Dec. 26, 2012 – The Wisconsin Supreme Court accepted 11 new cases for review, including one to determine whether an insurance policy covers an insured for sending unsolicited fax advertisements in violation of the federal Telephone Protection Consumer Act.
In 2005, Atlas Sheet Metal Works Inc. sent a “junk” advertisement via fax to A-1 Security. Atlas did not have a business relationship with A-1 Security. A-1 filed a class action lawsuit seeking $500 in statutory damages per incident and damages for paper and toner consumption.
West Bend Mutual Insurance Company Incorporated insured Atlas. The case was removed to federal court, but the question of insurance coverage proceeded in state court. West Bend disputes coverage and argues that it does not have a duty to defend the action in federal court.
A circuit court ruled that West Bend did have a duty to defend Atlas based on the personal and advertising injury provisions in the policy because the fax advertisement was a “publication” that violated the privacy rights of A-1 Security and its owner, Isaac Sawyer.
On appeal, West Bend argued the policy covered only liability arising from violations of individual privacy rights, and A-1 Security is not an individual, among other arguments. An appeals court ruled that coverage applies to a violation of Sawyer’s privacy rights.
A decision by the supreme court could clarify how Wisconsin’s privacy law interacts with liability insurance contracts in such circumstances. The supreme court also accepted review of 10 other cases. The issues presented are briefly summarized below:
State v. Melton, 2011AP1770-71-CR
This case examines whether a circuit court has inherent authority to order the destruction of a presentence investigation (PSI) report after entry of judgment not related to charges in the original sentencing proceeding. An appeals court ruled the circuit court had authority to do so.
Outagamie Co. v. Melanie L., 2012AP99
This case examines that statutory standard for determining whether a person is competent to refuse medication and treatment for mental illness.
Manitowoc Co. v. Samuel J.H., 2012AP665
On certification, the supreme court may resolve a possible inconsistency under the state’s involuntary commitment law, Wis. Stat. ch. 51. Specifically, the court will consider whether section 51.35(1)(e) mandates a hearing within 10 days for all transferred patients, including those transferred for medical reasons, or whether the mandate applies only to transfers due to violations of the conditions of outpatient placement.
State v. Sahs, 2009AP2916
This case examines whether a defendant’s statements to his probation agent, in which he confessed to a new crime of possession of child pornography, were statements compelled as a matter of law in the context of probation.
State v. Alexander, 2011AP394-CR
In this case, the supreme court will examione whether a criminal defendant has a constitutional right to be present when a trial court questions a sitting juror and dismisses that juror for cause, or whether that right may be waived by counsel without the trial court conducting a personal colloquy with the defendant.
Village of Elm Grove v. Brefka, 2011AP2888
This case examines whether a municipal court or a circuit court has authority to extend the deadline for requesting a refusal hearing under Wis. Stat section 343.305 (tests for intoxication; administrative suspension and court-ordered revocation) if the defendant does not meet the pre-condition of requesting a hearing within 10 days. Defendant refused a blood alcohol test.
Showers Appraisals v. Musson Brothers, 2011AP1158
In this case, the supreme court may decide whether a private governmental contractor is entitled to sovereign immunity for its efforts to maintain water drainage on a construction site. Water damaged a privately owned building during road construction in Oshkosh in 2008.
State v. Johnson, 2011AP2864-CR
In this case, the supreme court may review several issues and underlying questions arising from the defendant’s request to view therapy records of the girl he is accused of assaulting, including whether defendants have a constitutional right to disclosure of privileged records.
Paul Davis Restoration of S.E. Wisconsin, Inc. v. Paul Davis Restoration of Northeast Wisconsin, 2011AP1121
The supreme court may examine whether a judgment entered against an entity’s trade name is enforceable against the trade name and the underlying entity. The case involves a dispute over the business territory of two franchises.
United Concrete & Construction v. Red-D-Mix Concrete, 2011AP1566
This case examines who (judge as a matter of law or jury as a matter of fact) determines whether a representation made by a seller of a product is mere “puffery” or is legally sufficient to support a misrepresentation claim, including one brought under Wis. Stat. 100.18.
