In West Bend Mutual Insurance Co. v. Calumet Equity Mutual Insurance Co. (2018AP435), the Court of Appeals District II held that farming work is not a “domestic duty” covered by an insurance policy.

The case arises from an accident where plaintiff David Schaefer’s cows escaped and caused a collision on a nearby road. West Bend insured the person injured in the crash and recovered $114,000 from Schaefer. Calumet insured the property where Schaefer raised his cattle. In the instant case, West Bend and Schaefer sought $114,000 from Calumet, arguing Schaefer was an insured under the Calumet policy.

The Calumet policy, in part, defined “insured” as “persons in the course of performing domestic duties that relate to the ‘insured premises.’” The court ruled that Schaefer was not an insured under the Calumet policy because maintaining his cattle was not a “domestic duty” under the policy. Farming is not related to the management of a private place of residence, so Schaefer’s duties related to the cattle do not fall under “domestic duties” as defined by previous courts. The court declined to expand the term “domestic duties” to include any activity occurring on the insured premises.

In John Soletski v. Krueger International, Inc. (2017AP2063), the Court of Appeals District III held that Krueger was not liable for an injury to an independent contractor operating its scissor lift. The court held the plaintiff’s negligence claims were barred under the statute of repose and the rule of employer immunity for independent contractors. Furthermore, the court held that the right to recover costs is not forfeited if costs are filed timely, but the court does not timely resolve objections.

Krueger hired Spectrum Maintenance Services to clean its furniture production facility and allowed Spectrum to use its scissor lift. Two Spectrum employees accidentally drove the lift onto an unmarked ramp, where it tipped over, injuring plaintiff Soletski. Soletski sued Krueger for negligence and violation of Wisconsin’s safe place statute (Wis. Stat. § 101.11).

The court held that the builder’s statute of repose (Wis. Stat. § 893.89) barred Soletski’s safe place claims. (Note WCJC reduced the exposure period in the statute of repose from ten to seven years in 2017 Act 235.) Under the safe place statute, building owners may be held liable for 1) defects inherent in the construction of the building or 2) defects constructed safely but that become unsafe due to improper maintenance. The statute of repose applies only to inherent structural defects. In this case, the court ruled that the ramp was an inherent structural defect because there was no evidence Krueger had improperly maintained the ramp. Therefore, the statute of repose applied and barred Soletski’s safe place claim.

The court further held that Soletski’s claims were barred by the rule that employers are generally not liable for independent contractors’ injuries. The court rejected Soletski’s argument that his case was an exception because Krueger committed an affirmative act of negligence. The court said any potential negligence on Krueger’s part (i.e. failure to warn the Spectrum employees about the ramp) were not affirmative acts, so the exception did not apply.

Finally, the court ruled that Krueger was entitled to costs because it did file its bill of costs within 30 days in accordance with Wis. Stat. § 806.06(4). The court rejected Soletski’s argument that, because of the circuit court clerk’s failure to resolve the objections to the bill of costs within the 30 day period, Krueger violated the time limit.

In Town of Forest v. PSC (2018AP367), the Court of Appeals District III declined on the grounds of claim preclusion Forest’s petition for judicial review of the Public Service Commission’s (PSC) final approval of a wind farm application. The court also declined to hold PSC in contempt of court following a previous circuit court order.

The issue arose when PSC approved Highland Wind Farm, LLC’s application to construct a wind energy facility partly located in Forest. The approved application included provisions that:

1. Highland need only comply with noise limits in Wis. Amin. Code ch. PSC 128 95 percent of the time.
2. Highland would obligate itself to a lower nighttime noise limit for six residences in the area with sensitivities to sound.
3. Highland would implement a curtailment plan to reduce noise from the wind farm to levels below limits in PSC 128.

The Town of Forest petitioned for judicial review of the approved application. The reviewing circuit court ordered PSC to 1) hold a hearing on adopting a percentage compliance standard for noise limits in PSC 128; and 2) explain why it chose a lower nighttime noise limit for those six specific residences and determine whether to apply it to any other residences. The circuit court approved the curtailment plan.

In response to the circuit court order, PSC eliminated the 95 percent compliance provision altogether and declined to hold a hearing. PSC also eliminated the lower nighttime noise limits for any residences. With these amendments, PSC issued a final decision.

In the instant case, the Town of Forest sought to hold PSC in contempt of court for failing to comply with the circuit court orders and sought judicial review of the final PSC decision. The Court of Appeals District III held that PSC was not in contempt of court. Although PSC did not hold a hearing on the percent compliance provision nor did it explore extending the lower nighttime noise limit, PSC complied with the intent of the court order by altogether removing these two provisions that were not supported by substantial evidence and facts. On the question of judicial review, the appeals court declined the town’s petition on the grounds of claim preclusion. The court stated the town should have raised its argument that the curtailment plan is not allowed under PSC 128 in the judicial review of the first PSC application approval.