Jon Groth's Wisconsin Personal Injury Weblog

Presenting A Future Loss of Earning Capacity Claim (Future Wage Loss) May 19, 2010

Some discussion has been had among plaintiff’s attorneys regarding the need for an economist for a claim for future loss of earning capacity (i.e. future wage loss).  Also, because there is a Wisconsin Jury Instruction dicussing reducing a future loss of earning capacity claim to present value there is a debate as to which side has the burden to present evidence regarding interest and inflation rates.

The Wisconsin Court of Appeals has settled this argument.  With Wingad a plaintiff should not need to have an economist testify.  Is it a better practice to have an economist on your side?  If the case is one where it is necessary than your attorney should make the call to an economist. 

I’d recommend that you read Wingad.  Ultimately, it is the defendant’s burden so please don’t forget this.   Let’s not make their job any easier.

We therefore hold the following procedures should apply. The plaintiff, of course, has the ultimate burden of proof upon the quantum of damages. A plaintiff establishes a prima facie case for recovery of future lost earnings by presenting evidence of, for example, projected wage loss, fringe benefits to be lost in the future and life expectancy. A defendant seeking reduction to present value of a sum awarded for loss of future earnings has the burden of going forward with evidence to enable the fact finder to make a rational decision on the award. The defendant benefits from the trial court’s instruction on present value. The reason for such an instruction on present value is obvious. When a jury *453 verdict is based upon the deprivation of future benefits, it will provide more than reasonable compensation if it is formed by merely totaling the loss of future benefits without taking into account the earning power of the money awarded. It is self-evident that a given sum of money now is worth more than an equivalent sum of money payable in the future. We recognize that the calculation of present value may be a difficult computation for the average juror. Therefore, the trial court may allow the defendant to meet this burden on present value by admitting testimony of expert witnesses, or by receiving in evidence the standard interest and annuity tables in which present values are calculated at various rates of interest and for various periods covering the ordinary life expectancies.

Wingad v John Deere & Co, 187 Wis. 2d 441, 523 NW 2d 274

Direct Action in Wisconsin May 18, 2010

Wisconsin Statute 632.24 may appear confusing on first read.  The implications however are much more straight forward.  Wisconsin Statute 632.24 makes Wisconsin a direct action state.  In states that do not have a direct action rule, injured parties must bring a suit against only that party who harmed them.  After the judgment in this case, the insured defendant will then pursue contribution from their insurance company.  Wisconsin’s direct action statute, however, requires that in a negligence suit, plaintiffs bring suit not only against the party who harmed them, but also directly bring suit against that party’s insurer.  Normally a direct action like this against the insurance company would not be possible under contract law because the injured party would not have privity to the insurance contract and therefore could not seek to enforce the contract by holding the insurance company directly liable for the actions of their insured.  Wisconsin Statute 632.24 changes this by making the insurance company directly liable to the insured party.

Feel free to contact Groth Law Firm, S.C.  if you have any questions or would like to discuss your need for a personal injury attorney.  Groth Law Firm, S.C. has offices to meet with clients in Brookfield, Milwaukee, Green Bay and Marinette.