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Supreme Court Digest

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

| Attorney General | Civil Procedure |
| Criminal Procedure | Employment Discrimination |
| Dealerships | Insurance |

Title VII of Civil Rights Act of 1964 - Americans with Disabilities Act - Personal Liability of Employer's Agents

Alberte v. ANEW Health Care Services Inc., 2000 WI 7 (filed 8 Feb. 2000)

The plaintiff was employed by ANEW Health Care Services Inc., a corporation that provides skilled nursing services. Her supervisor also was the president and 47.5 percent owner of the corporation. The supervisor discharged the plaintiff from her employment at ANEW.

The plaintiff sued ANEW and the supervisor, alleging that they violated Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act (ADA) by failing to reasonably accommodate her disability (a back condition), retaliating against her, and terminating her employment. The suit specifically alleged that the supervisor was serving as ANEW's agent when these actions took place and sought to hold the supervisor personally liable for her allegedly discriminatory actions.

The defense moved to dismiss the plaintiff's action against the supervisor as an individual on the ground that Title VII and the ADA do not subject her to personal liability. The circuit court granted the motion and dismissed the supervisor from the action.

In a published decision the court of appeals reversed the circuit court. It held that the statutes referred to above subject agents to individual liability. See Alberte v. ANEW Health Care Services Inc., 223 Wis. 2d 1, 588 N.W.2d 298 (Ct. App. 1998).

In a unanimous decision authored by Justice Wilcox, the supreme court reversed the court of appeals. It concluded that Congress did not intend to hold agents personally liable under Title VII or the ADA. In so holding it joined the Seventh Circuit and the majority of other federal circuit courts. Alternative interpretations defeat legislative intent, produce unreasonable outcomes, and are unsupported by the history of the statute.

Wisconsin Fair Dealership Law - "Situated in this State"

The Baldwein Co. v. Tri-Clover Inc., 2000 WI 20 (filed 29 Feb. 2000)

Tri-Clover Inc. terminated the company's 56-year-old relationship with the Baldwein Company, an Illinois corporation that sells sanitary pumps, valves, and the like. Baldwein was Tri-Clover's distributor. Tri-Clover is a Delaware corporation with its headquarters, distribution center, and principal place of business in Kenosha. The long-standing oral agreement between the two companies was reduced to writing in 1985. Baldwein derived about 90 percent of its revenue from selling Tri-Clover's products, but most of its business was in Illinois. Not more than 4 percent of its sales were made in Wisconsin. Baldwein sued Tri-Clover under Wisconsin's Fair Dealership Law (WFDL) in federal court.

This case was before the Wisconsin Supreme Court on certification from the Seventh Circuit. The "essential question" raised in the case concerned "when is a dealership 'situated in this state' under Wis. Stat. sec. 135.02(2)." Writing for the court, Justice Sykes held that courts must consider "the dealership's total involvement and investment in promoting and selling the grantor's products or services in the State of Wisconsin." The test is based on the statute's language, history, and purpose, and is "similar" to that announced in Ziegler Co. v. Rexnord, 139 Wis. 2d 593 (1987). The Wisconsin Fair Dealership Law's "situated in this state" element "limits the application of the WFDL to commercial relationships that exist in some substantial way in this state (and otherwise satisfy the definition in the statute)."

The court declined to create a "minimum percent-of-sales" test for determining dealership status. The multiple factor "community of interest" test invites consideration of the following factors, such as: 1) the percent of total sales, revenue, or profits in Wisconsin; 2) the duration of the relationship; 3) the extent and nature of the dealer's Wisconsin obligations; and 4) the "territorial" stake in the state. The court listed about 10 factors that should be considered (see ¶ 30). Most clearly, however, "a Wisconsin choice-of-law provision will not operate to trigger the application of the WFDL." The court remanded the case to the federal court for application of its decision.

Chief Justice Abrahamson concurred, arguing there was no need for remand because the record supported a finding that Baldwein was a dealer situated in the state.

UM Coverage - Unidentified Vehicles - Flying Debris

Theis v. Midwest Security Ins. Co., 2000 WI 15 (filed 22 Feb. 2000)

The plaintiff was injured while driving his truck when an object flew off an unidentified semi-trailer that was in front of him and crashed through the plaintiff's windshield. The plaintiff sought payment from his uninsured motorist (UM) coverage, but his insurer denied the claim. In a declaratory action, the circuit court ruled that the UM coverage did apply. The court of appeals certified the issues to the supreme court.

The supreme court, in an opinion written by Chief Justice Abrahamson, affirmed. First, the court held that Wis. Stat. section 632.32(4) "requires that the uninsured motorist clauses of an insurance policy provide coverage when a detached piece of an unidentified motor vehicle is propelled into the insured's motor vehicle by an unidentified motor vehicle." The "detached piece" might come from the unidentified motor vehicle itself, or it might be "highway debris" propelled by the unidentified vehicle. The court's holding coincided with an insured's reasonable expectations, fulfilled the statute's purpose of providing the same coverage regardless of whether the negligent driver was insured, and did not open the door to fraudulent claims.

The second issue concerned whether the plaintiff had demonstrated negligence by the unidentified semi-trailer. The court held that this action sought only a declaration of coverage regarding this type of accident and remanded the case to proceed to arbitration.

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.