2010 WI 75
Supreme Court of
Vearl Miller, Wanda Miller and Ross, Dayne and Wade Miller, by Guardian ad Litem Robert Mubarak,
The Hanover Insurance Company and Massachusetts Bay Insurance Company,
Zurich American Insurance Company,
REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at: 321
(Ct. App. 2009-Unpublished)
Submitted on Briefs:
April 15, 2010
Source of Appeal:
Michael J. McAlpine
BRADLEY, J., concurs (opinion filed).
ABRAHAMSON, C.J., joins concurrence.
For the defendant-respondent-cross-appellant-Petitioner
there were briefs by Craig W. Nelson and
Nelson, Connell, Conrad,
For the plaintiffs-appellants-cross-respondents-cross petitioners there were briefs by Jay A. Urban, Jennifer M. Wilson, and Urban & Taylor S.C., Milwawukee; Kent A. Tess-Mattner and Schmidt, Rupke, Tess-Mattner & Fox, S.C., Brookfield; and Robert J. Mubarak and Mubarak, Radcliffe & Berry SC, Tomah, and oral argument by Jay A. Urban.
An amicus curiae brief was filed by James A. Friedman, Katherine Stadler, and
2010 WI 75
This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports.
IN SUPREME COURT
Vearl Miller, Wanda Miller and Ross, Dayne and Wade Miller, by Guardian ad Litem Robert Mubarak,
The Hanover Insurance Company and Massachusetts Bay Insurance Company,
Zurich American Insurance Company,
JUL 13, 2010
A. John Voelker
Acting Clerk of Supreme Court
REVIEW of a decision of the Court of Appeals. Reversed and remanded to the circuit court for further proceedings.
¶1 PATIENCE DRAKE ROGGENSACK, J. We review a decision of the court of appeals affirming the circuit court's order denying Zurich American Insurance Company's (Zurich) motion for relief from a default judgment and limiting Vearl Miller, Wanda Miller and Ross, Dayne and Wade Miller's (collectively, Miller) damages to $2 million. The following issues are presented for our review: (1) whether the circuit court properly entered a default judgment against Zurich for its failure to timely answer Miller's amended complaint; (2) whether the circuit court erroneously exercised its discretion in denying Zurich's motion for relief from the default judgment, pursuant to Wis. Stat. § 806.07(1)(h) (2007–08); and (3) whether the circuit court properly limited Miller's damages to $2 million.
¶2 We conclude that the circuit court erroneously exercised its
discretion in denying
¶3 The facts of this case are lengthy and complicated. On August 11, 2003, Vearl Miller (Vearl) was injured in a car accident in the course of his employment. While operating a vehicle owned by General Parts, Inc. (General Parts), the parent company of Vearl's employer, Car Quest, Vearl was struck by another vehicle. James Smith, Jr. (Smith) was the driver of that vehicle. As a result of the accident, Vearl suffered traumatic injuries, including permanent paralysis from the waist down.
¶4 On June 23, 2004, Vearl and his wife, Wanda Miller (Wanda), filed
a complaint, alleging Smith's negligence.
The complaint claimed damages for Vearl's injuries and for Wanda's loss
of consortium and society and companionship.
The complaint named four defendants:
(1) Smith; (2) Smith's insurer, Acuity Insurance (Acuity); (3)
¶5 On July 9, 2004,
¶6 On November 11, 2004, Miller's counsel wrote a letter to Ratzel, which stated in part:
My understanding is that you
¶7 Ratzel responded to the letter from Miller's counsel on November 15, 2004. The letter stated:
I understand that you are
appearing as co-counsel for the plaintiffs in this matter. In response to your letter of
November 11, 2004, I only represent
Please contact me with any questions or comments. As you are aware, my worker's compensation interest attaches to the policy limits of Acuity but would not come into play as it pertains to any [underinsured motorist] claim. Thank you.
¶8 Miller's counsel corresponded with GAB Robins Risk Management
Services, Inc. (GAB Robins), a third-party claims administrator for General
Parts, on December 13, 2004, and December 27, 2004, regarding
obtaining certified copies of any insurance policies containing underinsured
motorist coverage Zurich had issued to Car Quest or General Parts. On January 6, 2005, Attorney Timothy Lyons
(Lyons) sent a letter to Miller's counsel informing him, among other things,
that his "law firm [had] been retained by GAB Robins Risk Management
Services, Inc., with regard to [Vearl Miller's] claim."
¶9 Acuity agreed to pay its policy limit of $100,000, and Smith
contributed $2,000 to a settlement fund.
A dispute arose over how the funds were to be distributed. On January 18, 2005,
¶10 Eventually, the parties stipulated to an agreed on distribution of
the settlement proceeds. Miller's
counsel filed a letter in the circuit court, dated February 10, 2005,
copying all counsel of record, including Ratzel, asking the court to sign and
approve a stipulation and order for disbursement of the settlement proceeds and
a stipulation and order for partial dismissal of parties. All counsel of record, including Ratzel for
¶11 The order for partial dismissal stated "that only the
defendants James L. Smith, Jr. and Acuity Insurance are hereby dismissed as
defendants in the above matter with prejudice and without costs." With respect to
We are keeping this case open as to all other named defendants. There are potentially other claims involving these defendants and other issues of [underinsured motorist insurance], insurance agent errors and omissions and/or medical malpractice. Thank you.
¶12 In November 2005, the circuit court issued a notice of hearing
setting a scheduling conference for January 10, 2006. The notice was distributed to Miller's
¶13 On January 10, 2006, the day of the scheduling conference,
Miller's counsel sent a letter to the circuit court informing the court of the
status of the case. The letter stated: "Kindly keep this case open for future
proceedings, and we will expect to have additional motions and/or pleadings in
the case within the next couple of months." A copy of this letter was sent to Miller's
¶14 Miller's counsel filed with the circuit court a letter dated June 5, 2006, enclosing an amended summons and complaint, which were filed on June 7, 2006. The letter informed the court of the following:
Enclosed is our Amended Summons and Complaint making claims for additional coverage and/or reducing clause issues on those, as well as other contractual and extra-contractual claims for damages, including bad faith. Two of these insurers are new parties to this action, and all will be served via their respective registered agents.
The amended complaint named
Massachusetts Bay Insurance Company (Massachusetts Bay), Zurich and Hanover as
defendants and claimed, inter alia, that Zurich's commercial automobile
insurance policy provided Miller, as an insured, underinsured motorist
coverage. Contrary to the above-quoted
letter, the amended complaint added only one new party because
¶15 On June 12, 2006, the circuit court issued a notice of hearing
setting a scheduling conference for June 30, 2006. The notice was distributed to Miller's
¶16 On June 20, 2006, Miller served the amended summons and
¶17 On June 30, 2006, the circuit court issued a notice of hearing
setting a scheduling conference for August 28, 2006. The notice was distributed to Miller's
¶19 On September 21, 2006, Attorney Craig Nelson (Nelson) answered
Miller's amended complaint on behalf of
¶20 On December 1, 2006, the circuit court denied
¶25 After extensive discovery, the circuit court conducted a hearing on damages. The circuit court awarded $9,666,314.98 plus costs to Miller. The court then issued an order limiting the amount awarded at the damages hearing to $2 million plus costs because Miller's amended complaint sought $2 million in underinsured motorist coverage and prorating the damages between each of the plaintiffs.
A. Standard of Review
¶29 "Whether to grant relief from judgment under Wis. Stat. § 806.07(1)(h)
is a decision within the discretion of the circuit court," which we review
under the erroneous exercise of discretion standard. Sukala v. Heritage Mut. Ins. Co., 2005
WI 83, ¶8, 282
¶30 "We will not reverse a discretionary determination by the
[circuit] court if the record shows that discretion was in fact exercised and
we can perceive a reasonable basis for the court's decision." Sukala, 282
B. General Principles of
¶31 A circuit court's authority to vacate a default judgment derives
from Wis. Stat. § 806.07. Larry, 311
¶32 Paragraphs (a)–(g) describe specific circumstances for which relief
may be granted; para. (h) "is a 'catch-all' provision allowing relief from
judgment for 'any other reasons justifying relief.'" Sukala, 282
¶33 "Paragraph (1)(h) 'gives the trial court broad discretionary
authority and invokes the pure equity power of the court.'"
determine whether a party is entitled to review under Wis. Stat.
§ 806.07(1)(h), the circuit court should examine the allegations accompanying
the motion with the assumption that all assertions contained therein are
true." Sukala, 282
court appropriately grants relief from a default judgment under para. (1)(h)
when extraordinary circumstances are present justifying relief in the interest
of justice. M.L.B., 122
exercising its discretion in determining whether it should grant relief from a
judgment, the circuit court "must consider a wide range of factors"
in determining whether extraordinary circumstances are present, always keeping
in mind the competing interests of finality of judgments and fairness in the
resolution of the dispute. M.L.B.,
"whether the judgment was the result of the conscientious, deliberate and well-informed choice of the claimant; whether the claimant received the effective assistance of counsel; whether relief is sought from a judgment in which there has been no judicial consideration of the merits and the interest of deciding the particular case on the merits outweighs the finality of judgments; whether there is a meritorious defense to the claim; and whether there are intervening circumstances making it inequitable to grant relief."
circuit court held a hearing on
[Court]: I believe that when the default judgment was granted to the plaintiff that the law said to me that I have to take the averments in the complaint as being correct; and although there is a claim that this is not something that is done in the interest of justice, I'm aware that there is at least one other case where the coverage issue, although there was some coverage, was not an issue that the Court then was able to deal with.
And I believe
under the circumstances that the unfortunate failure to respond to the amended
summons and complaint brings us where we are today. I'm going to deny the motion for relief as
has been requested by
¶39 Zurich argues that the circuit court failed to consider the
appropriate factors in
determining whether extraordinary circumstances are present that justify
vacating the default judgment.
in its brief to this court, Miller argued that "the five-factor interests
of justice test . . . is not controlling in the context of a default
judgment." Citing Estate of Otto
v. Physicians Insurance Co. of Wisconsin, 2008 WI 78, 311 Wis. 2d 84,
751 N.W.2d 805, and Hedtcke v. Sentry Insurance Co., 109 Wis. 2d
461, 326 N.W.2d 727 (1982), Miller contends that in the context of default
judgments, the circuit court need only consider the interest of justice factors
upon a finding of excusable neglect. In
Miller's view, because the circuit court found that
conclude that M.L.B., and subsequent cases, unambiguously establish that
a circuit court is to consider the five interest of justice factors in
determining whether extraordinary circumstances are present under Wis. Stat.
§ 806.07(1)(h) such that relief from a judgment, including a default
judgment, is appropriate. M.L.B.,
122 Wis. 2d at 552–53; see Connor, 243 Wis. 2d 279, ¶41
(applying the five interest of justice factors to determine whether the circuit
court properly exercised its discretion in denying relief from default judgment
under para. (1)(h)); Johns v. Cnty. of Oneida, 201
Miller's reliance on Otto and Hedtcke is misplaced. Both cases involved a motion to enlarge time
under Wis. Stat. § 801.15(2)(a). Otto,
is correct in pointing out that both Otto and Hedtcke state that
a motion to enlarge time may be granted if the circuit court makes a finding of
excusable neglect "'and if the interests of justice would be served by the
enlargement of time.'" Otto,
contrast, Wis. Stat. § 806.07(1)(h), the statute on which
¶45 Johns supports our view that a finding of excusable neglect
is not required for a court to grant relief under Wis. Stat.
§ 806.07(1)(h). In Johns,
the court of appeals was asked to determine whether the circuit court
erroneously exercised its discretion when it denied the Johns' motion for
default judgment against the County for its failure to timely answer the
complaint. Johns, 201
The [circuit] court therefore considered whether it would reopen a default judgment based on § 806.07, and not whether the untimely answer was the result of excusable neglect. Therefore, we conclude that Hedtcke and Martin are inapposite to the issues before us because they deal with excusable neglect and not whether a [circuit] court could properly deny a default judgment if it determined such a judgment would be reopened under § 806.07.
Miller argues that "[t]he five-factor test, however, does not comport with
default judgments. If a defaulting party
can invoke the five-factor test, most of the factors are satisfied simply
because the issue was never joined."
We agree with Miller's assessment that many of the factors will weigh in
favor of a party seeking relief from a default judgment entered for failure to
timely answer. However, we do not agree
that this supports the argument that the interest of justice factors should not
be applied when a party seeks relief from a default judgment; rather, this is
consistent with our stated policy that default judgments are "the ultimate
sanction" and that we regard them "with particular
disfavor." Split Rock, 253
¶47 We conclude that the circuit court set forth inadequate reasons for
its decision at the motion hearing. As
such, we will independently review the record to determine whether there is a
basis for the proper exercise of discretion, including whether the record
provides a reasonable basis for the court's decision. See Connor, 243
¶48 In so doing, we conclude that based on the record in this case, the
circuit court's decision was not reasonable in light of the extraordinary
circumstances present in this case and the numerous errors, procedural and
otherwise, that were generated in part by plaintiff's counsel and the circuit
court personnel who were responsible for listing Ratzel as Zurich's attorney of
record into the CCAP system, see supra ¶22 & note 7.
Accordingly, we conclude, for the reasons that follow, that the circuit
court erroneously exercised its discretion when it denied
¶49 We begin our discussion by applying each of the five interest of
justice factors to the facts of this case.
First, we look to "whether the judgment was the result of the
conscientious, deliberate and well-informed choice of the claimant." Sukala, 282
¶50 In Allstate Insurance Co. v. Brunswick Corp., the circuit
court entered stipulated declaratory judgments dismissing two insurance
companies from the underlying action because under then-existing law, their
policies did not provide coverage for the claims asserted. Allstate, 2007 WI App 221, ¶2, 305
¶51 By contrast, the default judgment in this case was not an issue
presented to and considered by
¶53 Next, we turn to whether
¶54 Third, we look to "whether relief is sought from a judgment in
which there has been no judicial consideration of the merits and the interest
of deciding the particular case on the merits outweighs the finality of
¶55 Fourth, we consider whether
¶56 In its answer,
¶57 The fifth factor we consider is "whether there are intervening
circumstances making it inequitable to grant relief." Sukala, 282
¶58 The extraordinary circumstances test also directs courts to
consider "any other factors bearing upon the equities of the
¶59 Because of the five interest of justice factors weighing in favor of Zurich; the numerous errors, procedural and otherwise, that were generated in part by plaintiff's counsel and the circuit court personnel who were responsible for listing Ratzel as Zurich's attorney of record into the CCAP system; and our policy disfavoring default judgments, we conclude that Zurich has met its burden of proving that extraordinary circumstances exist justifying vacating the default judgment.
¶60 Accordingly, we reverse and remand to the circuit court to vacate
the default judgment. It is implicit
within our order to remand that
¶61 We conclude that the circuit court erroneously exercised its
discretion in denying
¶62 By the Court.—The decision of the court of appeals is reversed and is remanded to the circuit court for further proceedings.
¶63 ANN WALSH BRADLEY, J. (concurring). In my view, the majority is wrong about the law. By converting the holistic inquiry about "extraordinary circumstances" into a formulaic five-part test, it transforms ordinary cases into "extraordinary" ones and undermines the finality of judgments.
¶64 The majority is also wrong about the facts. Its assertion that Ratzel was "
¶65 When I examine the record, I conclude that the circuit court erroneously exercised its discretion——not because it failed to consider five interest of justice factors, but rather because it failed to balance the competing interests of finality and fairness. Considering a range of relevant factors, I conclude that relief is warranted under the facts of this case. Accordingly, I respectfully concur.
¶66 Extraordinary circumstances are not presented by the ordinary
case. However, the analysis set forth by the majority transforms the
ordinary case into the "extraordinary." The majority converts the holistic inquiry
for "extraordinary circumstances" under Wis. Stat.
§ 806.07(1)(h) into a formulaic five-factor test. As a result, it disregards this
court's warning that subsection (h)
"should be used sparingly" and should not be interpreted
"so broadly as to erode the concept of finality." State
ex rel. M.L.B. v. D.G.H.,
¶67 Wisconsin Stat. § 806.07(1)(h)
provides that a court can order relief from a judgment for "[a]ny other
reasons justifying relief from the operation of the judgment." The seminal case addressing the interpretation
and application of subjection
(h) is M.L.B.,
some of the other subsections in § 806.07(1),
there is no time limit for bringing an action under subsection (h). "[T]he ground for granting relief is
'justice' and the time for bringing the motion is 'reasonable.'"
¶69 Recognizing this
concern, the M.L.B. court cautioned: "We are mindful——and the
circuit courts should be mindful——that finality is important and that
subsection (h) should be used sparingly."
achieve the delicate balance between fairness and finality, the court set forth
the "extraordinary circumstances" standard.
¶71 M.L.B. is clear. Extraordinary circumstances are not presented by the ordinary case.
¶72 However, the analysis set forth by the majority converts the holistic inquiry adopted by M.L.B. into a formulaic five-factor test: "We conclude that M.L.B. . . . unambiguously establish[es] that a circuit court is to consider the five interest of justice factors in determining whether extraordinary circumstances are present under Wis. Stat. § 806.07(1)(h) such that relief from a judgment . . . is appropriate." Majority op., ¶41.
five factors set forth by the majority are: (1) whether the judgment was the
result of the conscientious, deliberate, and well–informed choice of the
claimant; (2) whether the claimant received the effective assistance of
counsel; (3) whether relief is sought from a judgment in which there has been
no judicial consideration of the merits and the interests of deciding the
particular case on the merits outweighs the finality of the judgment; (4)
whether there is a meritorious defense to the claim; and (5) whether there are
intervening circumstances making it inequitable to grant relief.
¶74 The majority acknowledges that most default judgments would satisfy
the test it sets forth: "We agree with Miller's assessment that many of
the factors will weigh in favor of a party seeking relief from a default
judgment entered for failure to timely answer."
¶75 In most cases where there is a default, the majority's first factor will weigh in favor of relief because the judgment will not have been "the result of the conscientious, deliberate and well–informed choice of the claimant." Unlike in Brunswick Corporation, discussed by the majority, a defaulting party generally does not choose to concede anything——rather, it simply fails to answer.
¶76 Likewise, the second factor, "whether the claimant received the effective assistance of counsel," will usually weigh in favor of relief from a default judgment. An effective attorney would not likely default and give up a client's defenses to a claim.
¶77 The third factor, "whether relief is sought from a judgment in which there has been no judicial consideration of the merits," will often be present. By definition, there is no judicial consideration of the merits when there is default judgment. Under the majority's analysis, it seems that the "preference to afford litigants a day in court and a trial on the issues" will often outweigh finality. See majority op., ¶54.
¶78 The fourth factor, "whether there is a meritorious defense to the claim," will often be true. If there was no meritorious defense, what reason would the defaulting party have for seeking relief from the judgment?
¶79 It is unclear how the fifth factor, "whether there are intervening circumstances making it inequitable to grant relief," would be applied. If intervening circumstances refer to circumstances that occur after the entry of judgment, this factor does not take into consideration the reasons for default.
¶80 Missing from the majority's test is any consideration of the defaulting party's reasons for defaulting and whether those reasons should be excused. Thus, the majority's test would appear to be equally applicable to a party that intentionally failed to respond to a complaint or was inexcusably negligent.
¶81 Contrary to the majority, I conclude that most default judgments
are ordinary, rather than extraordinary, and will not warrant relief. By failing to actually require
"extraordinary" circumstances, the majority ignores the M.L.B.
court's caution that subsection (h)
"should be used sparingly" and should not be interpreted
"so broadly as to erode the concept of finality." 122
ultimate question for the circuit court should not be whether a party seeking
to reopen a judgment meets a five-factor test.
Rather, it should be a holistic inquiry into whether there are
extraordinary circumstances "such that the sanctity of the final
judgment is outweighed by the incessant command of the court's conscience that
justice be done in light of all the facts."
¶83 In addition to misconstruing the law, the majority misconstrues the
facts. Its assertion that Ratzel was
¶84 At issue here are two different insurance claims: (1) the
prosecution of a Wis. Stat. § 102.29
claim seeking reimbursement of benefits paid to Miller under a worker's
and (2) the defense of a UIM claim made under an automobile liability policy. Even though both policies were issued by
¶85 The basis of the liability for both a Wis. Stat. § 102.29 claim and a UIM claim is the same——the tortfeasor's conduct. But the interests represented by those claims are opposite.
¶86 When prosecuting a § 102.29 claim, the attorney wants to maximize the negligence of the tortfeasor. The greater the negligence, the more money that will be available to reimburse the worker's compensation insurer under the § 102.29 formula.
¶87 The attorney representing the UIM carrier, however, has an interest in minimizing the liability of the tortfeasor. The exposure of the UIM carrier is minimized whenever the negligence of the tortfeasor is minimized.
¶88 Can an attorney in the same case both prosecute a § 102.29 claim and defend a UIM claim? The answer is probably not, because in the usual circumstance the attorney would be representing competing interests. Such dual representation poses the potential for a conflict of interest.
¶89 A central premise of the majority opinion is that relief is
warranted because of "procedural irregularities" that occurred in the
circuit court. The majority asserts that
Attorney Ratzel was
¶90 The irregularities identified by the majority relate to lack of
notice to Ratzel. But Ratzel represented
¶91 In fact, it appears that
¶92 In January of 2005 Lyons sent Miller's counsel a letter stating
that his firm had been retained with regard to Miller's UIM claim, and he asked
for Miller's medical reports. In February, he provided Miller's counsel
with the relevant policy and asserted "[I]t would be our position that
there is no [UIM] coverage." In
¶93 None of the irregularities identified by the majority relate to
Lyons, who appeared to be representing
¶94 I agree that, because Ratzel was representing
¶95 Absent an erroneous exercise of discretion, an appellate court
should not substitute its own judgment for that of the circuit court——even if it would have
decided the issue differently. See
Kolupar v. Wilde Pontiac Cadillac, Inc., 2004 WI 112, ¶22, 275
. . . .
[A]lthough there is a claim that this is not something that is done in the interest of justice, I'm aware that there is at least one other case where the coverage issue, although there was some coverage, was not an issue that the Court then was able to deal with.
And I believe under the circumstances that the
unfortunate failure to respond to the amended summons and complaint brings us
to where we are today. I'm going to deny
the motion for relief as has been requested by
¶97 When denying the motion for relief, the circuit court appeared to
consider only one factor——that
service was proper. It is not surprising
that the circuit court's analysis focused on this one factor, given that the
¶98 Nevertheless, I now review the record to determine whether the circuit court examined the relevant facts and applied a proper standard of law when it denied the motion to vacate the default judgment under Wis. Stat. § 806.07(1)(h) in the interest of justice. The record makes clear that the circuit court failed to balance the competing interests of finality and fairness. I conclude that it erroneously exercised its discretion.
¶99 In independently evaluating the competing interests of finality and
fairness, I determine that extraordinary circumstances are present here. Finality of judgment is an important
consideration. This judgment, however,
had not been final for long when
¶100 Although Zurich did not timely answer the amended complaint, its failure to timely answer was due to an inadvertent mistake of a claims adjuster. The claims adjuster mistook Miller's amended complaint as a duplicate of a complaint that she had already processed. Although the mistake may not rise to the legal standard of "excusable neglect," it does appear to have been an honest mistake.
¶101 Once the mistake was discovered,
¶102 Further, this is not a case where Miller has relied on the default
judgment, and nothing in the record suggests that Miller was prejudiced by
¶103 The competing interest of finality is fairness. Here, there appear to be good reasons that this case should be tried on the merits. A default judgment was entered for a substantial sum of money——$2 million——on an underinsured motorists policy that may not even exist. Fairness weighs in favor of trying this case on the merits.
¶104 For the reasons set forth above, I conclude that extraordinary circumstances are present and that the interest in finality is overcome by the interest in fairness. Therefore, I determine that relief under Wis. Stat. § 806.07(1)(h) is warranted.
¶105 Ending the inquiry here leaves unanswered a procedural question that is bound to cause uncertainty on remand. The majority orders relief from judgment under subsection (h), and it remands to the circuit court to vacate the default judgment and decide this case on the merits. These instructions appear to leave the parties in procedural limbo.
¶106 In the circuit court,
¶107 Because the motion to enlarge time was denied,
¶108 Wisconsin statutes provide that the circuit court may enlarge
When an act is required to be done at or within a specified time, the court may order the period enlarged but only on motion for cause shown and upon just terms. . . . If the motion is made after the expiration of the specified time, it shall not be granted unless the court finds that the failure to act was the result of excusable neglect.
¶109 In Hedtcke v. Sentry Insurance Co., 109
¶110 What, then, is the circuit court to do on remand? It has determined that there is no excusable
neglect. Yet, under
¶111 For the reasons set forth above, I conclude that the circuit court
failed to exercise its discretion when it denied Zurich's motion for relief
under Wis. Stat. § 806.07(1)(h). I further conclude that extraordinary
circumstances are present here. On
remand, the circuit court will have to address the next question: whether,
given its prior conclusion that there was no excusable neglect, it can grant
¶112 I am authorized to state that Chief Justice SHIRLEY S. ABRAHAMSON joins this concurrence.
 Miller v. Hanover Ins. Co., No. 2008AP1494, unpublished slip op., ¶13 (Wis. Ct. App. July 30, 2009).
 The Honorable Michael
J. McAlpine of
 All further references to the Wisconsin Statutes are to the 2007–08 version unless otherwise indicated.
 Contrary to the concurrence's
I am the attorney for GAB Robins . . . .  I have never entered an appearance in this
case, as neither GAB Robins nor General Parts/CarQuest have been a party to
this case.  I have not represented
Accordingly, we disagree with
the concurrence's assertion that
 At various times throughout this proceeding, Miller's counsel has argued that Zurich was dismissed from the case after the worker's compensation claim was resolved, citing to an order for dismissal and disbursements pursuant to Wis. Stat. § 102.29 entered by the circuit court on January 17, 2006. This order enumerated the same distribution of settlement proceeds as the court's February 11, 2005 order for disbursement of settlement proceeds and stated that "after the provisions of the above agreement have been effectuated, the above-entitled action shall be dismissed as it pertains to the defendants with prejudice and without costs and that an Order to that effect may be entered without notice." Attached to the order for dismissal is a note dated January 19, 2006, which states "Case remains open for future proceedings."
This order was mistakenly entered by the circuit court
and was not sent to the parties or to counsel.
Indeed, at the hearing on
[Court]: As I indicated the other day, [the January 17,
2006 order] obviously was in error and that order that dismissed
. . .
[Attorney Craig Nelson for Zurich]: With respect to the Court's order that the January 17, 2006, order is vacated, do I——do I understand properly that that order is vacated as of today?
[Court]: Well, actually it was mistakenly entered and the order is an order that really I view as a nullity since it was mistakenly entered . . . . And I also don't believe . . . that that order was ever provided to either Mr. Ratzel or Mr. Mubarak[, Miller's co-counsel,] or anybody else for that matter. So I——and the reason that I say that is that I don't know that there would have been anyone that would have therefore relied on that order.
The circuit court's order entering default judgment against
On motion and upon such terms as are just, the court, subject to subs. (2) and (3), may relieve a party or legal representative from a judgment, order or stipulation for the following reasons:
(a) Mistake, inadvertence, surprise, or excusable neglect;
. . .
(h) Any other reasons justifying relief from the operation of the judgment.
 A search of the CCAP
database on June 1, 2010, lists Ratzel as an attorney for
 Dugenske v. Dugenske
cites to Wis. Stat. § 269.46, which was "replaced by section 806.07,
Stats., [and] contains a similar provision for relief from
judgments." Dugenske, 80
 Martin v. Griffin, 117
 We do not agree with
the concurrence's assertion that Ratzel probably could not have represented
Acuity, Smith's insurer, agreed to pay its policy
limit of $100,000, and Smith contributed $2,000 to a settlement fund on
Miller's negligence claim. There was no
dispute as to the negligence of the tortfeasor, Smith. Because Smith's negligence was undisputed and
because Acuity offered its full policy limit, thereby removing the potential
 For example, counsel
for Miller sent a letter to the circuit court on January 10, 2006, requesting
that it keep the case open for future proceedings. Neither
 Majority op., ¶50 (citing Allstate
Ins. Co. v. Brunswick Corp., 2007 WI App 221, 305
 Although I agree with
the majority that a defaulting party need not meet the legal standard for
excusable neglect to be entitled to relief under subsection (h), I conclude
that a defaulting party's
reason for defaulting will likely weigh heavily in this inquiry. See Johns v. County of Oneida, 201
 Wisconsin's worker's
compensation statutes provide that an "employer or compensation insurer
who shall have paid or is obligated to pay a lawful claim under [worker's
compensation] shall have the same right to make [a] claim or maintain an action
in tort against any other party for such injury or death."
 Under most
circumstances, underinsured motorist coverage may come into play when there is
a tortfeasor from whom the plaintiff is legally entitled to recover
compensatory damages and that tortfeasor's insurance is insufficient to cover
the liability incurred. If
 An insurer seeking subrogation
is often named as an "involuntary plaintiff." "The statutory scheme under section
803.03(2) contemplates inclusion of a subrogated party claiming medical
expenses as a plaintiff." 2
 The letter stated in part: "With regards to [a] potential UIM claim, I am obtaining certified copies of the pertinent policy. I have reviewed an uncertified copy, but I want to obtain a certified copy before any decisions are made. Until I have that, I cannot tell you our position on whether there is any UIM coverage or not. It would appear that there may not be, in this case, but I cannot make that analysis until I have a certified copy of the policy."