Vol. 78, No. 7, July
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
Attempted Armed Robbery - Party Liability of
Jackson, 2005 WI App 104 (filed 15 March 2005) (ordered
published 25 May 2005)
The defendant was charged with and convicted of being a party to the
substantive crime of attempted armed robbery. The theory of liability
was that he was a conspirator in the commission of the crime.
See Wis. Stat. § 939.05(2)(c). On appeal the defendant
argued that he had been convicted of "conspiracy to attempt" and that
this is a nonexistent crime.
In an opinion authored by Judge Fine, the court of appeals disagreed.
The defendant was not charged under the inchoate conspiracy statute
(Wis. Stat. § 939.31), but rather was charged with attempted armed
robbery as a party, with the theory of party liability being that he was
a conspirator pursuant to Wis. Stat. section 939.05(2)(c). "There is a
distinction between conspiracy as a substantive inchoate crime under
sec. 939.31, and conspiracy as a theory of prosecution for a substantive
crime under sec. 939.05(2)(c), and this distinction is significant here"
(¶ 10). The crime of conviction in this case was attempted armed
robbery. Conspiracy was but the theory for the defendant's liability for
being a party to that attempted armed robbery. Accordingly, the circuit
court did not err in instructing the jury about the conspiracy theory of
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Guilty Pleas - Truth-in-Sentencing - Failure of Court to
Inform Defendant Regarding Nonexistence of Parole and Good Time Under
State v. Plank,
2005 WI App 109 (filed 19 April 2005) (ordered published 25 May
The defendant appealed from a judgment of conviction for substantial
battery and from an order denying his motion for postconviction relief.
Among other things he argued that he was entitled to withdraw his no
contest plea because the circuit court failed to explain that, under the
truth-in-sentencing laws, he would not be eligible for early release or
be given good-time credit. In a decision authored by Judge Peterson, the
court of appeals affirmed.
The appellate court first had to determine whether the defendant met
his burden of showing that the lack of good time or parole under the
truth-in-sentencing laws is "a potential punishment" of which the court
was required to inform him. "A defendant does not understand 'the
potential punishment' if the defendant is not informed of the direct
consequences of a plea. However, the circuit court need not inform a
defendant of collateral consequences of a plea. Direct consequences have
'a definite, immediate, and largely automatic effect on the range of a
defendant's punishment.' The distinction between direct and collateral
consequences essentially recognizes that it would be unreasonable and
impractical to require a circuit court to be cognizant of every
conceivable consequence before the court accepts a plea" (¶ 13)
In making his argument the defendant relied on State v.
Byrge, 2000 WI 101, 237 Wis. 2d 197, 614 N.W.2d 477. In
Byrge, the circuit court sentenced the defendant to life
imprisonment and, under the law in existence at the time, was required
to make a parole eligibility determination. The court chose a parole
eligibility date that exceeded Byrge's life span and thus assured that
he would never be paroled. Byrge sought to withdraw his plea because the
circuit court failed to inform him that the maximum sentence he faced
was not merely life in prison with the possibility of parole but
effectively life without the possibility of parole. On appeal the
supreme court concluded that the circuit court's authority to establish
the parole eligibility date was a direct consequence of Byrge's plea
because parole eligibility in that discreet situation implicated
punishment and increased the maximum penalty.
In the present case the defendant was not "ineligible" for parole or
good time - rather, there simply is no parole or good time under the
truth-in-sentencing laws. Wisconsin eliminated parole and good-time
credit when it adopted its truth-in-sentencing system. Said the court,
"at most, the [defendant's] complaint is that he misunderstood the law
concerning a collateral consequence of his plea" (¶ 17). A
misunderstanding of a collateral consequence is not a basis for plea
Miranda - Noncustodial Interrogation - Anticipatory
Invocation of Miranda Rights
State v. Hassel,
2005 WI App 80 (filed 15 March 2005) (ordered published 29 April
On the evening of May 7, 2002, police officers came to the
defendant's home and spoke to the defendant about recent fires. Several
times the defendant told the officers, "I can't talk to you." One of the
officers testified that he did not consider these statements to be
attempts by the defendant to invoke the defendant's
Mirandarights, because the parties continued to talk. The
officer testified that "[h]e asked us questions and we asked him." The
officer further testified that he did not give Miranda warnings
because the defendant was not in custody. At the conclusion of the
conversation, the officers arrested the defendant and took him to jail.
The defendant was told that the officers would be back to talk to him
the next morning.
At 9 a.m. on May 8, the same two officers, accompanied by a state
agent, returned to interview the defendant. The officers indicated they
wanted to speak to him about his chemical dependencies and his problem
of starting fires. One of the officers read the defendant his
Mirandarights, and the defendant signed an acknowledgment and
waiver form. He also stated something to the effect of "I don't know if
I should talk to you," but during the subsequent three-hour interview,
he never asked to have the questioning stopped. During the interview, he
made incriminating statements.
The defendant filed a motion to suppress his incriminating
statements, contending that he had invoked his right to silence on May 7
and that this right was violated by the continued questioning on May 8.
The circuit court denied the motion. In a decision authored by Judge
Hoover, the court of appeals affirmed.
The defendant argued that he invoked his right to remain silent after
he was arrested. He argued in the alternative that the police knew on
May 7 that he intended to invoke the right and by interrogating him on
May 8, they failed to "scrupulously honor" this prior invocation. The
appellate court disagreed with both arguments.
The court rejected the defendant's contention that the police failed
to "scrupulously honor" his May 7 invocation of his right to remain
silent. The court held that the defendant could not preemptively invoke
that right on May 7 because he was not then being subjected to custodial
interrogation and Miranda safeguards apply only to custodial
interrogations (see ¶¶ 8-9).
The court also concluded that the defendant's statement on May 8 that
"I don't know if I should talk to you" was ambiguous and not a clear
invocation of the right to remain silent. The statement did not indicate
the defendant's desire to remain silent, only his uncertainty as to
whether he should remain silent (see ¶ 19).
In sum, the defendant was not entitled to anticipatorily invoke the
right to remain silent on May 7 because he was not in custody at that
time. He also failed to unambiguously articulate his invocation of the
right to remain silent on May 8 (see ¶ 21). Accordingly,
the court of appeals held that the circuit court correctly denied the
Sentencing - Defendant's Youth as Sentencing
State v. Davis,
2005 WI App 98 (filed 8 March 2005) (ordered published 25 May 2005)
The defendant was found guilty of four counts of second-degree sexual
assault for committing what the trial court described as "a vicious,
predatory, animalistic, dehumanizing attack on an unsuspecting victim"
(¶ 17). The defendant was 14 years old at the time of the offenses.
The trial court imposed lengthy sentences. On appeal, one of the issues
was whether the trial court erroneously exercised its discretion by
failing to take into account the defendant's age at the time of the
crimes. In a decision authored by Judge Wedemeyer, the court of appeals
The court said that it is well established that trial courts must
consider three primary factors in passing sentence: the gravity of the
offense, the character of the defendant, and the need to protect the
public. The weight to be given to each of these factors is a
determination particularly within the trial court's discretion and,
after consideration of all relevant factors, the sentence may be based
on any one of the three primary factors. The court may also consider
additional factors in arriving at a sentence. A defendant's age is one
of these secondary factors (see ¶¶ 13-14).
"The trial court is not required to consider a defendant's age
because it is a secondary factor; moreover, even if age is addressed,
the trial court determines whether it should carry any weight" (¶
18). The court of appeals noted that the sentencing record made clear
that the trial court was aware of the defendant's young age, but that
the court determined that the defendant's youth did not significantly
mitigate the appropriate sentence. After considering the facts and
circumstances pertinent to the defendant's crimes, the trial court gave
the severity of the crime the most weight. The trial court also
concluded that the defendant had a very poor character, which was
evidenced in part by his refusal to accept responsibility for his
actions despite the undisputable DNA evidence that linked him to these
crimes. The trial court also found that the defendant's refusal to
acknowledge responsibility was relevant to the risk that he would commit
future acts and that the need to protect the community from him was
extremely high. "Clearly, the trial court determined that the three
primary factors outweighed any mitigating effect that the young age may
have offered. This did not constitute an erroneous exercise of
discretion" (¶ 19).
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Divorce - Property Division - Divisible and Nondivisible
Derr v. Derr, 2005
WI App 63 (filed 17 March 2005) (ordered published 29 April 2005)
Michael and Martha Derr were married in 1990. In 1994 Michael's
parents gave him a 27-unit apartment building that was titled solely in
Michael's name. In 1999 Michael and Martha obtained a $300,000 mortgage
equity loan, using Michael's apartment building as collateral, and used
the money for the benefit of the marriage. The mortgage note indicated
that the loan was made to both Michael and Martha, and mortgage payments
were made with marital funds. At the time of Michael and Martha's
divorce, the outstanding principal balance on the mortgage loan was
$282,935 and the apartment building's fair market value was
During the marriage, Michael managed the 27-unit apartment building
and other smaller properties. In the divorce judgment, the circuit court
categorized the apartment building and the mortgage debt as Michael's
nondivisible asset and nondivisible debt. On appeal Martha argued that
the court improperly categorized the apartment building as Michael's
nondivisible property. Michael argued that the court improperly
characterized the mortgage debt on the apartment building as
nondivisible. In a decision authored by Judge Lundsten, the court of
appeals concluded that the circuit court correctly categorized the
apartment building as Michael's nondivisible property, but that the
court should have deemed the mortgage debt a divisible debt.
The general rule in Wisconsin is that assets and debts acquired by
either party before or during the marriage are divisible upon divorce.
There is a statutory exception for property acquired by gift or by
reason of death or with funds acquired by gift or by reason of death.
See Wis. Stat. § 767.255(2)(a). The categorization of
property as nondivisible under section 767.255(2)(a) does not
necessarily dictate how such property will be treated when the court
divides divisible property. Under some circumstances courts may divide
property to avoid "hardship" or inequities that might result from
according the property nondivisible status.
The court began its analysis in this case by discussing terminology:
"In our case law addressing whether property is subject to division
under Wis. Stat. § 767.255(2)(a) we often speak of 'identity' and
'character' as if they constitute a complete two-pronged analysis.
However the 'identity' and 'character' inquiries do not comprise a test.
Instead, they are labels for two distinct inquiries - tracing and
donative intent - that may or may not fully resolve the divisible status
of property at the time of a divorce" (¶ 14).
The identity inquiry addresses whether the gifted or inherited asset
has been preserved in some present identifiable form so that it can be
meaningfully valued and assigned. Thus, the identity inquiry is purely a
matter of tracing, i.e., of determining the value and source of an asset
or the value and source of a part of an asset. "Tracing is nothing more
than the exercise of following an asset trail. Tracing does not, by
itself, resolve whether an item is divisible under Wis. Stat. §
767.255(2)(a), unless tracing is either the only disputed issue or the
party asking the court to declare an asset non-divisible is unable to
provide evidence that permits the tracing of an identifiable part of the
asset to an original non-divisible asset" (¶ 22).
The character inquiry, as it pertains to section 767.255(2)(a),
involves no more and no less than determining whether the owning spouse
intended to donate nondivisible property to the marriage, i.e., did the
owning spouse have donative intent. "Donative intent is ultimately a
question of subjective donative intent" (¶ 25). When an owning
spouse acts in a manner that normally would evince an intent to give
property to the marriage, donative intent is presumed, subject to
rebuttal by sufficient countervailing evidence.
"Circumstantial historical facts may give rise to the legal
presumption that an owning spouse gifted property to the marriage. This
presumption arises if the owning spouse acts in a manner that would
normally evince an intent to gift. However, because donative intent is
ultimately a question of subjective donative intent, other evidence may
persuade a circuit court that the owning spouse consciously considered
the matter and subjectively intended that gifting not occur. In this
circumstance, donative intent is lacking and the property remains
non-divisible. At the same time, circuit courts are not obliged to
accept the testimony of an owning spouse about his or her subjective
thoughts. If a circuit court makes an express factual finding that a
spouse consciously did intend to gift or consciously intended no gift,
we will accord that finding deference. If the court does not make an
express factual finding, we will normally assume fact finding consistent
with the court's ultimate decision. For example, if the record contains
evidence of subjective thoughts tending to rebut a presumption of
donative intent, if the circuit court makes no express findings
regarding this rebuttal evidence, and if the circuit court determines
there was a gift, then we will normally assume the circuit court
implicitly found the rebuttal evidence lacking in credibility" (¶
In this case the court of appeals concluded that the apartment
building was properly categorized as Michael's nondivisible property.
The parties agreed that the apartment building was Michael's
nondivisible asset when he received it as a gift from his parents during
the marriage. But they disputed whether the mortgage transaction and
repayment of the mortgage debt with marital funds had the effect of
converting the building to divisible property. The court concluded that
they did not. "[W]e reject Martha's argument that mortgage payments made
with marital funds created equity in the apartment building belonging to
the marriage" (¶ 59). With regard to donative intent, the court
concluded that, "without more, Michael's act of putting the property at
risk by using it as collateral for a marital loan does not create a
presumption that the owning spouse intended to donate part or all of the
property to the marriage" (¶ 62).
With respect to the mortgage debt, the appellate court concluded that
it is divisible because it is not exempt from division under section
767.255(2)(a). "It is true that Michael made the loan possible by
putting equity in his apartment building at risk, but he did not in any
meaningful sense 'acquire' the debt with 'funds acquired' from the
gifted building from his parents, as those terms are used in §
767.255(2)(a)3. We stress the limited nature of our holding. In this
case, a gifted non-divisible asset was used as collateral for a loan.
The marriage acquired an asset, $300,000 cash, and a debt of equal
value. It was undisputed that the loaned money was used for the benefit
of the marriage, that both parties were liable for the debt, and that
marital funds were used to make payments on the debt. Under these
circumstances, the debt is divisible" (¶¶ 48-49).
Uniform Interstate Family Support Act - Discovery -
Halko v. Halko,
2005 WI App 99 (filed 13 April 2005) (ordered published 25 May 2005)
The parties were married and later divorced in Illinois. The mother
was awarded custody of the three minor children, and the father was
ordered to pay child support. After the divorce, the father moved to
Wisconsin and the mother moved to Florida. Several years later the state
of Florida filed a request to have the divorce judgment registered in
Wisconsin for the purposes of enforcing the child support award. (The
father allegedly was substantially in arrears on child support
payments). The father objected to the registration of the divorce
judgment and presented to the family court commissioner evidence of a
defense against registration. However, he was unable to gather
additional evidence necessary to complete his defense because he could
not get the mother to attend a deposition in Wisconsin. The circuit
court then granted his motion to dismiss for discovery violations.
The first question on appeal was whether Wis. Stat. section 804.12,
which allows a court to dismiss an action as a sanction for discovery
violations, applies to actions involving a contest of registration or
enforcement of child support orders pursuant to Wis. Stat. section
769.607, which is part of the Uniform Interstate Family Support Act. In
a decision authored by Judge Brown, the court of appeals concluded that
circuit courts have both statutory and inherent authority to dismiss a
case for discovery violations. The court rejected the state's argument
that the sanction of dismissal for violations of discovery rules is
unavailable to a circuit court in a Wis. Stat. chapter 769 proceeding
(see ¶ 13).
"Although the foregoing reveals that dismissal can be a permissible
sanction for noncompliance with a discovery order, this harsh penalty is
appropriate only in extraordinary circumstances. The circuit court
should not consider it without first determining that the violating
party's noncompliance constituted egregious conduct" (¶ 14). The
court of appeals reversed the decision and remanded the case to the
circuit court to either determine whether egregious conduct occurred in
this case or to fashion other appropriate relief that does not require
such a finding.
Child Support - Gross Income - Undistributed Profits From Minority
Interest in S Corporation
Winters v. Winters,
2005 WI App 94 (filed 13 April 2005) (ordered published 25 May 2005)
The parties divorced in 1993. Pursuant to the marital settlement
agreement, the father is obligated to pay 25 percent of his gross income
as child support for his two children. At the time of the divorce, the
father owned 200 shares of stock in Precision Color Graphics Inc. (PCG),
which were awarded to him in the settlement agreement. The settlement
agreement provided that dividends, distributions, or proceeds from the
sale or redemption of this stock would be divided, with the father
receiving 90 percent and each of the children receiving 5 percent.
The father has a 10 percent minority ownership interest in PCG. PCG
is an S corporation and therefore taxes are paid by the shareholders.
PCG retains all of its earnings, distributing cash to allow shareholders
to pay the tax liability created by the earnings. Pursuant to PCG's
stock redemption agreement, the father is permitted to sell his stock.
However, as a minority shareholder, he has no power to force
distribution of the company's retained earnings.
In this proceeding the mother sought judicial review of the father's
child support obligation. She contended that he improperly excluded
investment profit when calculating his child support obligation. The
circuit court ruled in the father's favor, holding that neither the
proportionate share of net profits from his PCG investment nor the cash
distributions paid to him should be considered income available for
child support purposes, and that the children's share of the PCG
proceeds should be distributed on final sale or redemption of the stock.
In a decision authored by Judge Snyder, the court of appeals
In Weis v. Weis, 215 Wis. 2d 135, 572 N.W.2d 123 (Ct. App.
1997), the court had held that two factors must be considered when
determining whether undistributed partnership profits should be included
in the calculation of a payer's child support obligation. The first
factor is whether the child support payer has the ability to
individually control or gain access to the undistributed earnings. The
second factor is whether the company has a valid business reason for
retaining the earnings. In this case it was undisputed that the father
is a minority shareholder in PCG and does not have the ability to
individually control or access undistributed earnings. Therefore, the
first Weis condition was not satisfied. Because both
Weis conditions must be present for the court to consider
undistributed earnings for child support purposes, the court did not
address the second factor.
[Editors' Note: The appellate court did not address the
mother's argument that the cash distribution by PCG to its shareholders
for payment of taxes on the undistributed earnings should be considered
income available for child support purposes. The reason given by the
court was that this argument was not developed in the briefs nor
supported therein by legal authority. See ¶ 13.]
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Subrogation - HMO
Torres v. Dean Health Plan
Inc., 2005 WI App 89
(filed 21 April 2005) (ordered published 25 May 2005)
After Torres was injured in a car accident, her health maintenance
organization, Dean HMO, provided her with medical services. Dean HMO
later asserted a subrogation interest when Torres settled with the
third-party tortfeasor. Torres paid Dean HMO and then filed this
lawsuit, "arguing that Wisconsin statutes prohibit HMOs from exercising
subrogation rights" (¶ 2). The circuit court granted Dean HMO's
motion to dismiss.
The court of appeals, in a decision authored by Judge Lundsten,
affirmed. "The central question is whether Wis. Stat. §§
609.01 and 609.91 (2003-04) prohibit HMOs from asserting contractual
subrogation rights with respect to actual medical expenses incurred by
an HMO for medical care covered by the HMO's contract with its enrollee"
(¶ 8). The court held that nothing in section 609.01 prohibited the
HMO's subrogation claim. More precisely, section 609.01(2) "does not put
in place a general limitation on all sources of funds available to HMOs.
The statutory language is plain as applied here; it does not even
arguably state that HMOs may receive funds only in the form of
'predetermined periodic fixed payments.' Instead, this language
differentiates HMOs from other traditional health care insurers by
specifying, among other things, that HMOs must provide 'comprehensive
health care services' in return for 'predetermined periodic fixed
payments'" (¶ 10).
Nor did section 609.91 affect this conclusion. "Section 609.91 does
impose limits, but not any limits that conflict with an HMO's exercise
of subrogation rights" (¶ 11). Rather, it is "replete with language
immunizing enrollees and limiting their liability. The statute does not
speak to the sources of funds available to HMOs, except to the extent
that it limits funds HMOs may obtain from enrollees" (¶ 13).
Finally, the court rejected the contention that "HMOs are
collecting funds from enrollees when they enforce subrogation rights"
(¶ 14). Specifically, HMOs are not "collect[ing] twice for the same
service" when they assert subrogation rights (¶ 18).
The court addressed several other arguments relating to the same
issue. First, this case is not controlled by Dorr v. Sacred Heart
Hospital, 228 Wis. 2d 425, 597 N.W.2d 462 (Ct. App. 1999), in which
the court of appeals held only that a medical provider "had no right to
a lien against the HMO enrollee with respect to medical services covered
by the enrollee's HMO plan because the enrollee owed no debt to the
provider" (¶ 22). Second, the court was not persuaded by a Maryland
case (see ¶¶ 24-31). Finally, it also found
unpersuasive Torres' "fact-specific argument" that related to the
timing, method, and manner of payment (see ¶¶
Primary Coverage - Umbrella Policy - "Drop Down"
Degnitz, 2005 WI App 90 (filed 27 April 2005) (ordered
published 25 May 2005)
Hansen, a high school athlete, was injured when the school bus on
which he was a passenger was involved in an accident. A dispute soon
arose between the insurance carriers for the bus company and the school
district. By the time Hansen filed his lawsuit, the bus company's
insurer had settled with another injured plaintiff and thereby exhausted
its primary liability policy. "But the bus company's insurer had also
issued an umbrella policy with a provision stating that, in the event
exhaustion occurs, the umbrella policy replaces the exhausted primary
policy. This provision is known in the insurance industry as a 'drop
down' provision, and the trial court held that the 'drop down' made the
bus company's umbrella policy, not the school district's business auto
policy, the 'next layer of liability'" (¶ 1).
The court of appeals, in an opinion written by Judge Brown, affirmed.
"We do not see how an umbrella policy can purport to 'replace' primary
coverage without affording primary coverage and losing its character as
an umbrella policy. Yet, that is exactly what other terms in the policy
- to which the 'Limits of Liability' section purports to make the
exhaustion clause subject - appear to contemplate. The 'Conditions'
section of the policy includes an 'other insurance' condition. This
section reads: 'The insurance afforded under this policy shall apply as
excess insurance over other collectible insurance (other than insurance
applying as excess to our limit of liability) available
to the insured and covering ultimate net
loss covered by this insurance.' Obviously, this condition was
designed to make clear that the umbrella policy was in fact meant to be
an umbrella policy. However, the intent of the exhaustion clause is to
turn the policy into a primary policy when the primary policy is
exhausted. We simply cannot give simultaneous effect to both provisions.
Because we must resolve this ambiguity in favor of coverage, we hold the
policy to say that when exhaustion of the auto policy occurs, the excess
clause no longer applies and the umbrella policy morphs into a primary
policy" (¶ 11). The court also reconciled its holding with other
language in the limits of liability section regarding scheduled and
unscheduled underlying insurance (see ¶ 13).
UIM Coverage - Reducing Clauses
Klinger v. Prudential Prop.
& Cas. Ins. Co.,
2005 WI App 105 (filed 20 April 2005) (ordered published 25 May
David Klinger was killed in a car accident caused by an underinsured
driver. In the ensuing litigation, the circuit court granted declaratory
relief that upheld the validity of the underinsured motorist (UIM)
reducing clause provision in the decedent's Prudential insurance
The court of appeals, in an opinion written by Judge Nettesheim,
affirmed. The appellants contended that the reducing clause was
unenforceable, relying on Hanson v. Prudential Property &
Casualty Insurance Co., 2002 WI App 275. The court of appeals held,
however, that Hanson "no longer states the current law on this
issue" (¶ 2). "In Hanson, we construed similar UIM
reducing clauses in a Prudential insurance policy to say that 'the
insured's UIM coverage would be reduced by payments from any and every
source, rather than the three allowed by statute.' We thus held that the
reducing clauses did not comply with Wis. Stat. § 632.32(5)(i) and,
as such, the reducing clause provisions did not clearly inform the
insured of the level of UIM coverage actually purchased. Relying on the
supreme court's then recent decision in Badger Mutual Insurance Co.
v. Schmitz, 2002 WI 98, we went on to conclude that even if the
reducing clause had conformed to § 632.32(5)(i), it was not
'crystal clear' within the context of the whole policy" (¶ 11)
The following year, in Folkman v. Quamme, 2003 WI 116, the
supreme court "clarified the 'crystal clear' standard" and stated that
it "did not intend Schmitz to alter the standard of review for
whether an automobile insurance policy is ambiguous" (¶ 12). In
sum, the law does "not demand perfection in policy draftsmanship"
(id.). Moreover, the "actual facts," not "hypothetical
scenarios," must guide the trial court's analysis.
The court then considered, and rejected, the appellants' sundry
attacks on the reducing clauses' validity. Since most of these arguments
were predicated on the now superseded Hanson opinion, "the
controlling law on that issue largely foretells our rejection of [that]
argument" (¶ 15).
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Exclusive Remedy - Coemployees - Municipalities
Keller v. Craft,
2005 WI App 102 (filed 12 April 2005) (ordered published 25 May
The plaintiff, a city firefighter, was injured while on duty when his
vehicle collided with one driven by an on-duty police officer. Although
the plaintiff received worker's compensation benefits, he sued the city
and the police officer for additional compensation. The defendants moved
to dismiss under the exclusive remedy provision of the Worker's
Compensation Act, but the plaintiff argued that his case fell within a
coemployee exception, "which permits an employee to file suit 'against a
coemployee of the same employer to the extent that there would be
liability of a governmental unit to pay judgments against employees
under a collective bargaining agreement or a local ordinance.'" Wis.
Stat. § 102.03(2) (2003-04). In a prior appeal, the court of
appeals had reversed a grant of summary judgment in the city's favor and
remanded because a city "ordinance" fit within the exception.
See 2003 WI App 212. On remand, the city filed a second summary
judgment motion, in which the city contended that the "ordinance" in
question had never been formally adopted by the common council. The
trial court denied the motion based on the earlier appeal.
The court of appeals, in a decision authored by Judge Wedemeyer,
reversed. The first appeal did not address whether this "city charter"
provision constituted an "ordinance." Enacted by the legislature in
1913, the provision was part of the city charter but had never been
voted on by the common council, as is required for ordinances
(see ¶¶ 7-8). Moreover, the provision appears in the
binder containing the city charter but not in the three-volume published
set of city ordinances (see ¶ 9). Finally, understandable
mistake or inadvertence explained the city's failure to make this
argument in its first appeal; thus, judicial estoppel did not foreclose
the city's renewed motion (see ¶ 10).
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