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).
Wisconsin
Lawyer