WDC Leaders

WDC Journal Edition: Winter 2020
By: Attorney Spotlight: Erik J. Pless

Editor’s Note: In this feature, the Wisconsin Defense Counsel recognizes a member for his or her exceptional accomplishments, both inside and outside of the courtroom. To nominate a member for the next issue, please contact the Journal Editor, Vincent J. Scipior, at vscipior@cnsbb.com.

In this issue, the Wisconsin Defense Counsel recognizes Erik J. Pless for his exceptional trial success and mentorship. Erik leads the insurance defense litigation team at The Everson Law Firm in Green Bay. He received his J.D. degree from the University of Wisconsin in 1993 and a B.A. magna cum laude in 1990 from Wisconsin Lutheran College in Milwaukee. Erik has been an active trial attorney in Northeast Wisconsin since 1993. Over the past 27 years, Erik has litigated more than 70 jury trials to verdict and has argued before the Wisconsin Supreme Court on multiple occasions. He practices primarily in the fields of insurance and tort law, defending insureds and insurers in personal injury, insurance coverage, and bad faith litigation. Erik also handles product liability, legal and other professional malpractice, premises liability, and mold litigation.

Erik served on the Board of Directors for the Wisconsin Defense Counsel from 1998 to 2003. He is a member of the Council on Litigation Management and the Association of Defense Trial Attorneys. Erik earned Board Certification as a Civil Trial Specialist from the National Board of Trial Advocacy in 2004. He has been named an insurance defense Super Lawyer for the past 12 years. Since 1998, Erik has authored the chapter on insurance law for the State Bar of Wisconsin’s Annual Survey of Wisconsin Law. Outside of the office, Erik is an endurance athlete, finishing 5 Ironman distance triathlons.

Erik is an outstanding lawyer and advocate for the insurance industry and his clients. He takes sincere interest in providing the best defense to insureds and the insurers. His honesty, integrity, and dedication to the industry is second to none. Erik exhibits respect, commitment, and devotion to each client that he is entrusted to defend.

Erik regularly mentors young associates and helps them develop solid trial skills. In 2019, he tried two cases to verdict with an associate attorney, providing valuable mentorship and learning opportunities to a junior member of the defense bar. Erik conducts regular litigator strategy meetings to assist and supervise associates, oversee handling of cases, provide guidance, and help them strategize and mount defenses to claims, including defending onerous discovery requests and motions.

In 2019, Attorney Pless had an exceptionally successful year as a civil defense attorney, with several trial victories for his insurance company clients, including a notable declaratory judgment awarding costs and actual attorney fees in a coverage/contract dispute. Some of his noteworthy accomplishments are summarized below.

Summary of 2019 Trial Success

Osvaldo Ortiz-Castro v. American Family

Brown County Case No. 18-CV-528

Verdict Date: November 20, 2019

Facts: This case arose out of a rear-end accident of moderate speed that occurred in Green Bay. The plaintiff had conservative treatment, including injections and physical therapy for a diagnosed L4-5 disc herniation, and ultimately a L4-5 discectomy. No claim for future medical treatment was made. Plaintiff claimed to have work limitations in his self-owned janitorial business, including difficulty kneeling and working more than eight hours per day.

Issues for Trial: The parties entered into a high-low agreement prior to trial, with a minimum recovery of $200,000 and a maximum recovery of $600,000.

At Trial: At trial, the plaintiff sought $731,000 for past medical expenses and past and future pain, suffering, and disability. The jury returned a verdict significantly in line with what was sought by the defense, totaling $180,000. Two dissenting jurors wanted to award significantly less.

Plaintiff’s Final Pre-Trial Demand: $450,000

Defendant’s Final Pre-Trial Offer: $200,000

Verdict: $180,000 ($200,000 pursuant to the high-low agreement)

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Danny Mueller v. Germantown Mut. Ins. Co., et al.

Outagamie County Case No. 18-CV-412

Verdict Date: October 9, 2019

Facts: Plaintiff sustained injuries after he fell while opening a door on a very windy day while leaving the Wildlife Bar and Grill in rural Shawano County. Plaintiff, who did not consume any alcohol, claimed the outer door was sticking, and forced it open. The wind caught the door and flung it open all the way, hitting the side of the exterior wall of the building, and causing Mueller to fall into his parked car, resulting in a complex comminuted proximal humerus fracture.

Issues for Trial: Liability and damages were disputed.

At Trial: Plaintiff’s counsel asked for almost half a million dollars in damages. The jury assigned 40% negligence to the defendant and 60% to the plaintiff, resulting in a defense verdict.

Plaintiff’s Final Pre-Trial Demand: $150,000

Defendant’s Final Pre-Trial Offer: $25,000

Verdict: $0

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Karen A. Rafferty v. Floors By Us Inc.

Brown County Case No. 17-CV-1175

Order Date: July 8, 2019

Facts: This litigation arose out of a slip and fall by the plaintiff, Karen Rafferty, at a Menards store. The plaintiff claimed that she slipped and fell in a puddle of water left behind by a mechanical floor cleaner operated by Floors by Us, a contractor hired by Menards. Menards tendered the defense to the insurer for Floors By Us, which was denied. After the damages portion of the case resolved, Menards filed a Motion for Declaratory Judgment based on indemnification language in the parties’ contract, asking for Floors By Us to pay for damages, and also attorney fees after denying Menards’ tender of defense.

Disposition: The circuit court granted declaratory and summary judgment to Menards, finding that the contract had a valid indemnification clause, and Floors By Us should have provided a defense and indemnified Menards. The court further declared that Floors By Us was responsible for the entirety of the settlement funds owed to the plaintiff, and for paying actual attorney fees and costs to Menards.

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Carol K. Burger, et al. v. Robert J. Houg, et al.

Oneida County Case No. 17-CV-215

Verdict Date: April 10, 2019

Facts: Plaintiffs, a married couple, had a single instance of carbon monoxide exposure at their cabin/vacation home in Three Lakes, Wisconsin. The defendant Robert Houg, HVAC technician responded to a “no heat” call from the residence. The defendant went to the property and found that there was a defective sensor, replaced the part, and checked the furnace and found that it was running within manufacturer's specifications. Ultimately the plaintiffs suffered from extended carbon monoxide exposure, resulting in one plaintiff’s transport via flight-for-life to receive bariatric chamber treatment. The plaintiffs did not have a carbon monoxide detector in the home.

Issues for Trial: The issue at trial was whether the defendant HVAC technician, Robert Houg (insured by American Family), was negligent when he repaired the furnace.

At Trial: At trial, the plaintiffs sought $250,000.00 combined for past pain and suffering. The jury returned with a verdict finding no negligence on the part of the defendant and awarded $0 for pain and suffering.

Plaintiff’s Final Pre-Trial Demand: $165,000

Defendant’s Final Pre-Trial Offer: $50,000

Verdict: $0

Editor’s Note: This trial result was previously published in the “News from Around the State: Trial and Verdicts” section of the Winter 2019 Issue of the Wisconsin Civil Trial Journal.

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Yvonne C. Truax, et al. v. Am. Fam. Mut. Ins. Co., et al.

Winnebago County Case No. 17-CV-936

Verdict Date: January 14, 2019

Facts: Plaintiff, a 96-year-old woman, went to a hair appointment at CJ’s Murdock Avenue Salon owned by Carol Schmick. Plaintiff used a cane to assist her when walking, which she hung on the counter in front of where she sat for a perm. When the perm was done, the plaintiff wanted to use the restroom. Ms. Schmick helped plaintiff to stand by providing some stability on an arm. Plaintiff then walked a single step on her own and fell, ultimately breaking her arm.

Issued for Trial: Liability and damages were disputed.

At Trial: At trial, the plaintiff’s attorney asked for $90,000.00 for pain and suffering and an award of negligence against the salon. The jury assigned 60% negligence on the plaintiff and awarded $0 for pain and suffering.

Verdict: $0

For more information, please contact Erik J. Pless at epless@eversonlaw.com.