MONTE WEISS

Monte E. Weiss

After receiving an undergraduate degree in history from the University of Wisconsin - Madison in 1987, Monte Weiss attended the Case Western Reserve University School of Law and obtained his Juris Doctorate in 1991. Since graduating from law school, Attorney Weiss has been involved with the defense bar representing insurance companies, their insureds and self-insured companies.

The bulk of his practice involves the defense of personal injury, property damage and products liability cases. Attorney Weiss has represented insurance carriers on coverage issues, including environmental matters and claims of bad faith through all phases of the legal process including discovery, motion hearings, arbitrations, mediations and trial work.

Attorney Weiss' clients also seek his advice on some of their matters early on in the claims stage. This type of involvement usually arises when a unique issue is presented or the claimed loss is unusually large. For example, Attorney Weiss was recently retained by an insurance company to represent its insured regarding a large fire loss within a few weeks of the fire. His early involvement in the fire's origin and cause investigation helped to ensure that critical evidence was preserved.

A portion of Attorney Weiss' practice also deals with insurance subrogation matters for property damage, uninsured motorist and medical payments. The defendants in these types of cases are typically self-insured entities, insurance companies who are, as well as those who are not, signatories of an inter-company arbitration treaty, as well as the uninsured. Attorney Weiss is often successful in recovering funds for his clients arbitrating these claims through Arbitration Forums, Incorporated.

The representation of Attorney Weiss' clients extends to the drafting of claims manual sections as well as revising and rewriting insurance policies. He also provides seminars to claims staff educating them on changes in the law; the changes in the policies issued by their companies and the effect the changes have on file handling. Mr. Weiss also advises and assists insurance companies that are trying to obtain government and regulatory approval to issue policies in this state as well as companies that want to discontinue doing business in Wisconsin.

Attorney Weiss is the author of two articles entitled: "Enhanced Injury Theory as a Defense" and "Spoliation of Evidence: A New Defense in Products Liability Cases" which were published in the Wisconsin Lawyer in November of 1996 and May of 1997 respectively. He is currently in the process of writing other articles of interest to the defense bar.

The Enhanced Injury Theory article explores the defensive use of what has been traditionally a plaintiff's theory of recovery. The enhanced injury theory allows a plaintiff to recover for injuries that the plaintiff received in a second-injury producing event even when the plaintiff's own negligence would have precluded recovery for the initial injury. One example of the application of this theory is in the "second collision" or "crashworthiness" cases.

The article explores the defensive use of this theory as a shield to liability instead of a sword. A defendant can argue this theory when some of the injuries sustained by the plaintiff were the result of the plaintiff's own conduct. The article points out that one of the best examples of the theory's defensive use is in the plaintiff's failure to use protective headgear. The article examines the legal basis for this particular application of the enhanced injury theory as well as providing practical advice to defense counsel and the insurance industry on utilizing this defense. This article was recently cited by the Wisconsin Supreme Court in Graertner v. Holcka, 219 Wis. 2d 436, 580 N.W.2d 271 (Wis. 1998) (J. Geske dissenting) and can also be found in the Journals and Law Reviews database on Westlaw®.

The Spoliation of Evidence article provides an analysis of Wisconsin's recent acceptance of a new legal concept which endeavors to strike a balance between protecting defendants from an unfair disadvantage when products they manufactured are alleged to have caused a loss are missing and the right of an aggrieved party to have his "day in court." While other jurisdictions have addressed this issue, only recently has Wisconsin jurisprudence concerned itself with this defense.

This article explores the factual and legal basis for the Court of Appeal's ruling and attempts to alert insurance companies, adjusters and attorneys, who are on both sides of products liability cases, of this defense and to provide practical advice on when the defense should be raised, the risks of raising it and how it may be defeated. This article was cited by a Wisconsin Federal District Court in Cooper v. United Vaccines, Inc., 117 F. Supp.2d 864 (E.D. Wis. 2000) and likewise, can be found on the State Bar of Wisconsin web site as well as in the Journals and Law Reviews database on Westlaw®.

Mr. Weiss has taught Continuing Legal Education courses and is a member of the Defense Research Institute - Insurance Law Committee, the Civil Trial Counsel of Wisconsin, and the American Bar Association - Tort and Insurance Section and was appointed to the Milwaukee Bar Association's Bench/Bar Court of Appeals Committee.