Court of Appeals Digest
By Prof. Daniel D. Blinka & Prof. Thomas J.
Hammer
| Criminal Law | Criminal Procedure
| Evidence | Family Law | Guardianship | Highways | Insurance | Torts |
Criminal Law
Possession of Controlled Substance - Positive Blood or Urine Tests -
Sufficiency of Evidence to Support a Conviction
State v. Griffin,
No. 97-0914-CR (filed 7 May 1998) (ordered published 29 July 1998)
An issue of first impression in Wisconsin was presented in this case.
It is whether the presence of a controlled substance in a person's blood
or urine is sufficient, in and of itself, to support a conviction for
possession of that controlled substance. Though not previously
considered by a Wisconsin court, the great majority of courts in other
jurisdictions have held that the presence of a controlled substance in
one's urine or blood, without more, is insufficient evidence on which to
base a conviction for possession.
As in other jurisdictions, to be found guilty of possession of a
controlled substance, the Wisconsin defendant must have had the
substance under his or her control and must have knowingly possessed the
substance. Because Wisconsin's law of possession is similar to that of
other jurisdictions, the court of appeals in this case followed those
jurisdictions that have held that the mere presence of drugs in a
person's system is insufficient to prove that the drugs were knowingly
possessed by the person or that the drugs were within the person's
control.
Although the presence of drugs in one's system, standing alone, is
insufficient to support a conviction for possession, the presence of
drugs is circumstantial evidence of prior possession. When combined with
other corroborating evidence of sufficient probative value, evidence of
assimilation can be sufficient to prove possession beyond a reasonable
doubt. For example, in this case the court concluded that the presence
of the THC metabolite in the defendant's system, when combined with
other corroborating evidence of drug possession, was sufficient to
support the jury's verdict convicting the defendant of possession of
marijuana. [THC is the biologically active substance in marijuana.]
Police recovered THC and smelled the odor of marijuana when they
served a search warrant at the apartment of a friend of the defendant.
They also found several articles of the defendant's clothing at the
apartment. The defendant was observed leaving the apartment a half hour
before the warrant was served. While the search was in progress, the
defendant returned to the apartment, where he was met outside by a
police officer. As the officer approached him, the defendant turned away
and placed his hands behind his back "in the classic handcuff position."
While cuffing the defendant, the officer could smell marijuana on his
clothing and on his breath. Said the court, based on the presence of THC
in the defendant's system and other corroborating evidence, a reasonable
jury could find beyond a reasonable doubt that the defendant knowingly
possessed and ingested marijuana.
Failure to Pay Child Support - Affirmative Defense of Inability to
Pay - Admissibility of Incarceration Evidence
State v.
Stutesman, No. 97-2991-CR (filed 30 July 1998) (ordered
published 26 Aug. 1998)
During their marriage the defendant and his wife had three children.
Following their divorce, and pursuant to various court orders, the
defendant was directed to pay child support. He subsequently was charged
with 16 counts of failure to pay child support. See Wis. Stat.
§ 948.22. This statute criminalizes the intentional failure to pay
support that the person knows or reasonably should know he or she is
legally obligated to provide. The statute contains an affirmative
defense based upon inability to pay child support. However, a person may
not demonstrate inability to provide support if the person is employable
but, without reasonable excuse, either fails to diligently seek
employment, terminates employment, or reduces his or her earnings or
assets.
In this case the state filed a motion before trial to prohibit the
defense from introducing evidence that he was unable to pay child
support because he was incarcerated. The state argued that it was within
the control of the defendant whether to commit a crime, and that the
statutory affirmative defense is limited to circumstances beyond the
defendant's control. Defense counsel responded that it was the state's
burden to prove that the defendant intentionally engaged in criminal
conduct in order to avoid paying child support, and whether that was his
intent was a question for the jury. The trial court granted the state's
motion, concluding that evidence of the defendant's incarceration was
irrelevant.
In a decision authored by Judge Vergeront, the court of appeals
reversed. It agreed with the defendant that the trial court's exclusion
of all evidence of his incarceration deprived him of his Sixth Amendment
right to present a defense. Inability to pay child support is an
affirmative defense under the statute. Evidence of the defendant's
incarceration therefore was relevant to that defense because, depending
upon the circumstances of incarceration, it may prevent a person from
being employed, and therefore may prevent a person from having earnings
with which to pay child support. Whether a person commits a crime in
order to avoid paying child support is a question of fact for the
jury.
The court also concluded that the defendant's previous failure to
bring a motion to reduce his child support payment because of
incarceration did not preclude him as a matter of law from presenting
evidence in his criminal case that he was unable to pay child support
because of incarceration.
In footnote the court agreed with the state's position that evidence
of incarceration does not, in itself and automatically, establish a
defense of inability to pay. However, that was not the defendant's
position. His argument was that he should have been permitted to present
evidence of incarceration to the jury and let the jury decide whether he
was unable to pay child support.
Aiding a Felon - Elements of Offense - Wis. Stat. section
946.47(1)(a)
State v. Schmidt,
No. 97-3131-CR (filed 30 July 1998) (ordered published 26 Aug. 1998)
Wis. Stat. section 946.47(1)(a) provides that, whoever does the
following is guilty of a Class E felony: "With intent to prevent the
apprehension of a felon, harbors or aids him or her ...." In this case
the critical issue on appeal was whether this statute applies to aiding
a person who already has been convicted of a felony and is now wanted
for a parole violation following that conviction, or alternatively,
whether it should be limited to aiding persons who are now wanted for,
but have not yet been convicted of, a felony.
In a decision authored by Judge Vergeront, the court of appeals
concluded that, within the meaning of this statute, there is no
distinction between these classes of "felons." Whether the person
already has been convicted of a felony and is now wanted for a parole
violation following that conviction or is now wanted for but has not yet
been convicted of a felony, is not a distinction recognized by the
statute. Said the court, each of these persons is a "felon" within the
meaning of section 946.47(2)(a) because each "commits an act ... which
constitutes a felony under the laws of this state." The quoted segment
of the preceding sentence is from the definitional portion of section
946.47 and reflects a legislative decision to define the term "felon" in
a way that includes persons sought to be apprehended now for the
commission of a felony, as well as persons previously convicted of a
felony who are now sought for other reasons such as a parole
violation.
Drug Offenses - Felony Possession of THC - Elements of Offense
State v. Miles,
No. 97-1364-CR (filed 21 July 1998) (ordered published 26 Aug. 1998)
The defendant was convicted of felony possession of
tetrahydrocannabinols (THC), which is the biologically active substance
in marijuana, contrary to Wis. Stat. sections 161.14(4)(t), 161.01(14),
161.41(3r) and 161.48(2) (1993-94). Under section 161.41(3r) it was
unlawful for him to possess THC and, because this was his second
offense, the crime was a felony and the minimum penalties were doubled.
[Similar provisions appear in the current version of the controlled
substances laws codified in Wis. Stat. chapter 961.]
The issue on appeal was whether the prior drug conviction was an
element of the offense of felony possession of THC that must be proved
at trial beyond a reasonable doubt. In a decision authored by Judge
Curley, the court of appeals concluded that the prior drug conviction is
not an element of the offense of felony possession of THC, and that
neither state law nor the defendant's constitutional right to due
process required the state to prove the defendant's prior drug
conviction at trial beyond a reasonable doubt.
Although the drug repeater statute converted the defendant's crime of
possession of THC from a misdemeanor to a felony, it did not change the
substantive nature of the crime nor did it concern the factual
circumstances surrounding the underlying crime. The court likened the
drug repeater to those provisions of Wisconsin's OWI law that elevate
the penalties for that offense if the defendant has prior
alcohol-related convictions. In the latter situation the Wisconsin
Supreme Court has concluded that the prior convictions do not in any way
alter the nature of the substantive offense but rather are concerned
only with the question of punishment. Therefore, the prior convictions
do not require jury determination.
Criminal Procedure
Conditions of Probation - Costs - Payment of Crime Laboratory
Expenses to Analyze Drugs
State v. Neave,
No. No. 97-3486-CR (filed 1 July 1998) (ordered published 26 Aug.
1998)
The defendant pled guilty to two counts of delivery of cocaine. The
circuit court sentenced him to four years of imprisonment on the first
count and to 10 years concurrent probation on the second. As a condition
of probation, the court ordered the defendant to pay $220 for laboratory
testing performed by the State Crime Lab in connection with the
offenses.
The defendant appealed the requirement that he pay for the laboratory
testing and the court of appeals, in a decision authored by Judge
Nettesheim, reversed the circuit court. The issue before the appellate
court was whether the cost of the State Crime Lab's analysis of a
controlled substance may be imposed as a condition of probation. Because
Wis. Stat. section 973.06(1) does not recognize such an expenditure as
an allowable taxable cost, the appellate court vacated that portion of
the judgment requiring the defendant to pay this expense as a condition
of probation.
Sentencing - Evidence of Victim's Prior Criminal Record
State v. Spears,
No. No. 97-0536-CR (filed 9 June 1998) (ordered published 26 Aug.
1998)
The victim in this homicide case stole the defendant's purse. The
defendant gave chase with an automobile and ultimately ran over the
purse snatcher, causing his death. Pursuant to a plea agreement, the
defendant entered an Alford plea and was convicted of
second-degree intentional homicide.
At sentencing, the state recommended 15 years imprisonment and
presented numerous members of the victim's family who addressed the
court on his behalf. The court also heard from the defendant, her
attorney, and members of the defendant's family. Defense counsel also
submitted a sentencing memorandum, which included a printout of the
deceased's criminal record. The record showed that the deceased had
convictions for burglary, attempted theft, theft and robbery, and had
numerous other arrests. When the prosecutor objected to the introduction
of the deceased's criminal record, the trial court agreed that the
victim's prior record was not relevant to the sentencing proceedings.
The court sentenced the defendant to 20 years' imprisonment.
On appeal the defendant urged that the victim's prior criminal record
was relevant to rebut his family's inaccurate portrayal of him. She
contended that the sentencing court erred in ruling that the victim's
criminal record was irrelevant to the sentencing decision. In a decision
authored by Judge Schudson, the court of appeals agreed.
Said the court, under the circumstances of this case, the victim's
criminal record was relevant and should have been considered by the
trial judge. The sentencing court considered the impact of the victim's
death on his friends and relatives. At sentencing the relatives spoke
glowingly of the deceased's character and, at times, they vigorously
urged lengthy incarceration for his killer. They attempted to convey
their sense that substantial incarceration was warranted for reasons
including what they perceived as the deceased's good conduct and what
they believed to be his virtues. In an effort to address that
proposition, the defendant was entitled to attempt to counter the weight
of the victim impact evidence by introducing evidence showing that the
deceased's relatives may have overstated their loss, or may have
misconceived the character of their loved one. "Faced with
recommendations that she serve a lengthy prison sentence, in part,
because of the virtue of her victim, the defendant in fairness
should have had the opportunity to recommend a lesser sentence, in part,
because the deceased's criminal record compromised claims about his
virtue."
Search and Seizure - Attenuation - Strip Search
State v. Simmons,
No. No. 97-1861-CR (filed 1 July 1998) (ordered published 26 Aug.
1998)
The defendant was convicted of possessing cocaine and sentenced to
prison. The cocaine was found during a strip search conducted in 1995.
He claimed that the 1995 strip search was invalid because it was based
on an earlier illegal strip search in 1990.
The court of appeals, in an opinion written by Judge Brown, affirmed.
In 1990 police arrested the defendant based on information that he
"regularly secreted plastic bags of cocaine between the cheeks of his
buttocks." Police discovered numerous bindles of cocaine in the
aforementioned location while conducting a warrantless strip search. The
court of appeals suppressed the evidence because the 1990 search was
unlawfully based on uncorroborated statements by a confidential
informant.
In 1995 police obtained information that the defendant was selling
cocaine. When applying for the search warrant, police included
information about the 1990 incident in order to justify their request
for a strip search authorization. The search warrant authorized the
search of the defendant's apartment, its curtilage, and permitted a
strip search of the defendant and search of his underclothing. When
executing the warrant, police discovered a "golf-ball" sized baggy of
cocaine "lodged between the cheeks of Simmon's buttocks. "
Applying the attenuation doctrine, the court held that the evidence
suppressed from 1990 did not taint the 1995 search. This was not a case
in which police used illegally seized evidence to conduct a
"confirmatory search. " Put another way, the court was "faced with a
situation in which the police initiated the 1995 investigation and
sought the search warrant only after they received new information from
an informant that Simmons was selling cocaine from the apartment. The
earlier illegal search of Simmons and discovery of cocaine did not
prompt their decision to investigate Simmons; it was a separate and
independent investigation. " Case law explaining the attenuation
doctrine clearly rejected a "but for" relationship between the primary
illegality and a later search.
Fair Trial - Impartial Jury - Strikes "For Cause"
State v. Kiernan,
No. 97-2449-CR (filed 22 July 1998) (ordered published 26 Aug. 1998)
Kiernan was convicted of operating while intoxicated following a jury
trial. Reversing the conviction, the court of appeals held that her due
process rights were violated when the trial judge refused to strike for
cause "five jurors who had earlier rejected an identical theory of
defense to be employed by her. "
Prior to jury selection, Kiernan's trial counsel objected to the
array of the jury. The judge put the objection aside until a jury had
been picked and sworn. Two days earlier five jurors called for voir dire
served on a six-person jury trial involving the same offense, before the
same judge, and defended by the same lawyer. Kiernan's lawyer "pointed
out that the defense theory in the earlier trial was that 'residual
mouth alcohol is a problem for the Intoxilyzer 5000' and he planned to
use the same defense on behalf of Kiernan. "
Writing for the court, Judge Anderson applied recent case law
addressing defendants who were "arbitrarily forced" to use peremptory
strikes to excuse biased jurors. Since the voir dire had not been
recorded, the court could not address the jurors' subjective bias.
Instead, the court looked to whether any reasonable juror, under similar
circumstances, could assess Kiernan's defense fairly and impartially. In
summary, the court held "that it is error to force a defendant to use
his or her peremptory challenges when it has been established that: (1)
one or more potential jurors have previous jury experience; (2) during
their previous service the veteran jurors rejected an identical theory
of defense the defendant intends to rely upon; (3) the credibility of
witnesses is not crucial to the theory of defense; and (4) during voir
dire the veteran jurors have stated that they will not give serious
consideration to the theory of defense. "
Evidence
"Other Acts" - Defense Use - Identification
State v.
Scheidell, No. No. 97-1426-CR (filed 1 July 1998) (ordered
published 26 Aug. 1998)
Scheidell was convicted of armed burglary and attempted sexual
assault. The prosecution alleged that he broke into a woman's apartment
while she slept and attempted to rape her. Scheidell denied any
involvement and claimed to have been sleeping when the crime occurred.
The trial judge refused to admit evidence that five weeks after this
offense another woman was assaulted under strikingly similar
circumstances. The defense theory was that the same man was responsible
for both assaults.
The court of appeals, in an opinion written by Judge Anderson,
reversed in a significant opinion that establishes a test for the
admissibility of "other acts" evidence used by the defense on the issue
of identification. "Other acts" evidence is governed by section
904.04(2) of the Wisconsin Statutes. The defendant is permitted to use
section 904.04(2) to exonerate himself. The court distinguished case law
limiting the use of "other acts" by third parties to show that the third
party had a motive to commit the charged offense. It also rejected the
State's argument that the defense should be bound by the same stringent
standards that limit the prosecution's use of other acts evidence to
show the defendant's identity. The court held "that when a defendant
seeks to offer 'other acts' evidence regarding identification, prejudice
is no longer a fact and the trial court should use an admissibility
standard that concentrates on the simple relevancy as to guilt and
innocence." Under section 904.03, the trial court should admit the other
acts evidence unless its probative value is substantially outweighed by
confusion of the issues, misleading the jury, or considerations such as
"waste to time."
Since the trial judge incorrectly applied stricter standards of
admissibility, error infected the record and a new trial was
appropriate. Applying its own rule, the court directed the trial judge
to admit the evidence that a third party had committed a "remarkably
similar" offense while Scheidell sat in jail.
Family Law
Uniform Interstate Family Support Act - Competency of Wisconsin
Courts to Modify Child Support Orders Issued in Another State
Cepukenas v.
Cepukenas, No. No. 97-1815 (filed 29 July 1998) (ordered
published 26 Aug. 1998)
In 1992 Shelli and Timothy Cepukenas were granted a judgment of
divorce by a Virginia state court. The judgment granted the parties
joint custody of their only daughter, with primary placement awarded to
the mother. The court further ordered that Timothy pay $400 per month in
child support. Shelli and her daughter subsequently moved to Wisconsin,
where they presently reside. Timothy eventually moved to Delaware.
In 1997 Shelli filed an order to show cause in a Wisconsin court
requesting modification of the Virginia child support order. She
obtained personal service on Timothy. She asked that pursuant to
Wisconsin law Timothy's child support obligation be modified to 17
percent of his gross income or $400 per month, whichever was
greater.
The circuit court found that it had personal jurisdiction over
Timothy. It also concluded that Timothy was no longer a resident of
Virginia. Nonetheless, it concluded that because Shelli was a resident
of Wisconsin, Wis. Stat. section 769.611(1)(a) precluded the court from
modifying the child support order. It opined that under the statute,
Shelli could only seek relief in Delaware, where Timothy resided, or
Virginia, the issuing state.
The court of appeals, in a decision authored by Judge Brown,
affirmed. The sole issue on appeal was whether section 769.611 curtails
the Wisconsin court's power to revise the Virginia child support order.
The appellate court concluded that it does.
In 1994 the Wisconsin Legislature adopted the Uniform Interstate
Family Support Act as Wis. Stat. chapter 769 with the goal of
establishing practical rules for the enforcement or modification of
another state's child support orders. Section 769.611 speaks directly to
the competency of Wisconsin courts in interstate cases involving the
modification of child support orders and specifies conditions that must
be satisfied in order for the Wisconsin court to modify such orders.
The first condition that must be satisfied is that the child support
order must have been registered in Wisconsin. Shelli conceded that she
never registered the Virginia child support order in this state.
Nonetheless, even if she had done so, it would not have altered the
outcome of this appeal.
Once a child support order is registered in Wisconsin, a court may
modify the order only if one of two conditions is met. First, if an
individual party or the child is subject to the jurisdiction of this
state and all the parties have filed a written consent submitting to the
court's jurisdiction, the court may modify the order. [This condition
has been modified somewhat by subsequent amendments to the statute that
are not applicable under the facts of this case.] No written consent was
filed in this case.
Alternatively, the court may modify the child support order if all of
the following conditions are met: 1) the child, the individual obligee,
and the obligor do not reside in the issuing state; 2) a petitioner who
is a nonresident of this state seeks modification; and 3) the respondent
is subject to the personal jurisdiction of the tribunal of this state.
Applying these requirements to the case at hand, the court concluded
that it is clear that the first and third conditions have been
satisfied. As stated above, Timothy is subject to the personal
jurisdiction of this state. Further, neither of the parties nor the
child continues to reside in Virginia, the issuing state. But Shelli,
the petitioning party, is a Wisconsin resident. She is not, as the
statute requires, a "nonresident of this state." Because the second
requirement has not been met, the Wisconsin courts cannot exercise
jurisdiction to modify the Virginia child support order.
Shelli also argued that because Virginia no longer has continuing,
exclusive jurisdiction [under the statute an issuing state loses
continuing, exclusive jurisdiction over a child support order if it is
no longer the residence of the obligor, the obligee, or the child for
whose benefit support is ordered], she is under no obligation to
register the existing child support order and is free to petition a
Wisconsin court to enter a new support order. Stated otherwise, she
argued that because Virginia has lost continuing, exclusive
jurisdiction, she can petition a Wisconsin court to assume continuing,
exclusive jurisdiction and enter a new order. The court of appeals
disagreed. Section 769.207(1)(a) makes clear that if another state has
issued a child support order, the order of that tribunal must be
recognized irrespective of where it was issued and whether either party
or the child continues to reside in the issuing state.
In footnote the court observed that because neither of the parties
nor the child continues to reside in Virginia, that state no longer has
continuing, exclusive jurisdiction over the child support order.
However, the trial court was of the opinion that although Virginia had
lost continuing, exclusive jurisdiction, Shelli could still petition a
Virginia court to modify the order. This was incorrect. Once the issuing
state loses continuing, exclusive jurisdiction, it no longer has the
power to modify the child support order.
Guardianship
Emergency Detentions - Costs
Ethelyn I.C. v. Waukesha
County, No. 97-2236 (filed 22 July 1998) (ordered published 26
Aug. 1998)
Ethelyn, age 95, was subject to an emergency detention petition. A
court commissioner later ruled that the county had failed to demonstrate
probable cause or that she was so incapable of providing for herself
that there was a substantial risk of serious harm to Ethelyn or others.
The county later instituted guardianship proceedings to which Ethelyn
stipulated. In this appeal Ethelyn contested the trial court's decision
to assess her with costs associated with the two petitions.
The court of appeals, in an opinion written by Judge Snyder, affirmed
in part and reversed in part. The emergency petition was filed under
section 55.06(11) of the Wisconsin Statutes, under which a person is
immediately "detained" and not entitled to a hearing for the first
seventy-two hours. For this reason, the court held that under section
55.06(11) the required "personal observation" must be made by the
enumerated officials (for example, sheriff, police officer, fire
fighter). Since the sheriff's deputies in this case relied upon hearsay
(what others told them about Ethelyn's condition), the statutory
requirement was not met and the initial detention was illegal. The
unlawful detention meant that the county could not trigger the
cost-shifting provision of section 46.10 and saddle Ethelyn with the
costs of the inpatient hospitalization.
The court next addressed the propriety of assessing costs to Ethelyn
involving: 1) the guardian ad litem; 2) the fees of the advocate
counsel; 3) fees of a court appointed expert; and, 4) fees for an
attorney appointed as a temporary guardian of her person and the estate.
The expense of the guardian ad litem was correctly assessed to Ethelyn
under section 880.33. The remaining fees rested within the trial court's
discretion. The court remanded the case for a determination of whether
Ethelyn should be assessed these costs because the trial judge's initial
determination had been based on the faulty assumption that Ethelyn was
responsible for the costs of the emergency detention.
Highways
Cause of Action for Damage Caused by Surface Waters Due to Highway
Construction - Wis. Stat. section 88.87 - Notice of Claim Time
Requirements
Lins v. Blau, No.
97-2533 (filed 9 July 1998) (ordered published 26 Aug. 1998)
Wis. Stat. section 88.87 was enacted to regulate the construction and
drainage of all highways in order to protect property owners from damage
to lands caused by unreasonable diversion or retention of surface waters
due to the construction of highways or railroad beds. The statute
imposes a duty on governmental agencies to refrain from impeding "the
general flow of surface water or stream water in any unreasonable manner
so as to cause either an unnecessary accumulation of waters flooding or
water-soaking uplands or an unreasonable accumulation and discharge of
surface waters flooding or water-soaking lowlands."
Section 88.87(2)(c) creates a remedy for property owners who claim
damages from a violation of this statute and establishes certain
procedures to be followed in making a claim. Prior to 1994 the property
owner could, within 90 days after the alleged damage occurred, file a
claim with the appropriate governmental agency. The governmental agency
then had 90 days after the filing of such claim to correct the cause of
the water damage, acquire rights to use the land for drainage, or deny
the claim. If the governmental agency or railroad company denied the
claim or failed to take any action within 90 days after its filing, the
property owner could bring an action for inverse condemnation or sue for
some other form of equitable relief.
In 1994 the Legislature amended section 88.87(2)(c) to give aggrieved
property owners three years within which to file a claim. The
Legislature made this change with the intent to provide the land owner
with sufficient time to discover the damage.
Before the court of appeals the issue was whether the amended time
limits of section 88.87(2)(c) should be applied prospectively or
retroactively. In a decision authored by Judge Dykman, the court
concluded that the statute, as amended, is procedural in nature and, as
such, should be applied retroactively. Said the court, both the
pre-amendment and post-amendment versions of section 88.87(2)(c)
constitute notice of claim requirements and are not statutes of
limitation.
Insurance
Coverage - Negligent Entrustment
Malone v. Gaengel,
No. 98-1001-FT (filed 21 July 1998) (ordered published 26 Aug. 1998)
Ten-year-old Jason was killed while riding on the back of an ATV
driven by his 12-year-old cousin, Damian. Damian's parents carried
homeowners and automobile insurance issued by West Bend Mutual Ins. Co.
Jason's mother sued Damian's parents and West Bend alleging that they
had negligently permitted Damian to drive the ATV and were negligent in
not making Jason wear a helmet. The trial judge granted summary judgment
dismissing the complaint against West Bend.
The court of appeals, in an opinion written by Judge Fine, affirmed.
The ATV had not been listed on the policy's declaration page. Moreover,
the accident did not occur on "premises or land covered" by the policy.
The plaintiff fixed on policy language that insured liability for
"accident or incident that happens in your home or on your property." It
also covered "liability involving your personal, nonbusiness activities
anywhere in the world." Analyzing two earlier cases, the court held that
"neither letting Damian drive the all-terrain vehicle (alleged negligent
entrustment) nor not making Jason wear a helmet was an independent
concurrent cause of Jason's death - neither would have resulted in an
all-terrain-vehicle roll-over unless Damian was negligent; [the
plaintiff] does not contend that the West Bend policy provides coverage
for Damian's negligence." In short, the negligent acts or omissions may
have been substantial factors in causing the tortious injuries, but case
law precluded a finding of insurance coverage for these acts.
Subrogation - "Made-whole" Rule - Self-insured Plans
Ninaus v. State Farm Mutual
Auto Ins, No. 97-0191 (filed 14 July 1998) (ordered published
26 Aug. 1998)
Radish, a Wal-Mart employee, was seriously injured in a car accident.
Radish eventually received a settlement exceeding $260,000 which the
parties conceded did not cover all of her medical expenses; that is, she
was not "made whole." Wal-Mart's self-funded health plan paid more than
$100,000 of Radish's medical expenses between 1994 and 1996. Wal-Mart
contended that it was subrogated to Radish's settlement. In deciding
cross-motions for summary judgment, the judge evaluated each year
separately because the plan changed on an annual basis. Wal-Mart was
entitled to full subrogation for 1996 and 1995, but the court reduced
the 1995 pay-off by one-third for attorney fees. For 1994 Wal-Mart was
not entitled to any subrogation.
Wal-Mart appealed the denial of its subrogation claims for the 1994
medical costs and the subtraction of the one-third attorney fees for the
1995 costs. The court of appeals, in an opinion written by Judge
Schudson, affirmed. The loss of the 1994 subrogation rights stemmed from
inconsistencies between the 1994 Summary Plan Description (SPD) and the
"actual Plan." The court deftly navigated Wal-Mart's "arguments in the
alternative," which distilled down to a finding that, at the very least,
the "SPD's terms were uncertain." And uncertainty must be resolved in
favor of the insured. Since Radish had not been made whole, Wal-Mart
lost its subrogation for the 1994 payments under the terms of the SPD.
"Consistent federal authority" holds that "where the terms of a summary
and plan conflict, and where the summary is more favorable to the
employee, the summary controls, even when it contains a disclaimer
to the contrary."
As to the reduction for attorney fees made to the 1995 payments,
Wal-Mart's argument "missed the mark." Wal-Mart actively participated in
Radish's third-party action to extinguish the subrogation lien, but its
interests were obviously adverse to hers. Wal-Mart's attorneys acted
solely to protect Wal-Mart. Radish's attorneys alone secured the
settlement that resulted in a substantial payment to Wal-Mart. As such,
Wal-Mart was properly docked for attorney fees leading to the
recovery.
Contaminants - "Damages"
Amcast Industrial Corp. v.
Affiliated FM Ins. Co., No. 96-2968 (filed 29 July 1998)
(ordered published 26 Aug. 1998)
Amcast sought coverage for costs associated with a DNR order
requiring it to "investigate and remediate" a contaminated landfill. The
trial judge granted summary judgment dismissing a number of insurance
companies. Amcast appealed.
The court of appeals, in an opinion written by Judge Snyder,
affirmed. Applying City of Edgerton v. General Casualty Co.,
184 Wis.2d 750 (1994), the court held that the costs of investigation
and remediation are not "damages" that fell within the coverage of a
comprehensive general liability (CGL) policy. It rejected Amcast's
attempts to bring itself within the principle of General Casualty
Co. v. Hills, 209 Wis. 2d 167 (1997), which had distinguished
Edgerton on several grounds. Unlike Hills, there was no "third
party" in this case pressing Amcast for money. The only "facially
similar" fact between Amcast's position and Hills is that
Amcast did not own the contaminated property and thus it did not fall
within the owned-property exclusion. Ultimately, the court of appeals
concluded that Hills did not rest on "the ownership of the
property in question." In summary, Edgerton controlled and
Amcast was bereft of coverage.
Torts
Safety Statutes - Emergency Doctrine
Totsky v. Riteway Bus
Services Inc., No. 97-0530 (filed 14 July 1998) (ordered
published 26 Aug. 1998)
The defendant's school bus slid through a stop sign on a February
day, striking the plaintiffs' car. The bus driver testified that she was
traveling below the posted speed limit because the roads were slippery.
Despite her best efforts to control the bus, it slid into the
intersection. At the close of the evidence, the plaintiffs moved for a
directed verdict but the judge took the motion under advisement. The
jury found that neither the plaintiff nor the defendant was negligent.
The judge later granted the plaintiffs' motion for a directed verdict
and also granted their motion for a new trial in the event that the
plaintiffs' judgment was reversed on appeal. The judge found that the
bus driver was negligent as a matter of law because she had violated a
safety statute, namely, her duty to stop at a stop sign. The emergency
doctrine did not relieve her of responsibility because it applied only
where negligence is related to management and control. Moreover, the
emergency doctrine also was inapplicable because any emergency was
created, in part, by the bus's "excessive speed."
The court of appeals, in an opinion written by Judge Curley,
reversed. First, it was error to find that the bus driver was negligent
per se. Although violations of safety statutes constitute negligence per
se, "the circuit court erred in finding that the emergency doctrine can
never relieve a party of a violation of a safety statute." Case law
"clearly holds that the emergency doctrine can apply if a violation of
the safety statute is caused by a loss of management and control through
no fault of the driver, presuming the other requirements for invoking
the emergency doctrine are met." Credible evidence supported the view
that the bus driver had not created the emergency; thus, the plaintiffs
were not entitled to a directed verdict. (The court applied the facts of
record to the elements of the emergency doctrine.)
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.
Wisconsin Lawyer
