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Vol. 73, No. 8, August 2000 |
 Previous
Page
Court of Appeals Digest
by Prof. Daniel D. Blinka & Prof. Thomas
J. Hammer
| Civil Procedure | Criminal
Law |
| Criminal Procedure | Property
| Torts |
| Unemployment Compensation |
Property
Inverse Condemnation - Statutory Bar
Koskey v. Town of
Bergen, 2000 WI App 140 (filed 2 May 2000) (ordered published
28 June 2000)
The plaintiffs instituted an inverse condemnation action against
the town, claiming it had taken their property without compensating
them. The town had denied that the plaintiffs owned the land
and had proceeded with its own condemnation action. The plaintiffs
were aware of the town's condemnation action and had never
appealed it. The circuit court dismissed their inverse condemnation
claim.
The court of appeals, in an opinion written by Judge Peterson,
affirmed. Section
32.10 of the Wisconsin Statutes clearly barred this action.
It allows a property owner "to institute condemnation proceedings
against anyone who possesses, but fails to exercise, the power
of condemnation." Here the town had exercised its power
of condemnation. If they were dissatisfied with their lack of
award under the town's condemnation action, the plaintiffs
should have appealed it.
Estate Planning - Power to Appoint
Lucareli v. Lucareli,
2000 WI App 133 (filed 17 May 2000) (ordered published 28 June
2000)
As part of an "estate planning divestiture stratagem,"
a grantor worded a deed so that she would remain eligible for
aid yet maintain control over her property. A warranty deed contained
a power of appointment in which "the grantor purported to
convey the property in fee simple to the grantees while at the
same time reserving the right to give the property to others."
The court of appeals, in a decision written by Judge Brown,
held that the execution was invalid under Wis. Stat. section
706.03(1m) (1997-98). "Since the property was never conveyed,
it remains in the now-deceased grantor's estate and should
be disposed of accordingly" (¶ 1). When construing
deeds, courts will strive to reconcile a grant of interest and
the reservation of right over conveyed property, but where the
purported reservation is inconsistent with the nature of the
estate conveyed, the grant controls (¶ 7). In this case,
the power to appoint clause in the warranty deed "purported
to grant her fee simple interest to her sons and in the next
breath claimed to retain the ability to grant her interest to
someone else" (¶ 8).
Torts
Duty to Defend - Tenders - Damages
Loosmore v. Parent,
2000 WI App 117 (filed 31 May 2000) (ordered published 28 June
2000)
The plaintiffs sued the defendant for injuries sustained in
a car accident. The defendant was employed by Allstate Insurance
Company but was himself insured by American Family. This appeal
involves American Family's liability to Allstate for a breach
of its duty to defend.
The court of appeals, in a decision written by Judge Hoover,
affirmed in part and reversed in part. First, the court held
that American Family had a duty to defend Allstate because it
had accepted Allstate's "tender of defense." American
Family did not dispute that Allstate put it on notice of the
claim or that Allstate qualified as an "insured" under
its policy. If there was any ambiguity in Allstate's tender,
American Family was in a superior position to "facilitate
clear communication." In short, the court was reluctant
to recognize a "sophisticated insureds" exception to
the case law governing tenders of defense. Finally, if Allstate's
position created any conflict with American Family or the defendant
driver, it was American Family's obligation to resolve the
conflict by hiring separate counsel, if necessary.
Second, the court addressed the measure of damages. Allstate
was entitled to "the damages that naturally flow" from
the breached duty. The damages included attorney fees for defending
itself and pursuing coverage, but they did not extend to the
cost of prosecuting a cross-claim against the defendant driver
(¶ 23-4).
Unemployment Compensation
Police Officers - Suspension With Pay - Computing
Unemployment Compensation Ineligibility Period
City of Kenosha v.
Labor and Industry Review Commission, 2000 WI App 131
(filed 3 May 2000) (ordered published 28 June 2000)
This is an unemployment compensation case involving a police
officer who was suspended from duty. Wis. Stat. section
108.04(6) provides that an employee who is suspended for
good cause is ineligible to receive unemployment compensation
benefits "until three weeks have elapsed since the end of
the week in which the suspension occurs."
In this case, a police officer was suspended with pay pending
the disposition of charges of improper conduct that had been
filed against him. Following a hearing before the police and
fire commission, he was found guilty and suspended without pay
for a specified period of time. The issue before the court of
appeals was whether the suspended officer's ineligibility
period under the unemployment compensation statute is measured
from the date of suspension with pay or from the later suspension
without pay.
The Labor and Industry Review Commission (LIRC) ruled that
the officer's ineligibility is measured from the date of
the officer's initial suspension with pay. The circuit court
upheld this determination. In a decision authored by Judge Nettesheim,
the court of appeals agreed with the LIRC. It concluded that
the statute makes no distinction between a suspension with pay
and a suspension without pay for purposes of calculating the
ineligibility period under the unemployment compensation law.
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.
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