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    Wisconsin Lawyer
    September 07, 2022

    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

    Wisconsin Fair Employment Act – Arrest Records

    Vega v. Labor & Indus. Rev. Comm’n, 2022 WI App 21 (filed 19 April 2022) (ordered published 25 May 2022)

    HOLDING: Substantial evidence supported findings of the Labor and Industry Review Commission (LIRC) that an employer did not rely on an individual’s arrest record when terminating his employment and that the employer would have terminated the individual’s employment based solely on his admissions to the employer that he had committed multiple felony-level sexual assaults.

    SUMMARY: Under the Wisconsin Fair Employment Act, employers are generally prohibited from terminating the employment of an individual on the basis of an “arrest record” or “conviction record.” In Onalaska v. LIRC, 120 Wis. 2d 363, 354 N.W.2d 223 (Ct. App. 1984), the court of appeals held that an employer does not unlawfully discharge an employee based on the employee’s “arrest record” if the employer concludes from its own independent investigation and questioning of the employee that the employee had, in fact, committed an offense (¶ 20).

    No case has extended or applied Onalaska’s rationale regarding an independent investigation to employment-discrimination claims based on a “conviction record” (¶ 21). Onalaska remains binding precedent, at least with respect to employment decisions implicating “arrest records” (id.).

    Preferred Sands of Wisconsin terminated Vega from employment after an investigation, which Preferred Sands instituted when it learned about the offenses and Vega’s status as a registered sex offender. During the investigation, Vega admitted that he had committed felony sexual assault offenses.

    Vega argued that this investigation was beyond the boundaries established by Onalaska because it involved his “conviction record” as opposed to an “arrest record.” In those felony cases, Vega entered into deferred-prosecution agreements (more aptly described as deferred entries of judgment); he entered guilty pleas to the offenses but was not adjudicated guilty and instead was subject to various court-ordered conditions. He remains subject to those conditions and if he successfully completes them, he will not be found guilty.

    LIRC concluded that Preferred Sands’ decision to terminate Vega’s employment was premised on both permissible and impermissible bases. “In particular, LIRC found that Preferred Sands’ decision to terminate Vega’s employment was impermissibly based on his status as a registered sex offender, which LIRC deemed a conviction record under Wis. Stat. § 111.32(3). LIRC also found, however, that Preferred Sands’ decision to terminate Vega’s employment was permissibly based on Vega’s admissions in his interview regarding his conduct underlying the felony sexual assault charges” (¶ 16). Before making the latter finding, LIRC concluded that Vega’s deferred-prosecution agreements constituted arrest records.

    In an opinion authored by Judge Hruz, the court of appeals concluded that deferred-prosecution agreements are part of an “arrest record” and are not part of the person’s “conviction record” (¶ 36). Thus, under Onalaska, the employer could independently investigate the fact of Vega’s sexual assaults (see ¶ 2).

    The court also concluded that “substantial evidence supported LIRC’s findings that Preferred Sands did not rely on Vega’s arrest record when terminating his employment, and that Preferred Sands would have terminated Vega’s employment based solely on his admissions to Preferred Sands that he had committed multiple felony-level sexual assaults” (id.).

    Health Law

    COVID-19 – Injunction Compelling Private Hospital to Administer a Particular Treatment

    Gahl v. Aurora Health Care Inc., 2022 WI App 29 (filed 25 May 2022) (ordered published 29 June 2022)

    HOLDING: The circuit court erroneously exercised its discretion in issuing an injunction compelling a private hospital to administer a specific treatment to an individual diagnosed with COVID-19.

    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: Petitioner Gahl, the health-care representative of a patient hospitalized for COVID-19, sought to compel Aurora Health Care Inc. to administer a particular drug (Ivermectin) to the patient. Aurora objected, arguing that there was no legal authority for the court’s order compelling a private health-care provider to administer a treatment that the provider, in its professional judgment, had determined to be below the standard of care. The circuit court granted an injunction compelling Aurora to administer the treatment (see ¶ 1).

    The question on appeal was whether the circuit court had the legal authority to issue an injunction compelling Aurora, a private health-care provider, to administer treatment that, in its professional judgment, is below the standard of care or to compel Aurora to credential a non-Aurora medical provider to administer the treatment (see ¶ 27).

    In a majority opinion authored by Judge Kornblum, the court of appeals answered in the negative, agreeing with the position advanced by Aurora.

    Said the majority: “Requests for injunctive relief must be premised on the existence of a viable legal claim upon which the petitioner can show a reasonable likelihood of success. Gahl fails to meet this foundational requirement. He has failed to identify any source of Wisconsin law that gives a patient or a patient’s agent the right to force a private health care provider to administer a particular treatment that the health care provider concludes is below the standard of care. Because Gahl has failed to identify any law, claim, or recognized cause of action under Wisconsin law by which a patient may compel a health care professional to administer a course of treatment contrary to that medical professional’s judgment, the [circuit] court erroneously exercised its discretion in granting Gahl injunctive relief” (¶ 1).

    Judge Grogan filed a dissenting opinion.


    Commercial General Liability Insurance – Exclusion – Business Risk

    Wiegert v. TM Carpentry LLC, 2022 WI App 28 (filed 4 May 2022)

    HOLDING: An insurer had no duty to indemnify because any damage fell within a business-risk exclusion.

    SUMMARY: Stone Creek Builders allegedly damaged the Wiegerts’ home during a renovation project that included Stone Creek raising the house off its foundation. Granting summary judgment, the circuit court ruled that Acuity, Stone Creek’s commercial general liability (CGL) insurer, had no duty to indemnify based on a business risk exclusion in the policy (the “k.(5) exclusion”).

    The court of appeals affirmed in an opinion authored by Judge Neubauer. The court assumed that under the policy an “occurrence” caused “property damage.” Nonetheless, coverage for any damage fell within the scope of the CGL policy’s standard k.(5) business exclusion (see ¶ 21). “The k.(5) exclusion bars coverage for property damage to [t]hat particular part’ of real property on which an insured is performing operations, if the property damage arises out of the insured’s operations” (¶ 23). All work done by Stone Creek during the policy period was specified in the contract. Thus, any damage fell within the scope of the k.(5) exclusion (see ¶ 27). This outcome was consistent with case law from other jurisdictions that involve the same exclusion.

    The court also rejected Stone Creek’s argument that the issue was not ripe because discovery had not been completed. Additional discovery would not have altered the court’s analysis of the k.(5) exclusion (see ¶ 33).

    » Cite this article: 95 Wis. Law. 63-64 (Sept. 2022).

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