Wisconsin Lawyer
Vol. 79, No. 5, May
2006
Supreme Court Digest
This column
summarizes all decisions of the Wisconsin Supreme Court (except those
involving lawyer or judicial discipline, which are digested elsewhere in
the magazine). Profs. Daniel D. Blinka and Thomas J. Hammer invite
comments and questions about the digests. They can be reached at
Marquette University Law School, 1103 W. Wisconsin Ave., Milwaukee, WI
53233, (414) 288-7090.
by Prof. Daniel D. Blinka & Prof. Thomas J. Hammer
Criminal Procedure
Sentencing - Exercise of
Discretion
State v.
Taylor, 2006 WI 22 (filed 8 March 2006)
In April 2000 the defendant was convicted of second-degree sexual
assault for having sexual intercourse with a female under age 16. The
case arose after county human services personnel informed the police
that the victim was pregnant and the defendant was the father. The
defendant was placed on probation and ordered to have no sexual contact
with anyone under age 18. The defendant's probation agent subsequently
discovered that the defendant had impregnated a second minor (age 17) in
September 2000.
The present prosecution for second-degree sexual assault of a child
arose when the defendant impregnated a third minor; he was charged with
and convicted of second-degree sexual assault as a repeater for again
having sexual intercourse with a person who had not attained age 16. At
the time of this offense in September 2001, the defendant was 19 years
old and the victim was 15 years old. After a sentencing hearing in which
the defendant's verbal belligerence resulted in his removal from the
courtroom, the circuit court sentenced the defendant to 12 years of
initial confinement in prison and six years of extended supervision. On
appeal the defendant contended that the circuit court did not properly
explain its reasoning behind the sentence imposed and that the sentence
itself is unduly harsh and excessive and should therefore be vacated.
The court of appeals affirmed and, in a decision authored by Justice
Wilcox, the supreme court affirmed the court of appeals.
After applying standards articulated in McCleary v. State,
49 Wis. 2d 263, 182 N.W.2d 512 (1971), the supreme court concluded that
it was satisfied from its examination of the facts on record and the
circuit court's articulated reasoning in the sentencing transcript and
postconviction order that the circuit court properly exercised its
sentencing discretion and that the sentence imposed was the product of
an appropriate process of reasoning. (The court did not apply the more
recent sentencing case of State v. Gallion, 2004 WI 42, 270
Wis. 2d 535, 678 N.W.2d 197 because the defendant was sentenced before
Gallion was decided. See ¶ 17 n.9.]
The supreme court said that the record demonstrated that the
sentencing judge exercised individualized discretion in fashioning the
sentence imposed. "That is, the court fixed a sentence that took into
account the following: (1) [the defendant's] history of sexual assault;
(2) his failure to recognize or accept the serious criminal nature of
his conduct; (3) the read-in charges concerning the criminal damage to
property and resisting or obstructing an officer; (4) the court's belief
that unless [the defendant] was made to serve a substantial term of
confinement, the public would not be protected from his ongoing criminal
conduct; and (5) the court's belief that a long term of initial
confinement was necessary to rehabilitate [the defendant], as both
probation and 60 days of confinement [in the previous case] had not
adequately impressed upon [the defendant] the seriousness of his
conduct" (¶ 27). The circuit court was aware that the defendant's
sexual acts were "physically nonviolent" (¶ 23).
The defendant also argued that the length of his sentence is
excessive when considered in light of the nature of the offense, the
character of the offender, and the need to protect the public. The
supreme court disagreed and concluded that the term of initial
confinement "was fully justified by the facts and circumstances of this
case, and was not 'so excessive and unusual and so disproportionate to
the offense committed as to shock public sentiment and violate the
judgment of reasonable people concerning what is right and proper under
the circumstances'" (¶ 31) (citations omitted).
The supreme court noted that although "statutory rape cases are
highly charged," especially when the age differential between the
parties is not large, the circuit court did not view the defendant's
assault as an act of sexual experimentation between two teenagers
(¶¶ 36-38). Rather, in the sentencing judge's view, "[the
defendant's] crime was consistent with a pattern of sexual assaults that
inflicted significant harm on three young women, three children, and
society as a whole" (¶ 38). The facts of the case also led the
circuit court "to reasonably conclude that [the defendant] would
continue his course of detrimental sexual behavior unless he was
incarcerated for a lengthy period of time" (¶ 42).
Justice Bradley joined the opinion of the majority but wrote
separately to emphasize that the case before the court involved a
sentence imposed before the more recent Gallion decision (cited
above) and thus "appropriately employs pre-Gallion analysis"
(¶ 48).
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Insurance
Motor Vehicle Handlers - Coemployee
Exclusions - CGL Coverage
Rocker v. USAA Cas. Ins.
Co., 2006 WI 26
(filed 30 March 2006)
While working at a car wash (Octopus), Rocker was injured when a
coworker, Cousins, drove a customer's car into him. General Casualty
insured Octopus, and USAA insured the customer's car. The circuit court
dismissed Rocker's claim against General Casualty on the ground that its
comprehensive insurance policy, which included commercial general
liability (CGL) coverage, did not cover his injuries. It also granted
USAA's declaratory judgment motion and declared that USAA's maximum
coverage for Cousins's conduct was $25,000 under Wisconsin's financial
responsibility law. Rocker appealed, and the court of appeals certified
the case to the supreme court.
The supreme court, in an opinion written by Justice Wilcox, reversed.
First, the court held that Octopus is a "motor vehicle handler" within
the meaning of Wis. Stat. section 632.32(2) (see ¶ 28).
"As a routine part of its business, Octopus employees are required to
operate their customers' motor vehicles in order to provide the various
services purchased" (¶ 31). "In sum, in light of the plain meaning
of the term 'service station,' and the broad scope of services Octopus
provides, which includes driving its customers' vehicles on and off a
conveyor belt, we hold that a 'full-service' car wash such as Octopus is
a service station and thus a statutory 'motor vehicle handler' under
Wis. Stat. § 632.32(2)(b)3" (¶ 33).
Second, the court held that the coemployee exclusion in General
Casualty's policy was prohibited by Wis. Stat. section 632.32(6)(a),
which provides that "'[n]o policy issued to a motor vehicle handler may
exclude coverage upon any of its officers, agents or employees when any
of them are using motor vehicles owned by customers doing business with
the motor vehicle handler'" (¶ 34). The supreme court explicitly
held that Heritage Mutual Insurance Co. v. Wilber, 2001 WI App
247, 248 Wis. 2d 111, 635 N.W.2d 631 remains "good law" despite later
changes to the omnibus statute, Wis. Stat. section 632.32. "The language
of § 632.32(1) unambiguously requires every insurance policy that
provides motor vehicle liability coverage to meet the requirements of
the other sections of the omnibus statute, unless otherwise provided"
(¶ 46). Put differently, the statute applies to all CGL policies
"and commercial umbrella policies that include motor vehicle liability
coverage" (¶ 49).
Third, the court overruled Gorzalski v. Frankenmuth Mutual
Insurance Co., 145 Wis. 2d 794, 429 N.W.2d 537 (Ct. App. 1988),
which had, the court said, erroneously upheld a coemployee exclusion in
a CGL policy. The supreme court said that the court of appeals in
Gorzalski had not "fully consider[ed] the plain language of
§ 632.32(6)(a)" and had "inappropriately" relied on other case
law (¶ 50).
UIM - Umbrella Coverage -
Notice
Rebernick v. Wausau Gen.
Ins. Co., 2006 WI 27 (filed 30 March 2006)
Dale Rebernick was badly injured when a car hit the lawnmower on
which he was riding. The Rebernicks sought funds in addition to those
available to them under the driver's liability coverage and the
Rebernicks' underinsured motorist (UIM) coverage. The Rebernicks claimed
that they were entitled to reformation of their $1 million umbrella
policy (to provide UIM coverage) because American Family failed to
notify them, as is required by Wis. Stat. section 632.32(4m), of the
availability of such coverage. The circuit court ruled in favor of
American Family. The court of appeals, in a split decision,
affirmed.
In a decision authored by Justice Bradley, the supreme court affirmed
the court of appeals. First, relying in part on the companion decision
in Rocker v. USAA Casualty Insurance Co. (digested above), the
court held that "American Family was required to notify the Rebernicks
of the availability of UIM coverage under their umbrella policy pursuant
to § 632.32(4m). Our determination is based on the language of
§ 632.32. At the same time, it is supported by the history and
purpose of § 632.32(4m), along with a provision in the
administrative code" (¶ 9).
Second, the court held that the record supported the finding that the
Rebernicks had received the notice required by law. "[I]f a policy
under
§ 632.32(4m) does not already include UIM coverage, 'an insurer'
writing such policies must 'provide to one insured' under the policy
'written notice' of the 'availability' of UIM coverage, including a
'brief description' of such coverage. At the same time, however, 'an
insurer' is required to provide the notice for each such policy 'only
one time and in conjunction with the delivery of the policy'" (¶
32). "The facts here reveal that the Rebernicks were apparently aware of
the availability of UIM coverage before receiving any required notice
because they had requested such coverage in their underlying primary
automobile policy before receipt of such notice" (¶ 33). There was
"no dispute that American Family provided the Rebernicks with the
required notice under § 632.32(4m) for their primary automobile
policy" (¶ 34).
The court thus found it unnecessary to consider the appropriate
remedy had the Rebernicks not been properly notified. "We caution,
however, that the only way for insurance companies to be certain that
they have provided proper notice pursuant to § 632.32(4m) is to
separately provide in each policy for which notice is required the type
of notice American Family provided to the Rebernicks in their primary
automobile policy. Absent the provision of such notice (or notices, as
the situation may be), insurers will have no guarantee in future cases
presenting different facts that they have properly notified insureds of
the availability of UIM coverage pursuant to § 632.32(4m)" (¶
38).
Justice Butler, joined by Chief Justice Abrahamson, dissented from
the part of the opinion in which the court held that the Rebernicks had
received proper notice.
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