Worker’s Compensation – Exclusive Remedy – Waivers – Motor Vehicles
Rood v. Selective Ins. Co. of S.C., 2022 WI App 50 (filed 16 Aug. 2022) (ordered published 28 Sept. 2022)
HOLDINGS: 1) A worker’s jobsite injuries were subject to the exclusive-remedy provision of Wisconsin’s Worker’s Compensation Act. 2) An endorsement to the employer’s policy did not waive the exclusive-remedy provision. 3) The vehicle that struck the worker was not a “motor vehicle” within an exception to the exclusive-remedy provision.
SUMMARY: Rood was seriously injured when a coworker driving a “telehandler” – a large, telescopic forklift used to move steel piping – ran over Rood’s left foot and leg. Rood received worker’s compensation benefits but later brought this negligence claim based on the assertion that the employer’s commercial general liability (CGL) insurer had agreed to indemnify the coworker under the policy. He also contended that the telehandler was a “motor vehicle” that was excepted from the exclusive-remedy provision of the Worker’s Compensation Act (the Act). The circuit court dismissed Rood’s negligence claim on summary judgment.
The court of appeals affirmed in an opinion authored by Judge Hruz. The policy’s terms, including an endorsement – the “Fellow Employee Extension” – did not establish an intent to waive the exclusive-remedy provision.
None of the three cases relied on by Rood supported Rood’s contention that the exclusive-remedy provision did not apply. The extension in this case, for example, did not remove an exclusion for bodily injury to a coworker “but rather modified the definition of an ‘insured’ to include an employee, under certain circumstances, when the employee caused bodily injury to a coemployee” (¶ 18). The most “reasonable meaning” of the extension in this case broadens the definition of “insured” when an exception to the Act might apply and the claim does not arise under a worker’s compensation law (¶ 23).
The court also rejected the argument that the telehandler was a “motor vehicle” for purposes of an exception to the Act. The term “motor vehicle” is undefined but the most reasonable meaning of that term excludes vehicles “designed primarily for uses other than transporting persons or property upon a public roadway” unless the worker’s injury occurred on a public roadway (¶ 37).
Rezoning – Certiorari Review of Rezoning Decision – Due Process
Miller v. Zoning Bd. of Appeals of Vill. of Lyndon Station, 2022 WI App 51 (filed 25 Aug. 2022) (ordered published 28 Sept. 2022)
HOLDINGS: 1) The circuit court had the “jurisdiction” or “authority” to consider whether there was an error in the process used by the village board in rezoning a parcel of land. 2) The participation and vote of a particular village trustee in the village board’s proceedings did not violate the plaintiff’s constitutional right to due process.
Prof. Daniel D. Blinka, U.W. 1978, is a professor of law at Marquette University Law School, Milwaukee.
Prof. Thomas J. Hammer, Marquette 1975, is a law professor and Director of Clinical Education at Marquette University Law School, Milwaukee.
SUMMARY: Larry and Kristi Whaley sought to rezone, from residential to commercial, a parcel of property they own in the village of Lyndon Station. Plaintiff Thomas Miller, the owner of nearby property, opposed the rezoning. The village plan commission voted to recommend to the village board that the rezoning be approved. Following a public hearing, the village board (which consists of three village trustees) voted to rezone the property. The village zoning board of appeals (hereinafter ZBA) upheld the village board’s decision.
Thomas Miller then sought certiorari review of the rezoning decision in the circuit court. The primary basis of his complaint was that trustee Jan Miller, Kristi Whaley’s mother, participated in the village board’s decision. Jan Miller cast the decisive vote in the 2-1 decision approving the Whaleys’ rezoning request (see ¶ 10) and, for purposes of this appeal, the court of appeals assumed that Jan Miller was partial to the Whaleys’ rezoning request (see ¶ 33).
(Editors’ Note: Thomas Miller and Jan Miller are not related.)
The circuit court reversed the ZBA’s decision. It concluded that Jan Miller’s participation in the village board’s proceedings and vote violated Thomas Miller’s due-process right to a fair and impartial hearing.
In an opinion authored by Judge Graham, the court of appeals reversed. Two related issues were before the court. “First, the parties dispute whether the circuit court had the ‘jurisdiction’ or ‘authority’ to consider whether there was an error in the process used by the Village Board, and, if so, the proper scope of the circuit court’s review. Second, the parties dispute whether Trustee Miller’s participation and vote in the Village Board’s proceedings violated [Thomas] Miller’s constitutional right to due process. Both issues implicate a threshold question about the nature of the Village Board’s decision to rezone the subject property and whether it can be characterized as a ‘legislative’ action” (¶ 20).
The court of appeals first concluded that the village board’s decision to rezone the subject property was plainly a legislative act. “[T]he act of rezoning is as legislative in nature as drafting and adopting a zoning ordinance in the first instance” (¶ 26).
Next, it concluded that the circuit court had jurisdiction and authority to consider whether there was an error in the village board’s legislative process and that Thomas Miller’s arguments about Jan Miller’s participation in the rezoning proceedings fit within the proper scope of certiorari review (see ¶ 2).
Lastly, the court of appeals concluded that the village board’s rezoning decision was not in error as a result of Jan Miller’s participation and vote (see id.). Jan Miller’s actions did not violate Wisconsin Statutes setting forth a code of ethics for public officials. Though these statutes generally bar a public official from taking official actions in which the official or an immediate family member has a substantial financial interest, these provisions do not prohibit a local public official “from taking official action with respect to any proposal to modify a county or municipal ordinance” (¶¶ 34-35).
The court also concluded that Jan Miller’s participation did not violate Thomas Miller’s right to due process. Though there is some case law recognizing a due-process right to an impartial decision-maker in certain zoning matters (for example, cases in which a zoning board of appeals must apply a zoning ordinance to a particular set of facts and circumstances), none of these cases recognized such a right in the context of a decision-maker who is “taking official action with respect to [a] proposal to modify a county or municipal ordinance” Wis. Stat. § 19.59(1)(d), and whose participation in the proceeding is therefore governed by that statute (¶ 41).
Accordingly, the court of appeals reinstated the decision of the ZBA upholding the village board’s decision to rezone the property in question. In a footnote, the court of appeals commented on the authority of the ZBA and indicated that the circuit court had erred when it determined that the ZBA had authority to review the village board’s rezoning decision (see ¶ 26 n.12).
» Cite this article: 95 Wis. Law. 56-57 (November 2022).