Supreme Court Digest
This column summarizes all decisions of the
Wisconsin Supreme Court (except those involving lawyer or judicial
discipline, which are digested elsewhere in the magazine). Profs. Daniel
D. Blinka and Thomas J. Hammer invite comments and questions about the
digests. They can be reached at Marquette University Law School, 1103 W.
Wisconsin Ave., Milwaukee, WI 53233, (414) 288-7090.
by Prof. Daniel D. Blinka & Prof. Thomas J. Hammer
Civil Procedure
Default Judgments - Relief From Judgments
Shirk v. Bowling
Inc., 2001 WI 36 (filed 11 April 2001)
Shirk sued Bowling Inc. in a "post-employment dispute" and claimed
she was owed severance pay, additional wages, and other monies. She
served a copy of the summons, complaint, and notice of service on the
Department of Financial Institutions (DFI) on March 6, 1998. See Wis.
Stat. § 181.66(2). Bowling received the copy of the summons,
complaint, and notice on March 17, 1998. On March 30 Shirk moved for
default because Bowling had not filed an answer within 20 days of her
service on DFI (March 6). Bowling filed its answer on April 1. The
circuit court denied Shirk's motion for default, reasoning that it would
be required to reopen the judgment anyway based upon the excusable
neglect standard of Wis. Stat. section 806.07(1). The court of appeals
reversed, based on the trial court's error in its "preemptive use" of
section 806.07(1).
The supreme court, in a decision written by Justice Crooks, reversed
the court of appeals. The court held that trial judges may make
"preemptive use of Wis. Stat. § 806.07(1)" (¶ 2). The decision
to grant default judgments rests within the trial court's discretion and
is guided by such policies as the law's preference that litigants have
their "day in court" and the law's disfavor of defaults. Moreover, "a
circuit court does not erroneously exercise its discretion when it
denies a motion for default judgment because it concludes that it would
thereafter be compelled to entertain a motion to set aside that
judgment" (¶ 17). Bowling demonstrated "excusable neglect" based
upon an apparent inconsistency between the summons and the notice
regarding the time limits within which the answer was to be filed. A
reasonably prudent person would have been "confused" about whether the
20-day period began on March 6, the date of filing with DFI, or March
17, the date Bowling received the summons. Finally, Bowling also
established that it had a meritorious defense, as required by
statute.
Insurance
Coverage - Notice of Nonrenewal
Magyar v. Wisconsin Health
Care Liability Ins. Plan, 2001 WI 41 (filed 3 May 2001)
The plaintiff sued various defendants as a result of her husband's
death in 1990 while he was undergoing medical treatment. She later
amended her complaint and named "NSM" (a health-care provider) as an
additional defendant. NSM in turn filed a third-party complaint against
"PICW," which had provided insurance coverage before 1990. PICW denied
that it had any obligation to defend or indemnify NSM. The circuit court
dismissed PICW from the lawsuit and the court of appeals affirmed.
The supreme court, in a decision written by Justice Bablitch, also
affirmed. (Justice Sykes did not participate.) Without dispute, PICW
failed to provide a separate notice of nonrenewal to NSM as required by
Wis. Stat. section 631.36(4)(a). Yet, in this case, the statutory
violation did not mean that PICW provided coverage. By providing proper
notice, the insurer effectively eliminates the policyholder's right to
renewal. In the event no such notice is provided, as here, the statute's
remedy is to provide "an additional period of time equivalent to the
expiring term." In this case, the additional period would have extended
from Jan. 1, 1989 to Oct. 1, 1989. The alleged malpractice occurred,
however, after this period. In short, "PICW's failure to give notice
pursuant to § 631.36(4)(a) did not result in any remedy that
provided coverage to NSM in this case" (¶ 13).
A second issue involved the remedy, if any, for PICW's failure to
notify the commissioner of insurance of NSM's policy termination. The
court rejected NSM's contention that the remedy should be that coverage
remain in effect until PICW provided such notice. First, this argument
conflicted with the statute. Second, the Legislature had already defined
the punishment, namely, the procedures and penalties available to the
commissioner under Wis. Stat. section 601.64.
Motor Vehicle Law
Implied Consent - Informing the Accused - Hearing Impaired
Drivers
State v. Piddington,
2001 WI 24 (filed 22 March 2001)
This case involved a driver who was arrested for OWI and who is
profoundly deaf. The litigation focused on whether the police complied
with the implied consent law in their efforts to communicate implied
consent obligations to the arrested driver. The events of this case
occurred in 1998, at which time the law required the police officer to
"orally inform" arrested drivers of their implied consent
obligations.
At its core, this case implicates how persons are given the implied
consent warnings, that is, the methods used to convey those warnings. In
a majority decision authored by Justice Crooks, the court began its
analysis by observing that the implied consent warnings are designed to
inform drivers of the rights and penalties applicable to them. The court
concluded that whether law enforcement officers have complied with the
statute turns on "whether they have used reasonable methods which would
reasonably convey [implied consent] warnings and rights" to the arrestee
(¶ 22). This approach focuses on the objective conduct of the
officer, rather than upon the comprehension of the accused driver
(¶ 21). It factors into the mix the circumstances facing the
arresting officer (¶ 23). It ensures that the driver cannot
subsequently raise a defense of "subjective confusion," that is,
"whether the implied consent warnings were sufficiently administered
must not depend upon the perception of the accused driver" (¶
21).
That a law enforcement officer must use reasonable methods to convey
the implied consent warnings does not mean the officer must take
extraordinary or impracticable measures to convey the necessary
information. Reasonableness under the circumstances also requires
consideration of the fact that alcohol dissipates from the blood over
time, particularly after the subject has stopped drinking.
In footnote, the court provided examples of methods that might
reasonably inform arrestees about the implied consent law when those
arrestees are hearing impaired or do not speak English. Such reasonable
methods could include videos that show the warnings in sign language.
Similarly, translations (either by card or video) could be prepared in
languages other than English that law enforcement officers encounter,
such as Spanish and Hmong.
Chief Justice Abrahamson and Justice Sykes filed separate
concurrences.
Municipal Law
Zoning - Notice of Proposed Zoning Amendments and Hearings
Thereon
Oliveira v. City of
Milwaukee, 2001 WI 27 (filed 3 April 2001)
At issue in this case was the Milwaukee Common Council's enactment of
two zoning amendments that had been initially referred to the council's
zoning committee for a hearing. That hearing was properly noticed under
Wis. Stat. section 62.23(7)(d)2. This statute requires what is known as
a "class 2 notice under Wis. Stat. ch. 985." This type of notice
requires two insertions of a legal notice to be published in a newspaper
likely to give notice in the area or to the person affected.
Because the zoning committee did not act on the proposed zoning
amendments, the common council president introduced duplicate zoning
amendments and referred them to a different committee. The city did not
give "class 2" notice before the latter committee held a hearing (though
it did mail notices to a large number of persons in the vicinity of the
property in question).
The question before the supreme court was whether the notices of
hearing on the proposed zoning amendments before the zoning committee
were sufficient under the statute and due process guarantees to enable
the common council to enact duplicate zoning amendments that had been
referred to a different committee for a hearing without additional
"class 2" notices.
In a majority decision authored by Chief Justice Abrahamson, the
supreme court concluded that the common council did not violate the
statute cited above or constitutional guarantees when it failed to give
the additional "class 2" notices relating to the duplicate zoning
amendments. The statute and due process were satisfied by publishing
notices for a committee hearing on the original zoning amendments.
Justice Prosser filed a dissenting opinion.
Torts
Statute of Limitations - Misdiagnosis - Date of
Injury
Paul v. Skemp, 2001
WI 42 (filed 3 May 2001)
Jennifer Paul, age 19, died when a blood vessel ruptured in her
brain. Her parents and her estate sued various defendants, including the
doctors who allegedly misdiagnosed Jennifer's complaints about headaches
as a sinus problem. The circuit court dismissed the complaint on the
ground that it had been filed after the statute of limitations had run.
The court of appeals affirmed, and agreed that the statute started
running at the time of the last alleged misdiagnosis.
The supreme court, in a decision written by Justice Crooks, reversed
and held that the "Pauls' claim for medical malpractice did not, and
could not, accrue until Jennifer suffered an injury" (¶ 2). And
using the date of Jennifer's actual injury (the burst blood vessel) as
the starting point, the action was timely filed. The crux of the appeal
concerned whether the date of the negligent omission (the misdiagnosis)
or the date of the injury triggered the running of Wis. Stat. section
893.55(1). The Legislature plainly rejected a "negligence-based rule of
accrual" (¶ 19). In this case, the alleged negligence and the
resulting injury did not occur concurrently. The misdiagnoses did not
cause Jennifer's headaches or the later rupture of the blood vessel in
her brain. Persuaded by a leading Virginia case, the court quoted the
following rule: "In every misdiagnosis case, the patient has some type
of medical problem at the time the physician is consulted. But the
injury upon which the cause of action is based is not the original
detrimental condition; it is the injury which later occurs because of
the misdiagnosis and failure to treat" (¶ 21).
The Wisconsin Supreme Court also reviewed, explained, and limited
several Wisconsin decisions that apparently conflict with the date of
injury rule. Erroneous parts of several cases were "withdrawn." The
court also spelled out the policy reasons that supported the injury
rule, particularly the desire to avoid forcing patients to obtain second
and third opinions or risk losing a claim for negligent
misdiagnosis.
Finally, the supreme court noted "that in medical malpractice
matters, a tension between the injury rule and the discovery rule of
accrual arises in those cases where there is a lengthy delay between the
negligent act or omission and the resulting injury" (¶ 48). The
discovery rule of accrual in section 893.55(1)(b) carries a five-year
limitation that runs from the date of the act or omission. The injury
rule, set forth in section 893.55(1)(a), does not. "The plain language
of Wis. Stat. § 893.55(1) does not indicate whether the five-year
statute of repose in § 893.55(1)(b) applies to actions governed by
the injury rule of accrual in § 893.55(1)(a)." Although this action
was filed within five years of the alleged negligent omissions, the
court urged the Legislature to address the potential conflict in the
statute's language (¶ 49).
Worker's Compensation
Traveling Employees - Reduction of Award Because Injury
Resulted From Intoxication
Heritage Mutual Insurance Co.
v. Larsen, 2001 WI 30 (filed 4 April 2001)
Larsen worked in various capacities for Larsen Laboratories Inc., a
metals testing and analysis business owned by him and his wife. One of
his functions within the business was sales. On a cold winter day in
1996, Larsen traveled from the company's home office in Milwaukee County
to his northern Wisconsin mobile home in Tigerton, which doubled as a
sales office, intending to make a sales call the following day. Once in
the Tigerton area, he stopped at a tavern and consumed several drinks
after he had taken two diet pills. He later passed out trying to enter
the mobile home, spent the night exposed to frigid temperatures, and
suffered frostbite. The frostbite resulted in the amputation of the
fingers and thumb of both hands.
In this worker's compensation action, the Labor and Industry Review
Commission (LIRC) concluded that Larsen's purpose in going to his mobile
home was business-related and that he was a traveling employee pursuant
to Wis. Stat. section 102.03(1)(f). It further determined that he was
injured while performing acts reasonably necessary for living or
incidental thereto, and that he was not engaged in a deviation for a
private or a personal purpose at the time of the injury. LIRC found that
Larsen was simply attempting to enter his domicile for the night, an act
reasonably necessary for living, at the time he was injured.
In reaching this conclusion, LIRC applied the "positional risk
doctrine." This doctrine is a body of law that is used to determine
whether an accident causing injury arose out of employment under the
statute cited above. Under this doctrine an injury is compensable if the
injury would not have happened except that the employment put the
claimant in the position where he was injured, that is, the employment
put the employee in a zone of special danger. In this case the zone of
special danger was the extremely cold weather and it was by reason of
employment activity (sheltering himself for the night while a traveling
employee) that Larsen was exposed to this special danger.
LIRC inferred from the evidence that Larsen was intoxicated and that
his intoxication was a substantial factor in causing the frostbite
"because it was probable that he remained asleep for such an extended
period of time due in part to his intoxication." Therefore, the LIRC
reduced the worker's compensation award by the statutory amount of 15
percent. See Wis. Stat. § 102.58.
The circuit court affirmed the LIRC's decision to award worker's
compensation benefits but reversed the decision regarding the 15 percent
reduction of compensation. The court of appeals affirmed the circuit
court.
In a majority decision authored by Chief Justice Abrahamson, the
supreme court affirmed in part and reversed in part. Using a great
weight deference standard of review, the court upheld LIRC's
determination that Larsen was entitled to coverage under the traveling
employee statute as being within the range of reasonableness, although
it recognized that this was a close case. The court further concluded
that there was credible and substantial evidence in the record to
support LIRC's determination that the injury resulted from intoxication
and that the 15 percent statutory award reduction applied in this
case.
Justice Crooks filed an opinion concurring in part and dissenting in
part that was joined by Justices Wilcox and Sykes.
Wisconsin Lawyer
