Monday, February 22, 2010

Supreme Court arguments February 23, 2010

9:45 a.m. Johnson Controls, Inc. v. London Market (2007AP1868) on the Court of Appeals certification of the issues:
Should a duty to defend be imported from an underlying umbrella insurance policy into an excess umbrella liability policy by language in the excess policy stating that it is subject to the same terms, definitions, exclusions and conditions as the underlying policy “except as otherwise provided”?

Is the excess liability carrier’s duty to defend primary in nature, such that it may be triggered even if the excess policy expressly requires exhaustion of the underlying policy as a precondition to liability and the underlying policy has not been exhausted?
Synopsis at Supreme Court accepts five new cases


10:45 a.m. Ash Park, LLC v. Alexander & Bishop, Ltd. (2008AP1735) review of the Court of Appeals decision, 2009 WI App 71, 314 Wis. 2d 772, 767 N.W.2d 614, on the issues:
May a seller of real estate seek both specific performance, as well as interest on the purchase price, without a requirement that it mitigate damages?

What is the proper procedure that should accompany an order for specific performance by a buyer in a real estate transaction?
a. May a circuit court unconditionally order a buyer to complete a real estate transaction, including paying the purchase price? Must the circuit court consider a buyer’s ability to pay or any other particular factor before issuing such an order: If such an order is proper, is the circuit court obligated to establish a time frame within which the transaction must be completed? What results if the buyer does not complete the transaction as ordered?

b. Alternatively, must the circuit court, as part of an order of specific performance, order that the property be sold at a judicial sale, or must a buyer who is subject to an order of specific performance make some showing in order to obtain an order for a judicial sale? Stated another way, should the “better practice” of ordering a judicial sale, as described in Heins v. Thompson and Flieth Lumber Co., 165 Wis. 563, 163 N.W. 173 (1917), be a required course of action or simply a recommendation for the circuit court to consider in the exercise of its discretion?
Does a seller of real estate have any duty to “mitigate” its harm at any point after a buyer has failed to complete a transaction as required by the parties’ contract? If so, what actions must a seller take to “mitigate” its harm?

Is a seller of real estate who obtains an order of specific performance against a buyer entitled to prejudgment and postjudgment interest? Does an award of interest depend on who has possession of the property? If an award of interest is proper generally, should there be a limit to the periods for which interest can be awarded? How should such a limit be determined?
Synopsis at Supreme Court accepts five new cases