Richards v. Badger Mutual Insurance Co.

749 N.W.2d 581 (2008)

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Nature of the Case

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Facts

Zimmerlee and Schrimpf drove together to Schrimpf's employer, where Pratchet was working that evening. Pratchet agreed to buy beer for them. Schrimpf also spoke with another co-worker, Jennifer Spencer, who invited Schrimpf to a party at her home that evening. Zimmerlee, Schrimpf, and Pratchet traveled to a nearby grocer, where Pratchet purchased an 18-pack of beer for Zimmerlee and Schrimpf with money Zimmerlee provided. The two dropped Pratchet off at a bus stop and Zimmerlee and Schrimpf went their separate ways for several hours, with the beer remaining in Zimmerlee's car. Schrimpf and Zimmerlee reconnected, and with 18-pack in tow, arrived at Spencer's party between 12 midnight and 1:00 a.m. Schrimpf drank 'some' of the beer. Zimmerlee consumed 'maybe half' of the 18 beers. At 7:30 a.m., the duo left Spencer's party. Schrimpf sat in the passenger seat, and Zimmerlee took the wheel of his car. They proceeded only half a block before colliding with Chris Richards' vehicle. Christopher was killed instantly. Chris' wife, P, sought to recover damages. P pursued a negligence claim against Zimmerlee and his insurer. The parties settled for $1,312,500. After P received the settlement, she then brought a wrongful death action against David Schrimpf, 19, who was the passenger in Zimmerlee's car, and Schrimpf's insurer, Badger Mutual Insurance Company. Schrimpf joined Pratchet, who purchased the beer for Zimmerlee and Schrimpf, in the litigation. The parties entered into a settlement agreement where the parties agreed to allow the circuit judge to decide the question of whether Zimmerlee, Schrimpf, and Pratchet acted in accordance with a common scheme. The parties also agreed to the apportionment of causal negligence among them: Zimmerlee at 72 percent; Schrimpf at 14 percent; and Pratchet at 14 percent. The parties stipulated to P's damages and that Schrimpf's and Pratchet's combined causal negligence resulted in $500,000 of the total damages, or $250,000 each. The parties agreed that P was to be paid $ 250,000, as Schrimpf's share of the total damages, regardless of the outcome of this lawsuit. It was deemed that the parties did not act in accordance with a common scheme or plan that resulted in P's damages, P would not receive the 14 percent of the damages that remained unpaid. If, however, it was concluded that the parties did act in accordance with such common scheme or plan then Schrimpf and Pratchet would be jointly and severally liable to P and, therefore, Schrimpf, and thereby Badger Mutual would be required to pay P an additional $250,000 to cover the remainder of the damages. The circuit court answered that question in the affirmative and held the parties jointly and severally liable. The court of appeals concluded that the parties were not jointly and severally liable. The parties had an agreement to purchase alcohol but that agreement did not include Zimmerlee's driving while intoxicated. P appealed.