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    Court of Appeals Digest

    Daniel Blinka; Thomas Hammer

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    Wisconsin Lawyer
    Vol. 78, No. 3, March 2005

    Court of Appeals Digest

    This column summarizes selected published opinions of the Wisconsin Court of Appeals. Prof. Daniel D. Blinka and Prof. Thomas J. Hammer invite comments and questions about the digests. They can be reached at the Marquette University Law School, 1103 W. Wisconsin Ave., Milwaukee, WI 53233, (414) 288-7090.

    by Prof. Daniel D. Blinka & Prof. Thomas J. Hammer

    * *

    Appellate Procedure

    Notice of Intent to Pursue Postconviction Relief - Power of Court of Appeals to Grant Time Extensions in Cases Alleging Ineffective Assistance of Counsel

    State v. Quackenbush, 2005 WI App 2 (filed 30 Dec. 2004) (ordered published 26 Jan. 2005)

    The defendants moved for extensions of the time to file notices of intent to pursue postconviction relief. The main issue on appeal was whether analysis of their motions is controlled by State v. Evans, 2004 WI 84, 273 Wis. 2d 192, 682 N.W.2d 784. In a per curiam decision, the court of appeals answered in the negative.

    A defendant commences the postconviction process by filing in circuit court, within 20 days after sentencing, a notice of intent to pursue postconviction relief. Rule 809.30(2)(a). If the notice requests representation by the State Public Defender, the circuit court clerk sends a copy of the notice to that office, which may then appoint counsel and order transcripts and the court record. Rule 809.30(2)(c)-(g). Within 60 days after the later of service of the transcript or service of the record, the defendant may file either a postconviction motion or a notice of appeal. Rule 809.30(2)(h). Further proceedings and decisions then occur in either the circuit court or the court of appeals.

    The appellate procedure rules in Wis. Stat. chapter 809 provide the court of appeals with the authority to enlarge most times prescribed by those rules, including all times provided in Rule 809.30. The enlargement rule (Rule 809.82(2)(a)) provides in relevant part that, except as provided elsewhere, "the court upon its own motion or upon good cause shown by motion, may enlarge or reduce the time prescribed by these rules or court order for doing any act, or waive or permit an act to be done after the expiration of the prescribed time."

    In Evans the court of appeals had granted a lengthy extension of the time for the defendant to file a postconviction motion, using its extension authority under Rule 809.82. The ground for the motion was that Evans had not properly waived his right to appellate counsel during his initial postconviction review, which had terminated without the filing of either a postconviction motion or a notice of appeal. The supreme court concluded that the court of appeals had erroneously exercised its discretion by using its extension authority under Rule 809.82 instead of requiring Evans to file a habeas corpus petition (sometimes called a Knight petition) in the court of appeals alleging ineffective assistance of appellate counsel. See Evans, 2004 WI 84, ¶ 59; see also State v. Knight, 168 Wis. 2d 509, 484 N.W.2d 540 (1992). In the present case the state argued that Evans also bars the court of appeals from using its Rule 809.82 extension authority to extend the time to file a notice of intent to pursue postconviction relief when the basis for the motion is ineffective assistance of counsel.

    Responding to the state's argument, the court of appeals characterized Evans as "[being] concerned only with extensions of the time to file a postconviction motion, when the ground for the motion could be construed as ineffective assistance of appellate counsel. The question, then, is whether Evans should be extended to bar extensions of the time to file a notice of intent to pursue postconviction relief, when the ground for the motion could be construed as ineffective assistance of trial counsel. We conclude that it should not be, and therefore we decide these motions by using the `good cause' standard provided in Wis. Stat. Rule 809.82. Extending Evans to notices of intent is not supported by sound policy reasons and might have undesirable and unintended side effects" (¶ 9).

    "A possible unintended side effect of reading Evans to bar extensions for notices of intent to pursue postconviction relief when the ground is ineffective assistance, while extensions remain permitted for `good cause' on other grounds, is that the distinction may give defendants an incentive to plead in ways that deliberately avoid suggesting ineffective assistance of counsel, even if that would be the most appropriate characterization of what occurred" (¶ 20).

    "Factors that we may consider in granting an extension for the filing of a notice of intent under Wis. Stat. Rule 809.82(2)(a) include the extent to which the delay appears to have been without fault of the defendant; the promptness of the defendant's request for an extension; and the avoidance of a disproportionate expenditure of judicial resources to make factual findings regarding requests for relatively short extensions. When deciding extension requests, we also seek to screen out defendants who have simply changed their minds after experiencing confinement or after having their probation revoked, especially if a significant amount of time has elapsed since the conviction, and we consider the need of crime victims and the public for finality in criminal adjudications. These factors are not intended to be exhaustive, but merely to provide sense of the factors we consider when acting on extension requests" (¶ 14).

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    Civil Procedure

    Taxable Costs - Exhibits - Transcripts

    Alswager v. Roundy's Inc., 2005 WI App 3 (filed 29 Dec. 2004) (ordered published 26 Jan. 2005)

    Alswager sued Roundy's, his former employer, after Roundy's fired him. Most claims were dismissed before trial, and a jury found in Roundy's favor on a defamation claim. The trial court ordered Alswager to pay taxable costs, which included expenses for a so-called "exploded trial exhibit" and the transcriptions from a CD-ROM of hours of conversations surreptitiously recorded by Alswager during his employment.

    The court of appeals, in an opinion written by Judge Anderson, affirmed in part and reversed in part. Alswager argued that the trial court lacked authority to award costs for the "`transcription of discovery materials' because Roundy's simply decided to have the conversations provided on CD-ROM transcribed for its own convenience. Roundy's counters that the transcripts of discovery material provided on disk were `necessary disbursements' within the scope of Wis. Stat. § 814.04(2) and were properly allowed by the trial court in its discretion pursuant to § 814.04(2) [which covers disbursements] and Wis. Stat. § 814.036" [the omnibus cost provision] (¶ 8). The trial court has discretion to determine whether a requested item is a "necessary" cost under both statutes (see ¶ 9).

    Addressing a matter of some importance to litigators, the court of appeals explained that Kleinke v. Farmers Cooperative Supply & Shipping, 202 Wis. 2d 138 (1996), held "that the omnibus statute grants no substantive rights to recover costs not listed as recoverable elsewhere in the costs statutes; it simply sets the times and circumstances when such costs are recoverable" (¶ 13). The court of appeals said that the Kleinke holding is confusing and that it has the effect of emasculating the omnibus cost provision, and the court urged the supreme court to revisit Kleinke (see id.).

    Nevertheless, applying Kleinke in this case, the court of appeals held that "the trial court erred in awarding Roundy's costs for the transcription of the secretly recorded conversations. As explained, Kleinke instructs that the trial court's discretion is limited to `when' the court may allow costs and not `what' costs are allowed. Section 814.04(2) authorizes imposition of costs for `[a]ll the necessary disbursements ... allowed by law.' Here, the record demonstrates that Roundy's was provided with the surreptitiously recorded conversations as audio files-a perfectly useable format. Roundy's obtained the transcripts of the secretly recorded conversations merely for its own convenience; the record demonstrates that Roundy's simply thought that it could find the relevant material quicker. It has long been the law that costs may not be allowed for such reasons" (¶ 14) (citations omitted).

    The court of appeals affirmed the award of costs for the "exploded trial exhibit" because Alswager failed to develop the issues in his brief (he failed to provide information about what was "blown up" and how). The court declined to address another issue concerning a protective order.

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    Eminent Domain

    Wis. Stat. Section 32.09(6) - Partial Takings - Severance Damages

    Justmann v. Portage County, 2005 WI App 9 (filed 16 Dec. 2004) (ordered published 26 Jan. 2005)

    This eminent domain case arose from Portage County's condemnation of a part of the plaintiffs' property for highway use. Wis. Stat. section 32.09(6) provides that, when an exercise of eminent domain results in a partial taking, "the compensation to be paid by the condemnor shall be the greater of either the fair market value of the property taken as of the date of evaluation or the sum determined by deducting from the fair market value of the whole property immediately before the date of evaluation, the fair market value of the remainder immediately after the date of evaluation, assuming the completion of the public improvement and giving effect, without allowance of offset for general benefits,and without restriction because of enumeration but without duplication, to the followingitems of loss or damage to the property where shown to exist" (emphasis added).

    The parties agreed that this section entitles the property owner to the greater of 1) the fair market value of the part of the property taken, or 2) the difference between the value of the whole property immediately before the taking and the value of the remaining property immediately after the taking (the "before and after" method). They disputed whether the severance damages portion of section 32.09(6) [the statutory language emphasized above] applies to both methods of calculating compensation or only to the before and after method. ["Severance damages" are defined as "the diminution in the fair market value of the remaining land that occurs because of [a] taking" (¶ 1 n.2) (citation omitted).]

    In a decision authored by Judge Dykman, the court of appeals concluded that "the language of the statute unambiguously provides for severance damages only under the `before and after' method of compensation" (¶ 9).

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    Insurance

    Reducing Clause - UM Coverage - Worker's Compensation

    Teschendorf v. State Farm Ins. Co., 2005 WI App 10 (filed 7 Dec. 2004) (ordered published 26 Jan. 2005)

    The plaintiffs' adult son was killed in a car accident that occurred while the son was in the course of his employment in Minnesota. An uninsured motorist caused the accident. The parents filed this wrongful death action under Wis. Stat. section 895.04 and sought to collect uninsured motorist (UM) benefits under two policies purchased by their son. The son was unmarried and had no children. Under applicable worker's compensation statutes, about $160,000 (the "majority" of the death benefits) was paid to the state's "benefit fund." The circuit court granted summary judgment in favor of the insurer "because the net limits of those policies, totaling $150,000, must be reduced by the amount of worker's compensation paid to the State by the worker's compensation carrier or the employer, which in this case exceeded $150,000" (¶ 4).

    The court of appeals, in a decision authored by Judge Kessler, reversed. The court "conclude[d] that § 632.32(5)(i)2. does not permit reduction of coverage by payments made by other persons or entities to the State and, interpreting the reducing clause consistent with the statute, neither does the reducing clause in American Family's policy"(¶ 9). "Although § 632.32(5)(i)2. does not explicitly state that the payments must be paid or payable to the insured under any worker's compensation law, these words are implied from the context of the overall statutory scheme in which they occur. We conclude that § 632.32(5)(i)2. unambiguously includes only those payments paid or payable to the insured or the insured's heirs or estate" (¶ 13). To hold otherwise, said the court, would deny the son the benefit of his premiums and produce a windfall for the insurer (see ¶ 15).

    Judge Fine dissented. He argued that the parents could not maintain a wrongful death action arising out of a Minnesota accident, and he disagreed with the merits of the majority's reducing clause analysis.

    "Other Insurance" Clause - Occupancy

    Progressive N. Ins. Co. v. Hall, 2005 WI App 17 (filed 21 Dec. 2004) (ordered published 26 Jan. 2005)

    The issue in this case was "whether the Wisconsin Statutes permit Progressive to provide uninsured motorist [UM] coverage that is primary coverage to its named insured but is excess coverage to an occupancy insured. The answer will determine whether Progressive or [a second insurer] must pay the first $100,000 of damages for an injured passenger, Edward Hall" (¶ 1). The court of appeals, in an opinion written by Judge Kessler, affirmed the trial court's finding "that Progressive's `other insurance' clause (purporting to provide only excess coverage for an occupant) was void because it violated Wis. Stat. § 632.32(3)(a) (2001-02)" (¶ 1).

    In essence, Progressive contended that section 632.32(3)(a) applies only to liability insurance, not to "indemnity insurance like UM coverage" (¶ 11). In rejecting this argument, the court of appeals relied on case law that applied the omnibus statute to both liability and indemnity coverage (see ¶ 14). Progressive also argued that it was entitled to provide "different UM coverage to an occupancy insured than it would to its own named insured" under Wis. Stat. section 632.32(5)(e). The court flatly rejected this contention: "Providing different levels of UM coverage for non-relative occupants is prohibited by § 632.32(3)(a); nothing in § 632.32(5)(e) alters that prohibition" (¶ 17). The court of appeals ordered Progressive to pay the first $100,000 in damages based on these holdings.

    UIM Coverage - Umbrella Policy

    Rebernick v. Wausau Gen. Ins. Co., 2005 WI App 15 (filed 14 Dec. 2004) (ordered published 26 Jan. 2005)

    Rebernick was seriously injured when the lawn mower he was riding was struck by a car. He collected the liability limits of $25,000 from the car's insurer and the maximum $100,000 underinsured motorist (UIM) coverage provided by his own American Family policy. When Rebernick sought additional monies from his American Family umbrella policy, he was told that the policy excluded UIM coverage. The Rebernicks sought to reform the umbrella policy to provide UIM coverage on the ground that American Family violated Wis. Stat. section 632.32(4m) by not telling them about such coverage. The trial court ruled in favor of the insurer.

    The court of appeals, in an opinion written by Judge Fine, affirmed. "[T]he umbrella policy's reference to underinsured-motorist coverage declares that there is none `unless this policy is endorsed to provide such coverage.' This sufficiently tells the policy holder that underinsured-motorist coverage is available by endorsement. We thus must turn to the second mandate of Wis. Stat. § 632.32(4m), namely that there be `a brief description of the coverage.' The umbrella policy does not give any description of underinsured-motorist coverage. But that does not end our inquiry. As the trial court pointed out, on the umbrella policy's effective date the Rebernicks were already covered by an underlying automobile policy also issued by American Family. The underlying automobile policy not only gave them underinsured-motorist coverage but it also defined the coverage in a special full-page endorsement attached to the policy" (¶¶ 9-10). Moreover, "the Rebernicks have not disputed on appeal the trial court's conclusion that they `obviously knew' about underinsured-motorist coverage" (¶ 11).

    In short, "[t]he Rebernicks knew both: (1) that their umbrella policy could give them underinsured-motorist coverage via an endorsement to that policy, and (2) what underinsured-motorist coverage encompassed. As the trial court recognized, there is no warrant in the context of an equitable reformation action to relieve the Rebernicks of the consequences of their decision to forego an underinsured-motorist coverage endorsement in their American Family umbrella policy, thereby requiring American Family to pay for a risk it did not assume" (¶ 13).

    Judge Kessler concurred in part and dissented in part. Specifically, she disagreed with the majority's conclusion that American Family met its obligation to notify the Rebernicks about the UIM coverage.

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    Juvenile Law

    Sex Offenders - Jury Trial - Civil Liberties

    State v. Jeremy P., 2005 WI App 13 (filed 7 Dec. 2004) (ordered published 26 Jan. 2005)

    Jeremy P. was adjudicated a delinquent after the court found that he committed a third-degree sexual assault. The dispositional order required him to register as a sex offender. Jeremy attacked the mandatory registration of juvenile sex offenders on multiple constitutional grounds.

    The court of appeals, in an opinion authored by Judge Kessler, affirmed in part and reversed in part. First, the court disagreed with Jeremy's argument that the statutory scheme denied his constitutional right to a jury trial. The argument foundered on the court's analysis of several state and federal cases, especially cases holding that sex offender registration "is not criminal punishment" (¶ 13).

    Second, the court refused to identify "a new constitutional liberty interest" within the "`penumbra' of the Bill of Rights" (¶ 17). "As Jeremy acknowledges, neither the United States Supreme Court nor the Wisconsin Supreme Court has recognized that children have a fundamental liberty interest in having their best interest considered in any decision the government makes in their lives" (¶ 19). The court was "unconvinced that this interest is so rooted in the traditions and conscience of our people as to be ranked as fundamental" (¶ 21).

    Third, the court rejected Jeremy's equal protection attack. "Jeremy acknowledges that neither the Wisconsin Supreme Court nor the United States Supreme Court has recognized that minors have a fundamental constitutional right to have their best interest considered in any decision made about them by the State, and that neither court has recognized children as a suspect class. We reject Jeremy's argument with respect to recognizing a new fundamental liberty interest for the same reasons articulated with respect to substantive due process" (¶ 25).

    The court also disagreed with Jeremy's contention that children constitute a "suspect class." "As the State points out, recognizing children as a suspect class would create a giant class of persons, as all children under the age of eighteen would be members of the class. Such a class would also be transient, as children would emerge from the class upon reaching the age of majority. We conclude that recognizing all children as members of a suspect class would be inconsistent with other classes where those in the class retain that classification for life, and have been singled out for purposeful, unequal treatment" (¶ 28).

    Finally, the court did reverse and remand "so that the trial court can consider whether to stay the registration component of the dispositional order. In its written order, the trial court specifically concluded that it lacked the discretion to stay the sex offender registration requirement. Subsequent to the trial court's decision, the Wisconsin Supreme Court decided Cesar [State v. Cesar G., 2004 WI 61], which concluded that `[a] circuit court has discretion under Wis. Stat. § 938.34(16) to stay that part of a dispositional order requiring a delinquent child to register as a sex offender.' We conclude that it is appropriate to give the trial court an opportunity to exercise discretion, as of the date of its original decision, with respect to staying the sex offender registration component of Jeremy's dispositional order. Although Jeremy did not explicitly seek this remedy, the heart of his appeal is his desire to avoid having to register as a sex offender" (¶¶ 30-31).

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    Prisoner Litigation

    Writ of Certiorari - Failure of Circuit Court to Consider Administrative Proceedings

    State ex rel. Kaufman v. Karlen, 2005 WI App 14 (filed 2 Dec. 2004) (ordered published 26 Jan. 2005)

    Kaufman filed a petition for a writ of certiorari seeking review of prison disciplinary actions against him. Attached to his petition were various documents relevant to each disputed action, including the conduct report, the disciplinary decision, and the appeal to the warden. The circuit court did not issue a signed writ of certiorari for service on the warden and consequently the prison records custodian never filed a certified return. Ultimately, the circuit court, acting sua sponte, dismissed the petition. The court reviewed the petition and the documents submitted and concluded that the disciplinary decisions were reasonable.

    On appeal, Kaufman contended that the circuit court erred by refusing or failing to issue a signed writ of certiorari that would have required the prison records custodian to file a certified return of the record developed during the disciplinary committee proceedings and the administrative appeals. In a decision authored by Judge Higginbotham, the appellate court reversed. It concluded that the circuit court erred by refusing to issue a writ of certiorari and by sua sponte dismissing the prisoner's petition on its merits without consideration of the full record and briefs from the parties.

    Due process requires the court to base its decision on a complete record of the proceedings below and on briefs submitted by the parties. The petition for the writ is not the full development of the petitioner's position. "We conclude [the petitioner's] right to be heard in this case has been limited by the court's decision to decide the case without the record and by failing to afford [the petitioner] the opportunity to argue his objections to the disciplinary committee's decisions" (¶ 9). The court of appeals held that the circuit court's actions violated the dictates of due process (see id.).

    In a footnote, the court indicated that it was not suggesting "that a circuit court may not dismiss a certiorari petition without ordering a return if the petition fails to state a claim, such as where the petition fails to allege or attach documents showing that the petitioner exhausted his or her administrative remedies or when a petition shows on its face that it is untimely or for the other reasons as stated in Wis. Stat. § 802.05(3)(b)" (¶ 9 n.3).

    Wisconsin Prisoners Housed in Out-of-State Prisons - Certiorari Review of Disciplinary Actions

    State ex rel. Myers v. Swenson, 2004 WI App 24 (filed 18 Nov. 2004) (ordered published 21 Dec. 2004)

    The petitioner, a Wisconsin inmate confined at a prison in Minnesota, was subjected to disciplinary action in Minnesota and sought certiorari review of the disciplinary decision in a Wisconsin circuit court. He never sought judicial review in a Minnesota court. The Wisconsin circuit court granted a motion to quash the writ, in part because it concluded that it lacked competency to review the out-of-state disciplinary decision. In a majority decision authored by Judge Lundsten, the court of appeals affirmed.

    Wis. Stat. section 302.02(3t) provides that when a Wisconsin inmate is disciplined while at an out-of-state prison, judicial review of that disciplinary action may proceed in the state where the prison is located. "It follows that Wisconsin courts generally lack competency to conduct certiorari review of out-of-state disciplinary proceedings" (¶ 9). Although this is the general rule, the court recognized in State ex rel. Curtis v. Litscher, 2002 WI App 172, 256 Wis. 2d 787, 650 N.W.2d 43, that exceptions may be made in "unique circumstances." "We concluded in Curtis that the 'unique circumstances' in the case precluded Wis. Stat. § 302.02(3t) from affording the inmates judicial review in Tennessee' because the Wisconsin inmates lacked 'access to the Tennessee courts'" (¶ 10) (internal citations omitted).

    In this case the appellate court elaborated on the meaning of Curtis. The court concluded that section 302.02(3t) deprives Wisconsin courts of competency to conduct certiorari review of out-of-state prison disciplinary decisions unless the inmate can show that he or she was denied judicial review on jurisdictional or competency grounds in the state where the disciplinary action occurred. In this case the petitioner never sought judicial review in Minnesota, and thus he never obtained a court decision asserting a lack of jurisdiction or competency to review the matter in that state. Accordingly, he failed to make the showing that judicial review was unavailable under the statute, and the Wisconsin circuit court thus lacked competency to review the matter. The court also rejected the inmate's claim that section 302.02(3t) is unconstitutional on equal protection grounds.

    Judge Dykman filed a concurring opinion.

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    Motor Vehicle Law

    OWI - Counting Prior Convictions for Penalty Enhancement Purposes

    State v. Matke, 2005 WI App 4 (filed 9 Dec. 2004) (ordered published 26 Jan. 2005)

    The defendant was charged with operating a motor vehicle while intoxicated (OWI) (fourth offense) for a violation committed in June 2001. At the time he had three prior OWI convictions. However, between the June 2001 offense and the date on which he was convicted of that offense, he committed and was convicted of two more OWI offenses. The prosecutor therefore amended the OWI charge for the June 2001 offense to a sixth offense. The defendant was convicted and sentenced as a sixth offender.

    On appeal he argued that the trial court erred in sentencing him for a sixth offense because, at the time he committed the June 2001 offense, he had only three OWI convictions. In a decision authored by Judge Deininger, the court of appeals affirmed.

    The appellate court concluded that the circuit court properly sentenced the defendant as a sixth offender, because he had five prior OWI convictions at the time of sentencing on the June 2001 offense. The OWI penalty statute (Wis. Stat. § 346.65(2)) provides for enhanced penalties if the total number of relevant prior convictions within a specified period of time equals a certain number. The supreme court has concluded that this language evinces the legislature's intent that enhanced penalties apply when the requisite number of convictions has accumulated within the period specified by law, regardless of the order in which the offenses were committed and the convictions were entered. See State v. Banks, 105 Wis. 2d 32, 313 N.W.2d 67 (1981).

    The defendant also argued that he was denied due process when the court sentenced him for a sixth OWI offense without requiring the state to convince a jury beyond a reasonable doubt that he had five prior convictions. For this argument he relied on Apprendi v. New Jersey, 530 U.S. 466 (2000), in which the U.S. Supreme Court concluded that penalty enhancers that increase the maximum penalty for the underlying offense must be proved beyond a reasonable doubt to the jury. The Wisconsin appellate court rejected this interpretation of Apprendi: "The Court specifically excluded sentence enhancements for prior convictions from its holding in Apprendi: `Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt'" (¶ 16, quoting Apprendi, 530 U.S. at 490) (emphasis added).

    Lastly, the appellate court rejected the defendant's argument that the trial court erroneously exercised its discretion in ordering his sentence for the June 2001 offense to be served consecutively to any sentences he was then serving. Among the court's reasons for upholding the consecutive sentence was the court's agreement with the prosecution that "imposing concurrent sentences for successive [OWI] convictions would contravene the legislature's clearly expressed intent that multiple [OWI] offenders receive harsher punishment upon each successive conviction" (¶ 19).

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    Torts

    Common Carrier - Special Verdict - Insurance

    Hunt v. Clarendon Nat'l Ins. Servs. Inc., 2005 WI App 11 (filed 14 Dec. 2004) (ordered published 26 Jan. 2005)

    Clairene was struck by a car while crossing a street after being dropped off by her school bus. The plaintiffs sued the bus driver, the bus company, and the insurer. A jury decided that the defendants were not liable for Clairene's injuries.

    The court of appeals, in an opinion written by Judge Kessler, reversed. First, the trial court should have instructed the jury that the school bus company was a common carrier with heightened duties. Specifically, the bus company "makes itself available to public school districts, offers to transport persons identified by the district to various locations at various times (also identified by the district), and receives payment from the district for those services. Clearly, the service is for hire" (¶ 11). Absent the standard common carrier instruction, the jury was probably misled because it would have held the bus driver to the same standard of care as Clairene, instead of the "very high degree" of care applicable to common carriers (see ¶ 17).

    Second, the trial court erroneously declared that the bus company's uninsured motorist coverage would not cover Clairene's injuries. (Apparently the driver who hit her was uninsured.) "We conclude that an insured, purchasing coverage for a school bus, would expect that a child exiting a school bus and immediately walking behind the bus to cross the street would come within the definition of occupying and would be afforded coverage if injured during that process" (¶ 30).

    Third, the plaintiffs argued that the driver of the car should not have been placed on the verdict because there was no evidence of her negligence. The court of appeals reminded the trial court that, on remand, there must be sufficient evidence of that driver's negligence to warrant placing her on the special verdict (¶ 31). The court also addressed an evidence issue that is fact intensive and not of general interest.

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    Trespass

    Public Highways - Abutting Landowners - Right of Access

    Geyso v. Daly, 2005 WI App 18 (filed 15 Dec. 2004) (ordered published 26 Jan. 2005)

    The plaintiffs owned the land beneath a county highway and the adjacent right-of-way. The defendants owned land abutting the right-of-way. The defendants can access the highway using three routes, two of which cross the right-of-way on the plaintiffs' property. One route is the defendants' main driveway, and the plaintiffs did not dispute the defendants' right to use it to access the highway. However, the plaintiffs sought injunctive relief to prohibit the defendants from accessing the highway by using the "second gate" route to cross the plaintiffs' property.

    The principal question before the appellate court was whether the defendants have an unlimited right of access to the highway or alternatively, as urged by the plaintiffs, only a right to reasonable access. As members of the public, the defendants have but an "easement of passage" in the right-of-way and may use it only for highway purposes. "Here, however, the [defendants'] use of the second gate achieves a private means of ingress and egress that does not further the purpose of the public easement. We agree with the [plaintiffs] that the [defendants'] use of the second gate is inconsistent with the rights of the general public; therefore, the [defendants] cannot claim that the public easement grants them a privilege to enter onto the [plaintiffs'] property" (¶ 9).

    The defendants also argued that their privilege to cross the plaintiffs' property stems from their status as abutting landowners. They relied on Wis. Stat. section 80.47, which states: "The owners of land abutting on any highway ... shall have a common right in the free and unobstructed use thereof to its full width...." They argued that the statute codifies the common-law right of a property owner to the free and unobstructed use of streets and highways upon which the property abuts.

    Landowners whose property abuts a public roadway, but who have no ownership interest in the land under the roadway, are abutting landowners for purposes of access rights. However, they do not have an unfettered right to access the highway. The appellate court drew on cases from Wisconsin and other jurisdictions to conclude that the right attributed to an abutting landowner is the "right of reasonable access" (¶ 12). In this case the question thus was whether the second gate is necessary to provide the defendants with reasonable access to the highway. If not, the defendants have no privilege to enter onto the plaintiffs' property using that entrance.

    The appellate court concluded that "the record clearly supports the jury finding that the [defendants] trespassed on the [plaintiffs'] property by driving vehicles and farm equipment on the right-of-way using the second gate. The jury's answer to the first question of the special verdict indicates that it believed the main driveway provided the [defendants] with reasonable access to [the county highway]" (¶ 16).

    In a footnote, the court observed that "[g]enerally, an abutting landowner owns to the center of the highway. See Miller v. City of Wauwatosa, 87 Wis. 2d 676, 680, 275 N.W.2d 876 (1979). Here, the [defendants] do not own to the center of [the highway] because the land extending to the eastern edge of the highway and its right-of-way is privately owned by the [plaintiffs]" (¶ 11 n.1).

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    Worker's Compensation

    Job Duties - Departures

    E.C. Styberg Eng'g Co. v. Labor & Indus. Review Comm'n, 2005 WI App 20 (filed 22 Dec. 2004) (ordered published 26 Jan. 2005)

    An employee, Hetchler, injured his knee while playing softball on company property during a paid company break. Although an administrative law judge sided with the company, Styberg, in finding that Hetchler's injury was not covered by worker's compensation, the Labor and Industry Review Commission (LIRC) reversed. "First, Styberg had put up the basketball hoop on its premises and invited employees to use it. Second, credible testimony in the record established that after this time workers frequently played basketball and softball. LIRC concluded that based on its affirmative actions with regard to the hoop, Styberg should have become aware by the time of Hetchler's injury that employees were playing sports during their breaks" (¶ 15). The circuit court upheld LIRC's decision.

    The court of appeals, in an opinion written by Judge Brown, affirmed. Since LIRC's determination involved a "value judgment" that employed its "significant expertise," the court "defer[s] to the agency's conclusions so long as they are reasonable, even if [the court] might have decided differently" (¶ 18). De novo review was not warranted.

    Under the deferential review standard, LIRC's determination was reasonable. "Despite what respondents imply, the agency did not find Styberg liable for every conceivable type of sporting activity that might potentially occur on its premises merely because it put up a basketball hoop. Rather, it inferred that because Styberg affirmatively encouraged some sporting activity on its premises, this action hastened the point at which it should have discovered the employees' frequent softball games. Again, LIRC placed special emphasis on the fact that the employees had been `playing softball on the employer's premises for some time.' We see nothing unreasonable in LIRC's determination that the softball games had persisted long enough for Styberg to become aware of them by the time of Hetchler's injury. Certainly one could reasonably conclude that when an employer invites some sporting activity on its premises, the employer will discover how employees are using the designated area sooner than if the employer attributed no particular significance to a part of the premises not set aside for any special, sports-related purpose" (¶ 28). Moreover, LIRC reasonably applied this rule as set forth in a leading worker's compensation treatise [Larson's Workers' Compensation Law], especially since case law was somewhat muddled and the determination "comported both with the statutory language and purpose" (¶ 33).

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