where no evidence of substantial litigation assistance to insured by insurer, fees and costs are deducted before funds are paid to insurer
How later courts described this case
- where no evidence of substantial litigation assistance to insured by insurer, fees and costs are deducted before funds are paid to insurer
- urging analysis of the issue under review rather than the use of boilerplate language
- rejecting common fund when insurer refused insured’s offer of representation
- Wisconsin appellate courts need not decide an issue if the resolution of another issue is dispositive
Written by the judges who cited it.
The opinion
SHIRLEY S. ABRAHAMSON, J.
(concurring). I
write to address a recurring issue faced by litigants and appellate courts: What is the standard of appellate review when the facts are uncontested and the decision turns on the legal effect of the facts? Stated another way, what is the standard of appellate review when the decision turns on the application of a legal standard to undisputed facts?
The boilerplate language, too often used by litigants and appellate courts, that application of a legal standard to undisputed facts is a question of law which an appellate court can decide independently without deference to the trial court, is, in my opinion, not necessarily correct in every instance. I conclude that the standard of appellate review depends on the nature of the issue involved. See Hennekens v. Hoerl, 160 Wis. 2d 144, 172, n.4 , 465 N.W.2d 812 (1991) (Abrahamson, J., dissenting); Mucha v. King, 792 F.2d 602, 604-606 (7th Cir. 1986); Lee, Principled Decision Making and the Proper Role of Fed *836 eral Appellate Courts: The Mixed Questions Conflict, 64 S. Calif. L. Rev. 235 (1991).