Author: Hamilton

AG Kaul Joins Emissions Standards Lawsuit

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Wisconsin Attorney General Josh Kaul has joined a coalition of states and cities seeking judicial review of the federal Environmental Protection Agency (EPA) and National Highway Traffic Safety Administration (NHTSA) rules related to vehicle emissions standards.

The rules amend greenhouse gas and corporate average fuel economy standards and repeal California’s waiver for its state greenhouse gas and zero emission vehicle programs. Currently, some other states also have the option to follow California’s standards. The NHTSA rules would specifically implement the agency’s statutory authority to set national fuel economy standards that preempt state programs.

The attorneys general filed a petition for review of the agency actions in federal court on Nov. 15. Read the filing.  

Other recent multistate actions from Kaul include:

  • Joining a bipartisan coalition of states urging Congress to pass legislation establishing a veteran treatment court program in the federal Department of Justice.
  • Joining an amicus brief supporting Public Service Loan Forgiveness program borrowers seeking eligibility for loan forgiveness.

Read about previous AG multistate actions.

Christus Lutheran Church of Appleton v. DOT (Condemnation of Property)

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In Christus Lutheran Church of Appleton v. DOT (2018AP1114), the Court of Appeals District III held that when the Department of Transportation (DOT) independently decides to include additional items of compensation in a jurisdictional offer for property condemnation, DOT must obtain a new appraisal supporting the new items in the offer.

DOT sought to take several acres of Christus Lutheran’s land to expand a state highway. DOT provided Christus Lutheran with an initial offer of $133,400 for the land, supported by an appraisal. The appraisal considered but did not include severance damages, which cover the loss of value to the remaining property after the taking.

After Christus Lutheran did not accept the offer, DOT sent a revised offer of $403,000, which did include $159,574 in severance damages. Christus Lutheran did not accept the revised offer and advised DOT to proceed with the acquisition by eminent domain. 

Finally, DOT provided Christus Lutheran with a jurisdictional offer similar to the revised offer, and the property was transferred to DOT. Christus Lutheran filed this lawsuit seeking to void the offer and prohibit the acquisition because DOT failed to provide an appraisal supporting the jurisdictional offer.

2017 Wisconsin Court of Appeals case Otterstatter v. City of Watertown found, based on Wis. Stat. § 32.05(2)(b) and (3)(e), that an appraisal must be a “supporting part or fundamental ingredient of the jurisdictional offer.” In this case, the court found in favor of Christus Lutheran that the initial appraisal did not support the offer because the initial appraisal did not include the severance damages. Because DOT decided to include the severance damages independently of an appraisal, DOT violated the statutory requirements and intent that the state provide the property owner with a transparent, narrative appraisal of the taking.

Thus the court found that DOT must obtain a new appraisal in jurisdictional offers where it believes additional compensation beyond the bounds of the initial appraisal is warranted.

Hughes v. Allstate Indemnity Co. (Coverage Exclusion)

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In Hughes v. Allstate Indemnity Co. (2019AP1234), the Court of Appeals District IV held that homeowner’s insurance policy exclusions precluded coverage for water damage to the plaintiff’s basement.

Hughes’s basement sustained water damage after someone turned on a spigot and left it running without Hughes’s knowledge or permission. Hughes filed this lawsuit seeking coverage from his Allstate insurance policy for the damage.

The Allstate policy covered damage to Hughes’s home, with some exceptions. The policy specifically excluded coverage for water damage. The policy also provided no coverage for instances where there are two or more causes of loss to the property and the predominant cause of the loss is excluded.

The court agreed with Allstate that these two provisions precluded coverage for the water damage to Hughes’s home. The court found that the water itself, not the act of turning on the spigot, was the predominant cause of the loss. Because water damage was excluded from the policy, the policy did not provide coverage in this case.

Haynes v. LIRC (Discrimination Claim)

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In Haynes v. LIRC (2018AP1581), the Court of Appeals District IV upheld a Labor & Industry Review Commission (LIRC) decision dismissing a discrimination claim.

Plaintiff Sharon Haynes filed this claim alleging race and sex discrimination against Blain’s Farm & Fleet. Haynes claimed that Blain’s technicians intentionally failed to secure a tire on her vehicle and intended to cause her harm because she is an African-American woman.

LIRC found there was no evidence of race-based or gender-based discrimination. The court upheld LIRC’s decision.

The court found substantial evidence supporting LIRC’s determination that the technicians were not aware of Haynes’s race or gender and that the technicians had no race-based or gender-based discriminatory animus.

The court also upheld LIRC’s decision denying Haynes’s motion to present new video evidence, finding that the proposed new video clip would not have changed LIRC’s determination that no discrimination occurred.

Finally, the court rejected Haynes’s argument that the LIRC commissioners should have recused themselves due to bias.

Brenner v. National Casualty Co. (Excess Coverage)

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In Brenner v. National Casualty Co. (2018AP2252), the Court of Appeals District I held that Amerisure’s policy was in excess to the primary National Casualty policy covering the Milwaukee World Festival, where an injury to a contractor occurred.

National insured the Milwaukee World Festival. Amerisure insured Hunzinger Construction Co., which was contracting with Milwaukee World Festival, and the Amerisure policy included Milwaukee World Festival as an additional insured.

When an employee of Hunzinger sustained an injury on the Milwaukee World Festival premises, he filed this personal injury suit against both National and Amerisure. At issue in this case was the extent of Amerisure’s coverage.

Brenner settled his claim for an amount less than National’s personal injury limits. National argued Amerisure should share the defense and indemnification costs because both National and Amerisure were primary insurers of the Milwaukee World Festival. Amerisure argued it was an excess insurer.

The court agreed that Amerisure was an excess insurer liable for coverage only beyond the National policy limit. The National policy provided that its coverage was primary except when other primary insurance is available. The Amerisure policy provided that its coverage was excess unless a written contract requires it to be primary. Since no such contract existed, the Amerisure policy was excess coverage. Therefore, no other primary insurance was available, so National’s coverage was primary.

Superior Water, Light & Power Co. v. London Market Insurers (Environmental Contamination Coverage)

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In Superior Water, Light & Power Co. v. London Market Insurers (2018AP1926), the Court of Appeals District III found that an insurance policy’s provision on coverage for environmental contamination was ambiguous.

Several insurance companies (referred to by the court as London Market Insurers, or LMI) issued excess liability policies to Superior Water in 1970. In 2001, the Wisconsin Department of Natural Resources claimed that Superior Water was liable for cleanup of chemicals contaminating groundwater surrounding Superior Water’s site. In this lawsuit, Superior Water argues that the 1970 policies obligated the insurers to cover those cleanup costs.

The policy in question covered any “occurrence” of damage or destruction to third-party property, with “occurrence” defined as “one happening or series of happenings arising out of or caused by one event taking place during the term of this contract.” Superior Water and the insurers disputed whether the continuous exposure of groundwater to chemicals from the Superior Water site was an “event” that occurred under the policy period. Superior Water said the exposure of different groundwater to the chemicals was a new “event.” The insurers said an “event” would be a new release or spill that caused the contamination. According to the insurers, without a new release during the policy period, the contamination would not be covered.

The court found that the policy language was ambiguous. The court’s custom is to interpret ambiguous policy language against the contract drafter. In this case, it was unclear which party drafted the policy, so the court remanded for further proceedings.

Eagle Cove Camp & Conference Center, Inc. v. County of Oneida (Zoning)

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In Eagle Cove Camp & Conference Center, Inc. v. County of Oneida (2018AP940), the Court of Appeals District III held that claim preclusion barred most of the plaintiff’s claims against the County and the Town of Woodboro, and the court awarded the Town damages because the action was frivolous.

Eagle Cove sought a conditional use permit to build a Bible camp in Woodboro on property currently zoned as residential. The County accepted the Town’s recommendation to deny Eagle Cove’s conditional use permit application. (The Town itself did not have jurisdiction over the zoning of the property.)

Eagle Cove subsequently filed an action in federal court against the County and Town, claiming violation of the Religious Land Use & Institutionalized Persons Act, Americans with Disabilities Act, Rehabilitation Act, as well as Equal Protection Clause and First Amendment violations. Eagle Cove also alleged violations of the right to freedom to worship under the Wisconsin state constitution and sought certiorari review by the federal court of the County’s decision.

The federal court dismissed Eagle Cove’s federal claims because Eagle Cove failed to meet the burden of proof for any of the claims. The federal court also dismissed Eagle Cover’s state constitutional claims with prejudice. However, the federal court dismissed the certiorari claim without prejudice.

Eagle Cove later filed the instant lawsuit in state court, seeking not only the certiorari claim that the federal court had allowed to proceed, but also fifteen additional state constitutional claims. The County and Town argued that claim preclusion barred the fifteen new claims.

The state appeals court agreed that claim preclusion barred the fifteen additional claims. The claims met the three required elements of claim preclusion:

  1. Identity of parties. It was undisputed that Eagle Cove and the County and Town were the same parties in both the federal and state lawsuit.
  2. Final judgment. The court rejected Eagle Cove’s argument that claim preclusion did not apply because the federal district court did not dispose of the entire case. The court also rejected the argument that the federal and state actions are one “case,” making claim preclusion inapplicable.
  3. Identity of causes of action. Eagle Cove’s federal and state causes of action arise from the same set of facts. Furthermore, both the federal and state actions bring claims of violations of the Wisconsin Constitution Art. I § 18, religious liberty claims, and equal protection claims.

The state appeals court further agreed with federal courts that new case law did not permit Eagle Cove to reopen the federal judgment.

Finally, the court found that Eagle Cove’s inclusion of the Town in this action was frivolous because all the claims against the town were precluded. The Town was not part of the certiorari claim because the County, not the Town, had jurisdiction of Eagle Cove’s conditional use permit application. Therefore, Eagle Cove’s inclusion of the Town in this lawsuit was frivolous, and the court awarded damages to the Town accordingly.

After this court of appeals decision, the only claim left for Eagle Cove to litigate is its certiorari claim against the County.

Warrington v. City of Prairie du Chien (Recreational Immunity)

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In Warrington v. City of Prairie du Chien (2019AP95), the Court of Appeals District IV held that recreational immunity applied, barring parents’ claim that the city was negligent in their son’s drowning during a swim lesson.

The Warringtons’ son died after drowning at the City of Prairie du Chien pool during a swim lesson run by city and school district staff. The Warringtons filed this lawsuit against the city and school district alleging negligence.

The court of appeals dismissed the Warringtons’ claims under Wisconsin’s recreational immunity statute (Wis. Stat. § 895.52(2)(b)), which provides immunity for owners from liability for death or injury of persons engaging in recreational activity on the owner’s property. The statute includes instruction in a recreational activity in the definition of “recreational activity.”

The court rejected the Warringtons’ argument that their son was not engaging in a “recreational activity.” The Warringtons argued their son was not swimming when he was injured because he had been designated as a “non-swimmer” for the purposes of the swimming lesson. Further, they argued their son was not receiving swimming instruction because the pool staff had lost track of him when he drowned. The court said such a narrow construction of the recreational immunity statute as proposed by the Warringtons would counter the legislature’s directive to liberally construe the recreational immunity law in favor of property owners. Therefore, the court upheld recreational immunity in favor of the city. 

Village of Mishicot v. Arseneau (Fourteenth Amendment – Selective Prosecution)

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In Village of Mishicot v. Arseneau (2019AP541), the Court of Appeals District II found that the village did not violate its resident’s Fourteenth Amendment rights by selectively prosecuting her for violation of a floodplain ordinance.

Defendant Jodi Arseneau wanted to repair and expand a storage shed on her property, but the state Department of Natural Resources (DNR) and a village ordinance prohibited such structures in the floodway where Arseneau’s property was located. Arseneau started construction on the shed anyway.

The village sent Arseneau a letter notifying her of her violation of the village’s floodplain ordinance and ordering her to stop construction. Soon after, DNR sent a letter to the village ordering the village to enforce the floodplain ordinance. If the village did not submit a sufficient enforcement plan, the letter stated, DNR would inform the Federal Emergency Management Agency, which could affect the village’s status in the National Flood Insurance Program (NFIP).

Subsequently, Arseneau was cited for violation of the ordinance. The circuit court found that the village violated Arseneau’s Fourteenth Amendment’s  Equal Protection Clause by selectively prosecuting her case. The circuit court agreed with Arseneau that the village did not cite other residents with similar storage units in the floodplain. The village appealed.

To succeed in a selective prosecution claim, the defendant must show the prosecution had a discriminatory effect and a discriminatory purpose. The appeals court found the prosecution against Arseneau did not have a discriminatory effect because she and the other residents who were not prosecuted were not similarly situated. Other residents had worked with the village after receiving initial warnings, and Arseneau’s case was unique in that the village received notice from DNR that nonenforcement could affect the village’s NFIP status. The court also found that Arseneau failed to prove her prosecution had a discriminatory purpose. Therefore, the village’s citation was upheld.  

Wisconsin Civil Justice Council Issues 2019 Guide to the Wisconsin Supreme Court and Judicial Evaluation

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WCJC has released its 2019 Guide to the Wisconsin Supreme Court and Judicial Evaluation, which reviews the most important cases decided by the Supreme Court of Wisconsin affecting the business community. The 2019 Judicial Evaluation covers the 2018-19 Supreme Court term.

The Judicial Evaluation scores the justices based on the percentage of the reviewed cases in which their position aligned with WCJC’s position. Based on the comprehensive review of decisions affecting the business community, Chief Justice Patience Roggensack and Justice Annette Ziegler scored the highest at 80 percent. Justice Rebecca Bradley scored 79 percent, and Justice Daniel Kelly came in at 76 percent. New to the court this term, Justice Rebecca Dallet scored 59 percent. Justice Walsh Bradley scored 30 percent. In her last term before retiring from the court this year, Justice Shirley Abrahamson scored 28 percent.

“The judicial evaluation provides analyses of the most important decisions affecting Wisconsin’s business community in the 2018-19 term,” said Bill G. Smith, WCJC President and State Director of the National Federation of Independent Business. “Businesses all over the state should read this important document and recognize how the judicial branch affects them and their employees,” added Smith.

The 2019 Judicial Evaluation provides a discussion of the facts and the court’s holding in each of the decisions, including the dissenting opinion(s). The guide then lists how each justice decided the case, along with WCJC’s position on the court’s decision.

“The decisions handed down by the court have a direct effect not just on the parties involved in each case, but on the entire business community, as the court establishes important precedent that is used in future cases,” added Scott Manley, WCJC Vice President and Executive Vice President of Government Relations for Wisconsin Manufacturers & Commerce. “The evaluation is an important tool to inform the public about how these cases are decided by the Supreme Court.”

This is the fourth judicial evaluation issued by WCJC since 2011.