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Court of Appeals Digest

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

| Appeals | Civil Procedure | Contracts |
| Criminal Evidence | Criminal Procedure |
| Employment Law | Insurance | Mobile Homes |
| Motor Vehicle Law | Municipal Law |
| Sexual Predators | Torts |

Wisconsin OSHA - Hazards OSHA Meant to Address

West v. Department of Commerce, No. 98-1693 (filed 18 Aug. 1999) (ordered published 28 Sept. 1999)

West is a police officer at the University of Wisconsin-Oshkosh (UWO). Her duties include the full range of patrol activities, including the apprehension of lawbreakers. Pursuant to the UWO chancellor's policy, campus police may not carry a firearm unless they are transporting money or escorting others doing the same. After unsuccessful attempts to convince the chancellor to change his policy, West filed a complaint with the Wisconsin Department of Commerce (DeCom) alleging occupational health and safety violations. DeCom determined that Wisconsin's public employee safety and health statute (WisOSHA) (Wis. Stat. § 101.055(1)) is limited to physical conditions in the workplace and thus denied West a hearing on her complaint. The circuit court reversed and the court of appeals, in a decision authored by Judge Brown, reversed the circuit court.

WisOSHA affords government employees the same protection extended to private sector employees under the federal OSHA law. There are two grounds under WisOSHA for which DeCom must issue an enforcement order: 1) a violation of a standard or variance; and 2) a situation that poses a recognized hazard likely to cause death or serious physical harm. Only the second is involved in this case.

The issue before the court of appeals was whether the potential harm in this case - the possibility of being injured by the public while performing the work duties of an unarmed police officer - is the type of hazard meant to be addressed by WisOSHA. The court concluded that the statute was meant to address tangible, measurable hazards in the workplace. The abstract threat West faces in her job is simply not the type of workplace issue the Legislature had in mind. West's complaint is in no way connected to a tangible hazard. Because there exists no set of facts West could have proven at a hearing that would have brought her claim within the ambit of WisOSHA, DeCom correctly denied her a hearing.

UM Coverage - Adult Children - Bodily Injury

Ledman v. State Farm Mut. Auto. Ins. Co., No. 9-0267 (filed 17 Aug. 1999) (ordered published 28 Sept. 1999)

The plaintiffs' 30-year-old daughter was killed in a car crash with an uninsured driver. She had not lived with the plaintiffs for more than a year and was driving her fiancé's car at the time. The plaintiffs filed a claim against their auto insurer, State Farm, alleging that their damages were covered by the uninsured motorist provision (UM). The insurer denied the claim but a circuit court granted declaratory relief in the plaintiffs' favor.

The court of appeals, in an opinion written by Judge Wedemeyer, reversed because the trial court's construction of the policy would lead to an "absurd result." Here, the plaintiffs had undeniably suffered emotional harm, but no physical injury. In essence, the plaintiffs argued that the policy language limiting UM coverage to "bodily injury to an insured" applied only to the "hit-and-run" scenario. Read as a whole, however, the policy clearly contemplated bodily injury to an insured. For similar reasons, the court reversed the award of attorney fees.

Judge Schudson concurred.

Mobile Home Parks - Protection for "Residents"
under Wis. Stat. section 710.15 and for "Tenants"
under Wis. Admin. Code section ATCP 125.06

Benkoski v. Flood, No. 98-1972 (filed 14 July 1999) (ordered published 17 Aug. 1999)

Benkoski rents four mobile home sites in the Floods' Mobile Home Park at which he keeps his mobile homes. He rents the homes to tenants. The Floods informed Benkoski that his homes would have to be removed from the park when they were sold and rejected applications for tenancy submitted by potential buyers of Benkoski's mobile homes. Benkoski then filed suit against the Floods.

In this suit Benkoski claimed the Floods violated Wis. Stat. section 710.15(3)(b) and (4), which prohibit a mobile home park operator from requiring removal of a mobile home due to the age of the home or a change in ownership or occupancy. Further, he alleged that the removal requirement constituted a violation of Wis. Admin. Code section ATCP 125.06(1)(a), which forbids an operator from placing unreasonable restrictions on the sale of a mobile home in the park.

The central issue on appeal was whether Benkoski, the owner of the mobile home units, is a resident of the park for purposes of the statute and administrative code provision cited above, even though he does not live in the park. Resolution of this issue is critical in determining whether Benkoski is protected under the statute and code.

In a decision authored by Judge Brown, the court of appeals concluded that Benkoski was indeed protected under the statute and code. To be protected under the statute, Benkoski must be a "resident" of the park, which is defined in the law as "a person who rents a mobile home site in a park from an operator." Benkoski rents four sites from the Floods. Therefore, he is a resident.

Benkoski also is entitled to protection under the Administrative Code. To be protected he must be a "tenant." The code defines a tenant as "any person renting a site from an operator." Again, he rents four sites from the Floods and thus is a tenant for purposes of the Administrative Code.

In sum, the Floods' policy that Benkoski would have to remove his mobile homes when they were sold violates Wis. Stat. section 710.15(4) and Wis. Admin. Code section ATCP 125.06 and .09, both of which protect him. He is thus entitled to damages pursuant to section 100.20(5).

OWI - Forfeiture of Vehicle - Security Interest by Third Party -
Good Faith

State v. Frankwick, No. 98-2484 (filed 14 July 1999) (ordered published 17 Aug. 1999)

In May and June of 1997, the defendant committed his fourth and fifth OWI offenses within a 10-year period. On May 30, 1997, Waukesha County filed a Stop Title Transfer Notice with the Department of Transportation (DOT) advising the DOT that, pursuant to Wis. Stat. section 342.12(4), any vehicles owned by the defendant should not be transferred until notified by the court. On Dec. 2, 1997, the defendant pled guilty to the May and June OWI offenses. He was sentenced to jail time and fined. Further, the court ordered seizure and forfeiture of his truck, pursuant to section 346.65(6).

Lynn Kurer was named as a defendant in the forfeiture action because she held a lien on the truck. Kurer had perfected her security interest in the truck by filing an application for title with DOT one day before the defendant entered his guilty pleas. Based on the proximity of the title application to the guilty plea, along with other factors, the circuit court concluded that Kurer's lien was filed in bad faith and for the purpose of circumventing the forfeiture penalty. Thus, the trial court ordered the DOT to cancel the title processed on Dec. 1 and the vehicle be forfeited.

Kurer appealed. In a decision authored by Judge Brown, the court of appeals reversed. The court agreed with Kurer that section 346.65(6)(k) does not come into play when a party applies for a new title to perfect a security interest. The statute provides that "no person may transfer ownership" or "make application for a new certificate of title under sec. 342.18" unless the court makes a finding of good faith. While the grant of a perfected security interest is a transfer of an interest in property, the court concluded that it is not a transfer of ownership within the meaning of section 346.65(6)(k). Nor is the grant of a security interest a transaction for which one applies for a new title under section 342.18. Accordingly, because the grant of a security interest is not a transfer of ownership and requires application for title under a different statute (section 342.19), section 346.65(6)(k) does not apply when a party perfects a security interest in a vehicle.

Even though there is no requirement that the court make a finding of good faith under section 346.65(6)(k) for perfection of a security interest, the creation of such an interest still must be done in good faith. Although perfection of the interest in a vehicle is governed by section 342.19, the creation of the security interest is governed by the Uniform Commercial Code. Pursuant to the requirements of section 401.203, the security interest in this case must have been created in good faith. The court of appeals found that the basis for the trial court's finding of bad faith in this case was not clear and it therefore reversed and remanded to the circuit court for further fact-finding.

Municipal Courts - Appeals - Trial on the Merits

Village of Menomonee Falls v. Meyer, No. 98-3195 (filed 4 Aug. 1999) (ordered published 28 Sept. 1999)

The defendant was charged with everal offenses under municipal statutes. At trial the municipal judge refused to permit the village prosecutor to use critical evidence because of a discovery violation. The judge then dismissed the charges because of the missing proof. The village requested a new trial in the circuit court under section 800.14(4) of the Wisconsin Statutes. The circuit court convicted the defendant and ordered him to pay forfeitures of more than $800.

The court of appeals, in an opinion written by Judge Anderson, reversed. The statute's history revealed that the Legislature intended section 800.14(4) to "reduce the number of municipal court appeals to the circuit court from municipal ordinance violations." The village was not entitled to a new trial in the circuit court because there had never been a trial on the merits in the municipal court, as required by subsection (4). (The village could have sought a review of the original ruling under section 800.14(5)).

Probable Cause Hearings - 72 Hours - "Custody"

State v. Brissette, No. 98-2152 (filed 18 Aug. 1999) (ordered published 28 Sept. 1999)

The respondent was committed as a sexually violent person under chapter 980 of the Wisconsin Statutes. On appeal he contended that the court lost competence over the case because it failed to hold a probable cause hearing within 72 hours of the filing of the chapter 980 petition. Affirming, the court of appeals held that the phrase "in custody" in section 980.04(2) "means in custody pursuant to ch. 980, Stats." Thus, the time respondent spent "in custody" while serving a prison sentence did not trigger the chapter 980 hearing time. The point of the probable cause hearing is to "ensure that people are not held for unreasonably long periods of time where the possibility exists that the state cannot muster even minimal proof in support of allegations set out in the petition or complaint." The same urgency is lacking where the person is serving a prison sentence.

Respondeat Superior - Scope of Employment - Travel

Estate of Murray v. The Travelers Ins. Co., No. 98-0497 (filed 10 Aug. 1999) (ordered published 28 Sept. 1999)

Baritt, a physical therapist, was employed by the Olsten Health Care Company. She used her own car to travel to Olsten's patients' homes to administer physical therapy. In 1994 Baritt was in a car accident with the Murrays. During litigation over liability, Olsten was named as a party based on the contention that Baritt was acting within the scope of her employment at the time of the accident. The judge later dismissed Olsten.

The court of appeals, in an opinion written by Judge Curley, reversed. The court held that "because Baritt's employment arrangement with Olsten did not provide her with a fixed place of employment, the holding" in DeRuyter v. Wisconsin Electric Power Co., 200 Wis. 2d 349 (Ct. App. 1996) (aff'd by an equally divided court, 211 Wis. 2d 169 (1997)), is inapplicable. Under DeRuyter, "an employer could be held vicariously liable for the negligent acts of an employee when commuting only if the employer exercised control over the method or route of the employee's travel." Here Olsten was in the business of providing home health care to its clients/patients; thus, Baritt's role was more analogous to a "traveling salesman." Applying "the general respondeat superior rules," the court concluded that "Baritt was acting within the scope of her employment when she was involved in the automobile accident because travel was an essential element of her employment duties with Olsten and, consequently, at the time of the accident, her travel was actuated by a purpose to serve her employer." See also Wis JI - Civil 4045.

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.