Category: Wisconsin Supreme Court

Extraordinary Session Litigation Update

Posted on by Hamilton

Several ongoing cases seeking to void the 2018 extraordinary session legislation are moving through Wisconsin and federal courts. This article provides background on each of the cases and updates on where each of the cases are in the legal process.

League of Women Voters v. Evers

Status

6/21/19: In a 4-3 decision the Wisconsin Supreme Court ruled the Legislature’s 2018 extraordinary session was constitutional, upholding 2017 Acts 368, 369, and 370 and the confirmation of 82 appointments.  

5/15/19: The Wisconsin Supreme Court held oral arguments in League of Women Voters v. Evers. 

4/30/19: In a 4-3 decision, the Wisconsin Supreme Court restored the 82 appointments that Gov. Tony Evers had rescinded under the initial circuit court injunction.

4/15/19: The Wisconsin Supreme Court accepted the League of Women Voters’s petition to bypass the Court of Appeals. The Supreme Court will hold oral arguments on May 15.

4/15/19: Gov. Tony Evers filed a brief in opposition to the Legislature’s motion for emergency temporary relief.

4/10/19: The Legislature has filed a motion asking the Wisconsin Supreme Court to take original jurisdiction over the case or, alternatively, to immediately reinstate the rescinded appointments.

4/9/19: The appeals court denied the Legislature’s motion to enforce the stay, arguing Gov. Tony Evers’s withdrawal of the appointments was valid because the governor had the authority to rescind the appointments while the temporary injunction was in place.

4/3/19: The plaintiff League of Women Voters petitioned the Wisconsin Supreme Court to bypass the Court of Appeals, arguing the case presents novel questions of state constitutional law, and only the Supreme Court can provide a definitive resolution.

4/1/19: Due to the disagreement between Gov. Tony Evers’s administration and the defendant legislature as to whether the appointees who had been rescinded are now reinstated, the legislature filed an expedited motion to enforce the court of appeals stay after the administration prevented appointees from returning to work the day after the court issued the stay.

3/27/19: The Court of Appeals District III has issued a stay of the temporary injunction issued by a Dane County circuit court. The Dane County judge had ordered the injunction of 82 appointments confirmed in the extraordinary session and the extraordinary session laws in their entirety. The appeals court order reasons that the Dane County circuit court failed to evaluate the irreparable harm that could result from enjoining the legislation if it is later found valid. The order stays the temporary injunction and establishes an expedited appeal process with all briefs due by the end of April.

Background

The plaintiffs argue that the extraordinary session was not convened in accordance with the Wisconsin Constitution, which authorizes the legislature to meet only as provided by law or when convened by the governor (Wis. Const. Art. IV, § 11).

The Legislature intervened as a defendant and argues that convening an extraordinary session does not violate the Wisconsin Constitution because the rules for the 2017-18 session prescribed in 2017 Senate Joint Resolution 1 specifically state that any days not reserved for scheduled floorperiods are available for the legislature to convene an extraordinary session. Therefore, the Legislature met as provided by law under the Constitution and Wis. Stat. § 13.02(3).

SEIU v. Vos

Status

10/21/19: The Wisconsin Supreme Court held oral arguments in SIEU v. Vos.

6/11/19: The Wisconsin Supreme Court granted the defendant Legislature’s motion for temporary relief pending appeal by staying the temporary injunction issued by the Dane County Circuit Court. However, the Supreme Court left in place the injunction on Act 369 provisions that would have rescinded improperly promulgated guidance documents on July 1, 2019. Additionally, the Supreme Court stayed proceedings on the case in the lower court, cancelling the trial on guidance document provisions of Act 369 set to begin in Dane County on June 12. Read more. 

4/19/19: The Wisconsin Supreme Court assumed jurisdiction of this case, several weeks after a second Dane County judge issued a temporary injunction preventing enforcement of some extraordinary session legislation provisions requiring legislative approval for the attorney general to discontinue or settle cases, requiring transparency for agency guidance documents, and allowing for more legislative oversight of agency rulemaking, while leaving in place other portions of the laws. The defendant legislature had also appealed this injunction, but the court of appeals had not provided a ruling before the Supreme Court assumed the case.

Whereas the League of Women Voters order enjoined the extraordinary session laws in their entirety, the SEIU circuit court order found the plaintiffs did not establish sufficiently that a court would find other provisions unconstitutional. Specifically, the SEIU circuit court judge left in place provisions

  • Allowing the legislature to intervene and use outside counsel in certain cases.
  • Allowing the Wisconsin Economic Development Corporation to designate an unlimited number of enterprise zones, but requiring approval of the Joint Finance Committee on any new zone.
  • Requiring legislative oversight of agencies applying for federal waivers and seeking to reallocate funds.

Background

The plaintiffs, Service Employees International Union, Wisconsin Federation of Nurses and Health Professionals, American Federation of Teachers-Wisconsin, and Milwaukee Area Service and Hospitality Workers, allege that the extraordinary session laws are an unconstitutional violation of the separation of powers doctrine.

According to the plaintiffs, Article V of the Wisconsin Constitution gives the governor the exclusive power to execute laws. Furthermore, Article V guarantees that one branch may not interfere with another branch’s powers. The plaintiffs allege that extraordinary session provisions, including increased legislative oversight of rulemaking, attorney general lawsuits, and agency appropriations, interfere with the governor’s and attorney general’s constitutional powers. Furthermore, committee oversight without opportunity for a governor veto violates constitutional separation of powers.

The defendant legislature argues that the Wisconsin Constitution explicitly allows the legislature to prescribe the powers of the attorney general. Furthermore, Wisconsin case law has interpreted the Constitution as a fluid rather than rigid political design of separate branches of government.

Democratic Party of Wisconsin v. Vos

Status

The Democratic Party of Wisconsin (DPW) has filed a complaint in the U.S. District Court Western District of Wisconsin seeking to declare the extraordinary session legislation in violation of the U.S. Constitution. Parties are continuing to brief the case, and oral arguments will be held on April 26.

Background

The complaint alleges that the legislation violates the plaintiffs’ First and Fourteenth amendment rights, as well as the Guarantee Clause.

The U.S. Constitution Art. 4 § 4 guarantees states a republican form of government. DPW’s complaint alleges that the Republican legislature violated the Guarantee Clause by removing powers from the incoming Democratic administration to the legislature.

DPW also claims that the extraordinary session violated the plaintiffs’ First Amendment rights to free association and free speech because the state legislature retaliated against Democratic candidates based on their political viewpoints by limiting their ability to enact their policy preferences via the newly elected Democratic Gov. Tony Evers and Attorney General Josh Kaul.

Finally, DPW argues the legislation violates the Fourteenth Amendment’s Equal Protection Clause because it dilutes the power of Democratic votes.

Judge Brian Hagedorn Wins Wisconsin Supreme Court Race

Posted on by Hamilton

In the only statewide race in the Wisconsin 2019 spring elections on April 2, Court of Appeals Judge Brian Hagedorn beat Court of Appeals Chief Judge Lisa Neubauer for an open seat on the Wisconsin Supreme Court. Hagedorn won by close to 6,000 votes, and Judge Neubauer has officially conceded, declining to call for a recount.

Conservative Hagedorn will replace liberal Justice Shirley Abrahamson, who has been on the court since 1976. Hagedorn’s win puts the court at a 5-2 conservative-liberal balance. The next Supreme Court race will be in 2020 for conservative Justice Daniel Kelly’s seat.

Wisconsin Supreme Court Considers Whether DPI and Superintendent Violated REINS Act

Posted on by Hamilton

The Wisconsin Supreme Court heard arguments on April 10 in one of the more important cases of the term, Koschkee v. Evers. The case presents important state constitutional issues centered on whether the Department of Public Instruction and Superintendent of Public Instruction violated the 2017 Regulations from the Need of Scrutiny Act (REINS Act). The case also will be closely watched to see whether the Supreme Court revisits and overturns its previous decision, Coyne v. Walker.

 

Background

In 2017, the Wisconsin Legislature passed comprehensive regulatory reform legislation that was signed into law by Gov. Scott Walker as Act 57. Known as the REINS Act, the law mandates that before a state agency may begin to work on drafting an administrative rule, the agency must first submit what is known as a “statement of scope” with the Department of Administration to determine whether the agency has explicit statutory authority to promulgate the rule. The agency must also submit the statement of scope to the governor for approval. The statement of scope provides a summary of the proposed administrative rule as well as the agency’s statutory legal authority to issue the rule. The REINS Act left in place previous law that requires, after the rule goes through the rulemaking process, final approval from the governor before it can go into effect.

After Act 57 went into effect, the Department of Public Instruction sent statements of scope to the Legislative Reference Bureau to be published in the Wisconsin Administrative Register without first submitting the statements of scope with the Department of Administration and governor as required by the law. In each statement of scope, the Department of Public Instruction stated that it was not required to submit the statements of scope to the Department of Administration and governor based on a previous court decision, Coyne v. Walker, which addressed a similar law enacted in 2011.

 

2016 Decision – Coyne v. Walker

In 2011, the Wisconsin Legislature enacted a comprehensive regulatory reform bill that was signed into law as Act 21. Similar to the REINS Act, Act 21 provided that state agencies could not begin to work on an administrative rule until the statement of scope was first submitted to the governor’s office for his or her approval. Act 21 also put in place the requirement that the final rule must be approved by the governor before it may go into effect.

Act 21 was challenged as unconstitutional as applied to the Department of Public Instruction and the Superintendent of Public Instruction. A fractured Wisconsin Supreme Court held that Act 21 was unconstitutional as applied to Department of Public Instruction and Superintendent. While a majority agreed Act 21 was unconstitutional, there was no majority opinion written by the Wisconsin Supreme Court in Coyne. Instead, a number of separate opinions written by former Justices Michael Gableman and David Prosser, and current Justices Shirley Abrahamson and Ann Walsh Bradley, declared Act 21 unconstitutional as applied to the Department and the Superintendent. No one of the opinions is controlling.

Chief Justice Patience Roggensack, joined by Justices Annette Ziegler and Rebecca Bradley, wrote a dissenting opinion arguing that Act 21 is constitutional and that the Department of Instruction and Superintendent had to abide by the rulemaking provisions in Act 21.

 

Koschkee v. Evers Preview

The Wisconsin Institute for Law Liberty filed a lawsuit directly with the Wisconsin Supreme Court in which it alleged that the Department of Public Instruction and former Superintendent of Public Instruction Tony Evers, now Gov. Evers, violated Act 57 by failing to submit the statements of scope with the Department of Administration and the governor. The Supreme Court accepted the case and set oral arguments for Wednesday, April 11.

What is different this time as compared to the Coyne case is the makeup of the Wisconsin Supreme Court. As previously noted, Justices Gableman and Prosser were part of the plurality opinion in Coyne that held that Act 21 was unconstitutional as it applied to the Department of Public Instruction and the Superintendent. Justice Prosser was replaced by Justice Daniel Kelly, while Justice Gableman was replaced by Justice Rebecca Dallet.

Assuming that Chief Justice Roggensack and Justices Ziegler and Rebecca Bradley rely on their previous Coyne opinion – in which they held Act 21’s requirement that any statements of scope by the Department of Public Instruction must be approved by the governor before it begins the rulemaking process – only one more justice is needed to join them to overrule the plurality decision in Coyne.

Therefore, it is safe to say that the attorneys from both sides will be directing their arguments at the two newest justices, Daniel Kelly and Rebecca Dallet. A decision by the court is expected some time this spring or summer.

 

 

Wisconsin Supreme Court Accepts Two New Cases

Posted on by Hamilton

The Wisconsin Supreme Court has accepted two new cases. The Supreme Court will review recent Court of Appeals decisions related to eminent domain and recreational immunity in the following cases:

 

DSG Evergreen Family Limited Partnership v. Town of Perry (Eminent Domain)

In this case, The Town of Perry took property from DSG in an eminent domain action. The land taken included a road, and the condemnation petition required the town to replace the road at a different location. DSG argued that the new road did not meet the “same construction standards” as the former road, violating the petition.

The appeals court held that DSG had no private right of action requiring the town to comply with certain construction standards under Wis. Stat. § 82.50(1) in completing the new road. The appeals court further held that claim preclusion applied because DSG failed to bring up its road construction standards argument in previous proceedings regarding just compensation for the eminent domain condemnation of its property.

The Supreme Court will examine whether claim preclusion bars property owners from actions to compel condemners to uphold promised standards of improvement, since they have already litigated just compensation. The court will also determine whether private citizens can bring actions against a town for failure to comply with Wis. Stat. § 82.50(1) design standards.

More information on the case.

 

Lang v. Lions Club of Cudahy Wisconsin, Inc. (Recreational Immunity)

In this case, the Court of Appeals District I held that recreational immunity did not apply to a sound engineer who set up cords that injured a woman at a music performance. The court said the sound engineer was not an “agent” or “occupier” immune under the statute (Wis. Stat. § 895.52).

The Supreme Court will revisit the issue of whether recreational immunity applies to the sound engineer.

More information on the case.

 

Supreme Court Decision: Kieninger v. Crown Equipment Corp. (Wages)

Posted on by Hamilton

In Kieninger v. Crown Equipment Corp. (2019 WI 27), the Wisconsin Supreme Court unanimously held that employers are not required to compensate employees for time spent commuting using the employer’s vehicle.

Crown Corp. allows its technicians to commute between work and home either in their personal vehicles or in company vans. Those commuting in personal vehicles meet at an assigned branch to pick up a company van at the beginning of the day, use the company van to travel between work sites throughout the day, then drop the van off again at the end of the work day and travel home in their personal vehicle. Those commuting in company vans may travel straight from home to various work sites, then straight home at the end of the day. Crown Corp. compensates technicians for all travel between work sites, but does not compensate technicians commuting using company vans for travel time between home and the first and last work sites of the day.

Crown Corp. technician Christopher Kieninger filed the instant class action lawsuit on behalf of similarly situated Crown Corp. employees who choose to commute using company vans. Kieninger argued that Crown Corp. is legally obligated to compensate technicians for the commuting time in company vans because he is transporting Crown Corp. tools to and from a jobsite. Because those tools are an “integral” (Wis. Admin. Code § DWD 272.12(2)(e)1.c.) part of the “principal activities” (§ DWD 272.12(2)(e)1.) technicians engage in during a “workday” (§ DWD 272.12(1)(a)2.), Kieninger argued Crown Corp. must compensate for commute time in company vans under Wis. Stat. § 109.03(1) and Department of Workforce Development rules.

However, Crown Corp. and the court rely on different DWD code to find that commute time, even in company vans, is not compensable. § DWD 272.12(2)(g)2. states plainly that travel between home and work is not work time. Furthermore, since employees commuting in company vans are not “required to report at a meeting place” to pick up tools as exemplified in § DWD 272.12(2)(g)5., this section requiring compensation for carrying tools to a worksite does not apply. The court states that Kieninger’s interpretation would read the statutes and regulations much too broadly, to the point that almost any commuting could be considered compensable. Therefore, Crown Corp. is not obligated to pay employees for commuting time in company vans.

Peter Ogden Family Trust of 2008 v. Board of Review for the Town of Delafield (Property Tax Assessment)

Posted on by Hamilton

In Peter Ogden Family Trust of 2008 v. Board of Review for the Town of Delafield (2019 WI 23), the Wisconsin Supreme Court held that property owners do not need a business purpose in order for their land to be assessed as agricultural.

The Ogdens owned two lots that were originally assessed as agricultural. The Ogdens grew Christmas trees, apples, and hay on the two lots. In 2016, an assessor reclassified their property as residential, resulting in an over $800,000 increase in taxes owed by the Ogdens. The Ogdens appealed to the Delafield Board of Review.

The assessor argued that the Ogdens were using a “loophole” in agricultural assessment because they were not harvesting the trees, apples, and hay for commercial purposes. According to the assessor, the Ogdens did not appear to be generating an income from their agricultural activities, and the law prevents property from being assessed as agricultural unless it has a legitimate business purpose.

The court disagreed with the assessor’s argument, finding that there is no language in statute or rule requiring a business purpose for agricultural assessment. Wis. Stat. s. 70.32(2)(c)1g. defines “agricultural land” as land with a primarily “agricultural use” as defined by the Department of Revenue (DOR). The DOR definition of “agricultural use” includes growing Christmas trees, apples, and hay. Neither statute nor DOR rules require any business purpose in growing these crops.

Since the assessor had misinterpreted the law, the court ordered the Ogden’s land to be reclassified as agricultural. A dissent from Justices Dallet and Walsh Bradley agreed that a business purpose was not required for agricultural assessment, but argued that the court should have remanded to the Delafield Board for further proceedings instead of ordering the reassessment of the land.

Supreme Court Oral Arguments – March 2019

Posted on by Hamilton

The Wisconsin Supreme Court held oral arguments this month on several notable cases, addressing issues including UIM coverage, subrogation waivers, and conditional use permits.

Cases of interest include:

 

Ann Cattau v. National Insurance Services of Wisconsin (negligence and breach of fiduciary duty) – March 18

The plaintiffs, former teachers and school administrators, claim negligence, breach of fiduciary duty, and misrepresentation against MidAmerica and NIS, which administered their retirement plans. The plans were noncompliant with federal law, and the plaintiffs ultimately owed several years of tax dollars back to the Internal Revenue Service. The plaintiffs claim they relied on MidAmerica and NIS as experts to administer a qualifying plan, and MidAmerica and NIS misrepresented the plan as federally compliant. The issues before the Supreme Court are whether the plaintiffs stated an adequate claim against defendants MidAmerica and NIS and whether the plaintiffs should be able to amend their complaint for a second time.

 

John Teske v. Wilson Mutual Insurance Co. (claim preclusion and UIM coverage) – March 18

The Supreme Court will decide whether previous litigation related to underinsured motorist (UIM) coverage precludes the instant tort claim alleging negligence by the driver insured by Wilson. The appeals court ruled the causes of action of the UIM action and the tort action differed, so claim preclusion should not apply. Wilson appealed to the Supreme Court, seeking to dismiss the tort action.

 

Rural Mutual Insurance Co. v. Lester Buildings, LLC (contractor subrogation waiver) – March 20

Jim Herman, Inc. and Lester Building entered into a contract to build a barn. The contract contained a subrogation waiver requiring both parties to waive all rights against each other and their subcontractors. Lester then contracted with a concrete provider in the building process. When a storm caused half of the barn to collapse due to improper installation of the concrete, Herman’s insurer Rural Mutual alleged breach of contract and negligence against Lester. Lester argued the claims were barred because of the subrogation wavier. Issues before the court include whether contractors may use such subrogation waivers to limit tort liability despite Wis. Stat. § 895.447, which provides that any provision to limit tort liability in a construction contract is against public policy and void.

 

Enbridge Energy Co., Inc. v. Dane County (conditional use permit) – March 26

Dane County issued Enbridge Energy a conditional use permit to expand the volume of oil pumped through a local Enbridge pipeline. The permit contained conditions requiring Enbridge to maintain two liability insurance policies. Shortly after Dane County issued the permit, the legislature passed in the 2015-16 state budget a provision precluding counties from requiring pipeline operators to obtain insurance if they already carry general liability insurance including coverage for sudden and accidental pollution liability. After the law change, Dane County retained the previous insurance conditions in Enbridge’s permit, but added language indicating that the new state law made the conditions unenforceable.

Enbridge filed the instant lawsuit asking the court to remove the unenforceable insurance conditions. Additionally, several Dane County property owners filed a lawsuit asserting that Enbridge was not in compliance with the new state law insurance requirements, so Dane County could enforce the conditions. The Supreme Court will address issues including whether counties can include unenforceable insurance permit conditions and whether property owners can bring citizen suits to enforce such conditions.

West Bend Mutual Insurance Co. v. Ixthus Medical Supply, Inc. (Duty to Defend)

Posted on by Hamilton

In West Bend Mutual Insurance Co. v. Ixthus Medical Supply, Inc. (2019 WI 19), a 6-0 Wisconsin Supreme Court held that the insurer had a duty to defend in an advertising injury case.

Health care manufacturing company Abbott filed a suit against Ixthus, claiming that Ixthus wrongfully diverted test strips intended for international markets to domestic markets. Ixthus subsequently tendered its defense to its insurer West Bend. West Bend denied Ixthus’s defense, arguing there was no duty to defend because the policy also contained exclusions for knowing violations and criminal acts. West Bend also argued there was no connection between Ixthus’s covered advertising activity and the injury to Abbott. Instead, West Bend claimed Abbott’s complaint alleged only wrongful importation and distribution against Ixthus.

In an opinion authored by Justice Rebecca Bradley, the court ruled against West Bend. First, the decision stated that Abbott’s complaint did allege a causal connection between Abbott’s injury and Ixthus’s covered advertising activity. Since the complaint includes Ixthus in the defendants who allegedly advertised, West Bend has a duty to defend, even if later proceedings might prove Ixthus was not one of the defendants who actually advertised.

Next, the court analyzed whether the knowing violation and criminal acts exclusions of the policy applied. The court found that neither exclusion applied because the complaint contained at least one allegation that would not require intent and at least one allegation that would not require a criminal charge for the plaintiff Abbott to prevail. Since there is at least one claim in the complaint that is potentially eligible for coverage under the policy, West Bend has a duty to defend.

 

CityDeck Landing LLC v. Circuit Court for Brown County (Arbitration)

Posted on by Hamilton

In CityDeck Landing LLC v. Circuit Court for Brown County (2019 WI 15), the Wisconsin Supreme Court held that circuit courts may not stay private arbitration, even when there is an ongoing insurance coverage dispute connected to the arbitration parties. The 4-2 decision, authored by Justice R. Bradley (joined by Chief Justice Roggensack, Justice Kelly and Justice Ziegler, with Justice Dallet not participating), allows CityDeck Landing to proceed in private arbitration with its contractors.

 

Facts

The underlying issue in this case began when a dispute arose between CityDeck and its contractor. CityDeck and the contractor had contracted to use private arbitration. Several of the subcontractors joined the arbitration, and one subcontractor tendered its defense to its insurer Society Insurance. The main contractor claimed it was an additional insured under the Society policy. In turn, Society filed a lawsuit seeking a determination on coverage in the CityDeck arbitration and asked the circuit court to stay the arbitration until the resolution of the coverage dispute. The circuit court agreed to stay the arbitration. CityDeck asked the Supreme Court to vacate the stay.

 

Opinion

The Supreme Court opinion undertakes a historical analysis of the development of the four factors it uses in issuing supervisory writs, such as CityDeck requested in this case. Then, the opinion applies the four factors to the CityDeck case, finding that it meets the criteria for a supervisory writ, and vacates the circuit court order to stay arbitration.

The court found the CityDeck meets the criteria for a supervisory writ because:

  1. The circuit court had a plain duty to comply with the Wisconsin Arbitration Act (Wis. Stat. § 788.01), which holds arbitration agreements as “valid, irrevocable, and enforceable.” Even though Wisconsin courts typically recommend the bifurcation and stay of liability cases and coverage disputes, circuit courts do not have the authority to stay arbitration.
  2. CityDeck could not receive an adequate remedy through the ordinary appeal process because continuing to stay the arbitration on appeal would be a non-reparable and non-compensable damage. Furthermore, an appeal would subject CityDeck to even more litigation, which the parties intended to contract out of via arbitration.
  3. Grave hardship or irreparable harm would have resulted if the Supreme Court did not issue the writ because CityDeck had been denied its right to arbitration and would be forced into public proceedings when it contracted to resolve the matter privately.
  4. CityDeck filed for the writ promptly and speedily.

 

Dissent

 In a dissent, Justice Walsh Bradley (joined by Justice Abrahamson) argued that the majority opinion too broadly expands the hardships and harms eligible for a supervisory writ under factor number three above. The dissent states that CityDeck does not meet the grave hardship and irreparable harm criterium because a delay in arbitration is not a grave hardship, and any harm caused could be reparable by a monetary award. According to the dissent, applying the supervisory writ criteria in the broad way the majority does here would make the criteria applicable to almost any request for a writ.

Wisconsin Supreme Court February Oral Arguments

Posted on by Hamilton

The Wisconsin Supreme Court has released its calendar of oral arguments for February 2019. There will be several notable cases argued this month, addressing issues including medical malpractice, crime insurance, governmental immunity, and the federal Communications Decency Act.

Cases of interest include:

 

Leicht Transfer & Storage Co. v. Pallet Central Enterprises, Inc. (Crime Insurance Coverage)
Feb. 1

The issue before the court is whether amounts paid in response to forged invoices are covered losses under a crime insurance policy that covers forged checks.

The underlying claim in the case arose when Pallet Central forged invoices to Leicht. Leicht paid $505,000 in response to the forged invoices. When Leicht discovered the invoices were for pallets it had never ordered or received, it filed a claim for its losses to its insurer, Hiscox Insurance Company, under its forgery coverage policy.

The lower courts ruled that there was no coverage for the forged invoices because the policy covered only forged checks, and invoices themselves cannot be exchanged for money. Leicht argues that forged invoices should be considered a “direction to pay” under the covered losses in the Hiscox policy.

 

David Paynter v. ProAssurance Wisconsin Insurance Co. (Medical Malpractice)
Feb. 1

The issue before the court is whether an injury sustained in both Wisconsin and another state is a “foreign cause of action” under Wisconsin’s statute applying foreign statutes of limitation (Wis. Stat. § 893.07).

The underlying claim in the case arose when Dr. James Hamp, who operates offices in both Wisconsin and Michigan, misdiagnosed a growth on patient David Paynter, a Michigan resident. Paynter first saw Dr. Hamp in his Michigan office, but Dr. Hamp called Paynter with the misdiagnosis from his Wisconsin office. Paynter sued Dr. Hamp and both his Michigan and Wisconsin malpractice insurance policies.

The Supreme Court will decide whether Paynter’s injury arising in multiple states is a “foreign cause of action” under Wis. Stat. § 893.07, thus barring the claim under Michigan’s statute of limitations.

 

Security Finance v. Brian Kirsch (Wisconsin Consumer Act)
Feb. 1

The issue before the court is whether a consumer sued without first receiving a notice of right to cure default may sue a merchant for damages under the Wisconsin Consumer Act.

The underlying claim in this case arose when Security Finance sued Brian Kirsch for a default on a loan. Kirsch counterclaimed that Security Finance’s complaint failed to give him proper notice of right to cure the default. Security Finance ultimately voluntarily dismissed the case, but Kirsch wanted to maintain his counterclaims.

The Supreme Court will decide whether Kirsch can sue for damages under Ch. 427 of the Wisconsin Consumer Act because Security Finance failed to give proper notice of right to cure.

 

Alan Pinter v. Village of Stetsonville (Governmental Immunity)
Feb. 11

The issues before the court are 1) whether a village’s oral policy constitutes a ministerial duty, exempting it from governmental immunity protections and 2) whether expert testimony is required to prove a private nuisance.

The underlying claim in the case arose when the Village of Stetsonville failed to abide by its oral policy regarding removing excess wastewater during heavy rains. As a result, waste and sewage were deposited in Alan Pinter’s basement. Pinter filed the instant lawsuit, claiming negligence and private nuisance. The village argued it was protected under governmental immunity (Wis. Stat. § 891.80(4)).

Pinter argues that by not following the village’s oral policy, the village failed to perform a ministerial duty, exempting it from governmental immunity. The lower courts rejected Pinter’s argument and further dismissed Pinter’s claim for private nuisance because he failed to offer expert testimony.

 

Yasmeen Daniel v. Armslist, LLC (Communications Decency Act Liability)
Feb. 14

The issue before the court is whether the federal Communications Decency Act (CDA) allows a website to be held liable under Wisconsin law for publishing a third-party’s information.

The underlying claim is against Armslist.com, which connects arms buyers and sellers with each other. Radcliffe Haughton, who had been legally prohibited from gun ownership, obtained a gun via Armslist and used it to kill four people. The daughter of one of the victims filed several tort claims against Armslist based on the CDA.

The Supreme Court will decide whether Armslist is immune under the CDA because it only passively displays third-party sellers’ information.