Supreme Court accepts five new cases
Madison, Wisconsin - November 13, 2009
The Wisconsin Supreme Court has voted to accept five new cases. The Court also acted to deny review in a number of cases. The case numbers, issues, and counties of origin are listed below. Court of Appeals' opinions/certification memos available online for the newly accepted cases are hyperlinked.
2008AP919 Zarder v. Humana Insurance Co.
In this case, the Supreme Court is asked to clarify the meaning of “hit-and-run” in an uninsured motorist policy and in an insurance statute as applied to the facts of this case.
Some background: On Dec. 9, 2005, an unidentified motor vehicle struck 12-year-old Zachary Zarder while he was riding his bicycle. The vehicle stopped, and three males exited the vehicle. One male asked Zarder if he was okay. When Zarder replied that he was okay, the three males got back into their car and drove away.
Zarder also told other witnesses that he was just scared and wanted to stay where he was for a moment. The witnesses then left the area. It was not initially known, but Zarder did have some serious injuries, including two fractures that required two surgeries and resulted in medical bills above the coverage limits of Zarder's family's medical insurance.
Zarder and his parents filed a lawsuit against Acuity seeking uninsured motorist coverage under the family's automobile policy. Zarder claimed that the collision with the vehicle was covered under the Acuity policy because it was a "hit-and-run" accident with an unidentified motor vehicle.
Acuity moved the circuit court for a declaration that there was no coverage because the accident was not a "hit-and-run," because the driver had stopped and inquired as to whether Zarder was okay. The circuit court denied the motion.
The Acuity policy promised to pay damages for bodily injury sustained by an insured person that was caused by the ownership, maintenance or use of an uninsured motor vehicle. The policy defined an "uninsured motor vehicle" as, among other things, "[a] hit-and-run vehicle whose owner or operator is unknown" and which strikes an insured.
Although the circuit court's decision was not a final order or judgment, the Court of Appeals granted leave to file an appeal "because the issue is novel and because deciding it would further the administration of justice by definitively deciding the meaning of run in 'hit-and-run.'"
Acuity has asked the Supreme Court to review two issues:
1. Does the Acuity policy of insurance mandate uninsured motorist coverage for an alleged "hit-and-run" accident involving an unidentified motor vehicle and an insured where there is no "run," as that term is understood in the context of Wis. Stat. § 632.32(4)?
2. When an insurance policy covers "hit-and-run" as part of an uninsured motorist provision and the policy does not define the term, does "run" mean to flee without stopping?
A decision also could clarify the scope of the Court of Appeals' power to declare certain statements in a Supreme Court decision to be non-binding dicta and then to review an issue without regard to the Supreme Court’s prior statements. From Waukesha County.
2008AP1324 Blum v. 1st Auto & Casualty
In this case, the Supreme Court has been asked to clarify law involving uninsured motorist policies when a vehicle involved in an accident is not insured but the driver is insured under another policy. A decision could determine how precedent is applied when the Court of Appeals relies, at least in part, on a Court of Appeals' decision that was subsequently overruled by another Supreme Court decision. In addition, the Supreme Court is expected to consider this case in light of recent changes made to the definition of uninsured motorist as enacted in the 2009-11 state budget, 2009 Act 28. In this case, the Supreme Court is asked to review if the right to install a pier was granted by an easement that did not address pier construction, and where no pier had been installed in the easement during the two decades after the easement went into effect.
The factual background is not disputed. Kevin Blum jumped on the hood of the vehicle driven by Nicholas Burch in the high school parking lot. Burch accelerated and then applied the brakes, causing Blum to fall off and strike his head on the curb. Blum was seriously injured.
Burch's father owned the vehicle, which was uninsured. However, Burch had liability insurance under a policy issued by American Standard Insurance Company. In addition, Blum's parents had a policy with 1st Auto & Casualty Insurance Company.
Blum filed suit against Burch, his insurer (American Standard) and 1st Auto. Blum entered into an agreement releasing both Burch and American Standard in exchange for the policy’s liability limits of $250,000. 1st Auto then moved for summary judgment contending that the uninsured motorist (UM) section of its policy did not afford coverage to Blum because, although the vehicle Burch drove was uninsured, Burch was insured. Blum counters that the plain language of the section provides coverage because the vehicle involved in the accident is an "uninsured vehicle" as defined in the policy.
The circuit court granted summary judgment to 1st Auto and denied Blum's claim for uninsured motorist benefits under that policy.
The Court of Appeals affirmed, stating that “[i]f the meaning of the policy language is plain, we apply that meaning. If there is an ambiguity, that is, if the policy language may reasonably be interpreted in more than one way, then we resolve the ambiguity by determining what a reasonable person in the position of the insured would understand the words to mean.”
The Court of Appeals analysis relied heavily on its analysis in Hemerley v. American Family Mutual Insurance Co., 127 Wis. 2d 304, 379 N.W.2d 860 (Ct. App. 1985), which was overruled by Hull v. State Farm Mutual Automobile Insurance Co., 222 Wis. 2d 627, 586 N.W.2d 863 (1998).
The court of appeals explained this reliance on an overrule case, stating that "ordinarily holdings in our opinions not specifically reversed by the supreme court retain precedential value." Sweeney v. Gen. Cas. Co., 220 Wis. 2d 183, 192-93, 582 N.W.2d 735 (Ct. App. 1998). The court of appeals thus asserts that the Hull decision only overruled its construction of Wis. Stat. § 632.32(4)(a), but left intact the analysis that the policy language at issue was ambiguous.
Ultimately the Court of Appeals in this case resolved the ambiguity in the policy language by holding that the policy does not provide uninsured motorist coverage because the allegedly negligent operator of the vehicle was covered by liability insurance.
Blum maintains in his petition for review that the meaning of the insuring clause and the definition of "uninsured motor vehicle" in 1st Auto’s policy is plain and the court must apply it. He asks the Supreme Court to review the Court of Appeals’ decision in light of the policy wording, statutory interpretation and precedent. From Sauk County.
2008AP1546 Konneker v. Romano
Some background: In 1983, all of the riparian and non-riparian property at issue in this case was owned by Barbara, Edward, Peter and Angeline Ciszek. At that time, the Ciszeks sold two lots, one of which is now owned by Robert and Ann Konneker. The deed for the property now owned by the Konnekers conveyed the property together with a 20-foot-wide easement along the side of a lot extending to Green Lake. At approximately the same time, the Ciszeks granted easements over the same strip of land to the owners of seven other neighboring lots.
In 1985, the Ciszeks sold the lake lot over which the easement ran (known as the "servient estate"). That lake lot is now owned by Norman and Lawrence Nelson and Robert and Francis Romano. In 1990, the Nelsons erected a pier on the servient estate, next to, but not on the easement.
At that time, the Konneker's predecessors entered into a lease agreement with the Nelsons to use the Nelson’s pier. This lease was renewed on a yearly basis and required the payment of an annual rental. Apparently, some of the other easement holders entered into similar annual leases with the Nelsons. No easement holder installed a pier on the easement.
When the Konnekers purchased their non-riparian lot in 2004, the Nelsons and Romanos refused to lease the use of their existing pier to the Konnekers or the other easement holders. In 2006, the Konnekers installed a pier on the shore at the end of their easement. The Nelsons and the Romanos subsequently removed the pier and refused to continue the leasing of the pier on their property to any easement holders.
The Konnekers sought a declaratory judgment that the easement authorized them to install a pier, and both sides filed cross-motions for summary judgment. The circuit court concluded that, although there was no direct evidence as to the intent of the original grantors, in view of the usual purpose of lake easements and in the absence of any indication that full access rights to the lake were limited in any way, the circuit court concluded that the easement authorized the Konnekers to install their pier.
The court of appeals reversed, stating that where the language of an easement is ambiguous as to its scope, courts are free to look at extrinsic evidence, including the parties’ course of conduct over the years. The Court of Appeals indicated that it was improbable that the Ciszeks envisioned there being eight piers on a 20-foot-wide strip of shoreline.
In asking the Supreme Court to review the case, the Konnekers contend that the Court of Appeals failed to consider that the area in question had been primarily used as a place to enter the lake by boat. The Konnekers also assert that a different district of the Court of Appeals recently decided a similar case and found that an easement granted riparian rights to a non-riparian owner, including the right to install a pier. See Partridge v. Georges, 2008AP1052.
The Romanos assert that the Court of Appeals simply applied well-established law regarding easements and decided the present case on the basis of the specific facts, which they say differ from cases cited by the Konnekers. From Green Lake County.
2008AP1735 Ash Park, LLC v. Alexander & Bishop, Ltd.
This case involves a dispute over a $6.3 million sale of vacant commercial land in Brown County and examines the implications of "specific performance" as a court-ordered remedy when the terms of a sales contract aren't fulfilled.
Some background: Alexander & Bishop, Ltd. (A&B) entered into a standard form contract (WB-13 Vacant Land Offer to Purchase) to purchase property from Ash Park, LLC to develop the land for retail purposes. The contract included a leasing contingency, which allowed A&B to terminate the deal if it failed to execute a lease with an anchor tenant by July 20, 2007.
If A&B utilized the leasing contingency, it was entitled to a refund of a $50,000 earnest payment that it had made to Ash Park. The sales contract also provided that the leasing contingency could be extended twice for two months each. In order to extend the leasing contingency, A&B was required to make a $25,000 nonrefundable payment to Ash Park.
A&B was not able to secure an anchor tenant, and on July 20, 2007, invoked the leasing contingency to terminate the deal. On Aug. 1, 2007, however, the parties executed a new agreement that reinstated the earlier sales contract, with some modifications. First, A&B agreed to pay a nonrefundable $25,000 extension fee, although the agreement did not specify whether this extended the leasing contingency to Sept. 20, 2007, as provided in the original contract, or to some other date. Second, the new agreement made the original $50,000 earnest payment nonrefundable. Third, the new agreement assigned to A&B an option to purchase some neighboring property.
A&B was still not able to land an anchor tenant. On Oct. 9, 2009, A&B verbally advised Ash Park that it was unable to land an anchor tenant and that it likely would not be able to do so until 2008. Ash Park indicated that it was willing to discuss potential modifications to the deal, but stated that if modifications could not be agreed upon, it would seek specific performance.
The parties were not able to reach a new agreement and A&B failed to close on the transaction on the Dec. 14, 2007, closing date specified in the original sales contract. Ash Park then filed an action for specific performance. The circuit court granted summary judgment to Ash Park. It ordered A&B to "perform pursuant to the terms of the contract” and to “take such actions as are necessary to complete the transaction." A&B nonetheless did not close the transaction.
On July 9, 2008, A&B filed a notice of appeal, before the circuit court ordered A&B to pay pre-judgment and post-judgment interest at specified rates by certain dates.
On Aug. 26, 2008, A&B filed a second notice of appeal, asserting, in part, that specific performance was not an option, despite language in the sales contract expressly authorizing that remedy as an option in the case of a buyer default. A&B contended Ash Park had an adequate remedy at law for damages.
The Court of Appeals cited to a number of cases that have stated that specific performance of a sale of real estate is an available remedy to both buyers and sellers and rejected A&B’s contention that the circuit court should not have ordered specific performance because A&B did not have the ability to pay the purchase price.
A&B’s petition lists one issue for review: "May a seller of real estate seek both specific performance, as well as interest on the purchase price without a requirement that it mitigate damages?" From Brown County.
2008AP2028 Grygiel v. Monches Fish & Game Club
This case examines whether the use of an easement to access a parcel adjacent to the property for which the access easement was intended, constitutes a misuse of the easement.
Some background: The pertinent facts are not disputed. Monches Fish & Game Club benefits from a 40-foot-wide strip of land granted in 1973 "for the purpose of ingress and egress as a means of access" to the club's property.
In 1991, in previous litigation between Barbara C. Grygiel and the Club, the circuit court ruled the club may not extend the use of the easement to any other parties.
Karl Scheife is a member of the Club and hunts on its land approximately 12 times a year. He also rents a home on land contiguous to the Club's property and his lease allows him to hunt on approximately 143 acres that borders Grygiel's land and is adjacent to the Club's land as well.
In November 2006, Scheife and seven other members of his hunting party were hunting on a parcel of land adjacent to the Club. They used the Club’s easement over the Grygiel's land to reach the Club and from the Club's property they crossed over to hunt on land adjacent to the Club. It is undisputed that hunters with Scheife were not Club members and did not hunt on the Club property that morning. Rather, they parked at the Club and went over to the adjacent property to hunt. They also went to Scheife's home nearby and a member of the hunting party drove Scheife back to the easement, with the intention of using the easement to obtain Scheife's truck from the Club's property. As they approached, Grygiel had blocked their path across the easement and had called the sheriff's department.
Grygiel subsequently sued the Club and Scheife for violating the 1991 judgment, for trespass, and for breach of the easement. Grygiel sought summary judgment declaring that the 1991 judgment was binding; the Club did not have the right to grant use of the easement to third parties who sought access to property other than the Club's; and the Club members could not use the easement to access any property other than the Club's.
The circuit court dismissed Grygiel's claims. The Court of Appeals affirmed, ruling that the use of an express easement, to pass over the property for which the easement is intended to gain access to farther adjacent property, does not impermissibly expand the scope or purpose of the easement.
In asking the Supreme Court to review the case, Grygiel raises three issues:
1. Should Wisconsin law allow holders of limited access easements to expand their access rights for the purpose of accessing other non-dominant, unrelated lands?
2. Does Millen v. Thomas, 201 Wis. 2d 675, 550 N.W.2d 134 (Ct. App. 1996), change Wisconsin law to allow holders of appurtenant easements to expand the use of those easements to access other unrelated lands, against the wishes of property owners, subject only to an after-the-fact contest over the degree of "burden?"
3. Should there be a "home base" exception to allow an easement’s scope and purpose be expanded to new non-dominant land, so long as the easement holder touches the dominant "home base" before going to the non-dominant lands, and the easement holder does not actually own the new lands
The Club argues that the circuit and appellate courts properly focused on the issue of "increased burden." It says that the Court of Appeals correctly relied on the Millen case and Wisconsin’s easement law cited therein. Thus, the Club contends, it was entitled to conclude no increased burden resulted from the alleged trespass. From Washington County.
Review denied: The Supreme Court denied review in the following cases. Supreme Court review is a matter of judicial discretion, not of right, and will be granted only when special and important reasons are presented. As the state’s law-developing court, the Supreme Court exercises its discretion to consider for review only those cases that fit certain criteria, but these criteria neither control nor fully measure the Court’s discretion (see Wis. Stat. (rule) § 809.62).
2008AP2066-CR State v. Neibauer
2008AP3218-CRNM State v. Soulier
2008AP1327 WI Mall Properties v. City of Green Bay
2008AP1560 State v. Nieto
2008AP1907 State v. Bintz
2009AP1926-W McCord v. Circ. Ct. Chippewa Co.
2009AP382-CR State v. Glover
2007AP1442-CR State v. Rolack
2007AP2388-CR State v. Adeyanju
2008AP536-CR State v. McCants
2008AP1105-CR State v. Mey
2008AP2186 State v. Pentinmaki
2009AP171-OA Kingstad v. State Bar
2009AP1996-W Combs v. COA
2008AP1982 Bahn v. Santolin
Fond du Lac
2007AP555/56-CR State v. Luchinski
2008AP3091 Austin v. Circ. Ct. for Fond du Lac Co.
2009AP31-CRNM State v. Ibeme
2008AP1608-CR State v. Sidoff
2009AP2112-W Schultz v. Cir. Ct. Green Co.
2008AP1736-CR State v. Tarrant
2009AP1433-W White Eagle v. Hepp
2009AP2138-W Davis v. Boatwright
2008AP1046-CR State v. Sloan
2008AP1502 State v. Givens
2008AP1946 McRae v. Porta Painting - Justice Patience Drake Roggensack dissents.
2009AP1365-W Drusch v. COA
2008AP1711/12-CR State v. Sell
2007AP86-CR State v. Dixon
2007AP578-CR State v. Clytus - Chief Justice Shirley S. Abrahamson and Justice Ann Walsh Bradley dissent.
2007AP1105-CR State v. Tostado - Chief Justice Shirley S. Abrahamson and Justice Ann Walsh Bradley dissent.
2007AP1421-CR State v. Hankins
2007AP2514-CR State v. Parchman
2007AP2964 Schmidt v. Froedtert Memorial - Justice Patience Drake Roggensack dissents.
2007AP2976/77-CR State v. Lee - Chief Justice Shirley S. Abrahamson and Justice Ann Walsh Bradley dissent.
2008AP910-CR State v. Winters - Chief Justice Shirley S. Abrahamson and Justice Ann Walsh Bradley dissent.
2008AP1167-CR State v. Thornton
2008AP1400-CR State v. Ross
2008AP1697-CR State v. Dietrich - Chief Justice Shirley S. Abrahamson dissents.
2008AP1702 Techworks v. Wille - Chief Justice Shirley S. Abrahamson dissents.
2008AP1774-CR State v. Fairconatue
2008AP1915 Crowder v. Cole
2008AP2080-CR State v. White
2008AP2253-CR State v. Anderson
2008AP2349 State v. Hills
2008AP2401-CR State v. Campbell
2008AP2649 White v. Chisholm
2009AP1467-W Hampton v. Boatwright
2009AP1737-W Lee v. Deppisch
2009AP2201-W Sundermeyer v. Circ. Ct. Milw. Co.
2009AP2483-W Johnson v. COA
2008AP683-CR State v. DeBauche
2008AP133 Hageny v. Bodensteiner - Chief Justice Shirley S. Abrahamson dissents.
2008AP1944 Altergott v. Altergott Family Corp. - Chief Justice Shirley S. Abrahamson dissents. Justice David T. Prosser, Jr. did not participate.
2008AP2893-CR State v. Lala
2008AP2740-42 Porage Co. HHS v. Jesus S.
2009AP2375-W Kotas v. Circ. Ct. Portage Co.
2008AP273 Prince v. Kenyon
2008AP1655-CR State v. Harris - Chief Justice Shirley S. Abrahamson and Justice David T. Prosser, Jr. dissent.
2008AP2167-CR State v. Cosey
2009AP554-CR State v. Kaprelian
2009AP678-W Hickman v. Circ. Ct. Racine Co. - Justice Patience Drake Roggensack dissents.
2009AP1431-W Davis v. Smith
2008AP2063-CR State v. Turner
2008AP1463-CR State v. Moore
2009AP1979-W Bengtson v. Cir. Ct. St. Croix Co.
2008AP1347/2367-CRNM State v. Ireland
2007AP2869-72-CR State v. Dewitt
2008AP2833-CR State v. Domine - Chief Justice Shirley S. Abrahamson and Justice Ann Walsh Bradley dissent.
2008AP2681 State v. Vernio
2008AP2610 Deutsch v. Orth - Chief Justice Shirley S. Abrahamson and Justice Annette Kingsland Ziegler did not participate.
2008AP1151 Soelle v. Aschbacher
2008AP2795-CR State v. Sulllivan - Justice Michael J. Gableman did not participate.
2008AP746-CR State v. Josephson - Justice Annette Kingsland Ziegler did not participate.
2007AP1444/2427/2945 Marriage of: Roush
2008AP929-CR State v. Haldemann
2008AP2467 Marriage of: Roush
2008AP2599-CR State v. Knaus
2009AP1882-W Gerard v. COA
2008AP2584 Stellmacher v. Pref. Prof. Ins.
2008AP2955-CR State v. Peterson
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