Strenke v. Hogner3/18/2005
. 2d 758, 628 N.W.2d 833 (citing Maxey v. Redev. Auth. of Racine, 94 Wis. 2d 375, 399, 288 N.W.2d 794 (1980)). "A statute does not change the common law unless the legislative purpose to do so is clearly expressed in the language of the statute." Id. "To accomplish a change in the common law, the language of the statute must be clear, unambiguous, and peremptory." Id. Because there is no such language in Wis. Stat. § 895.85(3) regarding the phrase "disregard of rights," we look to the common law to shed light on legislative intent.
. Under the common law punitive damage cases, the word "rights" was used to mean just that--rights of the plaintiffs or others recognized by law. These can include, for example, such rights as property rights, City of West Allis v. WEPCO, 2001 WI App 226, 248 Wis. 2d 10, , 635 N.W.2d 873, the right to be protected from an excess verdict, Allied Processors, Inc., v. Western Nat'l Mut. Ins. Co., 2001 WI App 129, , 246 Wis. 2d 579, 603, 629 N.W.2d 329, the right to be safe from physical injury, Sharp, 227 Wis. 2d at 21, or the right to a thorough investigation and evaluation of a claim, Majorowicz v. Allied Mut. Ins. Co.,212 Wis. 2d 513, 533, 569 N.W.2d 472 (1997). In all of these instances, disregarding such rights resulted in punitive damages for the plaintiff.
. A review of our common law reveals that the phrase "disregard of rights" described a type of conduct that involved an indifference on the defendant's part to the consequences of his or her actions. Sharp, 227 Wis. 2d at 21. The phrase did not mean the harm or injury suffered. Rather, it referred to conduct, which in turn resulted in the harm or injury suffered. See id. ("Punitive damages may be awarded in product liability suits if the plaintiff proves by clear and convincing evidence that the harm suffered was the result of the manufacturer's reckless disregard for the safety of product users, consumers or others who might be harmed by the product.")
. This interpretation is reiterated in the case law. For example, in Brown v. Maxey, 124 Wis. 2d 426, 434, 437, 369 N.W.2d 677 (1985), a premises liability case, the court did not require an intent to injure in order to determine that conduct was a "conscious disregard of rights." Moreover, in Majorowicz, 212 Wis. 2d at 533, a bad faith case, the court ruled that the insurer's conduct could lead the jury to find an "intentional disregard" of the plaintiff's rights even though there was no evidence of intent to cause injury.
. Having examined the language of the statute, the legislative history, and the common law meaning of the phrase in question, we turn now to our interpretation of Wis. Stat. § 895.85(3). As noted above, the legislature tried to make it harder for plaintiffs to recover punitive damages. It accomplished this goal by replacing the common law language of "wanton, willful and reckless" with the term "intentional." In doing so, however, there is no indication that the legislature intended to alter the focus of punitive damages from the nature of the wrongdoer's conduct to the likelihood of an injury and requiring a certain probability of injury. Such a dramatic change would have to be clearly expressed in the language of the statute. Fuchsgruber, 244 Wis. 2d 758, . As there is no clear, unambiguous, and peremptory language in Wis. Stat. § 895.85(3), this court cannot impute such intent. Id.
. Admittedly, part of the problem with interpreting the legislature's change stems from the fact that the words "intentional" and "disregard" do not easily combine. Still, we are not persuaded by the interpretation of the Wischer court, which inserted words into the statute. Accordingly, we overrule that decision her
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