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  • Wisconsin Lawyer
    March 31, 2008

    Court of Appeals Digest

    This column summarizes selected published opinions of the Wisconsin Court of Appeals.

    Wisconsin Lawyer
    Vol. 75, No. 2, February 2002

    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

    * *

    Administrative Law

    Judicial Review of Administrative Decision - Standing

    Eller Media Inc. v. Wisconsin Div. of Hearings and Appeals, 2001 WI App 269 (ordered published 28 Nov. 2001)

    Darby Lane Farms owns a sign on a farm located along an interstate highway. In 1998 the plaintiff entered into a 10-year written lease with Darby to operate and maintain the sign. The sign has been on the property since 1966 and is a legal nonconforming use.

    In 1999 the Department of Transportation (DOT) issued an order directing Darby to remove the sign on the grounds that it had been abandoned and could no longer continue as a legal nonconforming use. Darby requested a hearing before the Wisconsin Division of Hearings and Appeals (DHA) to review the removal order. DHA granted DOT's motion for summary judgment and affirmed the removal order. Subsequently, the plaintiff filed a petition for judicial review of the DHA decision pursuant to Wis. Stat. sections 227.52 and 227.53. DHA responded with a motion to dismiss, contending that the plaintiff did not have standing to seek judicial review because it was not a "person aggrieved" under section 227.53(1). The circuit court granted DHA's motion.

    In a decision authored by Judge Nettesheim, the court of appeals reversed. It concluded that the plaintiff was injured by DOT's decision and that the plaintiff's injury is to an interest that the law seeks to protect. The plaintiff sustained an injury due to DHA's decision in that it lost its leasehold interest in the sign. Further, that leasehold interest, even one subject to a nonconforming use, is recognized and protected by the law. Having lost that interest by virtue of the administrative decision, the plaintiff suffered an actual injury to a protected interest and, as such, is an aggrieved party and has standing to petition for judicial review.

    Attorney Fees

    Contracts - Timeliness - Wis. Stat. Section 806.06(4) - "Costs"

    Purdy v. Cap Gemini America Inc., 2001 WI App 270 (ordered published 28 Nov. 2001)

    After Purdy left his job at Cap Gemini in 1995, Cap Gemini sued both Purdy and his present employer for allegedly breaching respective covenants not to compete. Purdy prevailed on a summary judgment motion and the court of appeals eventually affirmed, concluding that the noncompete clause was unenforceable because it was not reasonably necessary. In 1999 Purdy brought a motion against Cap Gemini in the original lawsuit, which had been dismissed three years earlier, seeking attorney fees and costs pursuant to a clause in his original employment agreement. The trial court concluded that it lacked jurisdiction because of the court of appeal's earlier decision. Purdy then filed the present action, which alleged that Cap Gemini had breached the employment agreement by failing to pay costs and attorney fees. The circuit court granted Cap Gemini's motion to dismiss on the ground that it was untimely under Wis. Stat. section 806.06(4), which required Purdy to have requested the fees and costs within 30 days of the judgment in the original action.

    The court of appeals, in an opinion written by Judge Deininger, affirmed. The issue before the court was "whether a claim for attorney's fees based on a provision in a contract is governed by the six-year statute of limitations governing contract actions, as Purdy contends, or the 30-day time limit for requesting costs set forth in Wis. Stat. section 806.06(4), as Cap Gemini and the trial court concluded" (¶7).

    The meaning of "costs" as used in section 806.06(4) presented an issue of first impression. Prior case law held that fees "allowed by law" or which constitute a "necessary cost of litigation" fall within section 806.06(4); in particular, attorney fees recoverable pursuant to a statute fit squarely within section 806.06(4). In this case, the court held that the same conclusion governed attorney fees based on contracts. Where fees are contested, section 806.06(4) permits postponement of their consideration until the dispute can be fully resolved (¶15). Since the trial court had the opportunity to observe the work done by the parties' attorneys and to assess its quality, it is "highly appropriate" that attorney's fee requests be brought before that same court when the relevant facts are still fresh in the minds of the judge and parties (¶¶18-19).

    Civil Procedure

    Waiver of Statute of Limitations Defense - Preservation of Five-sixths Jury Agreement Objection - Admissibility of Evidence of Punitive Damages Insurance - Sanctions for Misrepresentation Regarding Punitive Damages Insurance

    City of West Allis v. Wisconsin Electric Power Co., 2001 WI App 226 (ordered published 31 Oct. 2001)

    This suit followed the discovery of oxide box waste (OBW) on properties owned by the plaintiffs. OBW is a waste product of a process previously used to refine natural gas. The plaintiffs introduced evidence that OBW is acidic and contains cyanide. When OBW is immersed in water, it can create hydrogen cyanide, a deadly gas. Following a trial, the jury awarded substantial compensatory damages and $100 million in punitive damages against the defendant power company.

    In this lengthy decision, the court of appeals decided several significant procedural issues. Among them are the following: 1) The defendant power company waived any claim that the trial court erred in failing to submit a statute of limitations defense to the jury because it failed to raise that issue at the instruction and verdict conference. See Wis. Stat. § 805.13(3).

    2) The defendant power company did not waive its right to raise a five-sixths verdict agreement objection by raising the issue for the first time in its motions after verdict.

    3) When assessing punitive damages, the jury is permitted to know evidence of the wrongdoer's wealth. The trial court assumed this included evidence of insurance coverage for punitive damages. Rejecting this assumption, the court of appeals stated that "we disagree with the trial court's assumption that insurance coverage for punitive damages is admissible as no Wisconsin case so states, and our research leads us to a contrary result" (¶ 47).

    4) The trial court erred in its post-verdict order that the defendant power company desist from seeking punitive damages coverage from its insurers. [This order was issued after the plaintiffs brought a motion for sanctions in response to a post-verdict acknowledgement by the power company that its midtrial statement concerning the nonexistence of insurance coverage for punitive damages may have been mistaken.] The appellate court was satisfied that the trial judge lacked authority to order the company to forego its insurance rights. No action regarding the defendant's rights with its insurance companies was before the court. "We conclude the trial court lacked the authority to determine the rights of [the defendant power company] with its insurance companies and, by exercising its authority over actions not before it, the court erroneously exercised its discretion" (¶ 57).

    [Editors' Note: In this decision the court also held that because of the manner in which the jury answered the questions on the verdict, the answer to the punitive damage question violated the requirement that five-sixths of the jurors agree on all questions necessary to support a judgment. On this issue the court's lengthy analysis must be consulted, as it is anchored in factual complexities too lengthy to be summarized here.]

    Contracts

    Loan Solicitors - Unwritten Agreements - Enforceability - Agency Defense

    Felland v. Sauey, 2001 WI App 257 (ordered published 28 Nov. 2001)

    In 1992 Sauey contacted Felland, a loan solicitor, to assist in obtaining funding for three business interests. According to their agreement, Felland was to receive a 0.5 percent brokerage fee for his services. Due to the companies' troubled financial problems, it proved difficult to secure financing. When financing eventually was obtained, Sauey refused to pay Felland's fee. Felland brought this breach of contract claim against Sauey and his companies. The circuit court awarded Felland $62,500 plus prejudgment interest.

    The court of appeals, in an opinion written by Judge Dykman, reversed in part and affirmed in part. The defendants acknowledged that there had been an agreement but argued it was unenforceable because it had never been reduced to writing, as required by Wis. Stat. section 440.77(1)(i) and (k), and assorted regulations that relate to discipline of mortgage brokers and loan solicitors. The court held that section 440.77 "does not invalidate nonwritten agreements made by a loan solicitor. Rather, the statute is a disciplinary provision, authorizing the division of banking to revoke or suspend the license of a broker or solicitor for various acts of misconduct, including demonstrating a lack of competency" (¶16). Underscoring its point, the court also declared that it would not "enact a statute of frauds for agreements with loan solicitors by judicial fiat" (¶17).

    The remaining issues were more fact intensive. The record adequately demonstrated that Felland had fulfilled his promise to originate a loan agreement. Of more general interest, the court rejected a defense argument that in effect would allow "parties to refuse to pay loan solicitors their commission any time the party chose to accept an offer that was less than ideal" (¶27).

    With respect to a cross appeal, the court of appeals reversed the lower court's ruling that dismissed Sauey as a party because he had acted "solely as an agent for his companies and not for himself." Since Sauey failed to raise this issue until after the trial concluded, it was untimely and he therefore waived his agency defense.

    Sales - Indemnity Clause - Settlements - Issue Preclusion

    Deminsky v. Arlington Plastics Mach., 2001 WI App 287 (ordered published 19 Dec. 2001)

    Plaintiff Deminsky, who worked for Image Plastics (Image), was seriously injured when his arm became entangled in a machine that recycled plastic. He sued Arlington Plastics (Arlington), which had sold the machine to Image a year earlier. Deminsky later impleaded Image and its insurer. The sale agreement had included a clause by which Image agreed to indemnify Arlington for any injuries sustained by the machine. Deminsky eventually settled with Arlington for about $1.5 million, which assigned its rights against Image to Deminsky as part of the deal. The circuit court granted Deminsky summary judgment against Image for the full amount of the Arlington judgment, plus costs.

    The court of appeals, in an opinion written by Judge Deininger, reversed. First, it held that the indemnification agreement, which shifted to Image all liability for Arlington's negligence, was part of the contract under Wis. Stat. section 402.207(2)(b). Although the clause's insertion in a sales order constituted a "material alteration" of the original (bare bones) oral agreement, Image's agent promptly signed and returned the sales order, thereby communicating Image's agreement with the terms. The fact that Image's agent may not have read the terms and conditions on the sales order form did not relieve Image of its obligation, especially absent allegations of fraud, ambiguity, or mutual mistake.

    Second, the indemnity agreement was not unenforceable on public policy grounds or because it was inconspicuous or unconscionable. In particular, the clause was not void on the ground that it impermissibly shifted "nondelegable duties" to another; rather, it simply shifted "the potential financial cost for Arlington's breach of these duties from Arlington to Image" (¶22). Moreover, the clause was sufficiently conspicuous on the sales order form. Finally, on this point, the clause was not void as an unconscionable contract of adhesion based on a variety of factors, including its inclusion in other sales orders for products Image procured from Arlington (¶26).

    Third, on this record, Image was not bound by the settlement agreement between Deminsky and Arlington. The doctrine of issue preclusion did not bind Image because Arlington's liability and the amount of Deminsky's damages were never "actually litigated." Nor was there any proof that Image had intentionally evaded an opportunity to litigate crucial issues, as had occurred in several other cases. In response to Deminsky's argument that as an "insurer," Image should have offered to defend Arlington, moved for a stay, and then litigated its "coverage" obligations, the court pointedly refused to apply doctrines that govern insurance companies to a "processor and recycler of plastics" (¶43).

    Criminal Law

    Resisting an Officer - "Official Capacity" and "Lawful Authority" - Arrest Outside Officer's Jurisdiction - Fresh Pursuit

    State v. Haynes, 2001 WI App 266 (ordered published 28 Nov. 2001)

    A police officer employed by the Village of Butler in Waukesha County observed a car traveling through a red stoplight at an intersection on the Milwaukee/Waukesha county line. The officer pursued the vehicle into Milwaukee County and, after stopping it, noticed that the defendant driver displayed signs of intoxication. The officer arrested the defendant and then transported her back to the Butler Police Department in Waukesha County. Once there, the officer was assisted by a female officer from the Village of Menomonee Falls who responded to a request for assistance from the Butler police. The defendant eventually was transported to a hospital in Waukesha County for blood testing.

    This appeal involves convictions for resisting an officer and battery to an officer. The resisting charge derived from the defendant's combative behavior at the Butler Police Department. The battery to an officer charge related to the defendant's biting the female officer at the hospital.

    The defendant argued that the arresting officer from Waukesha County was not acting in his official capacity or with lawful authority as a police officer when he asked the defendant to perform field sobriety tests, arrested her, and transported her to a hospital for blood tests because the original detention and arrest took place in Milwaukee County. In a decision authored by Judge Snyder, the court of appeals disagreed.

    The Butler officer was in fresh pursuit of the defendant when he crossed the Waukesha/Milwaukee county line and stopped her for a traffic violation. Thus, the stop in Milwaukee County was proper pursuant to the fresh pursuit statute (Wis. Stat. section 175.40) and relevant case law. If, during this valid stop, the officer became aware of additional factors that were sufficient to give rise to a suspicion that the defendant was driving while under the influence, his stop of her could lawfully be extended and a new investigation begun.

    Further, the assistance of the female officer from Menomonee Falls in transporting the defendant to the hospital was lawful and appropriate. Generally, Wisconsin police officers have no authority outside of the political subdivision in which they are officers. However, there is an exception to this general rule when they are called in for assistance by another law enforcement agency, as happened in this case. See Wis. Stat. § 66.0313.

    Criminal Procedure

    Sentencing - Conditions of Probation - Restitution in Unrelated Cases

    State v. Torpen, 2001 WI App 273 (ordered published 28 Nov. 2001)

    In this case the defendant argued on appeal that the circuit court erred when it ordered, as a condition of probation, that he pay outstanding restitution obligations from prior, unrelated criminal cases.

    In a decision authored by Chief Judge Cane, the court of appeals agreed, concluding that the circuit court erred, as a matter of law, and thus erroneously exercised its discretion, by setting forth as a condition of probation the payment of outstanding restitution obligations from unrelated cases.

    Pursuant to the general restitution statute (Wis. Stat. section 973.20), a circuit court may order the payment of restitution to victims of crimes for which the defendant is being sentenced, as well as to victims of any crimes that are "read in" for sentencing purposes. Thus, said the appellate court, it is improper to order restitution to a party with no relationship to the crime of conviction or any read-in crimes. Similarly, section 973.09 (the general probation statute) does not authorize the circuit court to order the payment of outstanding restitution obligations from unrelated cases, even if the court characterizes the requirement as a general condition of probation rather than as restitution ordered as a condition of probation pursuant to section 973.20.

    Jurors - Language Requirement

    State v. Carlson, 2001 WI App 296 (ordered published 19 Dec. 2001)

    The defendant appealed his conviction for sexual assault, claiming that one juror lacked a sufficient understanding of the English language. At a postconviction hearing, the juror in question, Vera, and another juror testified to Vera's inability to understand English or the court proceedings.

    The court of appeals, in an opinion written by Judge Hoover, affirmed and found no abuse of discretion in the trial court's denial of the postconviction motion. In finding that Vera possessed a sufficient understanding of the English language, the trial court relied on Vera's having passed the citizenship test, his satisfactory completion of the juror questionnaire, and Vera's ability to respond to "very sophisticated questions" during the postconviction testimony. The judge properly rejected "Vera's inadmissible conclusory opinion of his own understanding of the English language" (¶23).

    Habitual Criminality - Sufficiency of "Repeater" Allegation

    State v. Fields, 2001 WI App 297 (ordered published 19 Dec. 2001)

    The state charged the defendant with battery against a peace officer. The criminal complaint did not contain any allegation that the defendant was a habitual offender. The defendant waived preliminary hearing and thereafter entered a not guilty plea to an information that charged the same offense and alleged that the defendant was a repeater pursuant to Wis. Stat. section 939.62(2). However, the information did not specifically allege any prior convictions. Later, the trial court conducted a change of plea hearing. Prior to the defendant's entry of no-contest plea at that hearing, the state filed a certified copy of the defendant's criminal record, which qualified him for habitual offender treatment in the present case. At sentencing, the court imposed a sentence that used the enhanced penalty the defendant faced by virtue of being a repeater.

    On appeal the appellate court was asked to determine whether an information containing a repeater allegation without identifying a specific prior conviction complied with statutory requirements. In a decision authored by Judge Brown, the court agreed with the defendant that the pleadings in this case were insufficient to adequately allege the repeater enhancer. See Wis. Stat. § 973.12(1). Nevertheless, the court affirmed the trial court's judgment and order on the basis that the state's pre-plea submission of a certified copy of prior convictions constituted an amendment to the information, thereby curing its defects and providing the defendant with the requisite notice of his repeater status before his change of plea.

    Preaccusation Delay - Speedy Trial

    State v. Blanck, 2001 WI App 288 (ordered published 19 Dec. 2001)

    The defendant kidnapped the victim in Waukesha County, Wis., on Oct. 3, 1990. During the course of a traffic stop the next day in McHenry County, Ill., the police rescued the victim from the trunk of the defendant's car. The defendant was convicted in Illinois of aggravated kidnapping and aggravated criminal sexual assault. He was sentenced to 13 years in prison on the kidnapping charge and to a consecutive 60-year sentence on the sexual assault charge.

    In 1994 the aggravated criminal sexual assault charge was reversed because the Illinois appellate court ruled that the evidence was insufficient to establish jurisdiction on that charge. The aggravated kidnapping conviction was affirmed, but the case was remanded to the trial court for resentencing. At the resentencing, the court imposed a 30-year term for the kidnapping. In 1997 the Illinois appellate court ruled that the kidnapping sentencing could not be increased on remand, and the original 13-year sentence was reinstated.

    One month later, a criminal complaint was filed and a warrant issued in Waukesha County charging the defendant with false imprisonment, kidnapping, second-degree sexual assault, and misdemeanor battery in connection with the events of October 1990. After several adjournments and substitutions of defense counsel, the defendant was tried in Waukesha County in 1999 and convicted on all counts. The defendant appealed his Wisconsin convictions, arguing that his constitutional speedy trial and due process rights were violated by the six-year delay in charging him and, therefore, his judgments of conviction must be reversed. In a decision authored by Judge Snyder, the court of appeals rejected these arguments and affirmed the convictions.

    The Sixth Amendment right to a speedy trial is triggered only when a criminal prosecution has begun. The right to a speedy trial does not arise before there is a charge or arrest, even though prosecuting authorities knew of the offense long before. The six-year delay in this case occurred before the defendant was arrested or otherwise formally accused in Wisconsin and thus did not violate the defendant's speedy trial right.

    The law has provided other mechanisms to protect against possible prejudice resulting from the passage of time between the commission of a crime and an arrest or charge. The statute of limitations is the primary guarantee against bringing overly stale criminal charges. There was, however, no allegation in this case that the charges against the defendant were filed outside the applicable statute of limitations. Further, while the defendant's due process rights may have been implicated in the precharging delay, he neither alleged nor demonstrated that he suffered actual prejudice from the delay, nor did he allege or demonstrate that his arrest was delayed for an impermissible purpose. Accordingly, due process protections afforded him no relief either.

    Detention During Execution of Search Warrant - Dwelling Occupant Not in Custody for Miranda Purposes

    State v. Goetz, 2001 WI App 294 (ordered published 19 Dec. 2001)

    Deputy sheriffs executed a search warrant at the defendant's residence while she was present. Upon entering the premises, a deputy told the defendant that he wanted to talk with her but that she was not under arrest. He also stated that he did not intend to arrest her unless she obstructed the search. The defendant was told to sit at the kitchen table, where the deputy asked her several questions. Prior to this questioning she was not advised of her Miranda rights. At first the defendant stated that she had no knowledge of any marijuana on the premises (marijuana being the object of the warrant), but then stated that deputies might find a small amount in the bedroom. After questioning was concluded, another deputy placed the defendant in handcuffs, but the cuffs were removed about an hour later when the defendant's children came home from school. During the search marijuana and other evidence were recovered. When the search was finished, the deputies left the premises, but the defendant was not arrested. She was later charged with various drug violations.

    The defendant moved to suppress the statements she made to the deputy on the grounds that she was not read her Miranda rights. The circuit court granted the motion, concluding that the defendant was in custody when she gave her statements and thus should have been given Miranda warnings.

    In an opinion authored by Judge Peterson, the court of appeals reversed. The court began its analysis by noting that a search warrant implicitly carries with it the limited authority to detain the occupants of the target premises while a proper search is conducted. See Michigan v. Summers, 452 U.S. 692 (1981). A suspect who is detained during the execution of a search warrant has not suffered a restraint on freedom of movement of the degree associated with formal arrest and thus is not in custody for Miranda purposes. In this case, the record did not suggest that, either before or during the questioning, the defendant's freedom of movement was restrained to a degree associated with a formal arrest. Based on Summers, the court concluded that the defendant was not in custody when she gave her statements and, thus, was not entitled to Miranda warnings prior to questioning.

    The handcuffing described above occurred after the statements had been given. The court concluded that handcuffing did not operate retroactively to create custody for purposes of Miranda. The defendant was not deemed to be in custody at the time of questioning simply because she was later handcuffed.

    Judge Hoover filed a dissenting opinion.

    Search Incident to Arrest - Absence of Intent to Arrest - Pat-down Prior to Squad Car Transport

    State v. Hart, 2001 WI App 283 (ordered published 19 Dec. 2001)

    Police stopped the defendant for speeding and suspicion of OWI. Tests conducted at the scene indicated that the defendant was in fact intoxicated. Nevertheless, the officer exercised his discretion not to arrest the defendant for OWI but instead to drive him to the police station where he could call for a ride home. The officer specifically told the defendant that he was not under arrest and that he would be free to go home after he arranged for a ride.

    Prior to placing the defendant in the police cruiser for the ride to the station, the officer initiated a protective frisk of the defendant's person pursuant to police department policy. The defendant then reached into his pocket and threw an object into the grass, which turned out to be a marijuana pipe. At that point the officer arrested the defendant for possession of drug paraphernalia and, either right before or right after leaving the scene, also arrested him for OWI.

    Among the issues on appeal was the lawfulness of the pat-down that prompted the attempted disposal of the marijuana pipe. The circuit court thought that the pipe was properly recovered during a search incident to arrest. The court of appeals agreed that there are circumstances when, based upon probable cause, an arrest is inevitable and therefore, it is a mere formality whether arrest comes before or after the search. In this case, however, no arrest was going to occur at the time of the search. Therefore, the court concluded that the search was not a valid search incident to arrest.

    Having rejected search incident to arrest as a viable theory for the recovery of the pipe, the court next considered whether the pipe might nonetheless be admissible as the result of a limited frisk for weapons under Terry v. Ohio, 392 U.S. 1 (1968). The lawfulness of a Terry frisk turns on whether the officer had a reasonable belief that the suspect was armed and dangerous. Some states have found that the need to transport a person in a police vehicle is in itself an exigency that justifies a pat-down for weapons. However, in a recent Wisconsin Supreme Court decision, a plurality of the justices expressly declined to extend Terry to a police officer's general concern for safety whenever the officer transports a citizen in a police car. See State v. Kelsey C.R., 2001 WI 54. With five members of the supreme court declining to adopt a per se rule, the law in Wisconsin is that the need to transport a person in a police vehicle is not, in and of itself, an exigency that justifies a search for weapons. More specific and articulable facts that would make a police officer reasonably fear for his or her safety are necessary; none were present in this case. Accordingly, the court concluded that the pipe was not admissible as the result of a Terry frisk.

    Concluding this segment of its opinion, the court noted "that a routine pat-down of a person before a police officer places the person in a squad car is wholly reasonable. We recognize that police policy mandates pat-downs for the general safety of the officer. Nevertheless, evidence gleaned from such a search will only be admissible in court if there are particularized issues of safety concerns about the defendant" (¶ 19).

    Employment Law

    Restrictive Covenants - Restraints of Trade - Notice

    Heyde Companies Inc. v. Dove Healthcare LLC, 2001 WI App 278 (ordered published 28 Nov. 2001)

    Two companies, Dove and Greenbriar, entered into an agreement for "therapy services" in 1997. Greenbriar provides physical therapists to nursing homes. Dove was a health care provider that operated nursing homes. Under the agreement, Greenbriar provided the physical therapists who worked in Dove's nursing home but remained Greenbriar's (at-will) employees. The agreement barred Dove from hiring Greenbriar's therapists for up to one year after the agreement expired, unless Greenbriar consented. Upon consent, Dove was required to pay Greenbriar 50 percent of the therapist's annual salary. Greenbriar's therapists were, however, unaware of this provision. In late 1999 Dove terminated the agreement and hired one current and three former Greenbriar therapists. Greenbriar neither consented to their hiring nor received the agreed-upon fee. In a suit brought under the agreement, the judge ruled that the no-hire provision was enforceable and awarded Greenbriar about $62,000 in damages.

    The court of appeals, in a decision written by Judge Peterson, reversed. "Wisconsin law favors mobility of workers," but Wis. Stat. section 103.465 "permits covenants in employment contracts that restrict departing employees' ability to work for competitors of their former employer within a specified territory and for a specified time period as long as such restrictions are reasonably necessary for the former employer's protection" (¶01828-9). The court held that "the no-hire provision violates public policy by restraining trade in the labor market and is therefore unenforceable.

    Although the provision purports to restrict only the parties to the contract and is not a restrictive covenant as that term is usually used, its most severe effect is on Greenbriar therapists who are restricted by the provision" (¶12). The therapists had not signed the agreement and were not given notice of the provision, yet the provision barred them from working for Dove as well as 33 other health care facilities, unless Greenbriar consented and the other facilities paid the 50 percent fee. The court's reasoning was supported by case law from other jurisdictions.

    Greenbriar's contention that this was just a routine breach of contract case flew in the face of the provision's real effect. Put differently, Greenbriar attempted to do "indirectly what it cannot do directly," namely, enforce an unreasonable restrict covenant to which the employees had not agreed in the first place (¶21).

    Family Law

    Divorce - Overtrial - Circuit Court Authority to Award Attorney Fees Related to Appeal

    Zhang v. Yu, 2001 WI App 267 (ordered published 28 Nov. 2001)

    In this divorce action the husband appealed the circuit court's order requiring him to pay a contribution to his ex-wife's attorney fees. The wife incurred these fees in her husband's prior unsuccessful appeal, where the court of appeals decided that all but one of the issues he raised was frivolous. In a decision authored by Judge Roggensack, the court of appeals affirmed, concluding that the circuit court had the authority and acted within its discretion by awarding a reasonable contribution to the wife's appellate attorney fees based on her husband's continuing to engage in overtrial.

    Overtrial is a doctrine developed in family law cases that may be invoked when one party's unreasonable approach to litigation causes the other party to incur extra and unnecessary fees. The husband argued that a circuit court's authority to sanction a party for overtrial is limited to awards of fees related to proceedings in the circuit court.

    The court of appeals disagreed. The circuit court has inherent authority to manage civil litigation within its jurisdiction, to preserve the effectiveness of the judicial system, and to enforce compliance with its orders fashioned to prevent overtrial. The court of appeals concluded "that when we have issued an opinion stating that a significant portion of the issues appealed in a family law matter are frivolous, that provides a necessary factor for the circuit court to hold a hearing on an allegation of overtrial, if such a motion is presented to it. There the circuit court will make findings of fact and conclusions of law relative to the motion before it and exercise its discretion to sanction a party, if the circuit court concludes a sanction is warranted" (¶ 16).

    In footnote, the court observed that there is nothing unusual about a circuit court determining the reasonableness of attorney fees related to an appeal. Even in cases where the appellate court assesses fees under Wis. Stat. section 809.25(3) after concluding that an appeal is frivolous, it remands the case to the circuit court for a determination of fees. See 0182 23 fn. 4.

    Insurance

    Antistacking Clauses - "Two or More Cars Insured"

    Gragg v. American Family, 2001 WI App 272 (ordered published 28 Nov. 2001)

    The Graggs were injured in a collision with an uninsured tortfeasor. The Graggs owned three cars that were insured by American Family. Two identical policies provided uninsured motorist (UM) coverage with bodily injury limits of $50,000 per person/$100,000 per accident. A third policy provided UM coverage with limits of $100,000/$300,000. Each policy contained a "two or more cars insured" clause that purportedly limited coverage to the "highest limit of liability under any one policy." The Graggs sought a declaratory judgment that would permit them to stack UM coverage under all three policies. The trial court accepted American Family's contention that the clause constituted a valid antistacking provision that limited UM coverage to $100,000.

    The court of appeals, in an opinion written by Judge Deininger, affirmed. The Graggs argued that the clause was invalid because it failed to track the language in Wis. Stat. section 632.32(5)(f), especially the clause's omission of the word "stacking." Case law established, however, that the statute requires no "magic language" that "parrots" section 632.32(5)(f). The court also found the clause's language "unambiguous and capable of being reasonably understood to preclude stacking" (¶10). Nor was it persuaded that the $300,000 per accident limit governed the action. The derivative claims for loss of consortium and loss of society and companionship do not fall within the scope of "bodily injury," hence, the derivative claims are subject to the $100,000 "each person" limit and not the $300,000 per occurrence limit.

    Repairs - Vehicle's Value

    Wildin v. American Family Mut. Ins. Co., 2001 WI App 293 (ordered published 19 Dec. 2001)

    Several days after she purchased the vehicle, Wildin's "Kia Sportage" was badly damaged in an accident. Her insurer, American Family, paid $5,850 to repair the vehicle, but the damage was such that "no repair could have restored the vehicle to its pre-loss condition." In short, her repaired vehicle was worth less than similar vehicles in their original condition. Wilden alleged that American Family breached its contractual obligation by not compensating her for the vehicle's diminished market value in addition to the repair costs. The circuit court dismissed her complaint based on its conclusion that the insurer had met its obligation.

    The court of appeals, in an opinion written by Judge Vergeront, affirmed. The policy contained no ambiguous language. Its "limits of liability" clause listed three options and permitted American Family to select the one that cost the least. Although the term "repairs" was not defined in the policy, it ordinarily means to "restore by replacing a part or putting together what is torn or broken," and is not "ordinarily understood to mean to restore to pre-broken or pre-collision market value, as Wildin argues" (¶9).

    Cancellation - Equitable Estoppel

    Nugent v. Slaght, 2001 WI App 282 (ordered published 19 Dec. 2001)

    Slaght had a valid insurance contract with American Family prior to July 16, 1996. He paid his last premium on June 16, 1996, and had coverage until July 16. On June 27 American Family sent Slaght notice that the policy "will be cancelled" on July 16 if he failed to pay his premium. On July 19 Slaght was in a car accident that injured Heather Nugent. American Family did not enter the cancellation into its record-keeping system until July 22. During the three-year period between July 19, 1996, and Aug. 11, 1999, "American Family acted as though Slaght had a valid policy in effect at the time of the collision" (¶7). The circuit court granted summary judgment in American Family's favor. The judge found that it had not waived its cancellation defense and that Nugent could not claim equitable estoppel.

    The court of appeals, in an opinion written by Judge Lundsten, reversed. The court agreed that American Family had not waived its cancellation defense. Case law established that "when the claims representatives acted without knowledge held by other employees of American Family, such action did not constitute waiver of the cancellation defense" (¶18). But reversal was warranted on the equitable estoppel issue. The court rejected American Family's multiple arguments to the effect that "equitable estoppel can never be used to bar defenses asserting policy cancellations prior to the event giving rise to potential liability" (¶28).

    Applying the elements of equitable estoppel to this case, the only element seriously disputed by American Family was whether its conduct was a "detriment" to Nugent. Parting ways with the trial judge, the court held that three years of negotiation and correspondence, in addition to interviews by American Family representatives and the disclosure of confidential medical records, amounted to "detriment." Since, however, equitable estoppel is a discretionary doctrine that should not be exercised on the appellate level, the case was remanded for the circuit court's reconsideration.

    Exclusions - Resident Relatives

    Frost v. Whitbeck, 2001 WI App 289 (ordered published 19 Dec. 2001)

    Tina Frost and her daughter, Brittany Frost, left Kentucky because of family problems and stayed with Doreen Whitbeck in her rented Wisconsin home. The two women were longtime friends and perhaps "shirttail" relatives because they shared a common great, great grandfather. Evidence indicated that the Frosts' stay was to be temporary until they could work out other arrangements. After Doreen's dog bit young Brittany on several occasions during their stay, the Frosts sued Doreen and her insurer. The trial court dismissed the insurer, American Family, based on the policy's intra-insured exclusion for bodily injury to a resident relative.

    The court of appeals, in an opinion written by Judge Roggensack, reversed. The court found that the undefined term "relative" was ambiguous with respect to persons "remotely connected." When viewed in the context of the entire policy, American Family's "no-matter-how-remote" construction of "relative" led to "unexpected results" (¶15). For example, the exclusion applied even where the insured and another resident had no idea that they were distant cousins yet the insurance company unearthed the link through independent investigation. The court thus held that "a reasonable policyholder would understand the resident-relative exclusion to be inapplicable in instances where the asserted degree of kinship, even if provable, is so remote that most people are either unlikely to know of the asserted relationship or unlikely to consider the relationship in matters such as contracting for homeowner's insurance" (¶15). The matter was remanded for further proceedings.

    Motor Vehicle Law

    Blood Sample Obtained Pursuant to Implied Consent Law - Search Warrant Unnecessary to Conduct Test of the Blood

    State v. Van Laarhoven, 2001 WI App 275 (ordered published 28 Nov. 2001)

    The defendant was arrested for operating a motor vehicle while intoxicated. He was advised of the provisions of the Implied Consent Law and consented to the withdrawal of his blood. That sample subsequently was submitted to the Wisconsin State Hygiene Laboratory for analysis. The results of that analysis was a blood alcohol concentration of 0.173 percent.

    The defendant filed numerous motions to suppress, one of them claiming that the police were required to obtain a search warrant before submitting his blood sample for testing by the laboratory. He claimed that any exigency associated with the blood draw was over once the sample was obtained and that a search warrant should have been obtained prior to the examination of that blood sample. The circuit court rejected this argument and the defendant was convicted.

    In a decision authored by Judge Anderson, the court of appeals affirmed. Under Wisconsin's Implied Consent Law, those who drive or operate a motor vehicle upon the public highways of this state are deemed to have given consent to one or more tests of their breath, blood, or urine for the purpose of determining the presence or quantity of alcohol in their blood or breath. The court concluded that by operation of this law and by submitting to the tests, the defendant consented to a taking of a sample of his blood and the chemical analysis of that sample. The court declined to allow the defendant to parse the lawful withdrawal of his blood sample and its subsequent analysis into separate seizure and inspection components. The chemical analysis of the blood was not a separate event for warrant requirement purposes. The court agreed with a 9th Circuit interpretation of relevant supreme court authority to the effect that the seizure and subsequent search of the blood constitute a single event for Fourth Amendment purposes. See U.S. v. Snyder, 852 F.2d 471 (9th Cir. 1988).

    OWI (6th Offense) - Probation - Mandatory Incarceration as Probation Condition

    State v. Eckola, 2001 WI App 295 (ordered published 19 Dec. 2001)

    The defendant was convicted of OWI (6th offense), contrary to Wis. Stat. section 346.63(1)(b). On appeal the state contended that the circuit court erroneously exercised its discretion by placing the defendant on probation without requiring him to serve at least the minimum period of incarceration required by section 346.65(2)(e). In a decision authored by Judge Peterson, the court of appeals agreed with the state and reversed the circuit court order.

    The court concluded that probation is a permitted disposition under current law for fourth and subsequent OWI offenses, as long as the probation requires confinement for at least the mandatory minimum period specified for the offense. See Wis. Stat. § 973.09(1)(d)1. The penalty for a sixth offense OWI includes confinement for at least six months. Accordingly, the court was required to confine the defendant for at least six months as a condition of probation.

    Municipal Law

    Incorporation Petitions - Inaccurate Scale Map

    Wirth v. City of Port Washington, 2001 WI App 277 (ordered published 28 Nov. 2001)

    In this case the court of appeals was asked to decide whether an inaccurate scale map accompanying an incorporation petition can be deemed to "reasonably show the boundaries" of the territory to be incorporated, as required by Wis. Stat. section 66.014(2)(c) (1997-98). [This statute has since been renumbered as section 66.0203(2)(c) without substantive changes of significance to this appeal.]

    It was argued that the scale map attached to the petition for incorporation in this case did not reasonably show the boundaries of the territory sought to be incorporated. Specifically, there was testimony that the map incorrectly included five parcels of land totaling 93 acres.

    In a decision authored by Judge Brown, the court of appeals concluded that if the scale map and description, when viewed together, fairly apprise the public of the territory to be incorporated, the statute will be satisfied notwithstanding inconsequential errors or omissions in the map. The court held that the description and map in the instant litigation left no doubt as to the location of the territory sought to be incorporated. Accordingly, it reversed the order of the trial court dismissing the incorporation petition.

    Sewer System Inadequacy - Flooding - Municipal Liability

    Anhelt v. Cities and Villages Mutual Ins. Co. and City of Sheboygan, 2001 WI App 271 (ordered published 28 Nov. 2001)

    The plaintiffs live in an area of Sheboygan served by a storm sewer system designed by the city engineer's office that was approved and implemented by the city in 1944. For many years this system has been inadequate to drain storm water and damage to the residents' properties has resulted. The current litigation was instituted against the city following an unusual and abnormally heavy rain in August 1998.

    The claims against the city included negligence, private nuisance, inverse condemnation, waste, and a violation of 42 U.S.C. section 1983. The circuit court ordered summary judgment in favor of the city. In a decision authored by Judge Brown, the court of appeals affirmed.

    The appellate court first considered the negligence claim in which it was alleged that the city failed to design, construct, maintain, and operate a storm sewer system with sufficient capacity to drain storm water. The plaintiffs also asserted that the city was negligent in failing to follow the recommendations of its own consultants, who advised implementing a system to handle 100-year storms.

    The city responded that even if these allegations were true, it is immune from liability because the acts of designing, planning, and implementing a sewer system are discretionary acts protected under the doctrine of governmental immunity. The court of appeals agreed. It also rejected the argument that any municipal liability attached to the planning and design of the sewer system should not persist in view of changed conditions that demonstrate that a dangerous condition exists. The court was unable to identify any precedent that a municipality has a positive duty to keep its sewer system current with developing needs. Said the court, "The remedy for the residents, therefore, lies in their power to vote rather than in the judicial system" (¶ 16).

    The court also rejected the residents' nuisance claim. It concluded that the inadequacy of the sewer system to drain storm water does not give rise to a cause of action in nuisance. Nuisance is a material and unreasonable impairment of the right of enjoyment or the individual's right to the reasonable use of his or her property or the impairment of its value. Nuisance may exist with or without negligence.

    The residents in this case grounded part of their claim of nuisance in negligence, asserting negligent operation and failure to maintain an adequate system. In order to prevail on this theory, they had to show that the system itself failed due to negligence. The record, however, demonstrated the opposite. The city engineer was on site during the unprecedented rainfall and confirmed that the sewer and the pumps were working. None of the expert testimony offered by the residents contradicted this evidence and, given the undisputed facts, a jury could properly infer that the heavy rains alone resulted in an overload of the system.

    In the absence of negligence, the plaintiffs could still allege nuisance by claiming an unreasonable activity that substantially interfered with the comfortable enjoyment of the life, health, or safety of their persons. To prevail in the context of this case, they would have had to show that this is what is known as a "collected water" case: that the flood waters were diverted from the sewer system onto their private property. There was no evidence of this in the record. Instead, the affidavits showed that most of the damage resulted from water collecting on the surface when it was unable to drain through the sewer system. Under these facts, a jury could not conclude that the municipality was operating the sewer system so as to create or maintain a nuisance.

    Finally, the court rejected the residents' inverse condemnation, waste, and 42 U.S.C. section 1983 claims.

    Municipal Orders to Raze Buildings - Liability for Torts Committed During Razing Process

    Smith v. Williams, 2001 WI App 285 (ordered published 19 Dec. 2001)

    Buildings on the plaintiff's property were razed pursuant to an order issued by the City of Milwaukee under Wis. Stat. section 66.05(1m) (1997-98). In this lawsuit the plaintiff sought damages for various torts committed in the carrying out of the raze order, challenged the reasonableness of the costs assessed for the razing, and sought damages for the removal of salvage from the property for which the plaintiff did not receive a credit. The circuit court dismissed the plaintiff's claims because it concluded that under section 66.05(3) (1997-98), the plaintiff's sole remedy was to seek a restraining order against the razing by challenging the reasonableness of the raze order. [Note: Section 66.05 has since been renumbered to section 66.0413 and also has been amended. However, said the court, the renumbering and amendments did not affect its analysis in this case, which applies equally to new section 66.0413. See 0182 1, n. 2.]

    In a decision authored by Judge Vergeront, the court of appeals reversed. It concluded that the plain language of section 66.05(3) provides the exclusive remedy for challenging the reasonableness of a raze order; if the razing is not prevented through the use of the procedures established in this statute, an affected person may not recover damages for the razing and removal of a building carried out pursuant to that order on the ground that the order was not reasonable.

    However, the court also concluded that the plain language of section 66.05(3) does not preclude an affected person from seeking damages for torts committed in carrying out a raze order that are not premised on the wrongfulness or unreasonableness of the order. "We emphasize, however, that acts that are implicitly or explicitly authorized by the order are not torts" (¶ 23).

    Further, the court held that section 66.05(3) does not bar the plaintiff's challenge to the reasonableness of a lien for the costs of carrying out a raze order. Nor does the statute bar a claim that salvage and valuable materials have been removed from the real estate for the benefit of the razing contractor without giving the owner a credit against the charges for the costs of razing and removing.

    Patients' Rights

    Chapter 980 Detainees - Custody

    Volden v. Koenig, 2001 WI App 290 (ordered published 19 Dec. 2001)

    In February 1998 a chapter 980 civil commitment petition was filed in a circuit court against Volden, alleging that he was a sexually violent person in need of treatment. Pursuant to a writ of habeas corpus ad prosequendum, he was transferred from the Wisconsin Resource Center to the county jail on several occasions. While in jail, Volden was served a "regular diet" instead of a "special diet" he received at the resource center. The jail nurse had determined that his special diet had no medical or religious basis. Volden brought this pro se complaint, which alleged that he was a "patient" entitled to rights under Wis. Stat. section 51.61 (1999-2000) and entitled to diet-related damages. The circuit court dismissed the complaint.

    The court of appeals, in an opinion written by Judge Brown, affirmed. The court held that chapter 980 detainees are "patients" within the meaning of section 51.61 "only when they are receiving treatment, care or services in a treatment facility" (¶1). No authority supported Volden's contention that an "involuntarily committed person remains a 'patient' while in the temporary custody of the sheriff" (¶9). As a practical matter, the court also observed that court-ordered writs like the one issued in his case routinely involve other restrictions that contravene the patients' rights rules contained in Wis. Admin. Code § HFS 94.19. Under section 51.61, Volden's status as a "patient" ceased once he was removed from the resource center pursuant to the writ.

    Property

    Marital Property - Survivorship Rights - Land Contracts

    Wonka v. Cari, 2001 WI App 274 (ordered published 28 Nov. 2001)

    Edward and Donna acquired an interest in a bar by way of a land contract in 1976, which named them as "joint tenants." In 1991 they satisfied the land contract and the seller conveyed the warranty deed to Ed and Donna as "husband and wife, as marital property with rights of survivorship." In 1996 Ed was in a car accident with the Wonkas, who commenced a personal injury action against him. In 1997, Ed and Donna entered into a land contract with the Andersons for the sale of the bar, but the Andersons soon defaulted and conveyed their interest back to Ed and Donna as "husband and wife" by way of a quitclaim deed. Following Ed's death in 1999, the Wonkas alleged that the bar was "survivorship marital property" and that "any judgment awarded to them could be satisfied from Edward's interest in the property." After the bar was sold, the proceeds were paid into a trust. Eventually, the trial court ruled that the bar was survivorship marital property until Ed's death and that the Wonkas had no interest in the proceeds.

    The court of appeals, in an opinion written by Judge Hoover, affirmed. Generally, when a tortfeasor spouse dies, a judgment may be satisfied from "property that would have been available for satisfaction of the incurred obligation" if the tortfeasor had lived. "Survivorship marital property, however, is not available to satisfy the obligation of the deceased tortfeasor spouse. Wis. Stat. §859.18(4)(a)1" (¶11). Ed and Donna established survivorship rights when the 1991 warranty deed vested title "with rights of survivorship." The land contract with the Andersons did not sever Ed and Donna's joint tenancy with rights of survivorship. "As long as [Ed and Donna] held the legal title, the way in which they held that title remained intact" (¶13). "The 1997 quitclaim deed in lieu of foreclosure could not destroy the rights of survivorship because it conveyed only the equitable interests the Andersons had under the land contract" (¶15). It was inconsequential that other states terminate survivorship rights when a land contract is executed because "Wisconsin is one of the few states to follow the minority view that survivorship rights are not extinguished" (¶17).

    Torts

    Medical Malpractice - Mediation - Timely Filing - Jurisdiction

    Ocasio v. Froedtert Mem. Hosp., 2001 WI App 264 (ordered published 28 Nov. 2001)

    Plaintiff commenced a malpractice action against the defendants for alleged injuries caused by an injection to her arm in October 1996. Although she filed the summons and complaint on Oct. 18, 1999, she also had mailed a request for mediation as provided by Wis. Stat. Chapter 655 just 10 days earlier. In March 2000, the defendants moved to dismiss on the ground that plaintiff failed to comply with Wis. Stat. section 655.44(5) by filing the summons and complaint before expiration of the mediation period. The trial court dismissed her complaint.

    The court of appeals, in an opinion written by Judge Curley, affirmed. The court held that section 655.44(5) is not merely directory; rather, it unambiguously "indicates that expiration of the mediation period is a precondition to the commencement of a medical malpractice action under Chapter 655" (¶8). More precisely, plaintiff chose to file the mediation request before commencing the lawsuit; thus the action was governed by Wis. Stat. sections 655.44(5) and 655.465(7) and not section 655.445(1), an option that permits lawsuits to proceed "in the usual manner" (¶9). The statutes' unambiguous commands were supported by policy considerations as well (for example, the advantages of a "cooling-off" period). The court distinguished other cases that addressed superficially similar statutory schemes.

    After disposing of the prime issue, the court turned to two subsidiary but related matters. First, the amended summons and complaint filed on Feb. 8, 2000, did not "relate back" to the original summons and complaint pursuant to Wis. Stat. section 802.09 because the cause of action was not "properly commenced" in October 1999. Second, the defense could not be deemed to have "waived" the error because the court lacked subject matter jurisdiction, a defect that cannot be waived.

    Dog Bite Statute - Double Damages - Notice - Teething Behavior

    Gasper v. Parbs, 2001 WI App 259 (ordered published 28 Nov. 2001)

    Monica, a minor, sought double damages for injuries she sustained when the Parbs' dog bit her face. The jury found damages of $25,000. During the trial, Nancy Parbs, the dog's owner, testified that several years earlier the dog had chewed and damaged some plastic containers and two kitchen chairs. The trial court rejected Monica's claim for double damages, finding that on this record an award of double damages under Wis. Stat. section 174.02(1)(b) (1991-92) would be "an absurd result." Specifically, "a dog owner does not have notice that his or her dog is likely to injure a person because the dog chewed on furniture or Tupperware when it was a puppy" (¶4).

    The court of appeals, in an opinion written by Judge Lundsten, affirmed. Appellants relied on the statute's language in arguing that Nancy Parbs knew her dog had "previously ... caused injury to ... property" by chewing on the chairs and containers. The court declined such a literal construction of the statute, agreeing with the trial judge that "virtually all puppies chew on various items they encounter" (¶10). In short, the "normal teething behavior" involved in this case did not constitute notice as required by the statute.

    Trespass - Damages - Right-of-way

    Gallagher v. Grant-Lafayette Electric Coop., 2001 WI App 276 (ordered published 28 Nov. 2001)

    Plaintiffs, who own a dairy farm, sued an electric cooperative that provided their power after it used herbicides to clear trees and brush under its electric power lines, which were on plaintiffs' property. The complaint alleged, among other things, that the company's action killed more than 100 trees that served as a windbreak and provided shade for their cattle. At a pretrial hearing, the court, in effect, ruled that the plaintiffs could not recover for damages within the company's right-of-way. Plaintiffs appealed from that order.

    The court of appeals, in an opinion written by Judge Vergeront, reversed. The court first concluded that the cooperative's "easement includes the right to take those steps that are reasonably necessary to maintain its power line on the [plaintiffs'] property" (¶17). It did not follow, however, that "it is always, as a matter of law, reasonably necessary for a power company to clear all the trees and vegetation from its right-of-way in order to maintain its power line and prevent interference with the wires" (¶19). Nor are courts obligated to defer to the power company's judgment as to what is reasonably necessary to maintain its lines. In short, whether the application of the herbicide was reasonably necessary for it to maintain, and prevent interference with, the lines depends on the facts and circumstances of the case. Since the trial court had assumed that the power company had the right to clear all trees and vegetation within the right-of-way regardless of reasonableness and necessity, it had applied the wrong standard and hence committed reversible error. On remand the plaintiffs should be permitted to introduce evidence that the company had exceeded the scope of its easement (trespass) and the alleged damage that followed.

    Addressing damages, the court adopted the Restatement (Second) of Torts § 929(1)(c) and held that plaintiffs may recover for discomfort and annoyance based on the trespass claim. Put differently, those damages are not available solely through nuisance actions.

    Medical Malpractice - Damage Caps - Retroactivity

    Schultz v. Natwick, 2001 WI App 281 (ordered published 19 Dec. 2001)

    Thirteen-year-old Lindsey Schultz died during an appendectomy on Dec. 1, 1995. Her parents filed this medical malpractice action on May 11, 1998. The parties stipulated to liability and that a jury would award no less than $500,000 in damages for loss of society and companionship. The defendant doctor reserved the right to contest whether the applicable damages cap for loss of society and companionship was $500,000 or $150,000. The $500,000 cap first became effective with the change in the law on April 28, 1998, two weeks before the suit was filed. 1997 Wis. Act 89, § 4. In December of 1995, however, the cap was set at $150,000. Wis. Stat. § 895.04(4). Although the supreme court had invalidated the retroactive application of the increased cap in Neiman v. American Nat'l Prop. & Cas. Co., 2000 WI 83, the circuit court ruled that Neiman did not control the facts of this case.

    The court of appeals, in an opinion written by Judge Roggensack, disagreed and reversed. Neiman set forth the relevant public policy interests on each side of the controversy and "held that the defendant-insurer established beyond a reasonable doubt that retroactive application of increased damages for loss of society and companionship violates due process" (¶14). The court of appeals construed Neiman as based on a "facial challenge" to the new caps that was not limited to the exact facts before the supreme court (an "as-applied" challenge). To hold otherwise, for example, "would suggest that torfeasors' maximum liability could be made to depend on the unique circumstances surrounding their insurance contracts, or that insured tort feasors, uninsured tortfeasors and underinsured tortfeasors could incur different maximum liabilities for the same negligent act" (¶16).

    Municipal Liability - Tall Weeds - Immunity

    Estate of Wagoner v. City of Milwaukee, 2001 WI App 292 (ordered published 19 Dec. 2001)

    Wagoner was killed while riding his motorcycle when he was struck by another vehicle. According to the complaint filed by his estate, Wagoner's death occurred because overgrown vegetation within the guardrail of the median obscured the views of both drivers. The trial court dismissed the plaintiffs' claim that the city was negligent for failing to cut the weeds.

    The court of appeals, in an opinion written by Judge Fine, affirmed based on Walker v. Bignell, 100 Wis. 2d 256 (1981), which immunized municipalities "for injuries caused by uncut vegetation obscuring motorists' vision at highway intersections" (¶6). The court rejected the plaintiffs' argument that Walker applied only where municipalities decided not to act in the first place and that where they undertake to trim weeds municipalities incur a duty of reasonable care. To the contrary, Walker's immunity "is all-inclusive because it precludes courts from even reaching the duty issue" (¶8). Finally, Wis. Stat. section 80.01(3) did not create an exception to Walker by imposing a duty upon municipalities to trim vegetation "for beautification or erosion-preventing purposes" (¶9). "In view of Walker," the court declined to "step in and create such liability, especially in light of the potential costs that Walker recognizes would cascade upon governmental authorities if they were dragged into every lawsuit where overgrown vegetation might possibly be a contributing factor to an accident" (¶10).



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