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    Wisconsin Lawyer
    July 16, 2021

    Supreme Court Digest

    In this column, Prof. Daniel Blinka and Prof. Thomas Hammer summarize all decisions of the Wisconsin Supreme Court (except those involving lawyer or judicial discipline).

    Daniel D. Blinka & Thomas J. Hammer

    Civil Procedure

    Judicial Substitution – Wis. Stat. § 801.58(1) – Timeliness of Request for Substitution

    State v. Matthews, 2021 WI 42 (filed 14 May 2021)

    HOLDING: The respondent’s request for judicial substitution was timely filed.

    SUMMARY: This case arose from the early stages of proceedings to commit respondent Matthews as a sexually violent person under Wis. Stat. chapter 980. [Though proceedings under chapter 980 resemble criminal proceedings in some respects, they are in fact civil actions. See ¶ 2 n.2.] After the state files a petition to commence a chapter 980 action, the circuit court must hold a probable cause hearing for a person already in the state’s custody no later than 10 days after the person’s scheduled release or discharge date. In this case the circuit court scheduled the probable cause hearing for August 15, 2018 (eight days after respondent Matthews’ scheduled release from prison).

    At the outset of the hearing, Matthews’ counsel requested additional time to prepare for it. The state objected, but the circuit court granted the additional time. On the morning of the rescheduled hearing, Matthews’ counsel filed a written request for judicial substitution under Wis. Stat. section 801.58(1). This statute provides that a party in a civil action may request to substitute the circuit court judge before “the hearing of any preliminary contested matters” but “not later than 60 days after the summons and complaint are filed.”

    The circuit court denied the substitution request, finding it to be untimely because the state’s objection to Matthews’ motion to adjourn the August 15 hearing rendered the matter “contested.” The chief judge of the judicial administrative district agreed. In a published decision, the court of appeals accepted Matthews’ interlocutory appeal and affirmed the ruling of the circuit court. See 2020 WI App 33. In a unanimous opinion authored by Justice Dallet, the supreme court reversed the court of appeals.

    The supreme court concluded that Matthews’ substitution request was timely because his motion to adjourn the August 15 probable cause hearing was not a “preliminary contested matter” per that phrase’s accepted legal meaning and the circuit court heard no other such matter before Matthews filed his request (see ¶ 1). “The phrase ‘preliminary contested matter’ has a specific legal meaning referring to pretrial issues that go to the ultimate merits of the case” (¶ 11). “Pretrial motions that directly implicate the merits of a case, such as a motion to dismiss for failure to state a claim, and a motion to compel discovery, are preliminary contested matters” (¶ 16) (citations omitted).

    Conversely, “procedural issues that have no direct effect on the merits of a case are not preliminary contested matters” (¶ 17). As for what it means for there to be a “hearing” of a preliminary contested matter, the court held that “a party’s substitution request is timely if it is made before a judge in fact hears a substantive issue that goes to the ultimate merits of the case” (¶ 22).

    On the facts of this case, the supreme court concluded that the circuit court heard no preliminary contested matter on a substantive issue going to the ultimate merits of the case before the time that Matthews filed his judicial substitution request. When the request was filed, the court had only addressed his motion to adjourn the August 15 hearing. Accordingly, the request for substitution was timely (see ¶¶ 23-24).

    Criminal Procedure

    Seizures of the Person – Retention of Driver’s License – Reasonable Suspicion

    State v. VanBeek, 2021 WI 51 (filed 4 June 2021)

    HOLDING: The bottom line of this divided opinion is a reversal of the circuit court’s denial of the defendant’s suppression motion. The various matters as to which there was majority agreement of the justices are summarized in the text that follows.

    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: At around midnight, the Sheboygan Police Department received an anonymous call reporting that a truck with two occupants had been sitting at an intersection for about one hour and that during that time, a third person approached the truck with a backpack and then left without it.

    The responding officer located the truck, parked behind it, and turned on his squad car’s spotlight but did not activate the squad car’s red and blue emergency lights. The officer then approached the truck and asked the occupants some questions about their activities. He then asked for their “IDs” and upon receiving driver’s licenses from both, he returned to his squad car.            

    A records check on the people in the truck revealed that neither had open warrants; however, the officer did learn that defendant Heather VanBeek (the driver) had overdosed 10 months earlier and that her passenger, Sitzberger, was on supervision. The officer then called for a drug-sniffing dog. He returned to the defendant’s vehicle, retained the occupants’ driver’s licenses, and continued questioning them for about eight more minutes until the dog and another officer arrived. The dog alerted to the trunk of the vehicle, in which the officers found methamphetamine and a pipe. The entire incident lasted about 25 minutes.

    VanBeek was charged with possession of methamphetamine and drug paraphernalia. She moved to suppress the evidence removed from the trunk, arguing that the officer’s initial contact with her was unlawful and, even if it were not, the stop was unlawfully extended without reasonable suspicion that she and her companion were engaged in criminal activity. The circuit court denied the motion, and the defendant pleaded no contest.

    The defendant then appealed, and the court of appeals certified the case to the supreme court, which accepted the certification. The certified question presented by the court of appeals was “whether a consensual encounter becomes an unconstitutional seizure under the Fourth Amendment when an officer requests and takes an individual’s driver’s license to the officer’s squad car without reasonable suspicion” (¶ 1).

    Justice Roggensack delivered an opinion that was joined in part by Justice A.W. Bradley, Justice Dallet, and Justice Karofsky. These four justices concluded that an officer taking an individual’s driver’s license back to the officer’s squad car “could amount to a seizure”; however, “rather than create a bright-line rule that such conduct is always a seizure or is never a seizure, we continue to analyze whether a seizure occurred based on the totality of circumstances presented” (¶ 31).

    These four justices also concluded that the defendant “was seized when [Officer] Oetzel returned to [VanBeek’s] vehicle, retained her driver’s license, and continued to pose questions to her and Sitzberger in order to prevent them from leaving before the K9 unit arrived. We conclude that a reasonable person in VanBeek’s position would not have felt free to drive away and terminate the encounter with Oetzel while he retained her driver’s license and continued to question her and Sitzberger” (¶ 46). “[T]here are no facts from which to conclude that VanBeek consented to Oetzel’s retention of her driver’s license after he returned to her vehicle” (¶ 47).

    Lastly, these four justices agreed that “based on the totality of circumstances, Oetzel did not have reasonable suspicion when he returned to VanBeek’s truck, retained her driver’s license and continued to question her; therefore her seizure was unlawful” (¶ 65). Accordingly, the supreme court reversed the defendant’s conviction and remanded the matter to the circuit court with instructions to grant VanBeek’s motion to suppress (see ¶ 66).

    Justice Dallet, joined by Justice A.W. Bradley and Justice Karofsky, concurred that VanBeek was unlawfully seized when the police officer retained her driver’s license while repetitively questioning her. These three justices disagreed, however, with the conclusion that VanBeek was not seized earlier in her encounter with the officer. “The totality of the circumstances reveals that VanBeek was seized when police took her driver’s license back to the squad car for a records check because, at that point, a reasonable person would not feel free to leave or to otherwise end the interaction” (¶ 67).

    Chief Justice Ziegler authored a dissent that was joined in by Justice R.G. Bradley and Justice Hagedorn. These three justices agreed with Justice Roggensack that VanBeek was not seized when the officer took her driver’s license to his squad car and ran a warrant check (see ¶ 81).

    There was thus agreement of four justices on that conclusion. However, Chief Justice Ziegler (for herself and Justice R.G. Bradley and Justice Hagedorn) wrote separately to contend that “VanBeek was not seized when Officer Oetzel returned to VanBeek’s vehicle and continued asking her follow-up questions. When looking at the totality of the circumstances, it is clear that VanBeek was free to ask for her driver’s license back and end the interaction. Consequently, her encounter with Officer Oetzel was consensual, and she was not seized” (¶ 81).

    Fourth Amendment – Investigative Stops

    State v. Genous, 2021 WI 50 (filed 4 June 2021)

    HOLDING: Police officers had sufficient reasonable suspicion to justify a traffic stop of the defendant’s vehicle and the seizure of an unlawful weapon.

    SUMMARY: A police officer stopped a car, found a firearm inside, and arrested the driver. Moments earlier, the officer had observed what he believed to be a drug transaction involving the driver and an individual who had been an informant and was known to have a substance use disorder. The driver was charged with unlawful possession of a firearm by a felon. The circuit court denied the defendant’s motion to suppress the gun. In an unpublished decision, the court of appeals reversed.

    The supreme court reversed the court of appeals, thereby permitting use of the gun as evidence at trial, in a majority opinion authored by Justice Hagedorn. Investigatory stops are permitted when a police officer has reasonable, articulable suspicion that a crime was, is being, or is about to be committed. The totality of the circumstances is the governing standard. Reviewing the facts before it, the court held that the officer had reasonable, objectively based suspicion that a drug deal had just occurred. These factors included the time of day (3:30 a.m.), the former informant’s past drug use, her brief encounter in the defendant’s car, and the area’s “reputation for drug trafficking” (¶ 11).

    Justice Dallet dissented, joined by Justice A.W. Bradley and Justice Karofsky. They concluded that the officer lacked reasonable articulable circumstances and had acted on only a “hunch.” They also criticized the circuit court for overly relying on the neighborhood’s reputation for drug trafficking (see ¶ 14).

    Damages

    Highway Change-of-Grade Projects – Damages to Abutting Lands

    United Am. LLC v. DOT, 2021 WI 44 (filed 18 May 2021)

    HOLDING: “Damages to the lands” within the meaning of Wis. Stat. section 32.18 does not include diminished property value when the Wisconsin Department of Transportation (DOT) has changed the grade of a highway abutting the lands.

    SUMMARY: Plaintiff United America operated a gas station and convenience store on land abutting a highway. As part of a road construction project, the DOT changed the grade of the highway, which made access to United America’s property less convenient. As a result, United America incurred revenue losses and the value of its property decreased. United America filed a claim against the DOT under Wis. Stat. section 32.18 seeking compensation for the diminished property value. This statute requires the DOT, in the absence of a constitutional “taking” (which would occur when a private property interest is converted to public use), to pay landowners whose lands abut a change-of-grade project the value of “any damages to said lands occasioned by such a change of grade” (¶ 3). The DOT denied the claim.

    United America then filed suit against the DOT. The circuit court entered judgment in favor of United America in the amount calculated by United America’s expert appraiser. In a published decision, the court of appeals reversed, holding that the statutory phrase “damages to said lands” plainly limits the scope of “any damages” to “structural or physical” injuries to the land itself (¶ 5). See 2020 WI App 24. In a majority opinion authored by Justice Dallet, the supreme court affirmed the court of appeals.

    The single issue before the supreme court was whether a diminution in value is a cognizable injury within the class of “damages to land” under Wis. Stat. section 32.18. The court concluded that “the diminution in property value occasioned by a change in an abutting highway’s grade is not an injury compensable under Wis. Stat. § 32.18 because such damages are not ‘damages to the lands.’ That conclusion follows from the text of § 32.18, particularly in light of the closely related Wis. Stat. § 32.09(4) and (6)(f), and is confirmed by these provisions’ legislative history. We need not decide, as the court of appeals did, the full scope of ‘damages to the lands’; our conclusion that a property’s diminution in value falls outside the scope of ‘damages to lands’ suffices to resolve this case” (¶ 10).

    Justice R.G. Bradley filed a dissenting opinion. She would hold that when the DOT causes a change of grade that diminishes a landowner’s property value on abutting land, Wis. Stat. section 32.18 allows landowners to collect compensatory damages (see ¶ 23).

    Insurance

    Homeowner’s Insurance – Estranged Spouses – Arson – Exclusions – Domestic Violence

    Kemper Indep. Ins. Co. v. Islami, 2021 WI 53 (filed 8 June 2021)

    HOLDING: A woman whose estranged spouse deliberately burned down their home was precluded from recovering under a homeowner’s insurance policy.

    SUMMARY: Ismet Islami married Ydbi Islami in 1978. The two were legally separated in 1998 and entered into a marital settlement agreement. Neither party proceeded with a divorce, and they lived together in a home insured by Kemper Independence Insurance Co. In 2013, the home burned down. The husband, Ydbi, was later convicted of arson related to the fire. At the time of the fire, Ismet was in North Macedonia.

    Kemper denied coverage for the loss of the home, commencing this declaratory-judgment action to declare that the “concealment or fraud” condition barred coverage for Ismet and Ydbi. The parties stipulated to the facts, including the arson, the husband’s concealment and fraud during the investigation and his status as a “resident,” and Ismet’s status as an “innocent insured.” The circuit court granted Kemper’s motion for summary judgment, finding that the husband was an ‘”insured” whose fraud and concealment barred Ismet’s recovery (¶ 12). In a published decision, the court of appeals affirmed. See 2020 WI App 38.

    The Wisconsin Supreme Court affirmed in a majority opinion authored by Justice R.G. Bradley. First, the court held that Ydbi was an “insured” under the policy, rejecting Ismet’s contention that the legal separation operated to remove him as an “insured.” Ismet had repeatedly held herself out as married to her “husband” with whom she lived in the house that burned (see ¶ 17). The legal-separation judgment did not terminate the marriage under Wisconsin statutes (see ¶¶ 18, 19).

    Second, the court rejected Ismet’s contention that the concealment-or-fraud provision was ambiguous and conflicted with the policy’s intentional-loss exclusion. The policy’s terms were “plain and unambiguous”: “This language plainly excludes coverage for all insureds if any insured conceals or misrepresents a material fact, with the intent to deceive and on which Kemper relies” (¶ 23). Nor did the concealment-or-fraud clause conflict with the intentional-loss exclusion: Each provision governs a different set of circumstances (see ¶ 26). This determination comported with prior case law, which the court discussed (see ¶ 27).

    Third, the court rejected the application of Wis. Stat. section 631.95(2)(f), “a statute which may allow ‘innocent insureds’ to retain coverage that might otherwise be excluded due to intentional loss resulting from acts or patterns of domestic abuse, … notwithstanding the ‘concealment or fraud’ condition” (¶ 31). Simply put, there was no evidence of domestic abuse as covered by the statute. The arson was not committed to harm Ismet (see ¶ 34).

    Justice Karofsky dissented, joined by Justice A.W. Bradley and Justice Dallet. The dissent contended that there are disputed issues of material fact regarding Ismet’s claim of domestic abuse that precluded summary judgment and that the majority misconstrued Wis. Stat. section 631.95 in ways that create “new hurdles for domestic violence victims” (¶ 64).

    Real Property

    Inverse Condemnation – Date of Occurrence – Notice of Claim – Timeliness

    Southport Commons LLC v. DOT, 2021 WI 52 (filed 8 June 2021)

    HOLDING: In an action for inverse condemnation, the property owner failed to timely file notice of claim within three years after the occurrence.

    SUMMARY: In 2008 and 2009, the Wisconsin Department of Transportation (DOT) engaged in an extensive freeway-construction project in Kenosha County, part of which involved the relocation of a frontage road east of property owned by Southport Commons. The new road bisected Southport’s property, resulting in the creation of new wetlands and the expansion of existing wetlands. In 2017, Southport filed a notice of claim and claim against the DOT pursuant to Wis. Stat. section 88.87(2)(c). The DOT did not respond to the notice of claim and claim, in effect denying it. Subsequently, Southport filed suit against the DOT alleging inverse condemnation. The circuit court dismissed the claim based on the pleadings, ruling that Southport had failed to file its claim notice within three years after the occurrence, as required by Wis. Stat. section 88.87. In a published decision, the court of appeals affirmed. See 2020 WI App 26.

    The supreme court affirmed the court of appeals in a majority opinion authored by Justice A.W. Bradley. First, the court held that the term “occurrence” in Wis. Stat. section 88.87(2)(c) applies to the date of the alleged damage, not when the owner discovered the damage. This conclusion followed from the “ordinary usage” of “occurrence” as well as case law and the legislative history. The statute contains no reference to “discovery,” unlike other statutes that draw the distinction (¶¶ 29-33).

    Second, an examination of the pleadings supported the circuit court’s determination that Southport’s notice was untimely. Southport never alleged that the damage occurred within the three years before it filed the notice of claim. “In other words, there is no genuine issue of material fact as to the date of the damage because Southport did not allege such a factual dispute. Southport put all of its eggs in the basket of ‘discovery’ and did not meaningfully develop in either the circuit court or court of appeals any argument that the damage occurred surreptitiously over time” (¶ 46). Furthermore, the court observed that “it would not have taken much to raise an issue of material fact,” which may have enabled Southport to put damage at issue or even “alleged surreptitious damage over time” (¶ 47).

    Justice Roggensack filed a dissenting opinion, joined by Chief Justice Ziegler and Justice R.G. Bradley. The dissent contended that Southport’s “verified complaint” sufficiently alleged its inverse-condemnation claim (¶ 52).

    Taxation

    Property Taxes – Air Carriers – Hub Facilities

    Southwest Airlines Co. v. Wisconsin Dep’t of Revenue, 2021 WI 54 (filed 8 June 2021)

    HOLDING: An airline did not qualify for the “hub-facility” property tax exemption because the airline did not operate at least 45 departing flights on each weekday of the tax years involved.

    SUMMARY: Southwest Airlines and AirTran Airways (collectively Southwest; Southwest acquired AirTran in 2011) sought an exemption from property taxes for 2013 and 2014 tax assessments under Wis. Stat. section 70.11(42)(a)2.a. This statute codifies a hub-facility property tax exemption, which exempts from property taxes all property of an air carrier company if the air carrier company “operated at least 45 common carrier departing flights each weekday in the prior year” from a facility at a Wisconsin airport.

    Southwest admitted that it did not operate at least 45 departing flights on every weekday in the subject years. Nonetheless, it argued that the court should read the statute in a “strict but reasonable” manner, and that under such a reading the court should forgive the airline for the days it did not meet the 45-departing-flight threshold because of holidays or weather. Southwest further contended that it is entitled to the exemption if it averaged 45 departing flights per weekday in the subject years (see ¶ 21).

    The circuit court granted summary judgment to the Wisconsin Department of Revenue, holding that Southwest did not qualify for the hub-facility exemption because it did not satisfy the 45-departing-flight requirement. The circuit court rejected Southwest’s argument that it only needed to schedule departing flights (even though those flights might not have actually departed) (see ¶¶ 12-13). The court of appeals affirmed in an unpublished decision.

    In a unanimous opinion authored by Justice A.W. Bradley, the supreme court affirmed the court of appeals. It concluded that “Southwest is not entitled to the hub facility exemption for either the 2013 or 2014 property tax assessment. The plain language of the statute requires that an air carrier company operate 45 departing flights on each weekday without exception, and Southwest admittedly did not meet this requirement” (¶ 4).

    Property Taxes – Assessments – Contaminated Property

    State ex rel. Collison v. City of Milwaukee Bd. of Rev., 2021 WI 48 (filed 2 June 2021)

    HOLDING: By utilizing the income approach to value the petitioner’s property according to its highest and best use as a parking lot, the assessor properly considered the impairment of the value of the property as a result of contamination.

    SUMMARY: Petitioner Collison owns a piece of property in downtown Milwaukee two blocks from Fiserv Forum. Located on the property are a building and a parking lot with space for 12-15 vehicles. When underground storage tanks on the property were removed in 2012, soil contamination from petroleum and other solvents was identified. In the relevant assessment year (2016), the city of Milwaukee assessed the property to have a fair market value of $31,800, with the building having no value.

    In arriving at the $31,800 valuation, the city’s assessor used the “income approach,” basing the assessment on rental income that could be obtained from the property’s existing parking lot. The assessor examined other comparably assessed downtown parking lots and observed that rental income had indeed been collected from the subject property; Collison had previously rented nine of the parking spaces, generating $540 per month in income.

    Collison appealed the assessment to the city’s board of review, arguing that his property has no market value because of the contamination and that the assessment was in error because the assessor did not follow the dictates of Wis. Stat. section 70.32(1m) to “consider” the impairment of the value of his property due to contamination. Collison presented no evidence to the board that would support his proposed evaluation of zero.

    The assessor testified that he used the “income approach” to value the property according to its highest and best use as a parking lot. Preferred methods of assessment under the Wisconsin Property Assessment Manual (which look at the results of an arms-length sale of the subject property or recent arms-length sales of comparable properties) were inapplicable here. The assessor’s testimony demonstrated that it was the contamination on the property that drove his decision to use the income approach. The board upheld the assessment and, on certiorari review, the circuit court affirmed the board. In an unpublished decision, the court of appeals also affirmed.

    In a majority opinion authored by Justice A.W. Bradley, the supreme court affirmed the court of appeals. It concluded that “by utilizing the income approach to value the property according to its highest and best use as a parking lot, the assessor properly considered the impairment of the value of the property due to contamination in arriving at a valuation pursuant to Wis. Stat. § 70.32(1m)” (¶ 3). The record shows the assessor’s recognition that the property could have been valued much higher but for the contamination (see ¶ 39).

    “It follows from this that if the property were not contaminated, a parking lot would no longer be the highest and best use of the property. By valuing the property as a parking lot using the income approach, the assessor took into account, or ‘considered,’ the impairment of the value of the property due to contamination in accordance with Wis. Stat. § 70.32(1m)” (¶ 40).

    Justice Roggensack filed a dissenting opinion that was joined in by Chief Justice Ziegler and Justice R.G. Bradley.

    Torts

    Immunity – “Possessor of Real Property” – “Other Lawful Occupant”

    Stroede v. Society Ins., 2021 WI 43 (filed 18 May 2021)

    HOLDING: An off-duty employee of a bar was not a “possessor of real property” entitled to immunity under Wis. Stat. section 895.529 for injuries incurred by a drunken, unruly customer.

    SUMMARY: While at the Railroad Station bar, Stroede became extremely intoxicated and punched another customer. A bartender ordered Stroede to leave and he was escorted out of the bar. Stroede reentered the bar moments later. Tetting, an employee of the bar, was at the bar as a customer. Tetting approached Stroede, grabbed him by the shoulders, and walked him backwards toward the entrance. When Tetting released Stroede, Stroede fell down the stairway at the bar’s entrance and suffered serious injuries. Stroede sued the bar, its insurer, and Tetting.

    The circuit court granted summary judgment dismissing Stroede’s claims against the bar on the grounds that Stroede was a trespasser and the bar was entitled to immunity. Tetting also asserted that he was entitled to immunity under Wis. Stat. section 895.529, but the circuit court denied his motion. In a published decision, the court of appeals reversed on grounds that Tetting was an “other lawful occupant” under Wis. Stat. section 895.529. See 2020 WI App 8.

    The supreme court reversed the court of appeals in a majority opinion authored by Justice Karofsky. “The narrow statutory interpretation question presented to this court is whether Tetting was an ‘other lawful occupant of real property’ within the definition of ‘[p]ossessor of real property’ found at Wis. Stat. § 895.529(1)(a)” (¶ 10). “The statute … defines a ‘[p]ossessor of real property’ as ‘an owner, lessee, tenant, or other lawful occupant of real property’” (¶ 12).

    Dictionary definitions did not resolve the issue. Rather, the supreme court relied on “[t]wo canons of statutory construction,” namely, the “ejusdem generis” canon and the “noscitur a sociis” canon (¶ 14). “Both of these canons instruct us that the phrase ‘other lawful occupant of real property’ should be limited by the terms that precede it: owner, lessee, and tenant. Those terms describe very specific groups of people and signify some degree of control and responsibility for the real property” (¶ 15).

    The majority said that the court of appeals construed the statute far too broadly: “to categorize anyone and everyone who is present on a property to be an ‘other lawful occupant of real property’ would negate the other specific terms provided (owner, lessee, and tenant) because it would swallow those terms whole” (¶ 18). “In this case, nothing in the record indicates that Tetting, as a bar patron at the time Stroede was injured, had any possession or control over Railroad Station or that he had the ability to give or withdraw consent. For this reason, the circuit court was correct in concluding that Tetting was not an ‘other lawful occupant of real property” (¶ 19).

    Justice R.G. Bradley dissented, asserting that the majority “privileges trespassers while erasing the statutory rights of individuals who are lawfully present on real property” (¶ 23).

    Justice Roggensack did not participate. Justice A.W. Bradley withdrew from participation.

    Worker’s Compensation

    Exclusive Remedy – Attempted Suicide

    Graef v. Continental Indem. Co., 2021 WI 45 (filed 20 May 2021)

    HOLDING: An apparent suicide attempt of an individual who had been receiving worker’s compensation benefits for an earlier injury was subject to the exclusive-remedy provision of the Worker’s Compensation Act (WCA).

    SUMMARY: In 2012, Graef was gored by a bull while working at a livestock yard. He suffered physical injuries and became depressed. Continental Indemnity Co., the employer’s worker’s compensation carrier, paid for Graef’s antidepressants until 2015, when it refused further coverage. Two months later Graef attempted suicide with a handgun. Graef later brought this tort claim against Continental, alleging that its negligent failure to continue paying for his antidepressants caused his suicide attempt. Continental moved for summary judgment, alleging that Graef’s 2015 injuries were also covered under the WCA. The circuit court denied the motion, but in an unpublished decision the court of appeals reversed.

    The supreme court affirmed the court of appeals in an opinion authored by Justice Karofsky. The WCA governed Graef’s 2012 injuries and his later treatment. In some instances, “a second or subsequent injury” may also be covered. “[E]mployers and worker’s compensation insurance carriers have a duty to pay for a subsequent injury that naturally flows from a covered workplace injury, including any injury caused or worsened by the treatment, or lack of treatment, of the original work-related injury” (¶ 12). In such instances, the WCA provides the exclusive remedy as provided by Wis. Stat. section 102.03(2) (see ¶ 13). The court held that Graef’s complaint alleged “an unbroken chain of events” that started in 2012 and ended with the 2015 suicide attempt
    (¶ 15). Thus, the court concluded that the WCA provides Graef’s exclusive remedy for the injuries alleged in his complaint, and it remanded the cause to the circuit court with directions to grant summary judgment to Continental on Graef’s negligence claim (see ¶ 3).

    Graef made two additional arguments, which the supreme court also rejected. First, it declined to create an exception for a negligent denial of a worker’s compensation claim because such an exception would “upset” the balancing of interests that the WCA represents. Second, Continental’s failure to concede that Graef’s worker’s compensation claim will succeed was not controlling. Continental was entitled to argue to the circuit court that Graef was “in the wrong forum and that, even if here were in the right forum, his claim would fail” (¶ 24).

    Justice R.G. Bradley dissented. Adopting the circuit court’s concern that Continental wanted it “both ways,” she contended that Graef should be allowed the opportunity to discover or develop facts that support a claim outside the WCA (¶ 27).





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