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    Wisconsin Lawyer
    May 01, 2006

    Supreme Court Digest

    This column summarizes all decisions of the Wisconsin Supreme Court except those involving lawyer or judicial discipline.

    Daniel Blinka; Thomas Hammer

    Wisconsin LawyerWisconsin Lawyer
    Vol. 79, No. 5, May 2006

    Supreme Court Digest

    This column summarizes all decisions of the Wisconsin Supreme Court (except those involving lawyer or judicial discipline, which are digested elsewhere in the magazine). Profs. Daniel D. Blinka and Thomas J. Hammer invite comments and questions about the digests. They can be reached at Marquette University Law School, 1103 W. Wisconsin Ave., Milwaukee, WI 53233, (414) 288-7090.

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

    Criminal Procedure

    Sentencing - Exercise of Discretion

    State v. Taylor, 2006 WI 22 (filed 8 March 2006)

    In April 2000 the defendant was convicted of second-degree sexual assault for having sexual intercourse with a female under age 16. The case arose after county human services personnel informed the police that the victim was pregnant and the defendant was the father. The defendant was placed on probation and ordered to have no sexual contact with anyone under age 18. The defendant's probation agent subsequently discovered that the defendant had impregnated a second minor (age 17) in September 2000.

    The present prosecution for second-degree sexual assault of a child arose when the defendant impregnated a third minor; he was charged with and convicted of second-degree sexual assault as a repeater for again having sexual intercourse with a person who had not attained age 16. At the time of this offense in September 2001, the defendant was 19 years old and the victim was 15 years old. After a sentencing hearing in which the defendant's verbal belligerence resulted in his removal from the courtroom, the circuit court sentenced the defendant to 12 years of initial confinement in prison and six years of extended supervision. On appeal the defendant contended that the circuit court did not properly explain its reasoning behind the sentence imposed and that the sentence itself is unduly harsh and excessive and should therefore be vacated. The court of appeals affirmed and, in a decision authored by Justice Wilcox, the supreme court affirmed the court of appeals.

    After applying standards articulated in McCleary v. State, 49 Wis. 2d 263, 182 N.W.2d 512 (1971), the supreme court concluded that it was satisfied from its examination of the facts on record and the circuit court's articulated reasoning in the sentencing transcript and postconviction order that the circuit court properly exercised its sentencing discretion and that the sentence imposed was the product of an appropriate process of reasoning. (The court did not apply the more recent sentencing case of State v. Gallion, 2004 WI 42, 270 Wis. 2d 535, 678 N.W.2d 197 because the defendant was sentenced before Gallion was decided. See ¶ 17 n.9.]

    The supreme court said that the record demonstrated that the sentencing judge exercised individualized discretion in fashioning the sentence imposed. "That is, the court fixed a sentence that took into account the following: (1) [the defendant's] history of sexual assault; (2) his failure to recognize or accept the serious criminal nature of his conduct; (3) the read-in charges concerning the criminal damage to property and resisting or obstructing an officer; (4) the court's belief that unless [the defendant] was made to serve a substantial term of confinement, the public would not be protected from his ongoing criminal conduct; and (5) the court's belief that a long term of initial confinement was necessary to rehabilitate [the defendant], as both probation and 60 days of confinement [in the previous case] had not adequately impressed upon [the defendant] the seriousness of his conduct" (¶ 27). The circuit court was aware that the defendant's sexual acts were "physically nonviolent" (¶ 23).

    The defendant also argued that the length of his sentence is excessive when considered in light of the nature of the offense, the character of the offender, and the need to protect the public. The supreme court disagreed and concluded that the term of initial confinement "was fully justified by the facts and circumstances of this case, and was not 'so excessive and unusual and so disproportionate to the offense committed as to shock public sentiment and violate the judgment of reasonable people concerning what is right and proper under the circumstances'" (¶ 31) (citations omitted).

    The supreme court noted that although "statutory rape cases are highly charged," especially when the age differential between the parties is not large, the circuit court did not view the defendant's assault as an act of sexual experimentation between two teenagers (¶¶ 36-38). Rather, in the sentencing judge's view, "[the defendant's] crime was consistent with a pattern of sexual assaults that inflicted significant harm on three young women, three children, and society as a whole" (¶ 38). The facts of the case also led the circuit court "to reasonably conclude that [the defendant] would continue his course of detrimental sexual behavior unless he was incarcerated for a lengthy period of time" (¶ 42).

    Justice Bradley joined the opinion of the majority but wrote separately to emphasize that the case before the court involved a sentence imposed before the more recent Gallion decision (cited above) and thus "appropriately employs pre-Gallion analysis" (¶ 48).

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    Motor Vehicle Handlers - Coemployee Exclusions - CGL Coverage

    Rocker v. USAA Cas. Ins. Co., 2006 WI 26 (filed 30 March 2006)

    While working at a car wash (Octopus), Rocker was injured when a coworker, Cousins, drove a customer's car into him. General Casualty insured Octopus, and USAA insured the customer's car. The circuit court dismissed Rocker's claim against General Casualty on the ground that its comprehensive insurance policy, which included commercial general liability (CGL) coverage, did not cover his injuries. It also granted USAA's declaratory judgment motion and declared that USAA's maximum coverage for Cousins's conduct was $25,000 under Wisconsin's financial responsibility law. Rocker appealed, and the court of appeals certified the case to the supreme court.

    The supreme court, in an opinion written by Justice Wilcox, reversed. First, the court held that Octopus is a "motor vehicle handler" within the meaning of Wis. Stat. section 632.32(2) (see ¶ 28). "As a routine part of its business, Octopus employees are required to operate their customers' motor vehicles in order to provide the various services purchased" (¶ 31). "In sum, in light of the plain meaning of the term 'service station,' and the broad scope of services Octopus provides, which includes driving its customers' vehicles on and off a conveyor belt, we hold that a 'full-service' car wash such as Octopus is a service station and thus a statutory 'motor vehicle handler' under Wis. Stat. § 632.32(2)(b)3" (¶ 33).

    Second, the court held that the coemployee exclusion in General Casualty's policy was prohibited by Wis. Stat. section 632.32(6)(a), which provides that "'[n]o policy issued to a motor vehicle handler may exclude coverage upon any of its officers, agents or employees when any of them are using motor vehicles owned by customers doing business with the motor vehicle handler'" (¶ 34). The supreme court explicitly held that Heritage Mutual Insurance Co. v. Wilber, 2001 WI App 247, 248 Wis. 2d 111, 635 N.W.2d 631 remains "good law" despite later changes to the omnibus statute, Wis. Stat. section 632.32. "The language of § 632.32(1) unambiguously requires every insurance policy that provides motor vehicle liability coverage to meet the requirements of the other sections of the omnibus statute, unless otherwise provided" (¶ 46). Put differently, the statute applies to all CGL policies "and commercial umbrella policies that include motor vehicle liability coverage" (¶ 49).

    Third, the court overruled Gorzalski v. Frankenmuth Mutual Insurance Co., 145 Wis. 2d 794, 429 N.W.2d 537 (Ct. App. 1988), which had, the court said, erroneously upheld a coemployee exclusion in a CGL policy. The supreme court said that the court of appeals in Gorzalski had not "fully consider[ed] the plain language of

    § 632.32(6)(a)" and had "inappropriately" relied on other case law (¶ 50).

    UIM - Umbrella Coverage - Notice

    Rebernick v. Wausau Gen. Ins. Co., 2006 WI 27 (filed 30 March 2006)

    Dale Rebernick was badly injured when a car hit the lawnmower on which he was riding. The Rebernicks sought funds in addition to those available to them under the driver's liability coverage and the Rebernicks' underinsured motorist (UIM) coverage. The Rebernicks claimed that they were entitled to reformation of their $1 million umbrella policy (to provide UIM coverage) because American Family failed to notify them, as is required by Wis. Stat. section 632.32(4m), of the availability of such coverage. The circuit court ruled in favor of American Family. The court of appeals, in a split decision, affirmed.

    In a decision authored by Justice Bradley, the supreme court affirmed the court of appeals. First, relying in part on the companion decision in Rocker v. USAA Casualty Insurance Co. (digested above), the court held that "American Family was required to notify the Rebernicks of the availability of UIM coverage under their umbrella policy pursuant to § 632.32(4m). Our determination is based on the language of § 632.32. At the same time, it is supported by the history and purpose of § 632.32(4m), along with a provision in the administrative code" (¶ 9).

    Second, the court held that the record supported the finding that the Rebernicks had received the notice required by law. "[I]f a policy under

    § 632.32(4m) does not already include UIM coverage, 'an insurer' writing such policies must 'provide to one insured' under the policy 'written notice' of the 'availability' of UIM coverage, including a 'brief description' of such coverage. At the same time, however, 'an insurer' is required to provide the notice for each such policy 'only one time and in conjunction with the delivery of the policy'" (¶ 32). "The facts here reveal that the Rebernicks were apparently aware of the availability of UIM coverage before receiving any required notice because they had requested such coverage in their underlying primary automobile policy before receipt of such notice" (¶ 33). There was "no dispute that American Family provided the Rebernicks with the required notice under § 632.32(4m) for their primary automobile policy" (¶ 34).

    The court thus found it unnecessary to consider the appropriate remedy had the Rebernicks not been properly notified. "We caution, however, that the only way for insurance companies to be certain that they have provided proper notice pursuant to § 632.32(4m) is to separately provide in each policy for which notice is required the type of notice American Family provided to the Rebernicks in their primary automobile policy. Absent the provision of such notice (or notices, as the situation may be), insurers will have no guarantee in future cases presenting different facts that they have properly notified insureds of the availability of UIM coverage pursuant to § 632.32(4m)" (¶ 38).

    Justice Butler, joined by Chief Justice Abrahamson, dissented from the part of the opinion in which the court held that the Rebernicks had received proper notice.

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