It is often beneficial to limit the issues at trial to those that are truly disputed and to stipulate to facts that are no longer in dispute. In some cases, for example, liability may be sharply disputed, but the amount of damages are undisputed. In this instance, the parties can stipulate prior to trial that, if the plaintiff prevails on a certain issue, the plaintiff will be entitled to a specified amount of damages. In the haste leading up to trial, however, certain details, such as elements of damages that are not readily apparent, may be forgotten and thus waived if not included in the stipulation.
That is precisely what occurred in Stanley Walter Septic Tank Cleaning, LLC v. Mack Trucks, Inc., No. 12-C-0317, 2015 WL 1932059 (E.D. Wis. Apr. 28, 2015). There, the parties stipulated to the amount of damages the plaintiff would receive if it prevailed on its claim. The stipulation included the cost of replacing a vehicle and collateral costs. It further provided that the plaintiff would be entitled to attorney’s fees and costs to be determined by the court. The parties then included a catch-all provision, stating that neither party waived any claims, arguments, or affirmative defenses. Although prejudgment interest is an element of compensatory damages under Wisconsin law, the parties did not specifically account for prejudgment interest in the stipulation.
The court held that, by not expressly reserving its right to prejudgment interest in the stipulation, the plaintiff waived its right to that element of damages and the catch-all provision did not save the claim.
Preservation Issue: The failure to expressly reserve rights, claims, or defenses in a stipulation, may result in waiver of those rights, claims, or defenses.
Regardless of the subject matter or the procedural posture of the case, be wary of relying on boilerplate language in stipulations. Make sure to read your stipulation closely and ensure that it is specifically tailored to your case and that it expressly reserves your rights. A stipulation containing broad language, or one that does not contemplate all of the elements or nuances of the matter being stipulated, can result in waiver, including even a complete waiver of certain claims and defenses.