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    Wisconsin Lawyer
    July 01, 2011

    Court of Appeals Digest

    This column summarizes selected published opinions of the Wisconsin Court of Appeals. Full-text decisions are available online at Profs. Daniel D. Blinka and Thomas J. Hammer invite comments and questions about the digests. They can be reached at Marquette University Law School, 1215 W. Michigan Ave., Milwaukee, WI 53233, (414) 288-7090.

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

    Wisconsin LawyerWisconsin Lawyer
    Vol. 84, No. 7, July 2011

    Civil Procedure

    Jurisdiction – Defective Service – Publication

    PHH Mortgage Corp. v. Mattfeld, 2011 WI App 62 (filed 16 March 2011) (ordered published 26 May 2011)

    PHH Mortgage obtained a default foreclosure judgment against the Mattfelds. The Mattfelds filed a motion to vacate the default judgment on numerous grounds, which the circuit court rejected. Among the grounds the Mattfelds cited were the misspelling of the Mattfelds’ last name, a failure to exercise reasonable diligence, and service by publication in a paper (the Daily Reporter) not shown to be sufficiently circulated in Waukesha County.

    The court of appeals reversed in an opinion written by Judge Neubauer. “While PHH Mortgage asserts that the Mattfelds failed to provide argument or authority as to why The Daily Reporter would not have given notice to the Mattfelds, the undisputed record as it stood at the time of the default judgment failed to establish that publication in a newspaper ‘printed and published daily in the City of Milwaukee, in said county’ would have been likely to provide notice to a resident of Menomonee Falls in Waukesha county. Although The Daily Reporter publisher later averred that the newspaper is distributed throughout Wisconsin, the only mention of Waukesha county was that The Daily Reporter was not qualified in that county. This again failed to establish that publication in The Daily Reporter would have been likely to provide notice to a resident of Waukesha county. The circuit court’s finding to the contrary was against the great weight of the evidence of record at the time of the Mattfelds’ Wis. Stat. § 806.07 motion to reopen” (¶ 11).

    Criminal Law

    Causation – “Substantial-Factor” Test – Intervening Cause

    State v. Below, 2011 WI App 64 (filed 27 April 2011) (ordered published 26 May 2011)

    Below was convicted of first-degree reckless homicide and physical abuse of a child arising out of an incident that led to the death of his infant daughter, Madison. On appeal, he did not contend that the state failed to prove that he repeatedly struck his daughter’s head against the changing table, causing her to suffer from severe skull injuries and irreversible brain damage. Rather, he argued that the state failed to prove that his reckless conduct was a substantial factor in bringing about Madison’s death and that the circuit court erred in refusing to give an “intervening cause” jury instruction. He sought this instruction because a week after the child’s admission to the hospital, her family decided to terminate life support; the child died five days after extubation. According to the defendant, it is unfair to hold him responsible for the withdrawal of medical treatment that purposely terminated his daughter’s life. He contended that the termination was wrongful and that wrongfully terminating life support is the type of purposeful conduct that is not foreseeable (see ¶ 32).

    In a decision authored by Judge Anderson, the court of appeals affirmed. The court was satisfied that “the overwhelming medical and other evidence viewed most favorably to the State and the conviction is sufficient to show that Below’s undisputed intentional actions – his repeated striking of Madison’s head against the changing table – were a substantial factor in causing Madison’s death. That is the showing required under Wisconsin law and the State proved it beyond a reasonable doubt” (¶ 28). “Under Wisconsin law, whether the intervening act was negligent, intentional and/or legally wrongful is irrelevant. The analysis is the same. The State must still prove beyond a reasonable doubt that the defendant’s acts were a substantial factor in producing the death. Therefore, the trial court’s denial of Below’s motion, including the intervening cause instruction, was altogether proper. Even if Below could have established that the termination of Madison’s life support was ‘wrongful’ under Wisconsin law, that wrongful act would not break the chain of causation between Below’s actions and Madison’s subsequent death. We are satisfied that the trial court’s well-reasoned decision to deny the motion was based on the law. Moreover, the overwhelming evidence supports the jury’s finding beyond a reasonable doubt what the State successfully proved: Below’s actions were a substantial factor in causing Madison’s death” (¶ 33).

    Criminal Procedure

    Search and Seizure – Curtilage – Attached Garage

    State v. Davis, 2011 WI App 74 (filed 26 April 2011) (ordered published 26 May 2011)

    The defendant lived in a trailer home, which was attached by a foyer to a garage. Deputy sheriffs went to the residence to retrieve a statement form that had been left with the defendant the day before in connection with an investigation of a stolen-property complaint the defendant had made. When they arrived at the premises, the deputies knocked at the front door of the trailer home but received no response. One of the deputies then entered the garage through an open overhead door; he proceeded to the rear of the garage and from there into the darkened foyer where, with the aid of a flashlight, he saw a rifle leaning against the wall. That observation formed the basis of a search warrant, which was subsequently obtained because the defendant was a convicted felon. Service of the warrant resulted in the seizure of multiple firearms. The defendant was convicted of being a felon in possession of a firearm. His attempt to suppress the firearms evidence on the basis of the Fourth Amendment was not successful in the circuit court. In a decision authored by Judge Hoover, the court of appeals reversed.

    At issue in this case was the lawfulness of the deputy’s entry into the garage and foyer. The protections of the Fourth Amendment extend beyond the walls of the home to the curtilage, which is the area to which extends the intimate activity associated with the sanctity of the home and the privacies of life and which therefore has been considered part of the home itself for Fourth Amendment purposes (see ¶ 9). Said the court, “it is difficult to imagine a scenario where the typical attached garage could be considered not curtilage” (¶ 12).

    Police officers with legitimate business may enter the areas of the curtilage that are impliedly open to use by the public and in doing so are free to keep their eyes open. “Regarding protected areas in residential premises, a sidewalk, pathway, common entrance or similar passageway offers an implied permission to the public to enter which necessarily negates any reasonable expectancy of privacy in regard to observations made there” (¶ 10) (citation omitted). However, “as a general matter, it is unacceptable for a member of the public to enter a home’s attached garage uninvited. We do not think this premise is subject to reasonable disagreement. This premise is true regardless whether an overhead or entry door is open” (¶ 14). Thus, generally, “an attached garage will never be impliedly open to public, i.e., police, entry” (id.). Nonetheless, case law recognizes that “there may be an exception to that general rule if, in a given circumstance, it reasonably appears that entry into the attached garage is the least intrusive means of attempting contact with persons inside the home” (id.).

    In this case the appellate court concluded that the deputy’s entry into the attached garage violated the Fourth Amendment. It was not the least intrusive means of attempting contact with the defendant. There was no dispute that the front door appeared to be a less intrusive means of attempting contact. The plain-view doctrine did not apply to allow evidence of the rifle that the deputy later observed inside the foyer. The search warrant police eventually obtained was based on the observations in the foyer. Accordingly, all evidence discovered during the subsequent search should have been suppressed as fruit of the poisonous tree (see ¶ 16).


    Expired Policy – Statutory Notice – Remedy

    Wilson Mut. Ins. Co. v. Risler, 2011 WI App 70 (filed 13 April 2011) (ordered published 26 May 2011)

    Risler had an umbrella policy with Wilson Mutual, which expired on May 29, 2007, because he did not pay the renewal premium. Risler’s son was injured in a car accident 15 months later. Risler argued that the policy was still in effect because Wilson Mutual conceded that it had not provided notice to Risler that his policy was not being renewed, as required by Wis. Stat. section 631.36(4)(a) (2009-10). The circuit court agreed, denying the insurer’s motion for a declaratory judgment that the umbrella policy provided no coverage.

    The court of appeals reversed in an opinion authored by Judge Reilly. “We hold that neither a violation of Wis. Stat. § 631.36(4)(a) nor the contractual language at issue results in a perpetual term of coverage for an insured. The proper remedy for a violation of § 631.36(4)(a) and the terms of the policy is to allow the insured the opportunity to renew the policy for a length of time equal to the length of the expiring term. Risler’s umbrella policy was for a one-year term; therefore, Risler’s ability to renew his policy based upon Wilson Mutual’s failure to give the required notice expired on May 29, 2008. As the car accident occurred more than one year after Risler’s umbrella policy expired, Risler had no right to renew the policy. The order of the circuit court denying Wilson Mutual’s request for declaratory judgment is reversed” (¶ 3). A contrary reading of the statute would lead to an “absurd result” by which “Risler could conceivably have umbrella insurance for the rest of his life without paying a premium” (¶ 12).

    Duty to Defend – Paid Limits

    Young v. Welytok, 2011 WI App 59 (filed 5 April 2011) (ordered published 26 May 2011)

    The Welytoks’ teenage daughter struck and injured a motorcyclist, Young, while she was driving a car insured by American Standard. This policy carried limits of $100,000 and included a “pay and walk provision.” The insurer was unable to settle the claim within the policy’s limits. Young claimed his damages exceeded the limits. The insurer tendered its limits to Young in exchange for a release of all claims against the insurer and the Welytoks to the extent of $100,000. Young then sued the Welytoks for damages exceeding that amount. The insurer intervened, and the circuit court granted summary judgment to the effect that the insurer had discharged its obligations, including its duty to defend.

    The court of appeals affirmed in an opinion, written by Judge Curley, that rejected the Welytoks’ many contentions that the insurer retained a duty to defend them. This case was controlled by Novak v. American Family Mutual Insurance Co., 183 Wis. 2d 133, 515 N.W.2d 504 (Ct. App. 1994). The duty to defend is a creature of contract (see ¶ 17). As required by Novak, the American Standard policy gave the Welytoks “clear notice” of the pay and walk provision (¶ 19). No reasonable person would be confused by its language.

    The court found “unavailing” the Welytoks’ multiple attempts to distinguish Novak. “Regardless of the exact amount of Young’s damages, American Standard’s ‘true motivations’ in paying the policy limit, American Standard’s communication (or lack thereof) with the Welytoks, or its investigation (or lack thereof) of Young’s claim, the simple and significant fact here is that once American Standard paid Young the $100,000 liability limit, it was allowed, under the clearly written and properly emphasized policy provision at issue here, to discontinue defending the Welytoks against Young’s claim. As the trial court deftly observed, the Welytoks ‘contracted with American Standard to get $100,000 worth of coverage, and how that is spent is how it’s spent’” (¶ 26). Finally, the court observed that the Welytoks had not claimed bad faith by their insurer (see ¶ 27).

    Mental Commitments

    Dementia – Involuntary Treatment

    Fond du Lac County v. Helen E. F., 2011 WI App 72 (filed 27 April 2011) (ordered published 26 May 2011)

    Helen, age 85, suffered from Alzheimer’s disease. The circuit court involuntarily committed her under Wis. Stat. chapter 51.

    The court of appeals reversed in an opinion authored by Judge Anderson. “Helen’s case provides the opportunity to clarify the proper application of Wis. Stat. ch. 51 and eliminate the variation in ways counties apply the law to people who have Alzheimer’s and related dementias” (¶ 21). The court held “that Helen was not a proper subject for detainment or treatment under Wis. Stat. ch. 51 because Alzheimer’s disease is not a qualifying mental condition under that chapter” (¶ 22). Under chapter 51, persons must be susceptible to “rehabilitation,” which is not true of dementia patients (see ¶ 28). For dementia patients, Wis. Stat. chapter 55 offers the appropriate procedure. The court left “for another day the question of what is proper under the law when a person has a dual diagnosis of Alzheimer’s and a Wis. Stat. ch. 51 qualifying illness” (¶34 n.7).

    Dual Diagnoses – Fifth Standard – Medication – Wis. Stat. Chapters 51 and 55

    Dane County v. Kelly M., 2011 WI App 69 (filed 28 April 2011) (ordered published 26 May 2011)

    The circuit court involuntarily committed Kelly M. under Wis. Stat. chapter 51 because her mental illness rendered her unable to understand the advantages and disadvantages of medical treatment, the so-called “fifth standard” for commitment. The court ordered that medication could be administered without her consent.

    The court of appeals affirmed in an opinion, written by Judge Vergeront, that addressed three issues. First, Kelly M. could be involuntarily committed even though she had a dual diagnosis for mental illness and drug dependency. “Reading Wis. Stat. § 51.20(1)(a)1. together with the fifth standard, the only reasonable meaning is that a petition under the fifth standard must allege that the person has a mental illness and that he or she is unable to understand, because of the mental illness, the advantages and disadvantages of treatment for his or her mental illness. It is unreasonable to read these provisions to preclude commitment for treatment under the fifth standard if a person with a mental illness meets the requirements of this standard, simply because the person also is drug dependent or developmentally disabled. The evident purpose of the fifth standard is to prevent serious harm from lack of treatment to persons who are mentally ill and, because of their mental illness, are unable to understand the advantages and disadvantages of treatment for their mental illness. We see no logical reason to exclude persons from this preventative alternative simply because they also have either a drug dependency or a developmental disability” (¶ 12).

    Second, “[m]edication is a ‘service’ within the meaning of the community services exclusion of the fifth standard. Thus, Kelly did not come within this exclusion because of her failure to consistently take her medication”
    (¶ 3).

    Third, “we conclude that the ch. 55 exclusion in the fifth standard includes an individual who is already subject to an order for protective placement or services, if there is another placement or additional services available under Wis. Stat. ch. 55 that would be effective in reducing the probability of the requisite harm to less than a substantial probability. This exclusion also may apply to an individual who is not yet subject to a ch. 55 order but who is eligible for one. We further conclude that involuntary administration of medication under § 55.14 may be one of the additional services that would satisfy this exclusion, if the guardian consents and depending on the individual’s circumstances” (¶ 32).


    Surety Bond – Coverage

    All Cities Privacy Class v. Hartford Fire Ins. Co., 2011 WI App 71 (filed 26 April 2011) (ordered published 26 May 2011)

    This litigation involves coverage under a surety bond issued by Hartford to make payments to “persons to whom the mortgage banker provided services as mortgage banker.” The mortgage banker in question, All Cities, had a federal default judgment entered against it in a class action suit that alleged that All Cities had improperly accessed credit reports of some state homeowners. The class had not been able to collect on its federal default judgment, however, so it filed this suit to collect from Hartford, which had issued the surety bond to All Cities. The circuit court granted summary judgment in favor of Hartford.

    The court of appeals affirmed in an opinion written by Judge Brennan. “We conclude that the members of the Privacy Class are not ‘persons to whom [All Cities] provided services,’ and, therefore, Hartford is not required to pay the judgment rendered against All Cities under the plain terms of the surety bond and Wis. Stat. § 224.72(4)(d)1.… It is undisputed that the members of the Privacy Class did not solicit the mailing they received from All Cities nor did any members of the class take out a loan from All Cities based upon the mailing. In fact, the Privacy Class admits in its brief that the mortgage offers were a ‘sham’ and that ‘All Cities could not, and did not intend to, deliver on its so-called “pre-approved” offers’ of credit. In other words, we agree with the circuit court that while the members of the Privacy Class ‘received an ad in the mail or a post card offering services’ they ‘have not actually been provided services’” (¶ 9).

    Nor did section 224.77 affect the terms of the surety bond because it “sets forth the penalties for mortgage bankers who do not comply with the relevant statutes; it is silent on the role of the bondholder” (¶ 10). Finally, the court’s decision did not frustrate the statute’s purpose, especially since the members of the Privacy Class incurred no actual damages in this case (see ¶ 11).

    Municipal Law

    Direct Legislation – Adequacy of Ballot Question

    Metropolitan Milwaukee Ass’n of Commerce Inc. v. City of Milwaukee, 2011 WI App 45 (filed 24 March 2011) (ordered published 20 April 2011

    Wisconsin’s direct legislation statute, Wis. Stat. section 9.20, permits city and village electors to initiate legislation by submitting a petition requesting that the governing body either adopt the attached proposed ordinance without alteration or submit it to the local electors for a vote. Pursuant to this statute, a coalition of organizations, led by the Milwaukee Chapter of 9to5 National Association of Working Women, initiated a drive for a petition seeking to enact a proposed ordinance requiring paid sick leave for employees within the city.

    After the required number of signatures was collected and the petition was filed, the Milwaukee Common Council decided not to enact the ordinance but to place it on the ballot for the Nov. 4, 2008, election. Notice of the election containing the full text of the proposed ordinance, along with the ballot question, was published and posted as required by sections 9.20(5) and 5.35(6)(a). The ballot question asked, “Shall the City of Milwaukee adopt Common Council File 080420, being a substitute ordinance requiring employers within the City to provide paid sick leave to employees?” A majority of voters answered this question in the affirmative and the ordinance became effective upon its publication on Nov. 12, 2008.

    The Metropolitan Association of Commerce (MMAC) filed this action, seeking a declaration that the ordinance was invalid on a number of statutory and constitutional grounds and requesting temporary and permanent injunctive relief. The circuit court granted a temporary injunction and then granted summary judgment in favor of the MMAC and a permanent injunction. One of the MMAC’s challenges related to the sufficiency of the ballot question. On that issue the circuit court concluded that the question did not meet the “concise statement” requirement of section 9.20(6), because it did not contain enough information about the ordinance. In particular, the court ruled, the ballot did not inform voters that the ordinance required paid sick leave for two reasons the court found were outside the commonly accepted understanding of sick leave: to seek relocation as a result of domestic or sexual violence or stalking and to prepare for or participate in a civil or criminal legal proceeding related to domestic or sexual violence. In a decision authored by Judge Vergeront, the court of appeals reversed.

    Section 9.20(6) provides that “[t]he ordinance or resolution need not be printed in its entirety on the ballot, but a concise statement of its nature shall be printed together with a question permitting the elector to indicate approval or disapproval of its adoption.” The appellate court construed this to mean “a brief statement of the general purpose of the proposed ordinance” (¶ 13). Applying this construction, the court concluded that the ballot question in this case was sufficient (see ¶ 40), even though it did not describe all the permitted uses of sick leave.

    The court noted that “the statutory scheme requires publication and posting of the entire ordinance. Several notices meeting the statutory criteria must be published before the election in newspapers that are aimed at a wide circulation. Certain of these notices must contain the entire text of the ordinance, along with the date of the election, the entire text of the question and an explanatory statement of the effect of either a ‘yes’ or ‘no’ vote. In addition, a notice with this information must be posted at each polling place on election day. Because of these notice requirements, in particular the posting at each polling place, it is evident that every elector entering the voting booth has had the opportunity to read the entire ordinance along with the ballot question before – in fact just moments before – reading the ballot in the voting booth and casting his or her vote. This suggests that the legislature did not intend to rely on the ballot question to inform the voter about the details of the proposed ordinance’s content” (¶ 33) (citations & footnote omitted).

    Sex-Offender Residency Restriction – Retroactivity

    Village of Menomonee Falls v. Ferguson, 2011 WI App 73 (filed 27 April 2011) (ordered published 26 May 2011)

    On June 18, 2001, Ferguson was convicted of second-degree sexual assault of a child in violation of Wis. Stat. section 948.02. In October 2003, he moved to an apartment, on Main Street in the village of Menomonee Falls, located within 1,500 feet of school facilities for children. Ferguson registered himself as a sex offender and his Main Street address with Wisconsin’s Sex Offender Registry. On June 18, 2007, the village passed an ordinance, which in part provides that “[a]n offender shall not reside within 1,500 feet of real property that supports or upon which there exists ... [a]ny facility for children.” The ordinance contains a grandfather-clause exception for the offender who “has established a permanent or temporary residence and reported and registered that residence … prior to the effective date” of the ordinance.

    Because Ferguson was residing at the Main Street residence before enactment of the ordinance, he was excepted from the residency restriction by the ordinance’s grandfather clause. However, some time after the enactment of the ordinance, Ferguson moved from his Main Street residence to a Menomonee River Parkway residence, also located within the village. Ferguson’s Menomonee River Parkway residence is located less than one mile from his former Main Street residence and is also within 1,500 feet of public facilities for children.

    Ferguson was issued a citation for violating the residency restriction. The municipal court upheld the citation, and Ferguson appealed to the circuit court. He argued that the grandfather-clause exception, which allowed him to reside in the Main Street residence, also allowed him to reside in the Menomonee River Parkway residence “because an individual does not commit a violation if he has established a permanent [or] temporary residence and registered that residence” before the enactment of the ordinance (¶ 7). The village agreed that Ferguson’s Main Street residence had been excepted by the grandfather clause; however, once he moved to the Menomonee River Parkway residence, he lost the protection of the grandfather-clause exception in effect for the Main Street residence. The village argued that the grandfather clause excepts only the residence, not the sex offender, and thus Ferguson violated the ordinance when he moved from the excepted Main Street residence to the unexcepted Menomonee River Parkway residence (see ¶ 8). The circuit court denied Ferguson’s motion to dismiss and, following a trial, found Ferguson guilty of violating the ordinance.

    In a decision authored by Judge Anderson, the court of appeals affirmed. It concluded that “the circuit court did not err when it denied Ferguson’s motion to dismiss and issued a judgment finding Ferguson guilty of violating … [the residency restriction ordinance]. The Village Ordinance’s grandfather clause exception applies to the sex offender’s residence, not the individual sex offender. Analogous to this court’s jurisprudence on zoning laws, once an excepted nonconforming use alters that use, it is no longer excepted and the municipality has the authority to punish that violation. Therefore, once Ferguson, whose Main Street residence was excepted under the ordinance, changed his residence to the Menomonee River Parkway residence, he lost the protection of the exception and is prohibited from establishing a new residence within 1500 feet of a child safety zone, even within the same child safety zone”
    (¶ 29).

    Sex Offenders

    Wis. Stat. Chapter 980 “Paper Review” – New Studies

    State v. Richard, 2011 WI App 66 (filed 27 April 2011) (ordered published 26 May 2011)

    Richard was committed as a sexually violent person following a jury trial under Wis. Stat. chapter 980. Two mental health experts testified for the state in support of Richard’s commitment. Both relied on a number of diagnostic tools, including the “Static-99 test.” Following his commitment, Richard petitioned for a discharge hearing because a research paper written by the Static-99 test’s developers argued that the test should be revised to reflect a lower probability of older offenders committing another offense. Richard asserted that the revision dropped his Static-99 score from an 8 to a 7. The circuit court dismissed the petition without conducting a hearing.

    The court of appeals affirmed in an opinion written by Judge Reilly. Richard’s petition was properly dismissed on a “paper review”; his grounds did not merit a discharge hearing. The research paper was “unassociated” with Richard’s specific condition. “That paper provides no insights into Richard’s likelihood of reoffending” (¶ 13). Moreover, the psychologists who evaluated Richard relied on tests and factors in addition to the Static-99 test. The court held “that a research paper by itself is not sufficient to get an offender past the initial ‘paper review’ stage in the two-step review process laid out by Wis. Stat. § 980.09” and case law (¶ 14). The court distinguished two cases (State v. Pocan, 2003 WI App 233, 267 Wis. 2d 953, 671 N.W.2d 860, and State v. Combs, 2006 WI App 137, 295 Wis. 2d 457, 720 N.W.2d 684) on which Richard relied.

    Worker’s Compensation

    Retroactivity – Exclusive Remedy – Compromises

    Martine v. Williams, 2011 WI App 68 (filed 21 April 2011) (ordered published 26 May 2011)

    Adam injured his leg when a coworker pushed him to the ground during working hours. The worker’s compensation carrier initially balked at covering Adam’s injuries because they occurred during “horseplay,” but the insurer and Adam eventually compromised his claim for $3,500. The release covered any and all liability; an administrative law judge (ALJ) incorporated the compromise into an order. Adam then sued the coworker on a negligence claim. The circuit court granted summary judgment to the coworker, finding that Adam’s injuries were covered by the Worker’s Compensation Act (the Act) and its exclusivity provision.

    The court of appeals affirmed in an opinion authored by Judge Sherman. The circuit court relied on case law that “held that the Act was the exclusive remedy for an injury which was the subject of a worker’s compensation claim compromise agreement. All four cases were overruled on other grounds by the Wisconsin Supreme Court in Byers v. LIRC, 208 Wis. 2d 388, 561 N.W.2d 678 (1997)” (¶ 12). Addressing whether these cases carried any residual precedential value, the court of appeals retroactively applied the rule recently announced by the supreme court in Blum v. 1st Auto & Casualty Insurance Co., 2010 WI 78, 326 Wis. 2d 729, 786 N.W.2d 78, which “held that ‘[a] court of appeals decision loses all precedential value when it is overruled by this court’”
    (¶ 14).

    Nonetheless, the court of appeals affirmed on alternate grounds. “The compromise settlement was not an agreement that the Act did not apply, but rather a compromise with the effect that [the insurer] was limited to the amount agreed to under the compromise agreement. The disputed facts regarding whether Adam was ‘performing service growing out of ... his employment’ are not material to the resolution of whether the exclusive remedy provision of the Act applies because all such issues have been compromised in arriving at the compromise agreement that formed the basis of the ALJ’s final disposition”
    (¶ 26). Under Wis. Stat. section 102.03(2), the compromise barred Adam’s right to recover against his coworker as well as his employer.

    Default Judgments – Total Disability – “Odd-Lot Doctrine”

    Ellis v. Wisconsin Dep’t of Admin., 2011 WI App 67 (filed 26 April 2011) (ordered published 26 May 2011)

    Ellis was a civil engineer employed by the Wisconsin Department of Transportation (DOT). In 2003 he was struck by a car and injured while working and in 2005 he took disability retirement from the DOT. He later sought permanent total disability from the DOT. An administrative law judge awarded him 27 percent disability but denied his claim for total permanent disability. The Labor and Industry Review Commission (the commission) agreed with this finding, and the circuit court affirmed.

    The court of appeals affirmed in an opinion written by Judge Curley. First, the circuit court properly denied Ellis’s motion for default judgment because the commission and the DOT failed to timely answer his complaint. Nothing in the Act, particularly Wis. Stat. section 102.23, provides for a default judgment. “Moreover, we agree with the trial court that allowing default judgment in Ellis’s case – and in all Wis. Stat. § 102.23 cases where the employer has timely answered – would lead to absurd results. It is undisputed that the DOT, Ellis’s employer, did timely answer Ellis’s complaint. Significantly, the Commission’s determination in a case like this establishes worker’s compensation liability for the employer; the Commission’s default should not short-circuit the trial court’s duty under the statute to determine whether the Commission’s conclusion and findings are supported by the evidence. In other words, if the trial court were to enter judgment in favor of Ellis, then the employer’s right to participate in the action and to argue in support of the Commission’s decision (as allowed by § 102.23(1)(c)) would be abrogated. We therefore conclude that whether the Commission formally joined in the employer’s brief or not, it makes no difference as to the trial court’s duty to review the record and either affirm or set aside the Commission’s order”
    (¶ 20).

    Second, Ellis did not establish a prima face case of total disability under the “odd-lot” doctrine. “The odd-lot doctrine embodies the idea that ‘total disability under worker’s compensation law should not be taken literally to mean complete and utter helplessness, because some injured workers find themselves, because of their age, education, training, and overall capacity, incapable of becoming ordinary work[ers] of average capacity in any well-known branch of the labo[]r market’” (¶ 27). The odd-lot doctrine, then, is a rule of evidence that “‘creates a burden-shifting framework’” (¶ 28). Here the commission reasonably disregarded much of Ellis’s proof because it was not created by a physician or other qualified professional as required by Wis. Stat. section 102.17(1)(d)1. (see
    ¶ 32).


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