This calendar contains cases that
originated in the following counties:
Clark
Marathon
Milwaukee
Outagamie
Washington
Waukesha
To be heard in the
Wisconsin Supreme Court Hearing Room, 231 East Capitol:
WEDNESDAY, SEPTEMBER 5, 2007
9:45 a.m. 05AP886 Robert
Stuart, et al. v. Weisflog's Showroom Gallery, Inc., et al.
10:45 a.m. 05AP1287 Robert Stuart, et al. v.
Weisflog's Showroom Gallery, Inc., et al.
1:30 p.m.
06AP1826-CRAC State v. Ronald Schaefer
TUESDAY, SEPTEMBER 11, 2007
9:45 a.m.
05AP1424 James Gumz, et al. v. Northern States Power Co.
10:45 a.m. 05AP1677 Ralph Schmidt, et al. v. Northern
States Power Co., et al.
1:30 p.m.
05AP3087-CR State v. Scott
M. Hambly
WEDNESDAY, SEPTEMBER 12, 2007
9:45 a.m.
05AP2643 Kevin Summers v. Touchpoint Health Plan, Inc.
10:45 a.m. 06AP1114-CR
State v. Michelle R.
Popenhagen
1:30 p.m. 05AP1638
Hjalmer Heikkinen, et
al. v. United Srvcs. Autom. Assn., et al.
The Supreme
Court calendar may change between the time you receive this synopsis and when
the cases are heard. It is suggested
that you confirm the time and date of any case you are interested in by calling
the Clerk of the Supreme Court at 608-266-1880. That office will also have the
names of the attorneys who will be arguing the cases.
Radio and TV, and print
media wanting to take photographs, must make media requests 72 hours in advance
by calling Supreme Court Media Coordinator Rick Blum at 608-271-4321. Summaries
provided are not complete analyses of the issues presented.
WISCONSIN SUPREME COURT
WEDNESDAY, SEPTEMBER 5
9:45 a.m.
05AP886 Robert
Stuart, et al. v. Weisflog's Showroom Gallerv, LLC. et al
This is a review of a decision of the Wisconsin Court
of Appeals, District II (based in
Waukesha), which affirmed in part and
reversed in part, a decision by Wauukesha County Circuit Court, Judge Patrick
C. Haughney, presiding.
This case
involves a dispute over responsibility for damages and attorney fees resulting
from a faulty remodeling project.
After
discovering some problems with a home addition supplied by Weisflog's Showroom,
Robert Stuart and Lin Farquhar-Stuart sued the company, Ronald Weisflog
individually and their insurer, American Family. A claim of breach of contract
was dismissed, but the case proceeded to trial on claims of negligence and a
violation of the Home Improvement Act, Wis. Admin. Code ch. ATCP 110, for
alleged misrepresentations by Weisflog's Showroom.
A jury found
in favor of the Stuarts and against Weisflog's Showroom, awarding $95,000 in
damages. Damages were allocated 75 percent to the negligence claim and 25
percent to the claim of a violation of the Home Improvement Act. The circuit
court doubled the 25% of damages attributable to the violation of the Home
Improvement Act, pursuant to Wis. Stat. § 100.20. The circuit court also denied American
Family's motion for summary judgment to bar coverage and any duty to defend.
The Court of
Appeals affirmed the circuit court's rulings and judgment on the merits, with
the exception that it remanded the case to the circuit court for a retrial of
Ronald Weisflog's individual liability. The Court of Appeals also remanded to
the circuit court for the doubling of the entire damage award (not just
25% of it) and a re-determination of attorney fees.
Both Weisflog
and American Family sought Supreme Court review of this case in separate
petitions. (See synopsis for companion case 2005AP1287, which more specifically
addresses insurance coverage issues arising from the underlying dispute).
This case,
2005AP886, examines a variety of legal issues. But the primary focus of both
petitions is whether the entire damage award should have been doubled under the
Home Improvement Act, even if certain damages were allocated by the jury to a
legal theory (negligence) under which damages are not usually doubled. The defendants also argue that the Stuarts'
claims were really contract-type claims, which were subject to the statute of
limitations for breach of contract actions as well as the economic loss
doctrine.
A decision by
the Supreme Court would have statewide significance and help clarify the law
regarding the amount of damages allowed under the Home Improvement Act, as well
as the applicability of the statute of limitations and the economic loss
doctrine.
WISCONSIN
SUPREME COURT
WEDNESDAY,
SEPTEMBER 5
10:45
a.m.
05AP1287 Robert
Stuart, et al. v. Weisflog's Showroom Gallery. Inc. et al
This is a review of a published decision
of the Wisconsin Court
of Appeals, District II
(headquartered in Waukesha), which
affirmed a decision by Waukesha County Circuit Court, Judge Patrick C.
Haughney, presiding.
'I'his case
addresses insurance claims resulting from a dispute over a faulty remodeling
project. (See synopsis for companion case 2005AP886).
American
Family Mutual Insurance Co. petitioned the Supreme Court for review of the
Court of Appeals’ opinion affirming that American Family's comprehensive
general liability (CGL) policy covers the damage award against Weisflog's
Showroom and potentially Ronald Weisflog, if he is found to be personally
liable on remand. Among other things,
American Family argues that coverage should have been denied because its policy
contained an exclusion from coverage for claims alleging misrepresentations by
the insured. The court of appeals
rejected this argument because it considered claims for false statements in
violation of the Home Improvement Act to be distinct from claims for common law
misrepresentation.
American Family
presents the following issues for review:
A decision by
the Supreme Court could help settle several questions of law that could affect
the insurance industry statewide, including how specific a policy exclusion
must be to bar coverage for misrepresentations by the insured.
WISCONSIN SUPREME COURT
WEDNESDAY, SEPTEMBER 5, 2007
1:30 p.m.
2006AP1826-CRAC State v. Ronald
Schaefer
This
is a certification from the Wisconsin Court of Appeals, District II
(headquartered in Waukesha). The Court of Appeals may certify cases that it
believes cannot be resolved by applying current Wisconsin law. The Wisconsin
Supreme Court, as the state's preeminent law-developing court, often accepts
such certifications from the Court of Appeals. This case began in Waukesha
County Circuit Court, Judge Ralph M. Ramirez, presiding.
This
case presents the question of whether a defendant has a right to obtain by
subpoena, and to copy, police investigation reports and non-privileged
materials prior to the preliminary hearing.
On
May 25, 2006, Ronald Schaefer was charged with two counts of second-degree
sexual assault of a child in Brookfield for acts that allegedly occurred in
1990.
Ten
days before the preliminary hearing, Schaefer subpoenaed the Brookfield Police
Department, directing police to produce a complete copy of all reports,
memoranda, witness interviews and any records related to the investigation and
arrest. A court commissioner, and subsequently, the circuit court, quashed the
subpoena. The court of appeals granted Shaefer’s motion for leave to appeal
this decision.
Schaefer
contends that his attorney cannot provide effective assistance, including the
ability to cross examine witnesses unless he has access to this information. He
contends there is no statutory prohibition on his attempt to obtain
non-privileged information from the police department in advance of the
preliminary hearing, by subpoena.
The
state argues that Schaefer is attempting to evade a discovery statute
[Wis. Stat. § 971.31 (5) (b)], which provides that pretrial
discovery from the district attorney in felony cases does not occur until after
arraignment.
The Supreme
Court is expected to clarify important legal issues involving the interaction
of subpoena powers, criminal discovery statutes, and a defendant’s right to
obtain information he or she deems necessary for effective representation.
WISCONSIN SUPREME COURT
TUESDAY, SEPTEMBER. 11, 2007
9:45 a.m.
2005AP1424 Gumz
v. Northern States Power
This is a
review of a decision of the Wisconsin Court of Appeals, District III
(headquartered in Wausau), which affirmed a Marathon County Circuit Court
decision, Judge Gregory E. Grau, presiding.
This
stray-voltage case examines, among other things, application of the statute of
limitations and if a jury should have been given special instructions to
consider whether – and to what degree – an electric utility or dairy farmers
may have been responsible for the poor health of a dairy herd.
James
and Michael Gumz, who had purchased their parent’s Marathon County dairy farm
in 1981, first noticed problems with their herd, including poor milk
production, various health issues and death, in 1991.
On
Dec. 21, 2001, Grace, James, Michael and Susan Gumz (the Gumzes) sued Northern
States Power (doing business as XCEL Energy), alleging claims for negligence,
nuisance, strict liability and trespass. Only the negligence claim proceeded to
trial, where NSP introduced testimony of a veterinarian, who said Gumzes had been
negligent in managing their herd.
The
circuit court allowed the testimony, but refused NSP’s request for a jury
instruction and special verdict question on whether Gumzes had acted with
reasonable diligence in discovering the cause of their claimed injuries. The
utility company claims stray voltage levels, as measured between a cow and a
contact point, did not exceed a level of concern standard set by the state
Public Service Commission.
The
jury returned a verdict in favor of the Gumzes, awarding $332,336 for economic
damages and $200,000 for annoyance, inconvenience and loss of use and enjoyment
of their real property. The Court of Appeals affirmed the judgment based on the
jury verdict.
NSP
argues the Court of Appeals decision effectively eliminates the six-year
statute of limitations and contributory negligence bars in stray voltage cases.
A
decision by the Supreme Court could clarify law on issues that seem likely to
recur in other stray voltage cases.
WISCONSIN SUPREME COURT
TUESDAY, SEPTEMBER 11, 2007
10:45 a.m.
2005AP1677 Schmidt, et al v. Northern States Power
Comany
This is a
review of a decision of the Wisconsin Court of Appeals, District IV
(headquartered in Madison), which reversed a Clark County Circuit Court
decision, Judge Jon M. Counsell, presiding.
This
case examines how the statute of limitations and “the filed rate doctrine”
apply to a stray voltage case.
Dairy
farmers Ralph and Karline Schmidt began noticing low milk production and
various health problems, including breeding difficulties and an unusually high
mortality rate in their cattle shortly after purchasing a Clark County farm in
the late 1970s.
In
1993, the Schmidts hired a master electrician, who concluded NSP’s system was
causing a stray-voltage problem. NSP denied the utility was causing the
problem, and tests conducted by NSP never showed stray voltage passing through
animals that exceeded the Public Service Commission’s “level of concern”
standard.
Dairy
herd health improved briefly after some electrical system upgrades, but the
Schmidts sued NSP in November 2001, after problems allegedly resurfaced.
The
circuit court granted NSP’s motion for summary judgment, concluding that the
statute of limitations had expired because the Schmidts allegedly knew NSP’s
system was the cause of their injuries as early as 1993, which triggered the
start of the six-year statute of limitations.
The
Court of Appeals overturned the circuit court decision, however, concluding
that the moment of discovery could be interpreted differently. NSP maintained
that the Schmidts should not be allowed to in effect “undiscover” their claims
against NSP based on the 1993 tests performed by their own electrician because
NSP's subsequent tests did not show an excessive amount of stray voltage.
The
Court of Appeals also rejected the circuit court’s conclusion that the
Schmidt’s claims were barred by the filed rate doctrine, which guides utility
rates. Because the company complied with stray voltage standards laid out in
the PSC’s rate-filing rules, NSP should not be liable, the company contends.
A
decision by the Supreme Court could help clarify the law and if the filed-rate
doctrine applies to non-rate related terms, such as regulations on stray
voltage.
WISCONSIN SUPREME COURT
TUESDAY, SEPTEMBER 11, 2007
1:30 p.m.
2005AP3087-CR State
v. Hambly
This is a
review of a decision of the Wisconsin Court of Appeals, District II
(headquartered in Waukesha), which affirmed a Washington County Circuit Court
decision, Judge Patrick J. Faragher, presiding.
This
petition asks the Supreme Court to review whether defendant Scott Hambly was
subjected to the functional equivalent of an interrogation and if his request
for an attorney was properly honored.
Two
Washington County detectives arrested Hambly as he was leaving his car in the
parking lot of his apartment building on Sept. 22, 2003. Hambly declined a
request to go to the police department to discuss drug transactions that
allegedly involved Hambly.
Hambly
said he didn’t want to talk and asked detectives to come back another day. He
was then arrested and handcuffed. While approacing the squad, Hambly said he
wanted to talk to an attorney, which a detective said he could do later at the
jail.
While
sitting in the squad, Hambly said he didn’t know what was going on, and that he
wanted to talk to a detective to find out what his options were. Hambly did not
ask for an attorney after being read his Miranda rights.
During
a one-hour interview, police told Hambly they believed he sold cocaine to a
police informant, and Hambly allegedly acknowledged doing so.
The
circuit court concluded that the defendant initiated the discussion with the
detective after invoking his right to counsel, and that he freely, knowingly
and voluntarily waived his Miranda rights. A jury found Hambly guilty in a
decision that was upheld by the court of appeals.
Hambly
argues the circuit court should have granted his motion to suppress
incriminating statements, in part, because a detective engaged in the
functional equivalent of an interrogation. He also maintains his right to an
attorney was violated.
A
decision by the Supreme Court could help clarify statutes and past court
decisions regarding the right to an attorney and whether “the functional
equivalent of an interrogation” can be determined by objective test or a
subjective one.
WISCONSIN SUPREME COURT
TUESDAY, SEPTEMBER 12, 2007
9:45 a.m.
2005AP2643 Kevin
Summers v. Touchpoint Health Plan, Inc.
This is a
review of a decision of the Wisconsin Court of Appeals, District III
(headquartered in Wausau), which reversed an Outagamie County Circuit Court
decision, Judge Dee R. Dyer, presiding.
This
case examines whether a particular type of chemotherapy should have been
covered under the provisions of a health-benefit plan and if a court remedy for
the alleged improper denial of benefits was appropriate. The health-benefit
plan was issued by Kimberly Clark Corp. and administered by Touchpoint, a
health maintenance organization.
Some
background: Kimberly Clark employee Kevin Summers’ son, Parker, was diagnosed
with a rare brain tumor in October 2002. Touchpoint approved the referral to UW
Hospital and the surgery to remove the tumor.
After
the surgery, a pediatric oncologist at the hospital recommended treatment of
high-dose chemotherapy with stem-cell rescue because it has a higher cure rate
than conventional chemotherapy. The oncologist sought approval to enroll Parker
in a clinical trial being conducted by a physician at New York University
Medical School, but Touchpoint denied this coverage because the plan excluded
experimental and investigational procedures. The denial was upheld by an
independent review panel.
The
UW Hospital oncologist removed Parker from the study, but gave him the same
treatment. Touchpoint again denied coverage for that treatment in a Dec. 12,
2002 letter, but did not include in its second denial letter information on the
reasons for the denial and how Summers could get review, which is generally
required by federal law.
The
Summers sued in circuit court, which granted summary judgment in favor of
Touchpoint, concluding denial was reasonable, given the policy exclusion. The
Court of Appeals reversed. Although the
Court of Appeals reviewed Touchpoint's denial under a deferential standard
(whether the decision was "arbitrary and capricious"), it concluded
that Touchpoint's second denial was improper because its letter failed to
include the required items. Although the Court of Appeals invalidated the
denial for a procedural error by Touchpoint and not because the treatment was
covered under the terms of the Kimberly Clark health plan, the Court of Cppeals
remanded the case with instructions to the circuit court to order retroactive
reinstatement of benefits.
Touchpoint
argues Supreme Court review is warranted in this case because the Court of
Appeals has ordered a substantive remedy for a procedural violation contrary to
the terms of federal law and court decisions. It also claims that the Court of
Appeals improperly awarded retroactive benefits without the parties having
notice that such a remedy was under consideration.
A
decision by the Supreme Court could help clarify Wisconsin law and how it
interacts with federal law regarding health benefits.
WISCONSIN SUPREME COURT
WEDNESDAY, SEPTEMBER 12, 2007
10:45 a.m.
2006AP1114-CR State
v. Michelle R. Popenhagen
This is a
review of a decision of the Wisconsin Court of Appeals, District III
(headquartered in Wausau), which reversed an Oneida County Circuit Court
decision, Judge Mark A. Mangerson, presiding.
This
case examines whether a person has a protected right to privacy of bank records
under Wisconsin law and how state law interacts with federal law regarding the
question.
Police
say they believe Michelle R. Popenhagen may have improperly obtained as much as
$29,000 from Save More Foods, where she worked in Minocqua. The store owner
claimed that Popenhagen had cashed at the store a number of checks with
insufficient funds or from a closed account and had stolen the store's money
when making deposits into an ATM located in the store.
Minocqua
Police obtained subpoenas for Popenhagen’s bank records from the district
attorney’s office. But there was no record of how the district attorney’s
office obtained a judge’s signature, and the record of the circuit court
proceedings did not indicate findings of probable cause by a judicial officer
as required under Wis. Stat. § 968.12.
When
police confronted Popenhagen with records showing that the amount of missing
money matched deposits she had made, she made a number of self-incriminating
statements.
Popenhagen
filed a motion, seeking suppression of both the bank records and statements,
and the circuit court granted it. The court concluded Popenhagen had a
constitutional right to privacy in her bank records and that suppression was an
appropriate remedy.
The
court of appeals reversed the suppression order, citing the U.S. Supreme Court’s
decision in United States v. Miller, 425 U.S. 435 (1976). In that case,
the Supreme Court concluded that bank records are not private papers of the
account holders, but business records of the bank.
The
state argues that the Court of Appeals relied on well-established precedent,
and that Popenhagen has no legal basis for arguing that the state Constitution
protects bank records.
A decision by the Supreme Court could determine how state and federal law may differ as it relates to privacy of bank records.
WISCONSIN SUPREME COURT
WEDNESDAY, SEPTEMBER 12, 2007
1:30 p.m.
2005AP1638 Hjalmer C. Heikkinen, et al v. United
Services Automobile Assn., et al
This is a
review of a decision of the Wisconsin Court of Appeals, District I
(headquartered in Milwaukee), which affirmed a Milwaukee County Circuit Court
decision, Judge Michael Guolee, presiding.
This
case is essentially an insurance coverage dispute growing out of an automobile
accident on March 25, 2002.
Margaret
Morse drove through a red light and struck a vehicle driven by Hjalmer
Heikkinen, who suffered injuries that resulted in the amputation of one of his
legs and the loss of control over his bladder and bowel functions.
When
the accident occurred, Morse, a member of Christ King Parish in Brookfield, was
on her way to deliver a statue of Mary to a family in a different parish. She
was delivering the statue as part of a program conducted by the Christ King
Legion of Mary, a local branch of a service organization composed of members of
Christ King Parish. Heikkinen and his wife sued Morse and her automobile
insurer, the United Services Automobile Agency (USAA).
Morse,
in turn, brought a third-party complaint against the Archdiocese of Milwaukee,
in which Christ King is located, and against Catholic Mutual, which covered the
archdiocese and the Christ King parish.
While
this case comes to the Supreme Court in the context of whether the circuit
court’s jury instructions and special verdict were adequate, the key question
involves whether Morse’s actions at the time of the accident were covered by
Catholic Mutual's liability insurance certificate.
Although
the Legion of Mary was not listed as a covered organization, the certificate
provided coverage for persons “acting within the scope of their duty or in
their official capacity as such” for the Archdiocese or Christ King Parish.
Catholic
Mutual argues the Court of Appeals’ decision conflicts with current law and is
the first court decision to give the impression that action “on behalf of” an
entity legally means the same thing as “acting within the scope of one’s
duties” for that organization.
A
decision by the Supreme Court could clarify the law and determine the scope of
coverage based on such language.