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    Wisconsin Lawyer
    December 09, 2021

    Court of Appeals Digest

    In this column, Profs. Daniel D. Blinka and Thomas J. Hammer summarize select published opinions of the Wisconsin Court of Appeals. Full-text decisions are linked below.

    Daniel D. Blinka & Thomas J. Hammer

    Employment Law

    Discipline of Public Employees – Loudermill Notice and Hearing

    Green Bay Pro. Police Ass’n v. City of Green Bay, 2021 WI App 73 (filed 21 Sept. 2021) (ordered published 27 Oct. 2021)

    HOLDING: A public employee’s procedural-due-process rights were not violated even though the Loudermill notice provided to him failed to allege certain violations for which he was ultimately disciplined.

    SUMMARY: Weiss was a detective with the Green Bay Police Department. He was suspected of violating departmental policies by accessing information contained in department files without authorization and by leaking that information to third parties outside the department. Before Weiss was disciplined, he was provided with a Loudermill notice that identified the policies the police chief believed Weiss had violated. [See Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985), under which public employees are entitled as a matter of due process to notice and an opportunity to hear and respond to charges before the imposition of discipline against them.] The notice did not include any reference to policy section 701 (relating to Weiss’ use of a personal communication device) or section 1008.2 (relating to Weiss’ choice to withhold evidence).

    At the Loudermill hearing itself, Weiss met with the police chief to discuss the substance of all suspected violations, including violations of sections 701 and 1008.2. After the Loudermill hearing, the chief concluded that Weiss violated several policies, including sections 701 and 1008.2, and he removed Weiss from his detective-division assignment. Weiss remained employed as a police officer but at a reduced rate of pay.

    The Green Bay Police Association filed a grievance, which the city’s personnel committee denied after Weiss waived his right to a contested hearing. The association then sought arbitration. Following a hearing, the arbitrator concluded that Weiss obtained the due process required by Loudermill as to the notice he received of his alleged violations of sections 701 and 1008 and that cause existed for disciplining him as a result of his violations of these policies and an additional policy.

    The association then filed a declaratory-judgment action in circuit court seeking to vacate the arbitrator’s decision. The court granted the city’s motion for summary judgment; it concluded that Weiss had been given sufficient notice of all potential policy violations so as to satisfy the due-process requirement of Loudermill and that the arbitrator properly applied the relevant law (see ¶ 11).

    In an opinion authored by Judge Gill, the court of appeals affirmed. Said the court: “While the Loudermill notice itself failed to contain information related to Policy §§ 701 and 1008.2, relevant issues implicating those policy sections were discussed during the Loudermill hearing. In addition, Weiss also had the post-discipline opportunity to fully vet those issues with the [city’s personnel] Committee (which he waived), and he had additional opportunities to do so in arbitration, and then before the circuit court. The unequivocal facts demonstrate that the pre-disciplinary oral and written notices given to Weiss, as well as the interviews and the Loudermill hearing itself, gave Weiss actual notice of the grounds for his discipline and opportunities to be heard, such that the requirements of Loudermill were satisfied” (¶ 21).

    Accordingly, “Weiss’ procedural due process rights were not violated even though the Loudermill notice failed to allege violations of Policy §§ 701 and 1008.2” (¶ 22). The court of appeals also stated that “[b]ecause the arbitrator’s decision did refer to and rely upon Loudermill and because the scope of our review is extremely limited, we cannot conclude that the arbitrator manifestly disregarded the relevant law” (¶ 25).

    Health Law

    Medical Records – Copies – Fees

    Banuelos v. University of Wis. Hosps. & Clinics Auth., 2021 WI App 70 (filed 30 Sept. 2021) (ordered published 27 Oct. 2021)

    HOLDING: Health-care providers can charge only the fees enumerated in Wis. Stat. section 146.83(3f) for requested copies of patient records; electronic copies are not subject to fees.

    Daniel D. BlinkaProf. Daniel D. Blinka, U.W. 1978, is a professor of law at Marquette University Law School, Milwaukee.

    Thomas J. HammerProf. Thomas J. Hammer, Marquette 1975, is a law professor and Director of Clinical Education at Marquette University Law School, Milwaukee.

    SUMMARY: Banuelos requested that the University of Wisconsin Hospitals and Clinics Authority (UWHCA) provide her attorney with electronic copies of her health-care records. The UWHCA provided the records as requested in electronic format but submitted an invoice listing “per page” fees for the same copies. The invoice was based on the maximum per-page fees for “paper copies” permitted by Wis. Stat. section 146.83(3f)(b)1. In an action by Banuelos seeking declaratory, injunctive, and monetary relief, the circuit court ruled in favor of the UWHCA.

    The court of appeals reversed in an opinion authored by Judge Kloppenburg, which closely scrutinized the statutory provisions under Wisconsin’s “plain-meaning” approach.

    “[T]he language and grammatical structure of [Wis. Stat. section 146.83(3f)(b)] instruct that a health care provider may charge no more than the total of the amount of those fees enumerated in the statute that apply to the particular request. If a charged fee is not one of the enumerated fees and applicable to the particular request, it is not permitted. Pertinent here, the enumeration of permissible fees in para. (b) includes fees for providing paper copies but does not include fees for providing electronic copies.… Because para. (b) does not enumerate any fees that apply to the provision of electronic copies of patient health care records, under para. (a) a health care provider that complies with a request to provide electronic copies of a patient’s health care records may not charge a fee for doing so” (¶¶ 17-18).

    The court of appeals said that allowing providers to impose unlimited fees that are not enumerated in the statute would contravene the public policy embodied in the statute (see ¶ 21).

    The court also considered the statutory history and case law, which supported the court’s plain-meaning construction of the statute. The opinion also closely considered but rejected the contrary arguments advanced by the UWHCA.


    Underinsured Motorist Coverage – Reducing Clause – Worker’s Compensation

    Secura Supreme Ins. Co. v. Estate of Huck, 2021 WI App 69 (filed 29 Sept. 2021) (ordered published 27 Oct. 2021)

    HOLDING: An insurer could reduce its coverage limits only by the amount of worker’s compensation received by the decedent’s estate.

    SUMMARY: Huck was killed by a motorist while working for his employer, the village of Mount Pleasant. The tortfeasor’s insurer paid its liability limits of $25,000 to Huck’s estate. The village’s worker’s compensation insurer (hereinafter WC insurer) paid the estate $35,798.04. By operation of Wis. Stat. section 102.29, the estate was obligated to refund $9,718.73 to the WC insurer. In sum, the estate netted only $26,079.31 from worker’s compensation. Huck had an underinsured motorist (UIM) policy with Secura Supreme Insurance Co. with limits of $250,000. Secura contended that its limits are reduced by the $9,718.73 repaid to the WC insurer (in addition to the $26,079.31). The trial judge disagreed, and Secura appealed.

    The court of appeals affirmed in an opinion authored by Chief Judge Neubauer. The issue was governed by the Wisconsin Supreme Court’s decision in Teschendorf v. State Farm Insurance Cos., 2006 WI 89, 293 Wis. 2d 123, 717 N.W.2d 258, which produced several opinions but a unanimous outcome.

    “The consistent focus throughout the supreme court’s analysis, regardless of the approach, was on what the injured person actually received from the worker’s compensation insurer. Beyond ensuring the fixed level of coverage that the legislature intended and the insured paid premiums for and reasonably expected, the focus on what the injured person recovers makes sense, because the purpose of the reducing clause is to prevent double recovery by the insured” (¶ 16).

    “More to the point, we agree with the Estate’s basic contention that under the language of the statute, the Estate was not paid an amount of $9718.73, because that initial amount was paid back. The statute does not restrict the reducing clause’s application to a certain period of time – here, the WC Insurer’s preliminary payment. In other words, nothing suggests the provision is limited to the initial calculation when that amount, after the victim’s recovery from the negligent tortfeasor, was statutorily recalculated and reimbursed” (¶ 19).

    Motor Vehicle Law

    OWI – Traffic Stop – Extension of Stop for Field Sobriety Testing

    State v. Adell, 2021 WI App 72 (filed 16 Sept. 2021) (ordered published 27 Oct. 2021)

    HOLDING: A deputy sheriff properly extended a traffic stop to investigate whether the defendant was operating with a prohibited alcohol concentration (PAC) and to administer field sobriety tests.

    SUMMARY: A Sauk County sheriff’s deputy stopped defendant Adell at 5:50 a.m. for speeding (69 miles per hour in a 55-miles-per-hour zone). The deputy observed no other illegal or suspicious driving activity. Noticing an odor of alcohol coming from the vehicle, the deputy inquired whether Adell had consumed alcohol; Adell admitted that he had done so the previous evening. A check of Adell’s driving record revealed that he had four prior operating while intoxicated (OWI) convictions and was therefore subject to a 0.02 blood-alcohol concentration (BAC) restriction while driving. Based on his training and experience, the deputy knew that a person would have to consume “very little” alcohol to exceed the 0.02 BAC limit, and that drinking one beer could put a person over that limit (¶ 7). The deputy administered field sobriety tests and then arrested the defendant for OWI.

    The circuit court determined that the deputy lacked reasonable suspicion to extend the traffic stop to conduct field sobriety testing, and it granted the defendant’s motion to suppress the field sobriety test results and later-obtained evidence of driving with a PAC.

    In an opinion authored by Judge Kloppenburg, the court of appeals reversed. First, it concluded that the deputy properly extended the stop to investigate whether the defendant was operating with a PAC “because the totality of the facts and circumstances gave rise to a reasonable suspicion of that offense” (¶ 2). Those facts included the deputy’s training and experience (described above), the deputy’s knowledge that the defendant had four prior OWI convictions, the 0.02 BAC restriction to which the defendant was subject, the smell of an odor of intoxicants from inside the defendant’s vehicle, the defendant’s admission that he had consumed alcohol the evening before together with the time of the stop (5:50 a.m.), and the speed at which the defendant was driving (which the deputy could reasonably have considered as a type of risky behavior that might reflect driving with a PAC).

    Considering all these factors in the aggregate, the court concluded that “any police officer in the deputy’s position here would reasonably suspect that Adell was operating with a prohibited alcohol concentration” (¶ 26).

    The appellate court further concluded that the deputy lawfully administered the field sobriety tests in furtherance of his investigation of the offense of driving with a PAC because the results of those tests were likely to support or dispel the deputy’s suspicion that the defendant had committed that offense (see ¶ 2).

    Real Property

    Restrictive Covenant – Site Condominium Conversion

    Nordstrom v. Kane, 2021 WI App 71 (filed 28 Sept. 2021) (ordered published 27 Oct. 2021)

    HOLDING: The defendants’ plan to convert a tract of land into three site condominiums violated a restrictive covenant governing the property.

    SUMMARY: Steven and Jacqueline Kane, the defendants, purchased two parcels of land on Cottage Row Road in the town of Gibraltar, in Door County. The properties were subject to restrictive covenants. The Kanes developed a plan to convert one of these parcels, Tract 54, into a site condominium comprised of three units, each of which would ultimately contain a single-family residence.

    After the Kanes recorded a condominium declaration with the register of deeds, other Cottage Row Road property owners (hereinafter the objectors) filed a lawsuit. They asserted that the Kanes’ attempt to convert Tract 54 into a three-unit site condominium violated a restrictive covenant that prohibits Tract 54 from being “divided so as to create any additional tracts therefrom.” In response, the Kanes argued that the creation of a condominium is not a division of land under Wisconsin law, and that applicable Door County ordinances do not treat the creation of a site condominium as a division of land into separate lots.

    The circuit court granted summary judgment to the objectors; it concluded that because the condominium conversion created three lots of record on Tract 54 and was treated as a land division under the Door County ordinances, the conversion violated the restrictive covenant (see ¶ 12).

    In an opinion authored by Judge Stark, the court of appeals affirmed. It concluded that the condominium conversion in this case clearly separated Tract 54 into two or more precisely defined areas of land (that is,the three site condominium units) and as such violated the unambiguous terms of the restrictive covenant by dividing Tract 54 into additional tracts (see ¶ 18). The court agreed with the objectors that the Door County land division ordinance treats a minor site condominium such as the one in this case as a division of land and that Wisconsin statutes permit such treatment (see ¶ 22).


    Misdiagnosis – Statute of Limitation

    Winzer v. Hartmann, 2021 WI App 68 (filed 29 Sept. 2021) (ordered published 27 Oct. 2021)

    HOLDING: A medical malpractice action was not time barred as a matter of law.

    SUMMARY: The plaintiff, a prison inmate, complained about a variety of physical symptoms. The report of a CT scan performed on the plaintiff in November 2012 indicated no masses were present. In 2017, the plaintiff lost consciousness and underwent emergency surgery, during which 25 percent of his stomach was removed because of a cancerous tumor. A radiologist concluded that this same tumor was present in 2012 and “nothing had been done about it” (¶ 4).

    The plaintiff filed this medical malpractice action in December 2018. The circuit court dismissed the complaint on the ground that it was untimely.

    The court of appeals reversed in an opinion authored by Chief Judge Neubauer. The issue was whether the action was time barred by Wis. Stat. section 893.55(1m) (see ¶ 7). The court rejected the defense argument that the statute was triggered in 2014, when the plaintiff reported blood in his stool. Bluntly put, the plaintiff’s 2014 report did not necessarily establish an actionable injury caused by the 2012 misdiagnosis, especially in light of his numerous complaints of cramps and stomach pain even before 2012 (see ¶ 18).

    In summary: “Blood in Winzer’s stool may not be demonstrative of greater harm. First, it may not be related to the tumor at all. Second, it may not be new. Third, even if it is new, it may be simply another symptom of the cancer that already existed at the time of the 2012 misdiagnosis, related to the ongoing stomach pain, cramps, and problems for which Winzer sought diagnosis and treatment. Finally, … we cannot speculate that the alleged failure to treat Winzer’s tumor in 2012 caused an actionable injury to Winzer by 2014 when he experienced blood in his stool” (¶ 20).

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