Vol. 72, No. 12, December 1999

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Court of Appeals Digest

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

| Appellate Procedure | Commercial Law |
| Criminal Law | Criminal Procedure |
| Employment Law | Family Law | Fireworks |
| Insurance | Open Meetings Law | Torts |

WFMLA - ERISA Preemption

Aurora Medical Group v. Dept. of Workforce Development, No. 98-1546 (filed 7 Sept. 1999) (ordered published 25 Oct. 1999)

Meyers requested to substitute paid sick time for unpaid statutory family leave. Her employer, Aurora, denied the request. The Department of Workforce Development concluded that Aurora discriminated against Meyers by interfering with her rights under the Wisconsin Family and Medical Leave Act (WFMLA) when it refused to permit her to substitute about 100 hours of paid sick time for the unpaid statutory leave. The circuit court upheld the ruling.

The court of appeals, in an opinion written by Judge Schudson, affirmed. In essence, Aurora contended that Meyer's state law claim under WFMLA was preempted by federal law, specifically the Employee Retirement Income Security Act (ERISA). The employees' sick time benefits are funded through an ERISA plan. The court examined the pertinent statutes and legislative history in holding that ERISA had no such preemptive effect. Thus, Meyers was entitled to substitute her paid sick time for the family leave time even though the plan authorized "payment" only where the employee is actually sick.

Child Support and Maintenance - Impact of Federal Garnishment Law

Carpenter v. Mumaw, Nos. 98-2874 and 98-3544 (filed 2 Sept. 1999) (ordered published 25 Oct. 1999)

The parties were divorced in 1990 after 17 years of marriage. They had two minor children. The husband was ordered to pay biweekly child support and monthly maintenance. One of the issues on appeal was whether the federal garnishment law, which limits the percentage of one's income that can be garnished, applied in this case. In a decision authored by Judge Vergeront, the appellate court concluded that it did not.

15 U.S.C. section 1673 establishes maximum percentages of an individual's earnings that can be garnished under varying circumstances. "Garnishment" is defined in the law as "any legal or equitable procedure through which the earnings of any individual are required to be withheld for payment of any debt." (Emphasis supplied.) In this case the husband argued that, under Wis. Stat. section 767.265(1), the order in the divorce judgment to pay child support and spousal maintenance constitutes an assignment of all earnings and therefore is a garnishment limited by the federal statute.

The appellate court disagreed. The Wisconsin statute cited above provides that an order to pay child support and maintenance "constitutes an assignment." However, if the court order does not require immediate withholding, earnings are not withheld unless the payer becomes delinquent. The court concluded that the statutory assignment in section 767.265(1) does not require earnings to be withheld and, therefore, it is not necessarily a garnishment under the federal statute.

The husband cited two cases from other jurisdictions to support his contention that an order to pay child support is a garnishment. However, in both cases, earnings actually were being withheld. In this case the court concluded that the divorce judgment ordering the husband to make child support and maintenance payments is not a garnishment as defined in federal law and therefore the percentage restrictions of federal law do not apply.

The court did not reach the question of whether the statute applies to individuals who are self-employed and control their own income.

Divorce - Enforceable Postnuptial Agreements -
Separation Agreements

Ayres v. Ayres, No. 98-3450 (filed 8 Sept. 1999) (ordered published 25 Oct. 1999)

The parties were married for 11 years when the divorce judgment was entered in September 1998. In late August 1996, after the parties had agreed to obtain a divorce but before the summons and petition for divorce were filed, they executed a marital settlement agreement for the stated purpose of preparing for divorce. The agreement provided that it was a contract, binding on both parties. The agreement divided the property owned by the parties but also included provisions regarding custody of the children, visitation, child support, maintenance, health insurance, debt payment, and attorney fees. It further provided that "both parties agree that the provisions of this agreement shall survive any subsequent judgment of divorce and shall have independent legal significance." It further specified that the agreement was a legally binding contract, entered into for good and valuable consideration.

Five days after execution of this agreement, the wife filed a summons and petition for divorce. Thereafter the husband filed a document entitled "Withdrawal of Signatory Consent to Agreement," which purportedly withdrew his consent to the marital settlement agreement. The circuit court validated the withdrawal after concluding that the marital settlement agreement was a stipulation enforceable only after court approval.

The court of appeals, in a decision authored by Judge Myse, affirmed. The critical issue was whether the marital settlement agreement executed prior to commencing the divorce action was a contractual postnuptial agreement enforceable as long as the agreement would not be inequitable to either party according to Wis. Stat. section 767.255(3)(L). The husband argued that the agreement was one signed in immediate contemplation of divorce and should be governed by section 767.10, which provides that in an action for annulment, divorce, or legal separation, the parties may stipulate to such matters as division of property, maintenance, and support, subject to court approval.

The court of appeals concluded that because this agreement was made in contemplation of a divorce and because it specifically referred to the impending divorce action and covered areas more typical of a divorce stipulation, the document was a stipulation under section 767.10(1) and was not a post-nuptial agreement. Because the hus-band withdrew his consent before any court approval, the agreement was unenforceable.

Divorce - Reduction of Maintenance Conditioned on
Payment of Arrears

Benn v. Benn, No. 98-2950 (filed 26 Aug. 1999) (ordered published 25 Oct. 1999)

The parties were divorced in 1995 and the court ordered the husband to pay child support and maintenance. The husband subsequently filed a motion to reduce child support and to terminate maintenance. The circuit court granted him a reduction in maintenance but only on the condition that he first become current on his child support and maintenance arrears. Among the issues on appeal was the lawfulness of this order. In a decision authored by Judge Roggensack, the court of appeals concluded that it was not.

Divorce is a statutory proceeding wherein the provisions a circuit court may order are framed by the Legislature. Once the circuit court made the determination that a reduction in support was warranted, it cited no authority that permitted it to condition that reduction on the payment of arrears. Nor was the court of appeals able to identify any such authority. Therefore, it concluded that the circuit court erred in conditioning the reduction of maintenance on the husband's payment of arrears.

Sale of Restricted Fireworks Within the State to Nonresidents -
Wis. Stat. Section 167.10

State v. Victory Fireworks Inc., Nos. 99-0243 et seq. (filed 30 Sept. 1999) (ordered published 25 Oct. 1999)

Victory Fireworks Inc. sold fireworks, which are restricted under Wis. Stat. section 167.10(1), to nonresidents within the boundaries of Wisconsin. Multiple counts of violating this statute were filed against Victory. Victory contended that the statute allows the sale of restricted fireworks within the boundaries of Wisconsin as long as the sales are to nonresidents. The circuit court agreed and dismissed the charges.

The court of appeals, in a decision authored by Judge Myse, reversed. It held that the language of the statute clearly indicates that Victory acted illegally in selling restricted fireworks to nonresidents within this state. Said the court, the obvious legislative intent of section 167.10 is to restrict the possession and use of dangerous fireworks in Wisconsin. The law seeks to avoid injuries from dangerous fireworks to persons within this state without regard to residency. Allowing nonresidents to purchase fireworks in this state would necessarily involve possession of restricted fireworks here and would therefore be inconsistent with the Legislature's intent.

Liability Coverage - Fires - Church Activities - Subrogation

Tower Ins. Co. v. Chang, No. 98-3594 (filed 29 Sept. 1999) (ordered published 25 Oct. 1999)

A fire caused damage to a church when two girls lit a candle in the church's restroom and left it burning. The girls had helped at a pancake supper and were on their way to confirmation class when they stopped in the restroom. The insurance company reimbursed the church for the damage and then sued the girls for subrogation. The circuit court dismissed the complaint on summary judgment.

The court of appeals, in a decision authored by Judge Brown, affirmed. At the outset, the court stressed that the girls were not acting as "volunteers" within the meaning of the insurance policy. They lit the candle between their service at the pancake dinner and before the confirmation class began; they were not acting at the direction of church officials. The court held, however, that the girls were additional insureds given the ambiguous wording of the policy. The policy covered liability for church activities or activities performed on behalf of the church. A reasonable person could construe this broad language as reaching "anything done in conjunction with a church function, such as one church member injuring another while roughhousing between events at a church picnic[.]" The court declined to rely on precedent regarding the "scope of employment." Finally, the insurer was not entitled to subrogation based on the theory that the girls committed a criminal act. The insurer pled negligence by the girls; it did not allege that they acted intentionally. The insurer "cannot now switch horses midstream."

Exclusions - Snowmobiles

Mooren v. Economy Fire & Casualty Co., No. 98-3596 (filed 28 Sept. 1999) (ordered published 25 Oct. 1999)

An insurer issued a policy covering its insured's mobile home. The insured was killed and another person, Mooren, was injured when their snowmobiles collided. The insurer moved for summary judgment on the ground that the policy excluded snowmobiles through its "recreational land motor vehicle" exclusion. The circuit court denied the motion.

The court of appeals, in an opinion written by Judge Peterson, affirmed. The court found that the policy's definition was ambiguous and construed it to provide coverage. Had the insurer wanted its policy to exclude snowmobiles, "it could have expressly identified snowmobiles or vehicles operated on crawler treads in a definition of the phrase 'recreational land motor vehicle.'"

UM Coverage - Chain-reaction Accidents

Smith v. General Casualty Ins. Co., No. 98-1849 (filed 7 Sept. 1999) (ordered published 25 Oct. 1999)

In this case the court faced an issue of "first impression: whether our uninsured motorist (UM) statute, sec. 632.32(4), Stats., and case law interpreting it, mandate coverage in a chain-reaction collision despite policy language to the contrary." The facts involved a three-vehicle collision. The hit-and-run vehicle collided with a truck that then swerved into the next lane, striking Smith's car. Smith claimed that he was entitled to UM coverage under his own policy even though his car never had direct contact with the hit-and-run vehicle. The trial court granted summary judgment in the insurer's favor.

The court of appeals, in an opinion written by Judge Wedemeyer, affirmed. The UM statute mandates coverage for "[a]n unidentified motor vehicle involved in a hit-and-run accident." Three cases had rejected UM coverage under analogous circumstances. The court refused to distinguish them based solely on the factor that the hit-and-run vehicle actually struck the truck before the truck hit Smith's car. In short, the statute mandates UM coverage only where there is "physical contact between the hit-and-run vehicle and the vehicle whose driver is seeking UM coverage."

Judge Fine dissented on the ground that the statute plainly encompassed the scenario presented in this case.

Public Notice - Sufficiency of Agenda Description

State ex rel. H.D. Enterprises II v. City of Stoughton, No. 98-3112 (filed 16 Sept. 1999) (ordered published 25 Oct. 1999)

Wis. Stat. section 19.84(2) requires that a public notice set forth the time, date, place, and subject matter of meetings of governmental bodies in such form as is likely to reasonably apprise members of the public. In this case the city council published an agenda that included consideration of "licenses." It did not specify the specific licenses that would be considered.

A lawsuit subsequently was filed asserting that the city council had violated the open meetings law because the term "licenses" on its published agenda was too general. [The license that was considered at the meeting and which is at the heart of this lawsuit was a liquor license.]

In a majority decision authored by Judge Roggensack, the court of appeals concluded that the word "licenses" was specific enough to apprise members of the public as to the subject matter of the meeting. There is no requirement in the statute that the subject matter be explained with any more specificity. The appellate court declined to burden municipalities with an obligation to detail every issue that will be discussed under every agenda item during meetings when that is not mandated by statute.

Judge Vergeront filed a separate opinion concurring in part and dissenting in part.

Ordinary Negligence - "Open and Obvious Dangers"

Wagner v. Wisconsin Municipal Mut. Ins. Co., No. 99-0501 (filed 28 Sept. 1999) (ordered published 25 Oct. 1999)

The plaintiff alleged that he slipped and fell on ice and snow that had accumulated on a public sidewalk in front of a building from which he was moving various boxes and loading them onto his truck. He recognized that the sidewalk was slippery and believed the snow and ice to be a hazard. Nevertheless, he proceeded with his mission.

He subsequently sued the city of Eau Claire for his damages. The city moved for summary judgment, arguing that the plaintiff had confronted "an open and obvious danger" and was therefore more negligent than the city as a matter of law. Finding this doctrine applicable to the plaintiff's case, the circuit court granted summary judgment, noting that "to hold otherwise would essentially impose a zero tolerance on municipalities for snow and ice buildup, which is unrealistic for cities in Wisconsin." In a decision authored by Chief Judge Cane, the court of appeals reversed.

Within the context of comparative negligence principles, the application of the open and obvious danger doctrine is tantamount to a determination that the plaintiff's negligence exceeded the defendant's negligence as a matter of law. The appellate court concluded that, because Wisconsin is a comparative negligence state, application of the doctrine should be limited to cases where a strong public policy exists to justify such a direct abrogation of comparative negligence principles. It should not be used to resolve liability issues in ordinary negligence cases, even where the plaintiff engaged in conduct that would be clearly negligent or could reasonably be foreseen as subjecting a party to a high risk of injury.

Rather, in the ordinary negligence case, if an open and obvious danger is confronted by the plaintiff, it is merely an element to be considered by the jury in apportioning negligence and will not operate to completely bar the plaintiff's recovery. [In footnote the court noted that it was addressing the "open and obvious danger" doctrine only as it applies to cases involving ordinary negligence.]

Because no strong public policy exists in this case to justify the direct abrogation of comparative negligence principles, the court of appeals concluded that the apportionment of negligence should have been left to a jury. Accordingly, the order granting summary judgment was reversed.

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.