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    Wisconsin Lawyer
    August 01, 1999

    Wisconsin Lawyer August 1999: Supreme Court Digest

    Supreme Court Digest


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

    | Criminal Law | Criminal Procedure | Insurance | Municipal Law | Torts | Worker's Compensation |


    Criminal Law


    Carrying Concealed Weapon - Defense of Privilege

    State v. Dundon, No. 97-1423-CR (filed 11 June 1999)

    The defendant managed a gas station in Milwaukee. Confronted with a safe filled to capacity and the unavailability of the station's armored car service to make a pickup, the defendant decided to take the contents of the safe (which included $17,000 in cash) to the bank himself. While doing so he carried a concealed firearm and was arrested for that offense.

    The primary issue before the supreme court was whether a person may assert a defense of privilege to the crime of carrying a concealed weapon (CCW). In a unanimous decision authored by Justice Prosser, the court began its analysis by examining the Wisconsin privilege statute and its various specific provisions. See Wis. Stat. § 939.45. Concluding that the statute's privileges for coercion, necessity, defense of persons or property, fulfillment of duties of a public office, accomplishment of lawful arrest, and parental discipline did not apply, the court turned to the last subsection of the statute which establishes a privilege "when for any other reason the actor's conduct is privileged by the statutory or common law of this state." The defendant claimed that this last privilege permits the common law privilege recognized in State v. Coleman, 206 Wis. 2d 199, 556 N.W.2d 701 (1996), for the crime of felon in possession of a firearm to apply to the crime of CCW.

    Coleman recognized a narrow defense of privilege to a charge of felon in possession of a firearm when a stringent five-part test is satisfied. However, the supreme court declined to extend the Coleman privilege to the unrelated crime of carrying a concealed weapon. The court further noted that Wisconsin has not recognized any unique statutory or common law privilege to the crime of carrying a concealed weapon for more than 120 years.

    Having determined that a defense of privilege was unavailable to the defendant, the court proceeded to dispose of various claims of trial error raised by the defendant. It concluded that, inasmuch as no defense of privilege to the crime of carrying a concealed weapon was or could have been established by the defendant in this case, the judge did not commit error by excluding evidence supporting this invalid defense, by refusing to permit defense counsel to argue this defense to the jury, and by declining to instruct the jury on the defense.

    Injury by Negligent Handling of Dangerous Weapon - Dogs as Dangerous Weapons

    State v. Bodoh, No. 97-0495-CR (filed 18 June 1999)

    The defendant's Rottweiler dogs chased a 14-year-old boy who was riding his bicycle. The dogs pulled the boy from his bike and bit him several times, causing injuries requiring more than 300 stitches. As a result of this incident the defendant was charged and convicted by a jury of injury by negligent handling of a dangerous weapon, contrary to Wis. Stat. section 940.24.

    In a unanimous decision authored by Justice Bablitch, the supreme court affirmed the conviction. It concluded that a dog can be a dangerous weapon if used or intended to be used in a manner calculated or likely to cause death or great bodily harm and that there was sufficient evidence presented to the jury to prove that the defendant did so use or intend to use his dogs. This included proof that the defendant regarded his animals as "watchdogs." The evidence included several examples of aggressive and vicious behavior by these dogs that demonstrated improper or insufficient training. There was no evidence showing that the defendant did anything to correct the aggressive behavior of his dogs.

    The court cautioned that not all dogs are dangerous weapons and not all dog owners whose dogs bite another person can be subject to prosecution under section 940.24. It is only when there is sufficient evidence that the defendant intended to use his or her dog as a dangerous weapon that the person can be liable under the statute.

    The court further concluded that the state demonstrated that the defendant was "handling" his dogs at the time of the attack (an element of the crime) even though he was not present when the attack occurred and was, in fact, out of state at the time. The court concluded that a person need not be physically present to "handle" a dog as that term is used in the statute and that there was ample testimony that the defendant was responsible for supervising, directing, and controlling his dogs.

    Finally, the court held that the evidence was sufficient to prove that the defendant was criminally negligent in the handling of his dogs as that phrase is used in the statute. There was considerable testimony that the dogs were frequently loose and running at large in the community and that they had been involved in prior unprovoked attacks. Even though the defendant took steps to contain the dogs, given the apparent nature of the dogs and their history, as well as their size and power, the court concluded that there was sufficient and credible evidence in the record to support the jury's determination that a person of ordinary intelligence and prudence would reasonably foresee that failure to more adequately contain the dogs, especially when out of town, would subject others to an unreasonable and substantial risk of death or great bodily harm.


    Criminal Procedure


    Revocation of Probation - Hearing Before Administrative Law Judge - Separation of Powers

    State v. Horn, No. 97-2751-CR (filed 11 June 1999)

    The defendant challenged the constitutionality of Wis. Stat. section 973.10(2), which authorizes administrative, rather than judicial, revocation of probation. The circuit court agreed with him and declared the statute unconstitutional as a violation of the separation of powers doctrine.

    Before the supreme court the issue was whether it is within the exclusive power of the judiciary to determine whether a defendant has violated the court-imposed conditions of probation and whether probation should be revoked and the defendant sent to prison. In a unanimous decision authored by Justice Bablitch, the supreme court held that disposition of a criminal case, including imposing and revoking probation, is within powers shared among the branches of government. Because the legislative delegation of probation revocation to the executive branch does not unduly burden or substantially interfere with the judiciary's constitutional function to impose criminal penalties, the court concluded that section 973.10(2) is constitutional.

    Responding to the defendant's assertion that it is striking that Wisconsin is the only state that requires administrative rather than judicial probation revocation, the court noted that it analyzed the statute cited above using a separation of powers analysis based on the Wisconsin Constitution. The court further observed that nothing in the federal constitution forbids a state from providing for administrative revocation of probation imposed by a court. Because neither the federal constitution nor principles of due process require that probation revocation proceedings be conducted before a court, the supreme court was not persuaded by other jurisdictions relying on judicial rather than administrative probation revocation.

    Guilty Pleas - Failure of Defendant to Personally Articulate His Plea on the Record

    State v. Burns, No. 96-3615-CR (filed 22 June 1999)

    In open court and in the presence of the defendant, defense counsel informed the judge that the defendant was prepared to change his plea from not guilty to no contest to a charge of homicide by intoxicated operation of a vehicle. The defendant had completed and signed a plea questionnaire and waiver of rights form on the morning of the hearing, which was filed with the circuit court. On the form the defendant indicated his wish to enter a plea of no contest to the charge. The circuit court engaged the defendant in an on-the-record colloquy to establish that the defendant understood the written plea questionnaire, was entering the plea voluntarily, was aware of the potential penalties, and understood that by entering a plea he would waive important constitutional rights. However, the circuit judge failed to ask the defendant on the record to verbalize his plea of no contest and the defendant never spoke those words.

    The issue before the supreme court was whether Wis. Stat. section 972.13(1) requires that a defendant expressly and personally articulate a plea of guilty or no contest on the record in open court in order for a judgment of conviction to be entered on the plea. In a majority opinion authored by Chief Justice Abrahamson, the court affirmed the judgment of conviction, because the only inference possible from the totality of the facts and circumstances in the record is that the defendant intended to plead no contest.

    Despite this conclusion, the court expressed deep and continuing concerns about affirming a conviction based on a plea when the defendant has not expressly and personally articulated that plea on the record in open court. "A defendant expressly and personally pleading guilty or no contest on the record in open court is the best way for a circuit court to assure itself that the defendant has personally made the decision to so plead. This court urges circuit courts to follow the usual and strongly preferred practice of asking defendants directly and personally in open court and on the record how they plead to the charged offenses and of entering the pleas on the record."

    Justice Bradley filed a dissenting opinion.

    Ineffective Assistance of Counsel - Conflict of Interest

    State v. Love, No. 97-2336-CR (filed 23 June 1999)

    This case concerns a relatively unique set of facts. In 1995 the defendant was charged with new crimes that led to the revocation of his probation. When he was returned to court for sentencing on the original charge, he was represented by a public defender who also happened to have been the assistant district attorney who represented the state at the original sentencing. The defendant later filed a postconviction motion alleging that the public defender/former prosecutor had rendered ineffective assistance of counsel. The circuit court denied the motion but the court of appeals reversed, holding that the defendant was entitled to a resentencing without having to demonstrate either an actual conflict of interest or prejudice.

    The supreme court, in an opinion written by Justice Prosser, reversed the court of appeals. Extensively reviewing the case law on ineffective assistance of counsel and conflicts of interest, the supreme court held that "in order to establish a Sixth Amendment violation on the basis of a conflict of interest in a serial representation case, a defendant who did not raise an objection at trial must demonstrate by clear and convincing evidence that his or her counsel converted a potential conflict of interest into an actual conflict of interest by (1) knowingly failing to disclose to the defendant or the circuit court before trial the attorney's former prosecution of the defendant, or (2) representing the defendant in a manner that adversely affected the defendant's interests." On this record the defendant failed to make the requisite showing.

    Guilty Pleas - Procedures - Withdrawal

    State v. Brandt, No. 97-1849 (filed 8 June 1999)

    The defendant pleaded guilty to forgery and theft. Before entering the plea, his lawyer read him a guilty plea questionnaire that the defendant later signed. Attached to the questionnaire was an addendum that contained incorrect information about the offenses he was pleading to. At the guilty plea colloquy the trial judge conveyed correct, complete, accurate information about the defendant's crimes and the rights he was waiving. Some time later, the defendant brought a motion to withdraw based on the incorrect information set forth in the addendum and on which he claimed to have relied. The lower courts affirmed the convictions.

    The supreme court, in an opinion written by Justice Bradley, also affirmed. The law clearly requires that the defendant "understand" his guilty plea. The defendant's argument "hinge[d] on two facts: (1) the plea questionnaire and the plea colloquy described different crimes; and (2) the circuit court did not notice this inconsistency and clarify the matter with Brandt." Trial courts, however, have discretion in how to conduct the plea hearing and are not required to use the questionnaire. Here the judge was authorized to "order the completion of a plea questionnaire but then conduct its colloquy disregarding in whole or in part that questionnaire." In cases where judges ignore the plea questionnaire and use the colloquy, reviewing courts will scrutinize the colloquy; "the adequacy or deficiency of the plea questionnaire is not at issue because it does not constitute the basis on which the plea is accepted." The supreme court explicitly distinguished cases where the judge relies on the information in the plea questionnaire to demonstrate the defendant's understanding.

    Competency Hearings - Time Limits

    State ex rel. Hager v. Martin, No. 97-3841-W (filed 16 June 1999)

    The defendant was held in custody from July 1997 to December 1997, awaiting an examination to determine whether he was competent to stand trial for numerous criminal charges against him. In this habeas corpus action he now seeks dismissal of all the pending charges against him and release from custody claiming that the statutory time limits for a competency examination were violated.

    The first issue before the supreme court was whether a petitioner can raise an issue of statutory interpretation on a writ of habeas corpus. In a decision authored by Justice Wilcox, the court concluded that a question of statutory interpretation may be considered on a writ of habeas corpus only if noncompliance with the statute at issue resulted in the restraint of the petitioner's liberty in violation of the constitution or the court's jurisdiction.

    The second issue before the court involved the question of whether there was a jurisdictional defect because the competency examination was not conducted within statutory time limits. The supreme court answered in the negative. Pursuant to Wis. Stat. section 971.14(2), a competency examination ordered to be conducted on an inpatient basis must be completed and the report of the examination filed within 15 days after the examination is ordered. However, if the court orders the defendant to be examined by the Department of Health and Family Services or a department facility, the department shall determine if the examination is to be done on an inpatient basis and, if so, the 15-day time period begins to run upon the defendant's arrival at the inpatient facility.

    The court order for the competency examination in this case directed that the examination be conducted at Winnebago - a department mental health facility. Because the defendant was never transported to the Winnebago facility, the time limit for conducting the examination never started to run. There was thus no violation of section 971.14(2).

    Chief Justice Abrahamson filed a concurring opinion with which Justice Bradley joined.

    Return of Seized Property - Money as "Contraband"

    Jones v. State, No. 97-3306 (filed 3 June 1999)

    This case involves the interplay of two statutory schemes relating to the return of seized property.

    Wis. Stat. section 961.55(1) provides among other things that all property, real or personal, including money, directly or indirectly derived from or realized through the commission of any crime under the controlled substances chapter of the Wisconsin Statutes and any drug paraphernalia are subject to a state forfeiture action. Seizure without process may be made if it is incident to arrest. The statute further provides that any property seized but not forfeited shall be returned to its rightful owner, and any person claiming the right to possession of seized property may apply for its return to the circuit court.

    Wis. Stat. section 968.20(1) provides that any person claiming the right to possession of property seized with or without a search warrant may apply for its return to the circuit court. If the right to possession is proved to the court's satisfaction, it shall order the property, other than contraband, returned if it is not needed as evidence or all proceedings have been completed.

    The first issue before the supreme court in this case was described in the opinion as follows: If property is seized pursuant to a search that leads to a charge of a violation of the Uniform Controlled Substances Act (Wis. Stat. ch. 961) and the state has not initiated forfeiture proceedings, may an interested party seek return of the property under Wis. Stat. section 961.55? In a decision authored by Justice Wilcox, the court concluded that the Legislature intended that the return of property provision in section 961.55 can only be triggered by an unsuccessful forfeiture action brought by the state. In all other situations where the state has not initiated a forfeiture action, a person claiming the right to property seized by the authorities is limited to the procedures set forth in Wis. Stat. section 968.20.

    The second issue before the court was specified as follows: If the interested party brings an action for return of property under Wis. Stat. section 968.20, is cash considered "contraband" within the meaning of section 968.13(1), particularly when the charge arising out of the property seized during the search is ultimately dismissed? The court concluded that when the state has not instituted forfeiture proceedings and an interested party seeks return of seized property under section 968.20, in order to retain the property, the state must establish that the property is either contraband or is needed as evidence in a case. For property alleged to be contraband, the state must establish a logical nexus between the seized property and illicit behavior on the part of the petitioning property owner. If property is found to be contraband, then the property need not be returned whether criminal charges ultimately are filed or not.

    The court further concluded that the notion of "contraband" encompasses not only those items that are illegal per se, such as controlled substances or forged money, but also those items that are used, acquired, or transferred illicitly. Said the court, money that is established to have been acquired through the sale of or used to purchase controlled substances certainly constitutes contraband under section 968.13(1)(a) (the statute defining the term).

    Finally, the court concluded that when the state contends that property need not be returned under section 968.20(1) because it constitutes contraband, the state must establish this by the greater weight of the credible evidence.

    Justice Prosser filed a concurring opinion. Justice Bradley filed a dissent that was joined by Chief Justice Abrahamson.


    Insurance


    Property Damage - Covered Occurrence

    Smith v. Katz, No. 96-1998 (filed 22 June 1999)

    The Smiths bought a vacant lot from Giuffre and contracted with a builder for a new home. The foundation collapsed several times when the excavation filled with water, causing delays and additional expense. The Smiths also complained that after the house was completed, ground water pressure was causing additional damage. The Smiths filed suit against their builder, an engineer, and Giuffre. The claims against Giuffre alleged breach of warranty and misrepresentation. West Bend Insurance intervened, asserting that the claimed damages did not trigger its duty to defend or indemnify Giuffre. The circuit court granted a declaratory judgment in West Bend's favor. The court of appeals affirmed.

    The supreme court, in an opinion written by Justice Prosser, also affirmed. The case was before the supreme court on a motion for reconsideration of its decision at 218 Wis. 2d 442, 578 N.W.2d 202 (1998). In its initial opinion, the court ruled that the only West Bend policy in the record predated the occurrence of the damage. The motion to reconsider involved another West Bend policy that did apply to the period when damage occurred. Justice Prosser explained that the court originally granted the petition for review in order to analyze and interpret the "premises you sell" exclusion in the standard form commercial general liability insurance policies. The supreme court did not reach that issue, however, because it held that Giuffre had no coverage under the policy.

    The supreme court focused on three claims against Giuffre: 1) breach of warrant; 2) "strict responsibility misrepresentation"; and 3) negligent misrepresentation. Nowhere did the plaintiffs allege that Giuffre caused "property damage," based on the allegations in the complaint. "[A] complaint claiming strict responsibility misrepresentation or negligent misrepresentation must contain some statement about physical injury to tangible property, some reference to loss of use, or some demand for relief beyond money damages if the complaint is to satisfy the requirement that 'property damage' be alleged within the four corners of the complaint."

    The court next addressed ("for the sake of argument") whether the complaint against Giuffre alleged an "occurrence" covered by the policy. After reviewing the applicable precedents, Justice Prosser concluded that "at some future date" the court would have to decide whether strict liability or negligent misrepresentations were "accidents" covered under liability policies.

    The court then addressed the issue of causation. Based on its review of the record, the court held that Giuffre's alleged misrepresentations did not cause physical injury to the Smiths' property. The Smiths decided to build the house, they hired a contractor and an engineer to assist them, and they decided to continue construction even after the foundation collapsed "three or four times."


    Municipal Law


    Municipal Courts - Power to Order Out-of-State Defendants to Appear Personally

    City of Sun Prairie v. Davis, No. 97-1651 (filed 18 June 1999)

    This case involved an OWI prosecution for the violation of local OWI ordinances enacted by the City of Sun Prairie. The municipal court entered a default judgment against the defendant, an Illinois resident, because he failed to comply with a municipal court order requiring him to personally appear at the trial of the OWI civil forfeiture action. This action was taken even though the defendant's attorney was present.

    The issue before the supreme court was whether a municipal court has the inherent authority to enter such an order. In a unanimous decision authored by Justice Bablitch, the supreme court held that a municipal court does not have inherent authority to order an out-of-state defendant to personally appear at a trial on a civil forfeiture action. Accordingly, it vacated the default judgment and remanded the case to the municipal court for proceedings on the merits.

    In reaching this conclusion the court likened the order requiring the defendant to personally appear to a subpoena. The power of a municipal court to authorize the subpoena of a defendant is unquestioned when the defendant is within Wisconsin. However, there is no statutory authority for a municipal court to subpoena, or order the presence of, an out-of-state defendant. The court further determined that the existence of the municipal court and the orderly and efficient exercise of its jurisdiction are not dependent upon the personal presence of the defendant and, therefore, a municipal court does not have inherent authority to order an out-of-state defendant to appear personally at trial in a civil forfeiture action.


    Torts


    Recreational Use Immunity - Spectators - Team Sports

    Meyer v. School District of Colby, No. 98-0482 (filed 18 June 1999)

    Plaintiff attended a high school football game. She was injured when the wooden bleachers broke as she was descending after the game. The plaintiff sued the school district. The circuit court dismissed based upon recreational use immunity, and the court of appeals affirmed. The court held that "the organized team sport activity exception [Wis. Stat. § 895.52(1)(g)] does not extend to spectators who are not participants in the excepted activity and whose injuries do not arise out of the team sport activity of the actions of participants in that activity."

    The supreme court, in an opinion written by Chief Justice Abrahamson, reversed. Without dispute, the junior varsity football game was an organized sports activity sponsored by the school district and conducted on its property. Section 895.52(1)(g) "neither includes nor excepts spectators." Prior cases compelled the court to "consider not only that the plaintiff was a spectator but also the activity at which the plaintiff was a spectator." The court held that spectators also fall within the exception. The statute on its face does not restrict the exception to team players. Nor did public policy require a different construction: "there is no shortage of facilities for organized team sport activities that an owner sponsors." Rather, "organized team sport facilities are constructed to attract the public to the owner's sponsored events." Finally, the court rejected the argument that because another exception applies where a governmental body charges admission to spectators, it follows that an entity "not charging an admission fee to spectators should be immune from liability." These are two separate exceptions.

    Notice of Claim - Estoppel - "Dual Persona" Doctrine

    Riccitelli v. Broekhuizen, No. 98-0329-FT (filed 24 June 1999)

    Dr. Riccitelli was enrolled in a four-year residency program at Sinai-Samaritan. The program was run under an "affiliation agreement" between Aurora Health Care Inc., the hospital's owner, and the U.W. Medical School. In his fourth year, Riccitelli received notice that the supervising committee would not certify his completion of the program. He participated in a "remediation" program but was terminated from the residency in September 1995. Riccitelli brought an action seeking an injunction barring his termination as well as damages. The action failed and Riccitelli was terminated. In 1997 he filed this action alleging interference with contract against Drs. Broekhuizen and Hagarty, who had supervised parts of the residency program. The circuit court dismissed the complaint because Riccitelli had failed to file a notice of claim, as required by statute. The court of appeals reversed, ruling Broekhuizen's and Hagarty's "dual" employment by the state and Aurora forgave the need for a notice of claim.

    The supreme court, in an opinion written by Justice Wilcox, reversed. The issue was "whether Dr. Riccitelli's failure to timely file a notice of claim with the state, pursuant to Wis. Stat. section 893.82, mandates dismissal of Drs. Broekhuizen and Hagarty from this action." It was undisputed that Riccitelli failed to give the notice. Nor did the court agree that Hagarty and Broekhuizen were "similarly situated." Hagarty had not been a party to the 1995 action in which Riccitelli sought a court order permitting him to complete the residency. The only evidence in the record showed that Hagarty was a state employee. The court granted her judgment as a matter of law.

    The court next addressed Broekhuizen. It refused to apply the doctrine of judicial estoppel to preclude Broekhuizen from arguing he was a state employee. Nothing he said in the earlier suit was "irreconcilably inconsistent" with his assertions in this case. Rather, Broekhuizen merely addressed the multiple roles that he played teaching medical students, supervising residents, and practicing medicine. He said nothing about his employer. The supreme court also refused to apply the doctrine of "equitable estoppel" to bar Broekhuizen's assertion of state employment.

    Examining the dual persona doctrine, the court held that it should not be applied to "circumvent a party's failure to file a timely notice of claim" under section 893.82(3) of the Wisconsin Statutes. Such a use failed to comport with the purpose behind the notice of claim statute and the dual persona doctrine. Moreover, even if it had applied, Riccitelli failed to demonstrate all the elements of the dual persona doctrine; that is, "the two persona must be completely independent from and unrelated to one another such that the law recognizes them as separate legal persons." (Emphasis original.)

    Finally, the court rejected Riccitelli's arguments that the notice of claim statute was unconstitutional as it applied to him.

    Medical Malpractice - Informed Consent - Contributory Negligence - Jury Instructions

    Brown v. Dibbell, No. 97-2181 (filed 23 June 1999)

    The plaintiff sued the defendant health-care providers for complications arising from the performance of bilateral mastectomies. The jury found that one doctor, Dibbell, negligently had obtained the plaintiff's consent to surgery. It exonerated another doctor on the informed consent claim and found that neither one had negligently treated her. The jury also determined that the plaintiff was 50 percent causally negligent for failing to exercise ordinary care with respect to her own health. The defense brought post-verdict motions challenging the jury's findings and also asserting error in the judge's refusal to give a requested instruction. The judge denied the motions but the court of appeals reversed and remanded for a new trial.

    The supreme court, in a decision authored by Chief Justice Abrahamson, affirmed. The court addressed several key issues regarding informed consent claims. Initially, it concluded "that as a general rule patients have a duty to exercise ordinary care for their own health and well-being and that contributory negligence may, under certain circumstances, be a defense in an informed consent action."

    The court then turned to "three aspects of the patient's duty." First, patients "must tell the truth and give complete and accurate information about personal, family, and medical histories to a doctor to the extent possible in response to the doctor's requests for information when the requested information is material to a doctor's duty as prescribed by section 448.30, and that a patient's breach of that duty might, under certain circumstances, constitute contributory negligence. Error occurred because the judge did not give an instruction "tailored" to the plaintiff's disclosures in this case. Second, "a patient's duty to exercise ordinary care does not impose on the patient an affirmative duty to ascertain the truth or completeness of the information presented by the doctor; nor does a patient have an affirmative duty to ask questions or independently seek information." For these reasons, juries normally should not be instructed that the plaintiff can be found "contributorily negligent for failing to ask questions" or to undertake independent research. Third, "except in a very extraordinary situation, a patient is not contributorily negligent for choosing an available medical mode of treatment presented by a doctor." The evidence did not present an extraordinary situation.

    The court then turned to the defendant's allegation that the judge erred in not giving instructions relating to section 448.30 of the Wisconsin Statutes, which frees the doctor from providing certain kinds of information to the patient, and the "optional fourth paragraph" of Wis JI-Civil 1023.2, on informed consent. This discussion is closely tied to the record. In summary, the supreme court held that the jury should have been instructed about the defenses found in section 448.30 because the evidence so warranted. The language in Wis JI-Civil 1023.2, however, was "misleading" and should not have been given in the manner suggested by the defense.


    Worker's Compensation


    Traveling Employee - Acts Reasonably Necessary for Living or Incidental Thereto

    Wisconsin Electric Power Co. v. Labor and Industry Review Commission, No. 97-2747 (filed 22 June 1999)

    Overbye was employed as an engineer for Wisconsin Electric Power Company (WEPCO). WEPCO sent him to a business-related seminar in the Dallas-Fort Worth area. The seminar was scheduled to end at noon on a Friday. Overbye took advantage of a WEPCO travel policy under which the company would reimburse him for an extra night's lodging and expenses if he opted for a return flight that departed on a weekend day instead of one that left on Friday, thereby reducing the airfare the company would have to pay.

    After the seminar concluded on Friday afternoon, Overbye, his wife (who had joined him in Texas) and another WEPCO employee ate lunch and then set off in a rental car to do some sightseeing in nearby Fort Worth. On that trip the trio was involved in a car accident that killed Overbye's wife and caused serious injuries to Overbye. He himself died as a result of his injuries following the hearing in this case.

    Overbye's guardian petitioned for various benefits and medical expenses under the Worker's Compensation Act (WCA). The Labor and Industry Review Commission affirmed the decision of the administrative law judge ordering WEPCO to compensate Overbye, determining that Overbye's sightseeing was an act "reasonably necessary for living or incidental thereto" under the "traveling employee" provision of the WCA. See Wis. Stat. § 102.03(1)(f) (which provides that "acts reasonably necessary for living or incidental thereto" shall not be regarded as a deviation for a private or personal purpose when determining coverage under the WCA).

    In a unanimous decision authored by Justice Crooks, the supreme court concluded that LIRC's application of the traveling employee statute to the facts of this case was reasonable and was supported by findings of fact based on credible and substantial evidence. The statute establishes a presumption that an employee traveling on business is performing services arising out of and incidental to his or her employment at all times until he or she returns. This presumption continues unless it is rebutted by evidence to the contrary. Two things must be proved in order to rebut the presumption. First, it must be established that the employee deviated from his or her business trip for a private or personal purpose. Second, it must be shown that the deviation, although for a personal purpose, was not an act reasonably necessary for living or incidental thereto. An employee's actions are reasonably necessary for living or incidental thereto as long as they can be considered usual and proper customary conduct while living away from home.

    In making these determinations the focus must be upon the particular facts and circumstances involved in the case at bar, not on generalized synopses of appellate court conclusions in past cases involving different fact scenarios. In this case it was reasonable for LIRC to conclude that Overbye's sightseeing was reasonable recreation incidental to living. The court noted that the injury occurred on Friday afternoon while WEPCO continued to benefit financially from Overbye's stayover in Texas. Further, the sightseeing trip was confined to the Dallas-Fort Worth metro area. Finally, there is no evidence of any illegal motive or behavior on Overbye's part.

    The supreme court characterized as "apt" the statement of counsel for LIRC during oral argument before the court that this case "pushes the envelope" of the kinds of behavior by traveling employees that might be considered incidental to living under the statute cited above. Nevertheless, LIRC's application of the statute to the facts of this case was reasonable and was supported by findings of fact based on credible and substantial evidence.

    Prof. Daniel D. Blinka and Prof. Thomas J. Hammer invite comments and questions about the digests. They can be reached at the Marquette University Law School, 1103 W. Wisconsin Ave., Milwaukee, WI 53233, (414) 288-7090.


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