Aug. 18, 2010 – The Wisconsin Supreme Court will decide a dispute between the Clean Water Action Council of Northeastern Wisconsin and the Department of Natural resources over the DNR’s issuance of a wastewater discharge permit to a paper manufacturing company.
In addition, the supreme court will clarify the law regarding the use of “other acts evidence” in child sexual assault cases, decide issues related to “direct action” claims against insurers, and determine whether an at-will employee has a cause of action for breach of implied duty of good faith and fair dealing.
Clean Water Action Council of Northeastern Wis. et al v. DNR, 2008AP3235
In 2005, the DNR proposed to re-issue a Wisconsin Pollutant Discharge Elimination System permit to James Operating Co., a paper manufacturing plant in Green Bay, and posted notice for public comment and a public hearing on the proposed permit.
During the public comment period, the Clean Water Action Council of Northeastern Wisconsin objected to the permit on the grounds that the DNR did not conduct a “reasonable potential analysis” under federal law to determine the impact of phosphorous discharges.
In August of 2005, the DNR reissued the permit notwithstanding the Council’s objections. The Council petitioned for review of the reissuance under Wis. Stat. section 283.63, renewing the earlier objections and also raising new objections.
The DNR denied the new objections on the grounds that those issues were not raised during the 30-day comment period. It denied the earlier objections on the grounds that all three invoked federal law, and the DNR lacked authority to resolve challenges based on federal law.
The supreme court is asked to decide whether section 283.83 requires that contested issues be raised during the public comment period to preserve those issues for consideration in later proceedings. Petitioners also ask the court to clarify the DNR’s authority to determine whether a permit violates federal law.
Casper v. American Int’l South Insurance Co., 2006AP1229
In 2003, the Casper family was injured when their vehicle was struck by a Mark Wearing, who was co-employed by Transport Leasing/Contract, Inc. (TLC) and Bestway Systems, Inc. National Union insured TLC.
National Union (NU) failed to timely answer an amended complaint filed by the Caspers. The court granted NU’s motion to enlarge time for filing, rather than issue a default judgment, finding that NU’s failure to file was “excusable neglect” under Wis. Stat. section 801.15(2)(a).
The Caspers ask the supreme court to clarify whether proving “excusable neglect” requires evidence of the actions that caused the neglect.
The Caspers also ask the court to examine whether, under Wis. Stat. sections 632.24 and 631.01(1), a direct action claim against an insurer can be maintained where the insurance policy was not issued or delivered in Wisconsin but covers “business operations in the state.”
Finally, the Caspers petitioned the court to decide whether Bestway’s CEO can be personally liable for negligence in approving a route he knew to be unsafe pursuant to federal regulations.
Deanne Phillips v. U.S. Bank N.A., 2009AP246
Deanne Phillips worked as an at-will employee for U.S. Bank for almost 10 years before she was terminated in 2007. Phillips alleged that U.S. Bank terminated her employment to avoid paying her compensation owed under a benefits plan, including bonus and incentive pay.
U.S. Bank petitioned for review of an appeals court determination that an at-will employee does not forfeit benefits that have accrued during employment, even though the benefit plan conditions receipt on the employee’s continued employment, if the employer fires the employee to prevent her from obtaining the benefits.
State v. Miguel E. Martinez, Jr., 2009AP567
Miguel Martinez was charged with sexually assaulting a four-year-old girl, and was also arrested for burning the child’s hands with hot water. The state introduced evidence of the hand-burning incident in the sexual assault case.
The circuit court held that the hand-burning evidence was offered for a proper purpose under Wis. Stat. section 904.04(2). Martinez was sentenced to six years in prison, and appealed.
The appeals court held that purpose for which the evidence was offered was improper, and the state failed to meet it burden to show the error was harmless.
The state petitioned the supreme court for review of the “other acts evidence” issue, arguing that the court of appeals overlooked the unique challenges presented in cases involving victimized children.
