Vol. 76, No. 12, December 2003

Court of Appeals Digest

by Prof. Daniel D. Blinka &
Prof. Thomas J. Hammer

Criminal Law Criminal Procedure Guardians Guardianships Insurance Lemon Law

Motor Vehicle Law Taxation Torts Paternity Worker's Compensation

Criminal Law

Attempts - Attempted Sexual Intercourse With a Child

State v. Brienzo, 2003 WI App 203 (filed 10 Sept. 2003) (ordered published 28 Oct. 2003)

The defendant was charged with several offenses, including attempted sexual assault of a child. Among the issues on appeal was whether attempted sexual assault of a child by means of sexual intercourse is a crime known to law. The defendant contended that this part of the case was an impermissible prosecution of an attempt to commit a crime that lacks an element of specific intent. He relied on a line of authority in which courts have held that a defendant cannot be charged with attempt to commit an offense that does not carry the element of specific intent. See, e.g., State v. Briggs, 218 Wis. 2d 61, 579 N.W.2d 783 (Ct. App. 1998).

In State v. Grimm, 2002 WI App 242, 258 Wis. 2d 166, 653 N.W.2d 284, the court of appeals held that a defendant can be charged with attempt to commit a sexual assault by means of sexual contact, because "sexual contact" is defined as "intentional touching" and therefore the completed crime necessarily includes an element of intent. The Grimm case left open the question of whether attempted sexual assault of a child by means of sexual intercourse is a crime known to law.

In this opinion, which was authored by Judge Brown, the court of appeals held that although attempted sexual assault of a child by means of sexual intercourse does not contain a formal element of intent, sexual intercourse necessarily involves intentional touching and, therefore, attempted sexual assault of a child by means of sexual intercourse is a crime known to law.

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Criminal Procedure

County Jail Confinement as Condition of Probation - Stay of Confinement Time During Hospitalization

State v. Edwards, 2003 WI App 221 (filed 24 Sept. 2003) (ordered published 28 Oct. 2003)

The defendant was placed on probation. As a condition of probation, he was ordered to serve one year of conditional jail time with work release. While serving the jail time, the defendant was hospitalized, and the circuit court entered an order staying the confinement time while the defendant was in the hospital. In postconviction litigation the trial court denied the defendant's motion for confinement credit for the time when he was hospitalized (while the stay of the confinement time was in effect).

In a decision authored by Judge Nettesheim, the appellate court held that a trial court has the discretionary authority to stay a probationer's conditional jail time while he or she is hospitalized. During the stay, the probationer is not a prisoner and is not entitled to credit, because the probationer is not subject to the confinement order while hospitalized and could not be charged with escape from custody if he or she left the hospital and failed to return to the jail.

With regard to the trial court's exercise of discretion to stay confinement time during the defendant's hospitalization, the appellate court concluded that it is self-evident that when the trial court imposed the conditional time, it expected such confinement to be served in the county jail setting. When the defendant's medical condition frustrated that expectation, the trial court did not erroneously exercise its discretion when it chose to stay confinement during the defendant's repeated periods of hospitalization.

Search Incident to Arrest - Hearsay

State v. Kutz, 2003 WI App 205 (filed 25 Sept. 2003) (ordered published 28 Oct. 2003)

The defendant was convicted of stalking his estranged wife, intentionally murdering her, hiding her corpse, and obstructing an officer. The court of appeals, in an opinion written by Judge Vergeront, affirmed. The appeal raised two clusters of related issues.

Initially, the court found that police had probable cause to arrest the defendant; thus, they also had authority to seize evidence from his person, including a wristwatch that appeared to have blood on it. Since the court's discussion is record intensive and applies well-settled principles of law, this issue will not be discussed further.

Next, the court addressed a variety of evidentiary challenges that involved the prosecution's use of hearsay evidence. Each item of evidence will be briefly described and the court's analysis summarized. (The court declined to address several other hearsay issues because the defendant had not properly objected to the evidence at trial. See ¶ 31.) First, the trial court properly admitted the victim's "instruction" to her mother to come looking for her if she did not return to her mother's home by a specified time. In upholding the admissibility of this out-of-court "statement," the court of appeals offered a sagacious, thorough discussion of the meaning of terms such as "statement" and "assertion" under the hearsay rule. The court concluded that a reasonable judge could have found that the victim's instruction did not contain the implicit assertion that the defendant was dangerous (¶ 48).

Second, the victim's statements to others that the defendant was "following her" were properly admitted under the recent perception exception. See Wis. Stat. § 908.045(2). A third set of statements involved the victim's fears of the defendant, including past threats. The court held that this hearsay was not admissible under any of the three theories proffered by the prosecution: statements of a then-existing state of mind, excited utterances, or statements of recent perception. Nonetheless, the error was harmless.

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Guardians

GALs - Settlements for Minors - Contempt

Evans v. Luebke, 2003 WI App 207 (filed 25 Sept. 2003) (ordered published 28 Oct. 2003)

Attorney H.W. represented four minors as a guardian ad litem (GAL) with respect to personal injury settlements. The circuit court approved the settlements and H.W.'s attorney fees. It further ordered that the balance of each settlement be placed at a financial institution in a "restrictive trust," from which no funds may be withdrawn until the child reaches the age of 18 or the court orders otherwise. A short time later the court learned that the money had not been placed in restricted accounts and that the balances had been partially or completely withdrawn. The court then appointed a successor GAL, who filed motions requesting that the court order H.W. to repay personally the depleted settlement funds, vacate the order approving H.W.'s attorney fees, and require H.W. to pay the new GAL's fees. After several hearings, the court granted the motions.

The court of appeals, in a decision authored by Judge Deininger, reversed. To begin with, the present and former GALs offered vastly different characterizations of what had occurred. H.W. claimed that the "sanctions" amounted to an unorthodox malpractice action. The new GAL claimed that the court acted properly under Wis. Stat. section 805.03.

The court of appeals held, however, that a "firmer grounding for a circuit court's authority may be found in the provisions of Wis. Stat. ch. 785 which permit a court to impose remedial sanctions for disobedience of its orders" (¶ 10). Although GALs possess quasi-judicial immunity in performing their duties, they are not "shield[ed] against court-imposed sanctions for failure to obey a court order" (¶ 12).

Applying the contempt procedures set forth in chapter 785, the court of appeals held "that what the circuit court imposed in this case were 'remedial sanctions,' i.e., ones 'imposed for the purpose of terminating a continuing contempt of court.' Wis. Stat. § 785.01(3). [H.W.]'s allegedly contumacious act or omission was her alleged failure to deposit, or see to the deposit of, the minors' settlement proceeds in restricted accounts as ordered by the court. So long as no properly restricted accounts containing the settlement proceeds existed, her alleged contempt continued. Thus, the court should have proceeded under Wis. Stat. § 785.03(1)(a), which establishes a procedure for the 'nonsummary' imposition of remedial sanctions, and under Wis. Stat. § 785.04(1), which specifies allowable remedial sanctions" (¶ 22).

In this case, however, the circuit court failed to follow those procedures, which require notice, an evidentiary hearing, and specific findings. As to remedies, a court may properly order a GAL to pay the original settlement amount and the cost of the contempt proceeding, but the record here did not support vacating the earlier approval of H.W.'s attorney fees.

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Guardianships

Protective Placements - Due Process - Experts - Hearsay

Walworth County v. Therese B., 2003 WI App 223 (filed 3 Sept. 2003) (ordered published 28 Oct. 2003)

At an evidentiary hearing, the circuit court found that Therese suffered from a mental illness, ordered her into a protective placement, and appointed a guardian. On appeal, Therese argued that the court erroneously admitted both the written report and the testimony of a psychologist. She also argued that the evidence was insufficient to support a finding that she is incompetent due to a mental disability or that she is in need of protective placement.

The court of appeals, in a decision authored by Judge Anderson, affirmed. The sufficiency of evidence issues are record-intensive and will not be discussed. Most of the opinion is devoted to the more general problem of experts who rely on other experts' oral or written reports that constitute inadmissible hearsay. According to the court, the psychologist, Dr. B., properly relied on reports previously prepared by two other experts, primarily because Therese refused to cooperate with Dr. B's examination. Wis. Stat. section 907.03 and case law have long provided that experts may rely on reports prepared by other experts.

However, there are limits to the reliance. Section 907.03 is not a hearsay exception that itself allows the hearsay report to be used as substantive evidence. Moreover, the trial judge may determine how much, if any, of the hearsay report may be disclosed to the jury for the limited purpose of understanding the testifying expert's opinion (¶ 8). From this it also follows that section 907.03 "does not give license to the proponent of an expert to use the expert solely as a conduit for the hearsay opinions of others" (¶ 9).

With these principles in mind, the court then addressed whether Therese B.'s claim that Dr. B's reliance on the inadmissible hearsay reports violated her right to due process should be analyzed under the same test that applies under the state's mental commitment law. Under this test, the court must balance the private interest affected by the civil action, the risk of erroneous deprivation of the interest through the procedures used, and the government's interest (¶ 11).

Balancing these factors, the court held "that permitting an examining professional to be nothing more than a conduit for the opinions of others would violate a proposed ward's due process rights. In a guardianship and protective placement proceeding, the finder of fact might make a decision that will result in a life sentence to a nursing home. ... [I]t is crucial that the examining professional reach his or her conclusion through an independent evaluation of the proposed ward and not through a review of the opinions of other expert psychiatrists and psychologists" (¶ 16). The court was satisfied, however, that Dr. B. had independently evaluated the information and rendered his own "professional opinion" (¶ 19).

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Insurance

Primary Insurance - Patients Compensation Fund

Estate of Capistrant v. Froedtert Mem'l Lutheran Hosp., 2003 WI App 213 (filed 23 Sept. 2003) (ordered published 28 Oct. 2003)

A jury awarded the plaintiffs more than $2 million in this medical malpractice action. The Wisconsin Patients Compensation Fund appealed on the ground that all of the "primary insurance covering those physicians [found negligent] should be viewed as an homogeneous pool of funds that must first be exhausted before the Fund's excess-liability coverage kicks in" (¶ 1).

The court of appeals, in an opinion written by Judge Fine, disagreed and affirmed. Under Wis. Stat. section 655.27(1), "[t]he Fund is, in essence, an excess-coverage carrier, created by the legislature to provide medical-malpractice insurance for damages that exceed a health-care provider's underlying primary insurance or self-insurance" (¶ 4). Subject to certain limits, all health care providers must carry insurance or be self-insured. The Fund, like an insurer, "stands in the shoes of those to whom it provides coverage, and is responsible for their conduct within the ambit of that coverage" (¶ 8). Wisconsin law provides that a person found causally negligent whose percentage of causal negligence is 51% or more shall be jointly and severally liable for the damages. See Wis. Stat. § 895.045(1).

Since one of the defendant doctors was found 70% causally negligent, the Fund was obligated to pay for all damages not covered by that doctor's primary insurance. Three other doctors were found to have been 30% causally negligent. Their primary insurer "can be liable for no more than its insureds are liable" (¶ 11).

"Made-Whole" Rule - Indian Tribes

Houle v. School Dist. of Ashland, 2003 WI App 214 (filed 30 Sept. 2003) (ordered published 28 Oct. 2003)

The plaintiff, a member of the Bad River Band of Lake Superior Tribe of Chippewa Indians, was seriously injured during recess on a public school playground. Bad River was included in a later lawsuit, because it had paid about $9,000 toward the plaintiff's medical expenses. The plaintiff later settled his claim for about $120,000 and asked for a Rimes hearing to determine whether Bad River was entitled to payment on its subrogated claim. The circuit court found that the plaintiff had not been made whole and further concluded that Bad River was not entitled to subrogation because the plaintiff was not required to pay for his medical treatment. Bad River appealed.

The court of appeals, in an opinion written by Judge Hoover, affirmed. The court disagreed with Bad River's arguments 1) that under federal law it had a subrogation right against Contract Health Service, a locally administered health service provider recognized under federal law, and 2) that Rimes was abrogated by 25 U.S.C. sections 1621e and 1682, and 42 C.F.R. section 36.61.

"Absent clearly expressed legislative intent, the mere grant of a subrogation right such as in 25 U.S.C. § 1682 is insufficient to abrogate the application of Rimes. Indeed, such a statute functions like a subrogation clause in an insurance policy. In [Ruckel v. Gassner, 2002 WI 67] our supreme court held such a clause in a policy does not prevent application of the made whole doctrine, even when it contains specific language elevating the insured's subrogation right over the insured's right to be made whole. The court concluded that such clauses are inequitable because they do not serve to prevent double recovery or unjust enrichment. Instead, the insurance company had no right to recover payments it made unless the insured was made whole. Similarly, here 25 U.S.C. § 1682 does not specifically abrogate Rimes and therefore, like an insurance clause, simply authorizes subrogation after an IHS [Indian Health Service] client has been made whole" (¶ 15) (citations omitted).

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Lemon Law

Offer of Comparable New Vehicle - 30-Day Period - Offer to Transfer Title

Garcia v. Mazda Motor of Am., 2003 WI App 208 (filed 3 Sept. 2003) (ordered published 28 Oct. 2003)

The plaintiff's lemon law claim was dismissed on summary judgment. The trial court ruled that the statutory 30-day period in which the manufacturer is obligated to offer the consumer a comparable new vehicle had not begun to run because the plaintiff had not offered to transfer title of her vehicle, as required by Wis. Stat. section 218.0171(2)(c). Put differently, the plaintiff's bare request for a comparable replacement vehicle did not trigger the 30-day period since she did not explicitly offer to transfer title.

The court of appeals, in an opinion written by Judge Vergeront, affirmed. The plaintiff argued that the statute does not require an explicit offer to transfer title; rather, such an offer is implicit in a request for a replacement vehicle (¶ 7). The court, however, saw no ambiguity or play in the rules: "the consumer must offer to the manufacturer to transfer title to the nonconforming vehicle and that offer triggers the start of the thirty-day period within which the manufacturer must provide the consumer with the chosen remedy" (¶ 11). In short, consumers must both request a refund or a comparable new vehicle and offer to transfer title (¶ 12).

Judge Lundsten dissented. "It is nonsensical for the owner of a 'lemon' to demand a replacement and not, at the same time, be offering to transfer title" (¶ 21).

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Motor Vehicle Law

Financial Responsibility Law - Proof of Operation Without Consent of Vehicle Owner

Plevin v. Department of Transp., 2003 WI App 211 (filed 3 Sept. 2003) (ordered published 28 Oct. 2003)

This case concerns Wisconsin's Financial Responsibility Law. See Wis. Stat. ch. 344. The law requires both the driver and the owner of any motor vehicle involved in an accident causing damages of more than $1,000 to prove that adequate resources exist to cover any possible liability. Parties may meet this requirement either by showing proof of insurance or by posting security in the amount of a reasonably possible judgment.

An exception to the security requirement exists for an owner whose motor vehicle was operated without the owner's permission. The administrative code provision implementing this exception provides three methods of acceptable proof: 1) a letter from the law enforcement agency where the offense occurred stating either that the vehicle was reported stolen before the accident or that the law enforcement agency investigated the report and found it to be a stolen vehicle; 2) a letter from the district attorney that the owner has filed a complaint against the operator and that the operator is being charged with operating without the owner's consent, or an affidavit signed by the operator stating that the vehicle was being operated without consent; or 3) an affidavit signed by the owner that the operator did not have permission to operate the vehicle. See Wis. Admin. Code § TRANS 100.09.

The issue before the court of appeals was whether these three forms of proof of non permission are illustrative or exclusive. The Department of Transportation (DOT) has interpreted these methods of proof to be exclusive. In a decision authored by Judge Wedemeyer, the court of appeals concluded that the DOT's interpretation of the exemption rule is entitled to controlling weight.

The rule requires either letters from a law enforcement agency or the district attorney or the submission of affidavits. Such proof supplies an added degree of trustworthiness to support the defense that the driver of the vehicle did not have the owner's permission to operate the vehicle. Given the purpose behind the financial responsibility law, the heightened degree of proof required to satisfy the exemption requirements is not unreasonable. Said the court, "to allow additional methods of proving non permission could open the way for fraudulent claims and interfere with DOT's responsibility for compensation of individuals damaged as a result of the negligence of operators of uninsured motor vehicles" (¶ 17).

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Paternity

Child Support - Trust Fund for Higher Educational Needs

Kowalski v. Obst (In re Paternity of Andrew K.), 2003 WI App 218 (filed 17 Sept. 2003) (ordered published 28 Oct. 2003)

In this paternity action the court of appeals considered the continuing vitality of Mary L.O. v. Tommy R.B., 199 Wis. 2d 186, 544 N.W.2d 417 (1996), in which the supreme court held that a trial court may establish a trust for a child's post-minority educational expenses from funds paid for child support.

The father argued that because the child support statute (Wis. Stat. § 767.51(5)(e) (1993-94)) cited in Mary L.O. has been repealed, a trial court no longer has the authority to establish a trust for post-minority educational expenses from child support funds.

In a decision authored by Judge Brown, the court of appeals held that when the legislature repealed the statute cited above, it did not intend to alter the import of Mary L.O. Thus, the trial court in this case had the authority to establish a trust from child support paid during the child's minority, some of which may be used to fund the child's higher education.

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Taxation

Property Taxes - Challenges to Tax Assessments - City of Milwaukee

U.S. Bank Nat'l Ass'n v. City of Milwaukee, 2003 WI App 220 (filed 30 Sept. 2003) (ordered published 28 Oct. 2003)

Under Wis. Stat. section 74.37, a taxpayer who contends that the amount of general property tax imposed is excessive may file a claim against the taxation district that collected the tax. Section 74.37(6) provides that this statute does not apply in counties with a population of 500,000 or more. Milwaukee County is the only Wisconsin county with a population exceeding 500,000.

In Nankin v. Village of Shorewood, 2001 WI 92, 245 Wis. 2d 86, 630 N.W.2d 141, the Wisconsin Supreme Court declared unconstitutional the restriction that section 74.37 procedures could only be used outside of Milwaukee County. Despite the Nankin decision, the circuit court in this case held that section 74.37 procedures could not be used to challenge tax assessments on property located in the city of Milwaukee.

In a decision authored by Judge Fine, the court of appeals reversed. In the wake of Nankin, the appellate court saw the statewide application of section 74.37 as the predominant legislative purpose, which must prevail over any statutes that would defeat its implementation. In that vein the appellate court proceeded to analyze the interplay between section 74.37 and various other statutes that deal with property taxation in Milwaukee.

For example, section 74.37 requires that a claim for an excessive assessment must be served on the clerk of the taxation district by January 31 of the year in which the tax based upon the contested assessment is payable. This conflicts with section 70.47(16), which provides that, in Milwaukee, objections to the amount or valuation of real property shall be first made and filed with the commissioner of assessments on or before the third Monday in May. The appellate court concluded that a claim by a Milwaukee taxpayer using section 74.37 procedures is timely if it is filed with the commissioner of assessments on or before the third Monday in May.

Among other conclusions in this case, the court of appeals held that "sec. 74.37 trumps any provision that was once, but no longer is, consistent with its provisions, and this includes that part of sec. 70.47(16) that says that those contesting City of Milwaukee property-tax assessments may only seek judicial review of those assessments via certiorari" (¶ 18).

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Torts

Governmental Immunity - Public Parking Lot

Ellerman v. City of Manitowoc, 2003 WI App 216 (filed 24 Sept. 2003) (ordered published 28 Oct. 2003)

The plaintiff sued the city of Manitowoc, alleging that she slipped and fell on a patch of ice in a parking lot alleged to be owned, maintained, monitored, and repaired by the city. As a result of the fall, the plaintiff suffered a severely broken ankle. The city answered, denying negligence and arguing that the plaintiff's claim was barred by Wis. Stat. section 81.15, which establishes limited immunity for maintenance of highways. The circuit court granted summary judgment to the city.

In a decision authored by Judge Brown, the court of appeals affirmed. The sole issue before the court was whether a public parking lot is a "highway" within the meaning of section 81.15. The court concluded that the term "highway" encompasses a public parking lot and, therefore, the city is entitled to immunity under the statute.

Punitive Damages - "Intentional" Disregard - Proof

01-0724, 01-1031. Wischer v. Mitsubishi Heavy Indus. Inc., 2003 WI App 202 (filed 30 Sept. 2003) (ordered published 28 Oct. 2003)

This litigation involves the death of three steel workers during the construction of Miller Park in Milwaukee. A jury awarded the families punitive damages of $94 million in addition to other damages. On appeal the parties raised a wide range of issues, but the single "dispositive" issue involved the punitive damages statute. See Wis. Stat. § 895.85(3).

Reversing the punitive damages award, the court of appeals, in a decision authored by Judge Wedemeyer, held that "the phrase 'intentional disregard of the rights of the plaintiff' in Wis. Stat. § 895.85(3) can only be reasonably interpreted to require either an intent by a defendant to cause injury to the plaintiffs or knowledge that the defendant's conduct was practically certain to cause the accident or injury to the plaintiffs" (¶ 5). This holding mooted the remaining issues.

The court of appeals said that the "plain language" of section 895.85(3) recognizes two categories of punitive damages. First, punitive damages are appropriate when the defendant's conduct is malicious. Since all parties "concede[d] that the record here is devoid of malicious conduct," punitive damages could not be sustained under this theory (¶ 34).

The second category permits punitive damages based on a defendant's "intentional disregard of the rights of the plaintiff," a phrase ostensibly designed to "heighten" the standard of proof. Although the legislature did not specifically define the word "intentional," the court looked to other sources, including the criminal law, and held that the "statute requires both a general intent to perform an act and a specific intent to cause injury by that act or knowledge that the act is practically certain to result in injury, and not, as the plaintiffs would have it, a volitional act that results in unintended and unforeseen injuries" (¶ 40) (emphasis in original).

On this record, the trial court erred when it even permitted the jury to consider punitive damages: "there was no evidence that the defendants intended to harm the decedents or that the defendant[s] knew their conduct was practically certain to result in injury" (¶ 45). This finding was rooted in plaintiff's counsel's ostensible "concession" that "the evidence does not rise to the level of intent to harm" (¶ 45).

Judge Fine concurred and filed a separate opinion. Judge Schudson dissented.

Punitive Damages - Defamation - Former Employees - "Good Faith" References

Gibson v. Overnite Transp. Co., 2003 WI App 210 (filed 23 Sept. 2003) (ordered published 28 Oct. 2003)

This case should be read along with Wischer v. Mitsubishi (digested above), which also addresses punitive damages. In Gibson, a jury awarded the plaintiff about $238,000 in compensatory and punitive damages based on "negative comments" made by the manager of the plaintiff's former employer.

The court of appeals, in an opinion written by Judge Peterson, affirmed in an opinion that briefly addressed two issues before it discussed the punitive damages. First, the court declined to consider the employer's argument that the plaintiff's defamation claim was precluded by the National Labor Relations Act. The employer waived the argument by failing to raise it in the trial court.

Second, the employer was not shielded by the "conditional privilege" under Wis. Stat. section 895.487, which presumes an employer's "good faith" when providing a "reference" at the request of an employee or a prospective employer. The presumption of good faith may be rebutted in three different ways, including by proof of "express malice" (i.e., "ill will"), as the jury found in this case. The court rejected the employer's argument that the legislature mandated proof of "actual malice" (i.e., a knowing falsehood or reckless disregard for the truth) (¶ 16).

The court rejected the employer's argument that the punitive damages were excessive. Focusing on four of the six factors identified in earlier Wisconsin cases, the court found sufficient evidence of the "grievousness of the acts" and the tortfeasor's "malicious intent" (e.g., the plaintiff spent 18 months trying to find a job because of the employer's defamation) (¶ 21). The punitive damages also bore a "reasonable relationship to the compensatory damages award." Although the punitive damages were about eight times larger than the compensatory damages, the ratio fell within parameters of recent case law. Finally, the judge properly considered the employer's wealth (the parties stipulated that the defendant company was worth more than $315 million).

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Worker's Compensation

Exclusive Remedy - Exceptions

Keller v. Kraft, 2003 WI App 212 (filed 23 Sept. 2003) (ordered published 28 Oct. 2003)

While on duty as a city firefighter, Keller was driving his own automobile to the grocery store so that he could prepare a meal at the firehouse. Keller's car was struck by a city police car driven by an on-duty police officer. Keller received worker's compensation benefits as a result of his injuries and later filed this action against the city and the allegedly negligent police officer. The trial court granted summary judgment in favor of the city, finding that the claim was barred by the exclusive remedy provision of the worker's compensation law.

The court of appeals, in an opinion written by Judge Wedemeyer, reversed. "The issue in this case involves the interpretation of the worker's compensation statute and the third exception provided within Wis. Stat. § 102.03(2), relating to suits between co-employees" (¶ 4). The Kellers argued "that the third exception removes this claim from the general rule that an employee who receives worker's compensation is precluded from bringing suit against a co-employee. The Kellers contend that the language is clear: the exclusive remedy does not apply to co-employee suits when a local ordinance provides that the employer will indemnify the co-employee from any judgments. Here, the Kellers point out that a local ordinance exists, which will indemnify [the police officer] for any liability he incurs as a result of any personal injury arising from this case" (¶ 6).

The court held that the statute's plain language and its legislative history pointed to but one conclusion: "An employee who receives worker's compensation benefits may also file suit against a co-employee when a governmental unit is obligated to pay judgments against that employee pursuant to a collective bargaining agreement or a local ordinance" (¶ 15). Union employees had argued that taking away the right to sue a negligent co- employee would amount to an unfair labor practice (¶ 16).

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