The Frank case is the progeny of the 2014 case where the 7th Circuit Court of Appeals declared 2011 Act 23, Wisconsin’s Voter ID law, constitutional. One set of plaintiffs from that case petitioned the federal district court to take up a series of issues that had not been resolved in the first case. Specifically, the plaintiffs’ wanted the court to address whether or not “some persons…qualified to vote are entitled to relief because they face daunting obstacles to obtaining photo ID.” The district court refused to do so. The plaintiffs appealed to the 7th Circuit, who agreed with the plaintiffs and remanded the question to the district court (other uncontested issues were vacated).

The Plaintiffs requested relief for three classes of persons affected by the law:

(1) eligible voters unable to obtain acceptable photo ID with reasonable expense and effort because of name mismatches or other errors in birth certificates or other necessary documents; (2) eligible voters who need a credential from some other agency (such as the Social Security Administration) that will not issue the credential unless Wisconsin’s Department of Motor Vehicles first issues a photo ID, which the DMV won’t do until the other credential has been obtained; (3) eligible voters who need a document that no longer exists (such as a birth certificate issued by an agency whose records have been lost in a fire).

The Plaintiffs argue that members of the three classes above should be waived from the requirements of Wisconsin’s Voter ID law. The State argued that this issue had already been resolved in the court’s 2014 ruling upholding the constitutionality of the law. However, the court said this argument was different. In the 2014 case the argument was that if the law unreasonably burdens some individuals it must be voided for everyone. Here the plaintiffs argue that if the law unreasonably burdens certain individuals it must be voided for them.

The court compared the plaintiff’s requested remedy, that the law not apply to the three classes listed, to Indiana’s Voter ID law saying that law already protects those who are unable to comply with its ID requirement due to financial or religious reasons can have their vote provisionally counted provided they sign an affidavit.

The case will now return to the district court for further hearings.

On Thursday, January 8, 2015 the Wisconsin Supreme Court heard oral arguments on the case Oneida Seventh Generation Corp. v. City of Green Bay (2013AP591). The supreme court will decide whether the court of appeals properly applied the substantial evidence test, which can effect when a conditional use permit can be revoked by a municipality.

Background

The Green Bay City Council granted Oneida Seventh Generation Corp. a conditional use permit to allow it to operate a solid waste-to-energy facility. The facility also received the proper permits from the Wisconsin Department of Natural Resources and the U.S. Department of Energy. However after public opposition to the project grew the city council requested that the city plan commission determine whether they were misled about the potential for harmful emissions from the facility during Oneida Seventh Generation Corp’s application for the permit. The plan commission unanimously stated they were not misled and recommended that the permit not be revoked. The city did not follow the commission’s recommendation and revoked the permit on the grounds that the corporation made untruthful statements to the city about the potential for harmful pollutants to be emitted from the plant.

The trial court upheld the city’s decision to revoke the permit. The Court of Appeals, Dist. III reversed the trial court stating that the city’s revocation of the permit was arbitrary because it did not adequately explain its justification for revocation. The court applied the substantial evidence test in this analysis. The substantial evidence test requires the court to determine whether the city council’s judgment (in this case the revocation of the permit) was supported by substantial evidence in the record before them. The court cannot substitute its own judgment for the city’s judgment.

The City of Green Bay argues that when the court of appeals analyzed whether the city rightfully revoked the permit under the substantial evidence test the court substituted its own judgment of the facts for the city council’s judgment of the facts.

The Oneida Seventh Generation Corp. argued that they outlined their development in extensive detail and that the city knew what type of facility was being proposed. They further argue that the city has not presented sufficient evidence that the Oneida attempted to mislead city officials. Therefore the revocation of the permit was unwarranted. If a municipality is able to revoke permits over a year after they were granted then it will have a chilling effect on real estate investment.

The Wisconsin Realtors Association filed an amicus brief with the state supreme court and argued that if Green Bay prevails that it will lead to uncertainty in property values and real estate development because property owners would not be able to rely and act upon a locality’s granting of a conditional use permit if the locality can revoke it at their discretion.

A decision in this case is expected by the end of July 2015.

On Wednesday, February 4, 2015, the Wisconsin Supreme Court heard oral arguments on the case Christ v. Exxon Mobile Corp. (2012AP1493). The Court will decide whether the discovery rule will apply to third parties in wrongful death and survival actions.

Background
This case contains wrongful death and survival actions involving nine former employees of Uniroyal manufacturing in Eau Claire, Wisconsin. The lawsuit was filed against Exxon Mobile Corporation because it allegedly distributed benzene-containing petroleum products to Uniroyal, which contributed to the decedents’ deaths.

The plaintiffs are the survivors (family members) of the decedents who died from the effects of alleged benzene exposure. The survivors are represented by the named plaintiff Christ. The plaintiffs filed suit between four and thirteen years after the deaths of the decedents. Wisconsin Statute §893.54(1)-(2) states that actions to recover damages for injury to a person or to recover damages for wrongful death must be commenced within three years after the injury. The discovery rule pauses this statute of limitations until the person injured knows or should reasonably know they are injured.

The Court of Appeals, Dist. III held that the discovery rule should be applied to Christ of the decedents, the plaintiffs and Exxon Mobile appealed.

Exxon Mobile argued before the Wisconsin Supreme Court that the discovery rule was applied by the trial court to the decedents and because their injuries were discovered when they died, that the statute of limitations had run out and barred the plaintiff’s case.

Christ argues that while the injured person is still alive, only their knowledge of if they have been injured or if they reasonably should know that they are injured is relevant. However, they argue, that changes when the injured person dies. Once the injured person dies, whether the family members (survivors) know or reasonably should know that the deceased was injured becomes relevant to determining when the statute of limitations expires. Therefore, in this case the clock measuring whether the statute of limitations has run did not begin its countdown until the plaintiffs knew the decedents died from injuries related to their alleged benzene exposure.

A decision in this case is expected by the end of July 2015.

On Friday, September 12, the Wisconsin Supreme Court heard a number of cases dealing with the issue of whether septage is a “pollutant” that triggers the pollution exclusions in the insurers’ policies. Below is a discussion of the cases heard by the Supreme Court.

Background
In the first case (Preisler v. Kuettel’s Septic Service, 2012AP2521), the plaintiffs (Preislers) owned a dairy farm on which they raised cattle. The Preislers entered into an agreement with Duke Kuettel, owner of Kuettel’s Septic Service, to spread septage on Preisler’s farm as fertilitzer. Kuettel’s Septic Service received permission to spread the septage as fertilizer on Preislers’ farmland from the Department of Naturals Resources, and did so for several years.

In 2008 the Preislers started experiencing problems on the farm. A large algae bloom appeared in their pool, which had been filled with well water. In addition, the Preislers’ cattle, which drank the well water, began to die in an uncharacteristically high rate. The deaths began to subside after the Preislers dug a new well.

The Preisler filed suit against Kuettel’s Septic Service and numerous insurance companies for the harm allegedly caused by the septage. Each of the insurance policies contained a similarly worded exclusion for pollution. Specifically, the policies excluded damage caused by the actual, alleged, or threatened discharge, dispersal, seepage, migration, release, or escape of pollutants. The policies also similarly defined “pollutant” as “as any solid, liquid, gaseous, or thermal irritant or contaminant.” The policies also included examples of pollutants, including, “smoke, vapor, soot, fumes, acids, alkalis, chemicals, and waste.” Each policy defined “waste” as “materials to be recycled, reconditioned, or reclaimed.”

The Court of Appeals, Dist. III held that septage is “unambiguously a pollutant” and therefore was a pollution exclusion under the policies.

In a separate case (Wilson Mutual Ins. Co. v. Falk) involving slightly different facts, the Court of Appeals, District II reached the opposite conclusion. In that case, the court held that cow manure is not a pollutant under the farm owners’ policy and therefore did not trigger the pollution exclusion under the insurance policy.

A decision in each of the cases is expected by the end of July 2015.

In a troubling 4-3 decision authored by Chief Justice Abrahamson, joined by Justices Crooks, Bradley, and Prosser, the Wisconsin Supreme Court held that the plaintiff’s insurance carrier, American Family Insurance, had a duty to defend and indemnify the tortfeasor because the torfeasor was a “permissive user” of the plaintiff’s vehicle under American Family’s policy. Justice Roggensack authored the dissenting opinion and was joined by Justices Ziegler and Gableman.

This decision is Blasing v. Zurich American Family Ins. Co., 2014 WI 73.

Background

The plaintiff, Vick Blasing, was injured by an employee of Menard, Inc. Blasing drove her pickup truck to a Menards store to purchase lumber. Blasing drove her vehicle into the lumberyard and stood outside of her vehicle. As the boards of lumber were being loaded into her truck, a Menards’ employee dropped a few boards onto Blasing’s foot, injuring her.

Blasing sued Menards and its insurer, Zurich, alleging negligence and a violation of Wisconsin’s safe place statute. Blasing’s vehicle was covered by American Family Insurance Co. Menards proceeded to tender its defense of Blasing’s claims to American Family, asserting that Menards was covered under Blasing’s policy because the Menards employee was a “permissive user of Blasing’s vehicle.”

American Family intervened in the case and argued that Menards was not covered as an additional insured under Blasing’s policy because the Menards employee was not “using” Blasing’s vehicle within the meaning of the policy or Wisconsin law (Wis. Stat. § 632.32(3)(a)). This law requires automobile insurance policies to provide additional vehicle users the same protection as is afforded to the named insured.

The circuit court ruled in favor of American Family, holding that American Family had no duty to defend or indemnify Menards.

Court of Appeals Decision

The Court of Appeals, Dist. III, reversed and held that American Family did owe a duty to defend and indemnify Menards. Specifically, the Court of Appeals held that because the policy holder/plaintiff (Blasing) would have been “using” her truck if engaged in the loading activity at Menards, and because the Menards employee was acting with Blasing’s permission to load her vehicle, then Wisconsin’s law requires coverage for Menards under Blasing’s American Family automobile policy.

Wisconsin Supreme Court Decision

The Supreme Court affirmed the Court of Appeals and held that American Family, the plaintiff’s insurance carrier, owed a duty to defend and indemnify the tortfeasor in this case.

In reaching its decision, the Supreme Court stated it was required to address three “separate inquiries”:

1. Do the alleged tortfeasor’s actions constitute a “use” of the pickup truck under the American Family liability policy?
2. Does American Family’s automobile liability insurance policy require American Family to defend and indemnify a permissive user tortfeasor when the injured victim is the named insured under the policy?
3. Does the concept of a “permissive user” under Wisconsin’s Omnibus Statute (Wis. Stat. § 632.32(3)(a)) require an injured person’s own liability insurer to defend and indemnify the tortfeasor who injured the insured when the tortfeasor has its own liability insurance?

For the first two questions, the majority answered in the affirmative. According to the majority opinion, because the Court “disposed of the instant case based on the text of the American Family policy,” it did not need to address the third question.

In addressing the first question, the majority held that the Menards’ employee’s actions of loading the plaintiff’s vehicle constituted a “use” of the pickup under the American Family automobile liability insurance policy.

Addressing the second issue, the majority again held that American Family Insurance’s policy required American Family to defend and indemnify the tortfeasor when the injured victim is a named insured under the policy. The majority dismissed American Family’s argument that it would be absurd to require American Family to defend and indemnify the tortfeasor. Although the majority acknowledged that requiring American Family, as the insurer for the plaintiff, to defend and indemnify the tortfeasor “might appear to some to be anomalous,” it nonetheless affirmed the Court of Appeals’ decision.

According to the majority, “American Family drafted the policy, which the named insured accepted. In the policy, American Family ‘has a contractual duty to defend its insured…’ An insured under the American Family policy is the Menard employee. Thus, the result we reach is in accord with the policy.”

Dissenting Opinion

The dissenting opinion argues that the majority fails to address the third question posed by American Family, which is whether the concept of a “permissive user” under Wisconsin’s Omnibus Statute (Wis. Stat. § 632.32(3)(a)) requires an injured person’s own liability insurer to defend and indemnify the tortfeasor who injured the insured, and where the tortfeasor has its own liability insurance.

According to the dissenting opinion, the majority should have concluded that “when a direct action has been commenced against the insurer of a named defendant, as is the case here, the defendant’s insurer must provide the defense unless that insurer first can prove there is no coverage for any of the claims made.” The dissenting opinion further noted that majority should have prevented the plaintiff’s personal automobile policy from being converted into comprehensive liability insurance for the tortfeasor.