
given."
(1980)
Meshane
(quoting
260, 268, 294 N.W.2d
2d
Co.,
382, 387,
v. Second Street
Wis.
N.W. 320
(1928)). To recover
faith
punitive damages
tort
cases,
"there must be a
of an evil
intent
showing
of
or
deserving
punishment
something
the nature
of special ill-will or wanton
or
disregard
duty
gross or
outrageous
Anderson,
conduct."
Because punitive damages are awarded addi- tion to and from apart damages proximately resulting conduct, from bad faith fees incurred in attorney prov- ing punitive cannot be construed as damages resulting Instead, from tortious bad faith conduct. they begin fees, fees and remain attorney attorney never a transvaluation into damages. undergoing case, the instant verdict special question *19 asked correctly jury the what "amount of would money fairly for compensate plaintiff damages caused defendant's bad faith conduct?" The crossed out jury the dollar in sign and filled the blank with "100%" rather than a number. As a consequence, plaintiff fees, in this case was awarded all of his includ- attorney fees that have been incurred in ing attorney might the issue of proving punitive damages. if
The record leaves unclear what fees any attorney incurred in plaintiff proving his punitive damages claim. The heard that had received jury plaintiff $50,000 attorney bills excess of for fees incurred up until trial. After trial counsel plaintiffs submitted services, services including statements rendered trial. during the objection plaintiffs attorney
The insurer's to the did raise the issue of attor- specifically fees award not ney damages fees incurred on the claim. punitive the defendant has waived Consequently, any objection he have had to the fee award on the basis that it might attorney plaintiff's punitive dam- fees for
included ages claim. majority's decision to in the
I therefore concur attorney uphold I write to caution award of fees. allowing interpret attor- I this decision as that ney do not part punitive damages in the a case fees incurred resulting proximately from the tort of bad faith.
II. majority parties opinion observes, the As the supplemental file asked to briefs this case were appeals question phrased the court of because adopted by this memorandum and its certification acceptance unduly lim- the certification court in its attorney parties' of the award of discussion ited having Furthermore, limited the bad faith actions.1 certification, court on this issues it would consider appeals.2 remand three issues to the court of must now on 1 Ordinarily grants this direct review certifi when court jurisdiction appeal, acquires of an it of the entire case. cation (1986); Stoehr, 70, 396 v. 134 Wis. N.W.2d 177 Wis. State 2d (Rule) (1993- 808.05(2) (1993-94) § and Wis. Stat. 809.61 § Stat. 94). being remanded are: The three issues present projected lump-sum award of the value of future
1. Is a disability policy appropriate where under a insurance benefits prevailed has in a of contract and insurance the insured breach *20 bad faith action? concerning injuries by passenger the sustained 2. Is evidence plaintiff injured relevant an accident in which was automobile plaintiff question the of the himself and admissible on whether disability policy "totally term is defined in a disabled" that of insurance? given appropriate for an absent witness instruction to be 3. Is it (1) showing jury requesting party no made of to the where the party's relationship failure to between the other reasonable yet may Thus the case is not over and even come back to this court. jurisdiction
Had the court taken of the entire appeal, parties the would have briefed the issue of attorney originally parties fees as stated both respective appeals their Furthermore, court of briefs.3 the court would have been free to issues, decide all the if it had wished.4 future,
In the
when the court issues an order limit-
ing
accepts
certification,
the issues it
on
it should offer
parties
opportunity
an
to comment on whether the
accepted
appropriately.
issues
have been framed
Had
example,
parties
case,
the court done so in this
pointed
plaintiff
out,
could have
as did the
in his brief
framing
question
court,
to this
of whether
attorney
appropriate in
fees were
terms of Elliot v.
(1992),
Donahue,
169 Wis. 2d
issue by plaintiff prosecuting Do fees incurred a breach of action, premiums contract and insurance bad faith and/or bond injunction action, preliminary incurred to obtain a with such con- compensable stitute for bad faith? Appeals plaintiff of for Defendant at vii. The Court Brief stated similarly. Appeals the issue Brief for Plaintiff at 1. Court disadvantages limiting For a discussion of the cases on appeal, unpublished see on file with the order Clerk Ins., Supreme v. Monarch No. 93-2220 Court DeChant Life (Dec. (Abrahamson 16, 1994) Geske, J., objecting J. to limit ing accepted appeal). on issues *21 fully adequately parties and discuss
not allow the attorney This in a faith claim.5 fees the award , parties process and brief enabled the would have argue have saved the court and would the correct issue parties and effort. time I forth,
For set concur. the reasons initial, plaintiff out pointed In his brief to this court uphold bases for he discuss various alternative could not way court attorney because of the this ing the award Plaintiff accepting certification. Brief for issues on limited the 9 n 3. at