“Don’t worry, I have plenty of automobile insurance.” Such a belief is shared by many individuals, including those who have just been injured in a serious automobile accident as a result of the negligence of another, and also by those who have just caused one. In either situation, insurance coverages and the amount of such coverages are of paramount importance. Insurance is a complicated subject and, therefore, it is not surprising that many people do not completely understand what coverages they have, or do not have. Insufficient protection, regardless of who caused the accident, is commonplace.

When an individual consults an attorney due to injuries that were caused by another driver, one thing an attorney does early on is evaluate the amount of insurance available to compensate the injured party. All too often with serious injury cases, there is inadequate insurance and, consequently, the injured party does not receive fair and reasonable compensation. Generally, Wisconsin does not require drivers to have automobile insurance. Even when they do have insurance, however, Wisconsin law allows insurance carriers to sell drivers as little as $25,000 per person and $50,000 per accident of automobile liability coverage. If the party causing your injuries has only $25,000 in insurance limits, but your injury claim is worth $425,000, for example, you may then be forced to try to recover the additional $400,000 from the wrongdoer’s personal non-exempt assets. A lot of people do not have any or many non-exempt assets and, as a result, injured parties are often times insufficiently compensated for their injuries.

What can you do to protect yourself and your family from an underinsured wrongdoer? One easy answer is to purchase “underinsured motorists” coverage (often referred to as “UIM” coverage). UIM coverage is purchased under your own policy and acts as supplemental coverage to the other driver’s liability limits. For example, if the wrongdoer has limits of $25,000, you have a claim worth $425,000, and you have $500,000 of UIM coverage, you would receive $25,000 from the wrongdoer’s carrier and the remaining $400,000 from your own carrier.

Why is it that so many people don’t have, or don’t have enough, UIM coverage, especially when the extra premium for UIM coverage is nominal compared to the protection it provides? Nobody effectively informed them that this coverage was available and/or its purpose was not adequately explained are the likely answers. Prior to 1995, neither insurance companies nor agents were required to inform insureds that UIM coverage was available. The Wisconsin legislature recognized this problem and the resulting shortfall to individuals injured by underinsured motorists, and insurers have since been required to provide written notice to insureds informing them of the availability of UIM coverage as well as a brief description of the coverage. The 1995 law was helpful, but interpreting this law resulted in much confusion and debate. The Wisconsin Office of the Commission of Insurance, recognizing the importance of UIM coverage and policyholder knowledge of its availability, took action earlier this year by amending its administrative rules and creating others. While insurance companies have notice obligations that have now been clarified, policyholders should take steps to make sure they understand this important coverage.

Although “uninsured motorists” coverage (often referred to as “UM” coverage) is better understood and is found in every Wisconsin automobile liability policy as required by Wisconsin law, that law only requires that limits of $25,000 per person and $50,000 per accident be included in each policy. The previous example demonstrates that higher UM limits will also provide enhanced protection when you are injured by a wrongdoer who has no automobile liability insurance. Again, the premium for increasing your UM coverage is minimal.

On the other hand, if you cause an automobile accident, severely injuring someone, and your liability coverage is insufficient to pay the injured party’s damages, your non-exempt assets can be stripped away from you to pay the deficiency. To protect your assets and future earnings, sufficient liability insurance is necessary. Umbrella (or excess) policies minimize your personal exposure by providing supplemental coverage to your underlying policy limits. A large limits umbrella policy that supplements your automobile and homeowners’ liability policies may be well worth the additional premium cost.

Significantly, an umbrella policy purchased by you may also be utilized as a source of compensation to you; that is, when an uninsured or underinsured driver causes damages to you which exceed that wrongdoer’s insurance limits and also exceed the UM and UIM limits of your own automobile policy. However, you must specifically purchase UM and UIM coverages to be included as part of your umbrella. A common mistake is to assume that your umbrella policy includes UM and UIM coverages, just because your automobile policy has these coverages. Although not all insurance carriers offer UM or UIM coverage as part of an umbrella, those that do provide it do so at a relatively low premium cost.

Loss prevention measures are the ideal way to minimize injuries and liabilities, but accidents happen and preparing for the consequences must be done proactively. Regardless of who causes the injuries, individuals have the control to increase their recovery potential and minimize their exposure through the purchase of proper and sufficient insurance.

MILWAUKEE, WIS (November 16, 2007) – Fourteen attorneys from O’Neil Cannon have been selected as Wisconsin Super Lawyers for 2007.

Super Lawyers is a peer-nominated award recognizing the top 5% outstanding attorneys across the state of Wisconsin.The attorneys included in the Super Lawyer listing are: * Jim DeJong * Angela Campion * Tom Cannon * Paul Dirkse * Seth Dizard * Pete Faust  * Herb Humke III * Dean Laing * Greg Lyons * Gregory Mager * Patrick Mc Bride * Randy Nash
Additionally, Dean Laing was selected as one of the Top 50 Super Lawyers in the state.

Angela Campion, Paul Dirkse, Seth Dizard, Herb Humke III, and Gregory Mager were selected as Super Lawyers Rising Stars.

O’Neil, Cannon, Hollman, DeJong, S.C. is a full-service legal practice focusing on business law, estate planning, and major complex litigation with offices in Milwaukee, Port Washington, and Sheboygan. The firm was established in 1973 and is now listed as one of the Milwaukee-area’s largest law firms.

Milwaukee, Wis. (October 5, 2007) – A recent Ozaukee County jury trial resulted in a decision in favor of a client of O’Neil Cannon The case involved a dispute between a homeowner and the builder of the home in which the homeowner sued the builder for alleged construction defects.

Attorney Steve Slawinski successfully defended the builder. The jury found in favor of the builder, resulting in no recovery for the homeowner. The trial court then granted the builder’s motion to have the homeowner pay the builder’s attorney fees, according to the terms of the contract between the two parties.

O’Neil Cannon is a full-service legal practice focusing on business law, estate planning, and major complex litigation with offices in Milwaukee, Port Washington, and Sheboygan. The firm was established in 1973 and is now listed as one of the Milwaukee-area’s largest law firms.

Sheboygan, Wisconsin (October 9, 2007) – Carl K. Buesing, a municipal and litigation attorney with the Sheboygan office of O’Neil Cannon, was recently elected Treasurer of the Wisconsin Association of County Corporation Counsel at the group’s Fall meeting in Wisconsin Dells.

The Wisconsin Association of County Corporation Counsel is a specialized bar association comprised of attorneys who represent Wisconsin counties and county boards. Under a unique arrangement with Sheboygan County, the O’Neil law firm handles all civil matters for the county, from shoreland zoning prosecutions to airport hangar lease drafting to open meeting advice. Carl Buesing has been assigned by the firm and Sheboygan County as the lead attorney for these matters and has acted as the designated Sheboygan County Corporation Counsel since 2001.

Carl has had an eclectic legal practice starting out as the district attorney of a small northern Wisconsin county where he prosecuted three homicides in his first year of office. From that early experience, he has built a litigation practice involving subjects as varied as will contests to construction contract disputes.

O’Neil Cannon is a full-service legal practice focusing on business law, estate planning, and major complex litigation with offices in Milwaukee, Port Washington, and Sheboygan. The firm was established in 1973 and is now listed as one of the Milwaukee-area’s largest law firms.

Milwaukee, Wisconsin (October 9, 2007) – Attorneys Angela Campion and Chad Richter will present, “Legal Entities and Intellectual Property” at Fast Trac New Venture programs held at the UW Milwaukee Small Business Development Center on October 9 and October 18, 2007. The session will cover key legal considerations for standard business entities (sole proprietorship, general partnership, corporation, limited partnership, LLP, and LLC), how to protect intellectual property (patents, trademarks, copyrights, licenses), using an intellectual property attorney, and tips for entrepreneurs to protect proprietary interests.

The Fast Trac New Venture Program is a program sponsored by the School of Continuing Education at the University of Wisconsin, Milwaukee. The program is designed to help participants explore entrepreneurship, develop a business concept, and write a business plan.

O’Neil Cannon is a full-service legal practice focusing on business law, estate planning, and major complex litigation with offices in Milwaukee, Port Washington, and Sheboygan. The firm was established in 1973 and is now listed as one of the Milwaukee-area’s largest law firms.

Sheboygan, Wisconsin (October 9, 2007) – On October 9 and 10, 2007, Attorney Crystal Fieber will discuss “Immigration and You” at Money Smart Week Wisconsin seminars. The October 9th session will be held at Plymouth High School at 6:00 pm, and the October 10th session will be held at Sheboygan South High School at 6:00 pm. Both sessions cover the common and expensive pitfalls to avoid when immigrating through a family member.

Crystal Fieber is an attorney with the law firm of O’Neil Cannon Crystal counsels individuals, businesses, and municipalities in a variety of areas: including, estate planning, zoning and land use, immigration, and the prosecution and defense of civil claims. She also assists municipalities and individuals with ordinance drafting and prosecution as well as eviction and foreclosure proceedings. In addition, she speaks Spanish, and utilizes this skill to assist individuals and businesses with immigration-related issues.

Money Smart Week Wisconsin is a public awareness initiative aimed at building financial knowledge to help Wisconsin residents deal with money more quickly, confidently, and shrewdly. The initiative is a creation of the Governor’s council on Financial Literacy created by Wisconsin Governor Jim Doyle. For more information, visit www.moneysmartwi.org.

O’Neil Cannon is a full-service legal practice focusing on business law, estate planning, and major complex litigation with offices in Milwaukee, Port Washington, and Sheboygan. The firm was established in 1973 and is now listed as one of the Milwaukee-area’s largest law firms.

Milwaukee, Wisconsin (September 14, 2007) – Dean Laing, a litigation attorney at the law firm of O’Neil Cannon was recently featured in articles appearing in the Waukesha Freeman and the Oconomowoc Enterprise.

The articles chronicled the story of Dean’s family and how growing up with two brothers with cerebral palsy impacted Dean’s career choice, spurring him towards an impressive career in both corporate and personal injury litigation. The article, entitled “A Brotherly Bond,” appeared in the Oconomowoc Enterprise on September 6, 2007 and in the Waukesha Freeman on September 12, 2007. The complete article can be viewed by clicking here.
Dean is the Practice Group Leader for the Firm’s litigation practice. He has been with the firm his entire legal career, since graduating cum laude from Marquette University Law School in 1983. Dean has been repeatedly recognized as one of Milwaukee’s and Wisconsin’s top trial attorneys, and exhibits a tremendous passion for the law and his clients. He has litigated some of the largest cases in Wisconsin, including representing Mitsubishi Heavy Industries America in the Miller Park dispute, and obtaining many million dollar settlements and verdicts for his clients.

O’Neil Cannon is a full-service legal practice focusing on business law, estate planning, and major complex litigation with offices in Milwaukee and Port Washington. The firm was established in 1973 and is now listed as one of the Milwaukee-area’s largest law firms.

Milwaukee, Wisconsin (September 7, 2007) – On October 5, 2007, Attorney Chad J. Richter will discuss “The Basics of Franchising” at a franchise seminar presented by the UWM Small Business Development Center.

The seminar will focus on entrepreneurship through franchising. Other speakers include a franchise consultant and a current franchise owner.

Chad Richter is an attorney with the law firm of O’Neil Cannon Chad assists clients with a variety of corporate and business law matters such as the formation and organization of various types of business entities under operating, shareholder, and subscription agreements, including the preparation of financial and disclosure documentation. Chad has focused his practice on the structuring of business relationships under franchise, licensing, and distribution arrangements, and has worked with numerous franchise and dealership models, representing both franchisors/grantors and franchisees/dealers.

The UWM – Small Business Development Center (SBDC) is a department of the University of Wisconsin – Milwaukee that works with new entrepreneurs to turn ideas into viable business concepts, and with established entrepreneurs to improve business performance.. For more information, visit www.uwm.edu.

O’Neil Cannon is a full-service legal practice focusing on business law, estate planning, and major complex litigation with offices in Milwaukee and Port Washington. The firm was established in 1973 and is now listed as one of the Milwaukee-area’s largest law firms.

One of the smartest things a potential homebuyer can do in connection with the purchase of a new home is to have an inspection of the property conducted by a licensed home inspector prior to closing. Such inspections tend to be money well spent as they provide the potential homebuyer with a more detailed picture of the condition of the house and the various components and mechanicals that may be otherwise unknown to the untrained eye.

While the commonly used WB-11 Residential Offer to Purchase provides for a home inspection contingency, some buyers are surprised to learn that the standard language contained in this form offer places certain limitations on what the seller is permitting the buyer to do by agreeing to an inspection contingency. As such, a buyer needs to make sure that they ask for what they want.

The WB-11 Residential Offer to Purchase defines “inspection” as an “observation of the property, which does not include testing of the property other than testing for leaking carbon monoxide or testing for leaking LP gas or natural gas used as a fuel source.” A typical home inspection will address the condition of the foundation, basement, structural components, roof, attic and visible insulation, as well as the walls, ceilings, windows, doors, and floors. It will also cover the heating system, air conditioning system, plumbing, and the electrical systems. However, testing, other than testing for leaking carbon monoxide or LP gas or natural gas, is not authorized in the WB-11 Residential Offer to Purchase.

The WB-11 Residential Offer to Purchase defines “test” as the “taking of samples of materials such as soils, water, air or building materials from the Property and the laboratory or other analysis of these materials.” While buyers may look at the definition and decide that a “test” would be an unnecessary expense, the fact is that some very important information about the property may not be discovered unless certain testing is performed. For example, depending on the age, condition and history of the house, there may be mold, lead based paint or possibly asbestos present. However, testing for the presence of such hazards is not permissible in the standard WB-11 Residential Offer to Purchaser.

Additionally, another potential hazard that homebuyer should consider is a radon test. Radon is naturally occurring, colorless, odorless gas and has been connected to health problems due to concentrated exposure. Because every region in the state has been found to have some elevated levels of radon and since you cannot predict radon levels based on state, local, and neighborhood radon measurements, it has been recommended that every homebuyer (and every homeowner) should have a radon test performed. Again, however, based on the standard WB-11 Residential Offer to Purchase language, a Buyer would not be permitted to have a radon test completed unless specific language is added to the offer which would permit such testing.

By ensuring that your offer to purchase properly addresses your home inspection and testing needs, you can move forward with your home purchase with peace of mind.

The Wisconsin Court of Appeals, in Jakubow v. Lichosyt, 2007 WI App 150, recently addressed the interplay of competing interests to real property where a land contract is involved: Namely, that of a third-party attempting to execute on a judgment lien against a land contract vendee’s equitable interest in real property and that of a land contract vendor who has brought an action for strict foreclosure on the same real property. The Court of Appeals’ analysis and determination of the parties’ respective rights should be comforting to land contract vendors in Wisconsin … at least for the time being.

The facts in Jakubow are relatively straightforward:

• In 2002, Lichosyt entered into a land contract with Jakubow to purchase real property in Sauk County, Wisconsin (the “Property”). The purchase price was $4,350,000, with $350,000 to be paid upon execution of the land contract. At the time of the Court of Appeals’ decision, the value of the Property was $6,668,000.
• In 2004, Republic Bank of Chicago (the “Bank”) filed and docketed with the Sauk County Circuit Court a money judgment taken against Lichosyt in an Illinois court proceeding. The Bank then attempted to execute on the Property, requesting a judgment of foreclosure and sheriff’s sale of the Property and distribution of proceeds to creditors.
• Asserting that its land contract vendor’s lien was superior to the Bank’s judgment lien, Jakubow filed a complaint for strict foreclosure naming both Lichosyt and the Bank as defendants.
• Subsequent to the filing of the strict foreclosure action, Lichosyt and Jakubow stipulated that Jakubow was entitled to strict foreclosure and, at the same time, Lichosyt executed a quitclaim deed of the Property to Jakubow releasing his right, title, and interest in and to the Property arising from the land contract. Lichosyt also waived any redemption period during which he would have had the opportunity to pay Jakubow what was owed in full or lose his interest in the Property.
• Following execution of the stipulation and quitclaim deed, Jakubow moved for summary judgment in her strict foreclosure action. The Bank opposed the motion, arguing that the Bank itself had a right to redeem the Property since substantial equity existed in the land above that which was owed to Jakubow. The Bank also argued that Jakubow’s acceptance of a quitclaim deed from Lichosyt required dismissal of her strict foreclosure action.
• The trial court disagreed with the Bank and granted Jakubow’s motion for summary judgment, ordering that all interests of the Bank in the Property be foreclosed with title vesting in the name of Jakubow. The Bank appealed the trial court’s order, asserting, in part, that Jakubow’s acceptance of the quitclaim deed from Lichosyt should have effectively terminated the strict foreclosure action, thereby preserving the judgment lien recorded against the Property.

The Court of Appeals began its review of the trial court’s decision by identifying the respective rights that each party held. Lichosyt, as a land contract vendee, acquired equitable title to the Property while Jakubow, a land contract vendor, retained legal title as security for the unpaid balance of the land contract. Unless the land contract would have stated otherwise, equitable title effectively gave Lichosyt full rights of ownership, including the ability to sell, lease or encumber the real estate subject to the rights of the legal titleholder, Jakubow.

The Court noted that, following Lichosyt’s default under the terms of a land contract, Jakubow could have sued for the unpaid purchase price of the land contract, for specific performance, or asserted the most common vendor remedy – an action for strict foreclosure. In a strict foreclosure action, a land contract vendor foregoes its right to collect the amount remaining on the debt and instead recovers the real property. Typically, the court sets a redemption period in which the vendee must pay up or lose its interest in the land.

The Bank, with a properly docketed judgment against Lichosyt, held a judgment lien on all real property of Lichosyt. As a judgment lienholder, the Bank was entitled to collect by executing on real property of Lichosyt, a process which includes a sheriff’s sale upon notice with a right of redemption thereafter for Lichosyt and other prescribed persons. A judgment lien, however, creates no estate, interest or right of property in the land which may be bound for its satisfaction.

The Bank correctly stated that its judgment lien attached to the real property in which Lichosyt, through his land contract, had equitable title. The Bank, however, attempted to further contend that, by accepting a quitclaim deed of Lichosyt’s equitable interest, Jakubow’s strict foreclosure action immediately terminated and, thus, the Bank’s judgment lien could not have been foreclosed. Moreover, the Bank argued that Jakubow’s legal title merged with Lichosyt’s equitable title upon execution of the quitclaim deed.

According to the Wisconsin precedent, if the equitable title of a vendee and the legal title of a vendor merge into one interest of the vendor, then lienholders may reach all of a vendor’s interest in real property. The Court of Appeals recognized such precedent but also made clear that a claim to such equity is cut off by a judgment for strict foreclosure. The Court of Appeals rejected the Bank’s argument that Jakubow forfeited her right to obtain a strict foreclosure judgment by accepting Lichosyt’s quitclaim deed.

As noteworthy as the majority opinion in Jakubow was a dissent that, more or less, informally certified a much broader issue for consideration should this case proceed to the Supreme Court of Wisconsin. Particularly, the dissent identifies widespread inequity in the longstanding traditions of Wisconsin and other states in the way that land contract foreclosures are distinguished from traditional mortgage foreclosures (where, unlike strict foreclosure actions, junior lienholders and mortgagees routinely share in proceeds from foreclosure sales.)

The dissent views Jakubow’s sole, unencumbered entitlement to the Property valued at $6,668,000 as evidence of the inequitable nature of strict foreclosures in Wisconsin. The Property was sold to Lichosyt in 2002 for $4,350,000 with a down payment of $350,000, leaving $4,000,000 to be paid pursuant to the land contract over the course of seven years. The Bank’s judgment lien totaled about $2,000,000. According to the dissent, there should have been more than enough equity in the Property to satisfy the interests of both Jakubow and the Bank.

The dissent provides ample authority from which the Supreme Court of Wisconsin could be swayed to change the way Wisconsin views rights of various parties relative to strict foreclosure actions, including citation to a United States Bankrutpcy Court opinion from the Western District of Wisconsin that is squarely at odds with the Court of Appeals’ opinion in Jakubow. See Berge v. Sweet, 33 B.R. 642 (Bankr. W.D. Wis. 1983) (addressing a factual situation identical to the one in Jakubow but concluding that a land contract vendee’s substantial equity in a farm could not be cut off from the grasp of creditors by a judgment of strict foreclosure.)

While, for the time being, Jakubow safeguards a land contract vendor’s right to receive property following a strict foreclosure unencumbered by liens against the former vendee, as the title of this article warns, Jakubow may be a momentary victory for land contract vendors. The rationale of the dissent and its potential effect on the way Wisconsin courts handle strict foreclosure actions warrants further monitoring.

For further information on Jakubow and other cases or issues relating to land contracts or foreclosure actions, contact John R. Schreiber of O’Neil, Cannon, Hollman, DeJong, S.C.’s Real Estate and Construction Practice Group.