Wisconsin Mutual Insurance C O . v. United States of America

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-3464
W ISCONSIN M UTUAL I NSURANCE C O ., et al.,
Plaintiffs-Appellants,
v.
U NITED S TATES OF A MERICA ,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 04-C-0729-S—John C. Shabaz, Judge.
____________
A RGUED F EBRUARY 23, 2006—D ECIDED M ARCH 20, 2006
____________
Before E ASTERBROOK , R IPPLE , and W OOD , Circuit Judges.
E ASTERBROOK , Circuit Judge. Vaughn Larson was
driving his van north on Interstate 90 in Wisconsin. As he
moved into the right-hand lane, the van collided with a
car driven by Danielle Skatrud, who was passing on the
right. Larson brought the van to a safe stop. Skatrud could
not control her car, crossed the median of the highway, and
hit two cars traveling south. Skatrud and her two passen-
gers died; the drivers of the cars that had been moving
south sustained both personal injury and property damage.
After indemnifying its clients, Wisconsin Mutual Insurance
Company was subrogated to their rights and filed this suit
under the Federal Tort Claims Act against the United

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2 No. 05-3464
States, Larson’s employer. A flurry of third-party claims
and counterclaims was added to the litigation. After a bench
trial, the district court concluded that Skatrud bore 70% of
the responsibility for these events and Larson 30%.
The district court’s initial judgment failed to specify the
disposition with respect to every litigant. Two parties
appealed from this non-final disposition. When this court
noticed the problem, counsel asked the district court to
enter a proper judgment. The district court responded with
a new judgment, dated July 21, 2005, that still left some
matters dangling. A motion asked the judge to fix this latest
shortcoming. Meanwhile the appellants dismissed their
premature notices of appeal on August 19 and simulta-
neously filed a new joint notice of appeal—also premature,
given the pending motion, which led to the entry of a proper
final judgment on August 25. No additional notice of appeal
was filed, but under Fed. R. App. P. 4(a)(2) the notice of
August 19 took effect when the real final judgment was
entered. Nonetheless, the United States asks us to dismiss
the appeal filed on August 19, contending that it is “a
nullity” because the case was still in the court of appeals
until we issued the mandate on the initial premature
appeals. That step did not occur until August 24.
The United States rests this line of argument on the
proposition that only one court at a time has jurisdiction.
“[A] federal district court and a federal court of appeals
should not attempt to assert jurisdiction over a case
simultaneously. The filing of a notice of appeal is an event
of jurisdictional significance—it confers jurisdiction on
the court of appeals and divests the district court of its
control over those aspects of the case involved in the ap-
peal.” Griggs v. Provident Consumer Discount Co., 459 U.S.
56, 58 (1982). See also, e.g., Marrese v. American Academy
of Orthopædic Surgeons, 470 U.S. 373, 379 (1985); Hovey v.
McDonald, 109 U.S. 150, 157 (1883); Kusay v. United
States, 62 F.3d 192, 193-94 (7th Cir. 1995). That rule has

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No. 05-3464 3
several qualifications, however, perhaps the foremost of
which is that an appeal taken from an interlocutory
decision does not prevent the district court from finishing
its work and rendering a final decision. This is so for
appeals concerning preliminary injunctions, see Kusay, 62
F.3d at 194; Chrysler Motors Corp. v. Industrial Workers
Union, 909 F.2d 248, 250 (7th Cir. 1990); appeals from
orders rejecting claims of official immunity, see Apostol v.
Gallion, 870 F.2d 1335, 1337 (7th Cir. 1989); and appeals
from orders that are non-final because of the district court’s
oversight, see United States v. Bastanipour, 697 F.2d 170,
173 (7th Cir. 1982). The rule summarized in Griggs is
designed to prevent conflict among tribunals, as well as to
prevent the waste of time and money that occurs if the
district court changes a judgment after an appeal has been
briefed. These interests are not implicated by allowing the
district court to enter a proper final decision and thus
permit a pending appeal to go forward.
Because the initial notices of appeal were premature, the
district court acted within its jurisdiction by patching
up the judgment to allow appellate review. What’s more,
even if the district court had lost authority to modify the
judgment, that would not imply that a notice of appeal is “a
nullity” just because it must be filed in the district court. A
notice of appeal never poses any of the risks with which
Griggs and its many predecessors are concerned. To see
this, one has only to consider a case in which multiple
aggrieved litigants want to appeal. With the rare exception
of two or more notices delivered in a single envelope, one of
these appeals will precede the rest. Under the United
States’ position, the first notice of appeal would disable the
district court from accepting any other and thus prevent
some litigants from obtaining appellate review. Nothing in
any statute or rule supports such a silly outcome. Counsel
for the United States conceded at oral argument that no
statute, no rule, and no decision in the history of the United

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4 No. 05-3464
States has treated a notice of appeal as “a nullity” just
because another notice already was on file and a case
therefore was “in” a court of appeals.
So we must address the merits, which does not take long.
The plaintiffs (as we call all parties adverse to the United
States) contend that whether Skatrud’s conduct caused or
aggravated the accident is a question of law, which we
review de novo. That assertion is wrong. Causation is a
question of fact, and our role after a bench trial is to
determine whether the judge made any clearly erroneous
finding. See Fed. R. Civ. P. 52(a); Barber v. Ruth, 7 F.3d
636, 642 (7th Cir. 1993); Mucha v. King, 792 F.2d 602, 605
(7th Cir. 1986). Plaintiffs’ position appears to rest on a view
that “ultimate” issues, or those that entail the evaluation of
facts under a legal standard, are open to plenary appellate
review. The Supreme Court has held otherwise. See Icicle
Seafoods, Inc. v. Worthington, 475 U.S. 709 (1986);
Pullman-Standard v. Swint, 456 U.S. 273 (1982). Causation
is a question for the jury in a tort suit, which means that it
is also reviewed under the clearly erroneous standard when
the judge serves as trier of fact.
The district judge concluded that Skatrud had been
speeding and weaving through traffic; he estimated her
speed conservatively at 75 miles per hour. (Witnesses had
put the speed as high as 100 miles per hour.) When she
attempted to pass Larson on the right—a violation of
Wisconsin law even on a divided highway unless it can be
accomplished safely, see Wis. Stat. §346.07(2), §346.08(2),
(3)—she failed to anticipate the possibility that the driver
in the left lane would move to the right. Because she
was not keeping a lookout, she was surprised when Larson’s
van touched her car. (The force was not great; after the
accident the van showed paint from Skatrud’s car but had
not been dented.) The combination of surprise and speed led
Skatrud, who at 16 years old had been driving for only
three months, to lose control and cross the median. Larson

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No. 05-3464 5
bore some of the fault, for better monitoring of the rear-
view mirror would have shown him that Skatrud was
coming up fast, but the district judge rated Skatrud’s
responsibility as the greater—for she knew what was
happening in front of her (while she may have been in
Larson’s blind spot for critical moments), knew that she was
speeding, and should have anticipated the possibility that
the van’s driver would not see her approach and would start
to move right.
Plaintiffs’ appellate strategy is to isolate each of these
events—speed, weaving, passing on the right, poor look-
out, poor anticipation of other drivers’ potential actions, and
inexperience—and contend that it alone did not cause the
accident. That may be so, but these events did not occur in
isolation. They contributed to the accident at least as much
as did Larson’s careless drift into the right lane while a
speeder was passing there. The district judge’s conclusion
that Skatrud bore more than half of the responsibility
cannot be called clearly erroneous.
A FFIRMED
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-20-06

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