In Harwood v. Wheaton Franciscan Services, Inc. (2018AP1836), the Court of Appeals District I affirmed class action certification in a lawsuit against a medical provider related to medical record fees.

Plaintiff Elizabeth Harwood filed the lawsuit against Wheaton Franciscan, alleging Wheaton Franciscan illegally charged her attorney fees for copies of her health records. Harwood sought to certify a class including all Wheaton Franciscan patients in Wisconsin (or persons authorized to obtain their medical records) whom Wheaton Franciscan charged retrieval or certification fees in violation of Wis. Stat. § 146.83(3f)(b)4.-5. That statute allows health care providers to charge such fees only to persons other than the patient or person authorized by the patient.

The trial court certified the class, and Wheaton Franciscan appealed. The appeals court rejected Wheaton Franciscan’s argument that the trial court did not apply a rigorous analysis of the specific facts of the case as required by federal class action law. The trial court properly found that Harwood’s proposed class met the four prerequisites of Wisconsin’s class action law (§ 803.08):

1. Numerosity. Harwood presented 44 invoices wherein Wheaton had charged patients or their authorized representatives retrieval or certification fees. The numerosity requirement was met because it would be impracticable to bring all the invoiced patients before the court.
2. Commonality. All members of the proposed class suffered a common injury of allegedly unlawful charges for medical records.
3. Typicality. Harwood’s claim was typical of the claims of the rest of the proposed class. The court dismissed Wheaton’s argument that there was not enough evidence to determine typicality.
4. Adequacy. Harwood acting as class representative would adequately protect the interests of the class. Her claim was substantially similar and her interests were not adverse to the rest of the class’s interests.

The trial court further found – and the appeals court upheld – that the shared claims of the class members and Harwood were predominant to any individual claims. Class action was the superior means of addressing the controversy because addressing the individual claims, each of which was only $28, would be impracticable (§ 803.08(2)(c)).

Finally, the appeals court found that federal case law did not require additional discovery to certify the class. Therefore, Harwood’s class action lawsuit against Wheaton Franciscan could proceed.

In Paynter v. ProAssurance Wisconsin Insurance Co. (2017AP739), the Court of Appeals District III held that a medical malpractice insurance policy did not provide coverage for a doctor’s alleged liability connected with services performed in another state.

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 was residing in Michigan at the time of the call and for the next four years before he found out his growth was cancerous.

Paynter sued Dr. Hamp and his Wisconsin malpractice insurer ProAssurance, claiming both negligence and violation of the patient’s right to informed consent. The Wisconsin Supreme Court dismissed Paynter’s informed consent claim based on Wisconsin’s borrowing statute, remanding the negligence claim to the court of appeals. The issue remaining on appeal was whether the ProAssurance policy provided coverage for the negligence claim.

The ProAssurance policy included a location endorsement, which stated ProAssurance would not cover “liability arising from, relating to, or in any way connected with the rendering of or failure to render professional services…in the State of Michigan and/or outside the State of Wisconsin.” The appeals court agreed with ProAssurance that, because Dr. Hamp first tested Paynter in Michigan, the alleged negligent misdiagnosis was “connected with” services provided in Michigan. Therefore, the ProAssurance policy’s location endorsement unambiguously excluded coverage for Paynter’s negligence claim.

In Mueller v. LIRC (2018AP707), the Court of Appeals District III held that employees must show actual wage loss attributable to a work-related injury in order to be eligible for temporary disability worker’s compensation benefits. Employees may not receive temporary disability if they voluntarily retire, nor if subsequent attempts to re-enter the labor market are not impaired by a work-related injury.

Janet Mueller was injured when working for Ashley Furniture. Ashley placed Mueller on light duty with supplemental temporary partial disability benefits. Four months later, Mueller retired. Shortly after her retirement, Mueller reapplied for employment at Ashley but was not rehired. Mueller later found a part-time retirement job at a café.

Mueller filed this lawsuit seeking worker’s compensation benefits from Ashley during her retirement and during several months of her new part-time job. The court upheld the Labor & Industry Review Commission’s (LIRC) decision finding that Mueller could not show an actual wage loss entitling her to benefits because her voluntary retirement from Ashley was unrelated to her injury.

Alternatively, Mueller argued that her attempts to re-enter the labor market after retirement showed an actual wage loss entitling her to benefits. The court upheld the LIRC decision finding that Mueller showed no evidence her attempts to re-enter the labor market were impaired by a work-related injury. The record showed Ashley declined to hire Mueller because better applicants applied, and Mueller voluntarily chose to work part-time at the café.

In Freund v. Nasonville Dairy, Inc. (2018AP1215), the Court of Appeals District III held that, in receivership proceedings, a preference is voidable under Wis. Stat. § 128.07(2) if an ordinarily prudent business person would have reasonable cause to believe 1) the transferor is insolvent and 2) the transfer would enable the recipient to obtain a greater percentage of debt than other creditors of the same class.

Wisconsin’s creditors’ action law (Wis. Stat. Ch. 128) encourages equal distribution of assets when an entity cannot fully pay its creditors. When an insolvent debtor obtains a court-appointed receiver to manage its assets, the receiver may recover certain preferential payments made by the debtor. A payment is preferential if it allows a creditor to obtain a greater percentage of its debt than any other creditor of the same class (§ 128.07(1)(a)). Section 128.07(2) deems preferential payments voidable if the payment was made within four months of the appointment of the receiver and the recipient has reasonable cause to believe the payment would effect a preference.

The issue in this case was whether § 128.07(2) requires the receiver to prove not only 1) that the recipient had knowledge the debtor was insolvent, but also 2) that the recipient had reasonable cause to believe they would obtain a greater share of their debt than other creditors of the same class. The court held that the statute does require proof of both elements to determine a payment voidable and recoverable by the receiver.

In this case, the court ordered Nasonville Dairy to return a voidable preferential payment to Liberty Milk Marketing Cooperative’s receiver. The court found that Nasonville 1) knew Liberty Milk was insolvent because Nasonville had been engaging in unusual business loan transactions with Liberty Milk that were increasing in size and frequency; and 2) had reasonable cause to believe that Nasonville would obtain a greater share of their debt than other creditors of the same class because Nasonville knew Liberty Milk was using the loaned funds to attempt to keep up with payments to its producers. Because the preferential payment to Nasonville met both elements of § 128.07(2), the payment was voidable, and the court ordered the payment returned to Liberty Milk’s receiver.

In Paul R. Ponfil Trust v. Charmoli Holdings, LLC (2018AP1321), the Court of Appeals District II held that a settlement agreement was unenforceable because it lacked agreement on material terms.

During the course of this action, the Trust and Charmoli signed a “Mediation Settlement Agreement,” which included five paragraphs of terms related to their joint ownership of a quarry. The fifth paragraph was an agreement between the parties to sign a separate substantive agreement on liability and indemnity.

However, after many subsequent communications between Trust and Charmoli, the parties were unable to reach an agreement on liability and indemnity. The Trust filed a motion to compel enforcement of the Mediation Settlement Agreement without the separate substantive agreement.

The court held that the Mediation Settlement Agreement was not enforceable because the parties had not reached an agreement on the material terms of paragraph five, related to liability and indemnity. The court cannot enforce settlement agreements under Wis. Stat. § 807.05 if the agreements contain indefinite terms that were never agreed to in writing.

In a dissent, Judge Reilly argued that the Mediation Settlement Agreement was enforceable because the parties expressly agreed it settled the case. The dissent states that paragraph five of the Mediation Settlement Agreement was not a material term but a “clean-up paragraph” to execute details of the agreement. Therefore, the Mediation Settlement Agreement was enforceable even without a separate substantive agreement.