author: DEININGER, J.

text:
    In the Matter of the Guardianship of Scott G. G.: Marjorie A. G., Petitioner-Appellant, v. Dodge County Department of Human Services, Respondent-Respondent.
    Court of Appeals

      No. 02-1121.

      Submitted on briefs November 11, 2002.

    Decided February 27, 2003.

    2003 WI App 52
    (Also reported in 659 N.W.2d 438.)

      On behalf of the petitioner-appellant, the cause was submitted on the briefs of John A. Stocking of Petrie & Stocking, S.C., Milwaukee.

      On behalf of the respondent-respondent, the cause was submitted on the brief of Steven G. Bauer, assistant corporation counsel of Juneau.
    Before Vergeront, EJ., Roggensack and Deininger, JJ.
   DEININGER, J.

¶ 1. Marjorie A.G., guardian of her disabled son Scott, appeals an order which denied her request to transfer her ward's property to a "Medicaid Payback Trust." She claims the circuit court erred in concluding that the transfer in question is not among those permitted by Wis. Stat. § 880.19 (2001-02), which governs the authority of guardians to manage their wards' property. We conclude that § 880.19(5)(b) permits the proposed transfer because it is an "exchange [of] property of the guardianship estate . . . for the purpose of... providing for the ward's care." Id. Accordingly, we reverse the appealed order and remand for the circuit court to determine whether, and on what terms, the proposed transfer should be approved. See id.

BACKGROUND

¶ 2. Scott G. is forty-one years old and has been under guardianship throughout his adulthood due to "developmental disabilities attributable to mental retardation." Scott's mother, Marjorie A.G., is his guardian. In 1992, the federal government awarded Scott some $360,000 under the Vaccine Compensation Act. In addition, the settlement of Scott's claim provided him with a monthly annuity which now pays some $6,000 per month.

¶ 3. Marjorie, as Scott's guardian, established a trust in 1991 to receive the Vaccine Compensation Act payments. Marjorie deposited the 1992 lump sum payment and all subsequent monthly payments directly into Scott's trust. She petitioned the court in 2001 to retroactively authorize these transfers of Scott's property to the trust, averring that:

The Trust was created specifically to conform to federal and state rules, which permitted Scott, as a recipient of Supplemental Security Income ("SSI") and Medical Assistance benefits ("MA") to have such a Trust, and to have the Vaccine Compensation payments deposited directly into the Trust.

Marjorie further averred that she did not report and account for these payments as guardianship assets because she viewed them as "deposits to the Trust" for which she was a mere "conduit," and because the court had notified her that she could discontinue annual financial reports as guardian because "all Scott's income was being used for his care."

¶ 4. Marjorie's petition requested the court to both retroactively approve the past transfers and order that all future monthly annuity payments "shall be assigned to the Trust." Marjorie asserted that Scott "will require 24 hour care for the rest of his life"; that although he now lives with Marjorie, he relies "on daily care provided through a Medical Assistance funded program"; and that if the transfers to the trust were not allowed, "Scott will be ineligible for any public benefit program[,] [h]is funds will be depleted and, after my death, he will require institutionalization."

¶ 5. The court appointed a guardian ad litem, who recommended that Marjorie's petition be granted. The Dodge County Human Services and Health Department, however, notified the court that it objected to the petition and requested a hearing on the matter. At the hearing, the department informed the court that it did not oppose the approval of prospective transfers to a trust, but it argued that the court could not enter a "nunc pro tunc" order approving all past payments to the trust. The court tentatively approved Marjorie's transfer of "all future monies received by the guardian by monthly annuity," and requested that Marjorie submit an order acceptable to the department. The court also asked the parties to brief the retroactivity issue.

¶ 6. The parties could not agree, however, on the trust provisions necessary for the trust to receive Scott's future annuity payments. The court then issued a decision and order in which it concluded that "it would be improper to issue [an] order nunc pro tunc to 1992." It also concluded that "[t]he reasoning of [Michael S.B. v. Berns, 196 Wis. 2d 920, 540 N.W.2d 11 (Ct. App. 1995)] precludes the type of transfer sought here." Accordingly, the court declined to approve either the past or future transfers of the Vaccine Compensation payments to a trust for Scott's benefit, and it ordered that all current trust assets and the future payments be held and accounted for in the guardianship estate.

¶ 7. Marjorie moved for reconsideration, "requesting that all guardianship assets, both those previously received and those to be received in the future, be transferred to a trust that meets all current Medical Assistance requirements." (She did not ask the court to reconsider its refusal to retroactively approve past transfers to the 1991 trust.) In support of her new request, Marjorie asserted that a transfer of Scott's property to a newly-established "Medicaid Payback Trust" was in his best interest, authorized by Wis. Stat. §§ 49.454(4) and 880.19(5)(b), and consistent with Michael S.B. The department, however, now "having the benefit of the Court's decision," reversed its position on future transfers and argued that Marjorie's motion for reconsideration should be denied.

¶ 8. The court denied the motion in a decision and order entered on January 22, 2002. In it, the court emphasized that it did not disapprove of the proposed transfer as a discretionary matter, but believed the proposed transfer was simply not authorized by law:

A Medicaid payback trust certainly comes closer to "preserving" the ward's assets than gifting [as in Michael S.B.} would. It is clear to the Court that the proposed trust would — at least — maximize the financial resources available for Scott [ ]'s care. However, while it is necessary, it is not enough for a guardian's actions to be in the ward's best interest. A guardian's actions must also comply with the law.... [TJhis Court is convinced that Wisconsin Law does not currently permit guardians for unmarried wards to transfer guardianship assets into irrevocable trusts.

¶ 9. Marjorie filed her notice of appeal from the January 22 order on April 19, 2002. The department moved to dismiss the appeal on the grounds that this court lacks jurisdiction over an appeal from an order denying reconsideration "where the only issues raised on the motion for reconsideration were disposed of in the prior order [of December 18, 2001]," the time for appeal of which had expired. We concluded, however, that Marjorie's reconsideration motion, which contained a request for approval of only the prospective transfer of assets to a newly proposed trust, and which was supported by new arguments as to why this was legally permitted, satisfied "the new issue test."

¶ 10. Accordingly, the January 22 order, but only that order, is properly before us. That is, the only issue we address is whether a guardian may, with court approval, transfer a ward's assets to a "Medicaid Payback Trust" as proposed by Marjorie. We do not address any questions relating to Marjorie's past handling of the Vaccine Compensation payments, the circuit court's authority to enter "nunc pro tunc" orders approving past transfers, or the suitability of the 1991 trust as a recipient of Scott's payments.

ANALYSIS

¶ 11. Under state and federal law, assets an individual transfers to a trust for his or her own benefit are generally treated as the person's assets for purposes of determining his or her eligibility for medical assistance benefits. See Wis. Stat. § 49.454; 42 U.S.C. § 1396p(d)(2)(A). An exception is made, however, for what are known as "Medicaid Payback Trusts":

A trust containing the assets of an individual under age 65 who is disabled ... and which is established for the benefit of such individual by a parent, grandparent, legal guardian of the individual, or a court if the State will receive all amounts remaining in the trust upon the death of such individual up to an amount equal to the total medical assistance paid on behalf of the individual under a State plan under this subchapter.

42 U.S.C. § 1396p(d)(4)(A) (emphasis added).

¶ 12. The Wisconsin Legislature has expressly-adopted the quoted exception for Medicaid Payback Trusts. See Wis. Stat. § 49.454(4) ("This section does not apply to any trust described in 42 U.S.C. 1396p(d)(4) . . . ."). Marjorie first argues, therefore, that because the incorporated federal statute recognizes that a guardian may establish such a trust for his or her ward, she is authorized by § 49.454(4) to transfer Scott's property to a Medicaid Payback Trust even if Wis. Stat. ch. 880 would not permit such a transfer. We do not address this contention, however, because we agree with Marjorie's second argument — that Wis. Stat. § 880.19 permits the transfer in question.

¶ 13. Wisconsin Stat. § 880.19 governs a guardian's management of his or her ward's assets. Whether the statute permits a guardian to transfer a ward's assets to a trust of the type Marjorie proposes is a question of law which we decide de novo. See Michael S.B., 196 Wis. 2d at 928. Under § 880.19(1), a guardian must "take possession of all of the ward's real and personal property," and "protect and preserve it. .. account for it faithfully. . . and at the termination of the guardianship . . . deliver the assets of the ward to the persons entitled thereto." As to "sales and other dispositions" of a ward's property, the statute provides:

The court, on the application of the guardian of the estate or of any other person interested in the estate of any ward, after such notice if any, as the court directs, may authorize or require the guardian to sell, mortgage, pledge, lease or exchange any property of the guardianship estate upon such terms as the court may order, for the purpose of paying the ward's debts, providing for the ward's care, maintenance and education and the care, maintenance and education of the ward's dependents, investing the proceeds or for any other purpose which is in the best interest of the ward.

Section 880.19(5)(b) (emphasis added).

¶ 14. Marjorie contends that the language of Wis. Stat. § 880.19(1) and (5)(b) permits a court to approve the transfer she proposes. Marjorie asserts that, without the transfer, Scott "will not qualify for Medical Assistance or community programs, and he will lack insurance coverage to meet his very high medical and therapy costs." She argues that transferring the assets to a trust that will permit Scott to receive medical assistance and other governmental benefits will thus fulfill her duty to "protect and preserve" Scott's assets. See § 809.19(1). She notes that utilization of the Medicaid Payback Trust will avoid the depletion of the guardianship estate, making Scott's assets available to meet his considerable needs that are not met by the governmental programs.

¶ 15. Marjorie goes on to assert that a transfer of Scott's assets to a Medicaid Payback Trust is an "exchange" authorized under Wis. Stat. § 880.19(5)(b) because Scott will receive the beneficial interest in the trust in return for relinquishing his legal title to the property. See § 880.19(1) (title to guardianship property remains in the ward notwithstanding the guardian's possession). Furthermore, according to Marjorie, because the proposed exchange is "for the purpose of paying the ward's debts [and] providing for the ward's care," a court may authorize her to make it "upon such terms as the court may order." Section 880.19(5)(b). We agree that under the plain language of § 880.19(5)(b) a circuit court may approve the transfer of guardianship assets to a Medicaid Payback Trust for the benefit of a ward.

¶ 16. The department urges us, however, to adopt the circuit court's reasoning that, because Wis. Stat. § 880.175 expressly authorizes a transfer to "an existing revocable living trust created by the person for the benefit of himself or herself and those dependent upon the person for support," the absence of similar authority in Wis. Stat. ch. 880 for a guardian to establish a Medicaid Payback Trust means the legislature did not intend to grant such authority. In the department's view, Marjorie's interpretation of Wis. Stat. § 880.19(1) and (5)(b) would render § 880.175 "surplusage" because, if the former statute permits transfers to existing trusts for the benefit of the ward, there would have been no need for the legislature to enact the latter. Thus, according to the department, § 880.19 cannot be read so broadly, and the lack of a separate provision authorizing guardians to establish Medicaid Payback Trusts is fatal.

¶ 17. We are not persuaded by this argument. Wisconsin Stat. § 880.175 was enacted in 1969. See Laws of 1969, ch. 267. Its apparent purpose, at least in part, was to permit a court to effectuate an existing estate plan created by a ward prior to his or her incapacity, by allowing the court to transfer a ward's property to "an existing revocable living trust created by the person." Section 880.175. Significantly, such a trust may benefit not only the ward but also "those dependent upon the [ward] for support," and a request for the transfer may come from "a parent, the spouse, any issue or next of kin" of the ward, who presumably might benefit from the trust. Id.

¶ 18. The fact that the legislature saw fit by enacting Wis. Stat. § 880.175 to authorize a specific type of transfer which might otherwise be deemed contrary to the requirement in Wis. Stat: § 880.19(1) that a guardian "protect and preserve" a ward's property, cannot be taken to imply legislative disapproval of exchanges of property, such as the one proposed by Marjorie, which plainly come within the allowable purposes specified in § 880.19(5)(b). Under the applicable federal and state statutes, a Medicaid Payback Trust may benefit only the ward, and its use permits the ward to qualify for substantial medical benefits. The transfer will thus plainly serve the purpose of "providing for the ward's care." Id. We agree with the department's contention in the circuit court that "[t]he fact that someone is incompetent and under guardianship should not prevent that person from being able to avail themselves of the extra resources for care that can flow from creating such a trust."

¶ 19. We next address the impact of our opinion in Michael S.B. v. Berns, 196 Wis. 2d 920, 540 N.W.2d 11 (Ct. App. 1995), on the present facts. The circuit court concluded that the "reasoning in [.Michael S.B.} precludes the type of transfer sought here." That is not the case, however. We concluded in Michael S.B. that "the guardian's duty in § 880.19 to 'preserve' estate assets does not include distributing guardianship estate assets to reduce estate taxes." Id. at 931. In determining that such a depletion of the ward's estate by gifting was also not among the allowable purposes enumerated in Wis. Stat. § 880.19(5)(b), we noted that "[t]he four specific purposes have in common the goal of providing for the immediate financial needs of the ward." Id. at 932. Here, as we have discussed, the proposed transfer to a Medicaid Payback Trust furthers precisely this goal by increasing the resources available to Scott to meet his many needs. In short, we conclude that nothing we said in Michael S.B. precludes the result we reach today.

¶ 20. Finally, we note that courts in other jurisdictions which have considered the question have come to the same conclusion we do here. The Connecticut Supreme Court decided in Department of Social Services v. Saunders, 724 A.2d 1093 (Conn. 1999), that a probate court was authorized to permit the conservator of a disabled ward "to establish an irrevocable . . . trust funded with the net proceeds recovered in the settlement of a negligence action. . . which would not be considered an available resource for the purpose of determining ongoing medicaid eligibility." Id. at 1094-95. The trust in question, like the trust Marjorie proposes, was "drafted in conformity with the specifications of 42 U.S.C. § 1396p(d)(4)(A)." Id. at 1096.

¶ 21. The relevant Connecticut statute directed that "[t]he conservator shall manage all the estate and apply so much of the net income thereof, and, if necessary, any part of the principal of the property, which is required to support the ward." Id. at 1100. The court found this language "broad enough to encompass the creation of the trust at issue in this appeal." Id. In rejecting the department's argument to the contrary, the court reasoned as follows:

Although transferring a ward's assets into a trust does indeed divest the ward of legal title to the assets, the ward remains the sole person who can benefit from the trust. [The ward] is, therefore, the equitable owner of the assets.... [C]reation of the trust permits [the ward] to benefit from the tort settlement for a much longer period of time than he would if the trust were not allowed. Legal title to the assets would he a meaningless possession if purchased at the cost of years worth of additional supplemental needs.

Id. at 1105 (footnotes omitted).

¶ 22. We conclude that the Connecticut Supreme Court's determination that a statute similar to Wis. Stat. § 880.19(1) permits the transfer of a ward's property to a Medicaid Payback Trust lends persuasive support to our conclusion that the Wisconsin statute does likewise. Moreover, as we have discussed, the existence of § 880.19(5)(b) renders our statute even more amenable to such an interpretation.

¶ 23. In closing we note that Marjorie acknowledges that, among the terms the circuit court might order if it decides to approve the transfer, is a requirement that the trustee provide "the same annual accounting required in a guardianship matter." The department argued in the circuit court that the court could approve the proposed transfer to a Medicaid Payback Trust "by providing the protections under guardianship law that the trust actually be for the care of the ward," as well as ordering "protections for the preservation of the corpus" such as "prohibitions and restrictions on investments and distributions." Because the record contains no draft of the new trust document Marjorie proposes, we do not know whether it contains such provisions. In any event, whether the requested transfer should be approved and, if so, on what terms, are matters on which the circuit court — not this court —should exercise its discretion. We remand to permit the circuit court to do so.

CONCLUSION

¶ 24. We conclude that Wis. Stat. § 880.19(5)(b) permits the proposed transfer as an "exchange [of] property of the guardianship estate ... for the purpose of. . . providing for the ward's care." Id. Accordingly, we reverse the appealed order and remand for the circuit court to determine whether and upon what terms Marjorie may transfer guardianship assets to a Medicaid Payback Trust.

By the Court. — Order reversed and cause remanded.

       All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.

       The circuit court did not conduct an evidentiary hearing on the issue under review. It does not appear, however, that such a proceeding was necessary because neither party asserts the existence of a factual dispute. The background facts are taken from the circuit court's orders, and from the parties' pleadings, memoranda and briefs.

       Although he did not file a separate brief in this court, the guardian ad litem has informed us that he supports Marjorie's position in this appeal as being in Scott's best interest.

       Marjorie notes that the department initially agreed with this proposition. In a memorandum to the circuit court, the department asserted that the "exchange of guardianship property for a property interest in an irrevocable trust would be an allowable exchange under the laws of guardianship if the exchange involves court-ordered terms that the trust meet the requirements of a 'Medicaid Payback Trust', and includes clauses to give the trust the same protections as given guardianship property." The department, however, is not estopped from arguing on appeal that such a transfer is not statutorily authorized. The circuit court ruled contrary to the department's contention, and it is "not forever bound to a losing argument." Harrison v. LIRC, 187 Wis. 2d 491, 497, 523 N.W.2d 138 (Ct. App. 1994). As we discuss, we conclude the department was right the first time.

        See also Guardianship & Conservatorship of Watkins, 947 P.2d 45 (Kan. Ct. App. 1997) (concluding that conservator of two disabled wards was authorized under state law to establish trusts meeting the requirements of 42 U.S.C. § 1396p(d)(4)(A)); Matter of Moretti, 606 N.Y.S.2d 543, 547-48 (N.Y. Sup. Ct. 1993) (same, and further concluding that to the extent state statutes might restrict a guardian from establishing a Medicaid-qualifying trust recognized by federal law, "they are not binding on this court since any such inconsistency would be violative of the supremacy clause" of the U.S. Constitution).

       The Connecticut Supreme Court noted in Department of Social Services v. Saunders, 724 A.2d 1093 (Conn. 1999), that a probate court in that state
      may exert considerable influence over the terms of the trust, thus ensuring that the trust would he managed to the court's satisfaction. Moreover, the Prohate Court will have jurisdiction over Saunders' accounts in her capacity as conservatrix .... The statutorily granted power to demand periodic accounting of a conser-vatrix further demonstrates the court's continuing supervision of Saunders and her use of the trust assets. Finally, under [the Connecticut statute] which provides that "[a]ny beneficiary of an inter vivos trust may petition a court of probate having jurisdiction ... for an accounting by the trustee," the department, as remainderman of the trust, will have standing to petition for an accounting should it question the trustee's use of the trust assets. Therefore, although the form of ownership of Jamie's estate will change, Saunders' responsibilities will remain the same and the Probate Court will continue to have jurisdiction over her as both conservatrix and trustee.

        Id. at 1105-06 (citations and footnotes omitted). We conclude that Wisconsin circuit courts possess similar authority. See, e.g., Wis. Stat. §§ 701.14, 880.192, and 880.25-.253. See also Guardianship & Conservatorship of Watkins, 947 P.2d at 48 ("We recognize the added responsibility placed on Kansas courts, given this ruling, to both scrutinize a trust to insure compliance with both state and federal law and to require accountings to insure that the trust assets are not wasted or dissipated contrary to law.").


source: Caselaw Access Project

author: DYKMAN, J.

license: Public Domain

text:
    State of Wisconsin ex rel. Darrell W. Griffin, Petitioner-Appellant, v. Jon E. Litscher, Respondent-Respondent.
    Court of Appeals

      No. 02-1704.

      Submitted on briefs November 11, 2002.
    Decided February 27, 2003.

    2003 WI App 60
    (Also reported in 659 N.W.2d 455.)

      On behalf of the petitioner-appellant, the cause was submitted on the brief of Darrell W. Griffin, pro se.

    On behalf of the respondent-respondent, the cause was submitted on the brief of Charles D. Hoornstra, assistant district attorney, and James E. Doyle, attorney general.
    Before Vergeront, PJ., Dykman and Roggensack, JJ.
   DYKMAN, J.

¶ 1. Darrell W. Griffin appeals from an order quashing his petition for a writ of mandamus. Griffin asserts that the trial court erred when it concluded that the provisions of Okla. Stat. Ann. tit. 57, § 138 (West 2001) did not entitle him to credit against his Wisconsin prison sentence. He seeks reversal of the order quashing his petition and a recalculation of his sentence to include one thousand and eighty-six days of Oklahoma "earned and achievement credits." We conclude that Wisconsin and not Oklahoma law determines the length of Griffin's sentence. We therefore affirm.

BACKGROUND

¶ 2. Griffin was sentenced in Milwaukee County Circuit Court on November 12, 1992, to twenty-two years in prison for attempted homicide and armed robbery. On January 6, 1999, he was transferred to the North Fork Correctional Facility in Sayre, Oklahoma. North Fork is a private prison operated by the Corrections Corporation of America. The Department of Corrections contracts with CCA to house Wisconsin prisoners in out-of-state institutions pursuant to Wis. Stat. § 301.21(2m) (2001-02).

¶ 3. When Griffin first attempted to file a petition for a writ of mandamus seeking credits under the provisions of Okla. Stat. Ann. tit. 57, § 138 for his time served at North Fork, the trial court denied Griffin a fee waiver for his petition because Griffin could not establish a clear legal right to relief as required by Wis. Stat. § 814.29(1)(c). The trial court concluded that Wis. Stat. § 301.21(1m)(b) and (2m)(b) applied only to the conditions of confinement, not to a sentence's duration, and therefore Griffin's petition failed to state a claim. Griffin then petitioned for a supervisory writ. We granted the writ and directed the trial court to grant the fee waiver and allow Griffin's action to proceed. Concluding that the trial court had applied the wrong legal standard, we stated that "[t]here is a significant distinction between whether a complaint states a claim for relief for fee waiver purposes, and whether the plaintiff is ultimately entitled to relief on the merits. It appears that the trial court applied the latter standard to deny the fee waiver." State ex rel. Darrell W. Griffin v. Circuit Court for Dane County, No. 02-0001-W (Ct. App. Feb. 20, 2002) at 2 (citation omitted).

¶ 4. The trial court issued an alternative writ of mandamus on March 19, 2002, and the department moved to quash. The trial court granted the department's motion in a decision and order issued on June 10, 2002, again concluding that Griffin had failed to establish a clear legal right to relief and therefore mandamus was not warranted. Griffin appeals.

ANALYSIS

¶ 5. Mandamus is an extraordinary writ which may be used to compel a public officer to perform a duty which he or she is legally bound to perform. Karow v. Milwaukee County Civil Serv. Comm., 82 Wis. 2d 565, 568 n.2, 263 N.W.2d 214 (1978). There are four prerequisites for issuance of a writ of mandamus: (1) a clear legal right; (2) a positive and plain duty; (3) substantial damages; and (4) no other adequate remedy at law. Pasko v. City of Milwaukee, 2002 WI 33, ¶ 24, 252 Wis. 2d 1, 643 N.W.2d 72 (citation omitted).

¶ 6. A motion to quash a writ of mandamus is treated the same as a motion to dismiss a complaint in a civil action. Wis. Stat. § 783.01. The facts pleaded and all reasonable inferences from the pleading must be taken as true. State ex rel. Dalton v. Mundy, 80 Wis. 2d 190, 195 n.5, 257 N.W.2d 877 (1977). The petition will be dismissed only when it is quite clear that under no conditions can the plaintiff recover. See State v. American TV & Appliance of Madison, Inc., 146 Wis. 2d 292, 300, 430 N.W.2d 709 (1988). Whether a complaint or petition states a claim for which relief may be granted is a question of law which we review de novo. Bartley v. Thompson, 198 Wis. 2d 323, 331, 542 N.W.2d 227 (Ct. App. 1995).

¶ 7. The issue of this appeal is whether Griffin is entitled to earned credits under Oklahoma law and therefore meets the first prong of mandamus, that is, a clear legal right to the relief he seeks. Griffin argues that because he is incarcerated in a correctional facility located in Oklahoma, he is subject to all the statutes pertaining to inmates in the State of Oklahoma prison system. Griffin submits that, just as Oklahoma inmates are given earned credits against their sentences for every month of incarceration, he should receive the same credits for his confinement at North Fork, even though he is a Wisconsin prisoner. The basis for his claim is Okla. Stat. Ann. tit. 57, § 138, which provides:

Earned credits — Eligibility A. Except as otherwise provided by law, every inmate of a state correctional institution shall have their term of imprisonment reduced monthly, based upon the class level to which they are assigned. Earned credits may be subtracted from the total credits accumulated by an inmate, upon recommendation of the institution's disciplinary committee, following due process, and upon approval of the warden or superintendent. Each earned credit is equivalent to one (1) day of incarceration. Lost credits may he restored by the warden or superintendent upon approval of the classification committee. If a maximum and minimum term of imprisonment is imposed, the provisions of this subsection shall apply only to the maximum term. No deductions shall be credited to any inmate serving a sentence of life imprisonment; however, a complete record of the inmate's participation in work, school, vocational training, or other approved program shall be maintained by the Department for consideration by the paroling authority.

(Emphasis added.)

¶ 8. Griffin argues that the Oklahoma law applies to him, a Wisconsin prisoner, because of language in Wis. Stat. § 301.21(2m). The relevant provisions are as follows:

(2m) (a) The department may enter into one or more contracts with a private person for the transfer and confinement in another state of prisoners who have been committed to the custody of the department....
(b) While in an institution in another state covered by a contract under this subsection, Wisconsin prisoners are subject to all provisions of law and regulation concerning the confinement of persons in that institution under the laws of that state.

Seizing on the phrase "Wisconsin prisoners are subject to all provisions of law and regulation concerning the confinement of persons in that institution under the laws of that state," Griffin contends that § 301.21(2m) "serves as a bridge to the laws of the state where the Wisconsin inmates have been sent." Thus he concludes that the Wisconsin statute unambiguously permits him to accrue the earned credits available to Oklahoma inmates under Okla. Stat. Ann. tit. 57, § 138. We disagree with this reading of § 301.21(2m).

¶ 9. The construction of a statute presents a question of law which we review de novo. State ex rel. Treat v. Puckett, 2002 WI App 58, ¶ 9, 252 Wis. 2d 404, 643 N.W.2d 515. The predominant goal of all statutory interpretation is to ascertain legislative intent. Caflisch v. Staum, 2000 WI App 113, ¶ 7, 235 Wis. 2d 210, 612 N.W.2d 385. We look first to the plain language of a statute to determine its meaning. Pasko, 2002 WI 33 at ¶ 26. If we can determine a statute's meaning based upon its plain language, our inquiry stops there. Id. If, however, the statute's language is ambiguous, we will consult its legislative history, scope, context and purpose in order to discern the legislature's intent. Evers v. Sullivan, 2000 WI App 144, ¶ 5, 237 Wis. 2d 759, 615 N.W.2d 680.

¶ 10. The hallmark of ambiguity is a statute's ability to support more than one reasonable interpretation. Harnischfeger Corp. v. LIRC, 196 Wis. 2d 650, 662, 539 N.W.2d 98 (1995). While there is a certain logic to Griffin's argument that his incarceration in Oklahoma should entitle him to the same sentence credits granted to Oklahoma prisoners, further examination reveals that his conclusion is unreasonable and does not reflect legislative intent.

¶ 11. First, Wis. Stat. § 973.15(6) provides that, whether confined in a federal institution or an institution in another state, Wis. Stat. §§ 302.11 (mandatory release) and 304.06 (parole) apply to inmates serving a sentence to the Wisconsin state prisons for crimes committed before December 31, 1999. As he was sentenced in 1992, Griffin falls under § 973.15(6). A determination that Griffin was eligible for earned credits provided by Oklahoma law would directly contravene this directive of Wisconsin sentencing law, which provides that his release is calculated pursuant to §§ 302.11 and 304.06.

¶ 12. Second, Griffin's argument regarding the effect of his transfer by the department to North Fork ignores the clear language in Wis. Stat. § 302.18(5), which states:

Transfers of inmates .... (5) Any person who is legally transferred by the department to a penal institution shall be subject to the same statutes, regulations and discipline as if the person had been originally sentenced to that institution, but the transfer shall not change the term of sentence.

¶ 13. In other words, no matter where a prisoner serves his sentence, if he has been sentenced to the Wisconsin prison system and is in the custody of the department, Wisconsin law still controls his sentence, even if the prisoner is transferred to another institution within Wisconsin or to one in another state. Griffin's assertion that he can accumulate Oklahoma earned credits implicitly concludes that, by contracting with CCA to house prisoners at North Fork, the department has relinquished jurisdiction over prisoners transferred there. The department's contract with CCA, however, only delegates day-to-day decisionmaking; the department retains custody and final decisionmaking authority over transferred prisoners. See Treat, 2002 WI App 58 at ¶ 15; Evers, 2000 WI App 144 at ¶ 14 (A "sentence to the Wisconsin state prisons" is a "commitment to the custody of the department.").

¶ 14. Moreover, as a result of Wis. Stat. § 973.01(4) and (6), also known as the Truth-in-Sentencing Law, good time credits and parole have been abolished in Wisconsin for convictions after January 1, 2000. Griffin's interpretation of Wis. Stat. § 301.21(2m)(b) would allow inmates housed out of state to earn credits but deny that same incentive to inmates remaining in Wisconsin correctional institutions. Thus the reading Griffin proposes would render § 973.01 a nullity, and create a loophole for those inmates fortunate enough to be transferred to Oklahoma or another state that provides similar credits. This is an absurd result, which we are to avoid when interpreting statutes. State v. Williams, 198 Wis. 2d 516, 532, 544 N.W.2d 406 (1996); State Bank of Drummond v. Nuesse, 13 Wis. 2d 74, 78, 108 N.W.2d 283 (1961) ("The plain, obvious, and rational meaning of a statute is always to be preferred to any curious, narrow, or hidden sense.").

¶ 15. Further, adopting Griffin's interpretation of Wis. Stat. § 301.21(2m)(b) would require us to disregard the actual words used by the legislature in that statute. The legislature's reference to "provisions of law and regulation concerning the confinement of persons" in § 301.21(2m)(b) means just that: the conditions of confinement and procedures used in the out-of-state institution. Contrary to Griffin's assumption, earned credits do not "fall under [the] umbrella" of laws and regulations "concerning confinement," but are an element of Oklahoma's sentencing system, just as the good time credits abolished by Wis. Stat. § 973.01(4) were a part of Wisconsin's sentencing scheme. This distinction between "confinement" and "sentence" in Wisconsin law is reflected in the legislature's mandate in Wis. Stat. § 302.18(5) that "the transfer shall not change the term of sentence." Had the legislature intended that Wisconsin prisoners transferred to out-of-state institutions be eligible for earned credits or good time, which would decrease the duration of their sentence, it would not have restricted the Oklahoma laws applicable to transferred prisoners to those "concerning confinement."

¶ 16. In addition, we note that Oklahoma law rejects any assertion that the provisions of its sentencing laws apply to inmates sentenced to the Wisconsin prison system but incarcerated in Oklahoma pursuant to a contract between the department and CCA. In Okla. Stat. Ann. tit. 57, § 563.2K, the Oklahoma legislature has preempted Griffin's argument that the reference to "every inmate of a state correctional institution" in tit. 57, § 138 should be read as pertaining to non-Oklahoma inmates:

K. The State of Oklahoma shall not assume jurisdiction or custody of any federal inmate or inmate from another state housed in a facility owned or operated by a private prison contractor. Such inmates from another state shall at all times be subject to the jurisdiction of that state and federal inmates shall at all times be subject to federal jurisdiction. This state shall not be liable for loss resulting from the acts of such inmates nor shall this state be liable for any injuries to the inmates.

In sum, Oklahoma expressly disclaims the authority over out-of-state prisoners that Griffin presupposes.

¶ 17. Finally, Griffin argues that not getting earned credits under Okla. Stat. Ann. tit. 57, § 138 for the time he is incarcerated in Oklahoma violates his constitutional right to equal protection. "Equal protection addresses differential treatment among groups or classes of people who are similarly situated." Hatch v. Sharp, 919 F.2d 1266, 1269 n.4 (7th Cir. 1990). When, as here, the classification is not based upon a suspect class and does not burden the exercise of a fundamental right, it need bear only "a rational relationship to a legitimate government interest" in order to survive an equal protection challenge. State v. Trepanier, 204 Wis. 2d 505, 509-10, 555 N.W.2d 394 (Ct. App. 1996). That a rational basis exists for treating Wisconsin prisoners differently from those persons incarcerated in Oklahoma is obvious. It is entirely rational to distinguish between inmates who have been sentenced to a term of imprisonment by the State of Wisconsin and those who have been sentenced under Oklahoma law. That Griffin is currently housed in a facility located in Oklahoma does not change the fact that he was sentenced by a Wisconsin court and remains in the custody of the Wisconsin Department of Corrections. His transfer to Oklahoma does not trigger a change in his Wisconsin sentence. Therefore we reject his assertion that being denied earned credits available under Oklahoma law to Oklahoma prisoners offends equal protection.

¶ 18. Accordingly, there is no support in the laws of either Wisconsin or Oklahoma for the conclusion that Griffin is entitled to earned credit for that portion of his sentence served at North Fork. The trial court did not err in finding that Griffin failed to state a clear legal right to relief entitling him to mandamus.

By the Court. — Order affirmed.

       All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.

       As explained in Prue v. State, 63 Wis. 2d 109, 116, 216 N.W.2d 43 (1974),
      While it is true that the word "sentence" or "sentencing" may be and often is used in a more general sense ..., nevertheless, "sentence" is a legal term and should be given its legal meaning when used in the statutes and the law unless there are strong indications the term was used in a general sense.
      Thus, "in the language of the criminal law, a sentence of imprisonment is a term of incarceration or supervision on parole which continues until the defendant is finally discharged." Grobarchik v. State, 102 Wis. 2d 461, 468, 307 N.W.2d 170 (1981). In contrast, "confinement" is the noun form of "to confine," which is defined as: "1. To keep within bounds: restrict. 2. To keep shut up: imprison." WebsteR's II New College DICTIONARY 236 (1995).

       Contrary to Griffin's assertion that we should consider his claim under the strict scrutiny standard of review, the appropriate test is whether rational basis exists for the different treatment of Oklahoma prisoners and Wisconsin prisoners housed in Oklahoma pursuant to the department's contract with CCA See, e.g., McGinnis v. Royster, 410 U.S. 263, 270-73 (1973) (using the rational basis test to conclude that denying good time credits for jail time but allowing credits for time spent in prison was not a denial of equal protection since the disciplinary and rehabilitative functions of the good time credit system were related to the prison's function and goals); State v. Aderhold, 91 Wis. 2d 306, 284 N.W.2d 108 (concluding under rational relationship test that denying good time credits for time spent on probation did not violate equal protection); and State ex rel. Khan v. Sullivan, 2000 WI App 109, ¶ 9, 235 Wis. 2d 260, 613 N.W.2d 203 (per curiam) (applying rational relationship test to prisoner legislation).


author: CANE, C.J.

text:
    Bobbie Gohde and Rick Gohde, Plaintiffs-Appellants, v. MSI Insurance Company, Defendant-Respondent.

    Court of Appeals

      No. 01-2121.

      Submitted on briefs January 13, 2003.

    Decided March 4, 2003.

    2003 WI App 69
    (Also reported in 661 N.W.2d 470.)

      On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Mark E. Gilbert of Giebel, Gilbert, Williams & Kohl, P.L.L.R of Roseville, MN.
    On behalf of the defendant-respondent, the cause was submitted on the brief of Joe Thrasher of Thrasher, Doyle, Pelish & Franti, Ltd. of Rice Lake.
    A nonparty brief was filed by Robert L. Jaskulski of Domnitz, Mawicke & Goisman, S.C. of Milwaukee, for The Wisconsin Academy of Trial Lawyers.
    Before Cane, C.J., Hoover, PJ., and Peterson, J.

       Petition to review filed.

   CANE, C.J.

¶ 1. This appeal comes to us on remand from our supreme court. Bobbie and Rick Gohde appealed a summary judgment granted in favor of MSI Insurance Company after the circuit court determined the reducing clause in the Gohdes' underinsured motorist (UIM) policy, issued by MSI, was unambiguous. We summarily affirmed, Gohde v. MSI Ins. Co., No. 01-2121, unpublished slip op. (WI App March 26, 2002). The supreme court summarily reversed and ordered the parties to rebrief in light of its decision in Badger Mut. Ins. Co. v. Schmitz, 2002 WI 98, 255 Wis. 2d 61, 647 N.W.2d 223.

¶ 2. On remand, the Gohdes argue the reducing clause in their UIM coverage is ambiguous under Schmitz's standards and therefore is unenforceable. We agree and reverse the circuit court's judgment.

BACKGROUND

¶ 3. In November 1996, the Gohdes were injured in an automobile accident in Chetek when Jamie Lemke lost control of her vehicle and struck the Gohdes' automobile. Several passengers in Lemke's vehicle were also injured. The Gohdes sued Lemke, and the parties agreed Lemke was 100% causally negligent. Lemke's two State Farm liability policies had limits of $50,000 per person and $100,000 per accident. State Farm paid these limits in varying amounts to the injured parties; Bobbie received $100,000 and Rick, $35,000. Bobbie's stipulated damages, however, were $200,000 and Rick's were $135,000.

¶ 4. The Gohdes sought to recover the difference between their recovery from Lemke and their actual damages under their MSI issued UIM policy. The UIM policy provides $100,000 per person and $300,000 per accident limits. Prior to summary judgment, MSI paid Rick $65,000 and claimed it owed no more to Rick and nothing to Bobbie because of a reducing clause in the UIM policy. The parties filed cross-motions for summary judgment. The Gohdes maintained the reducing clause was ambiguous and unenforceable and, therefore, MSI should pay Bobbie $100,000 and Rick an additional $35,000. MSI argued the reducing clause was unambiguous and claimed it paid all it was obligated to under the policy.

¶ 5. The trial court agreed with MSI and the Gohdes appealed. We summarily affirmed, based on our decision in Sukala v. Heritage Mut. Ins. Co., 2000 WI App 266, 240 Wis. 2d 65, 622 N.W.2d 457. In Sukala, we held a reducing clause that complied with Wis. Stat. § 632.32(5)(i) was valid, enforceable and could not be deemed illusory. See id. at ¶¶ 16-19. We affirmed because the MSI reducing clause complied with this statute. Gohde, No. 01-2121, unpublished slip op. at 2.

¶ 6. After our summary affirmance, the supreme court decided Schmitz. There, the court determined it was not enough for a reducing clause to comply with Wis. Stat. § 632.32(5)(i), but rather the clause's effects must be "crystal clear in the context of the whole policy." Schmitz, 2002 WI 98 at ¶¶ 46-49. Subsequently, the supreme court granted the Gohdes' petition for review and summarily reversed and remanded for further consideration in light of Schmitz.

DISCUSSION

¶ 7. We review a trial court's grant of summary judgment de novo, using the same methodology as the trial court. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816 (1987). A party is entitled to summary judgment if there are no disputed issues of fact and that party is entitled to judgment as a matter of law. Wis. Stat. § 802.08(2). The construction or interpretation of an insurance policy is a question of law we review de novo. Hull v. State Farm Mut. Auto. Ins. Co., 222 Wis. 2d 627, 636, 586 N.W.2d 863 (1998). If the language in a policy is unambiguous, we must not rewrite it by construction. Smith v. Atlantic Mut. Ins. Co., 155 Wis. 2d 808, 811, 456 N.W.2d 597 (1990). Words or phrases are ambiguous if they are susceptible to two or more reasonable interpretations. Id. To construe ambiguous language, we attempt to determine what a reasonable person in the insured's position would have understood the policy's language to mean. Schmitz, 2002 WI 98 at ¶ 51. Our interpretation of ambiguous language should advance the insured's reasonable expectation of coverage. Id.

¶ 8. Wisconsin Stat. § 632.32(5)(i) allows insurers to reduce their limit of liability in uninsured motorist and UIM coverage by sums payable on behalf of the tortfeasor, by worker's compensation or disability benefits laws. Reducing clauses are enforceable if "the policy clearly sets forth that the insured is purchasing a fixed level of UIM recovery that will be arrived at by combining payments made from all sources." Dowhower v. West Bend Mut. Ins. Co., 2000 WI 73, ¶ 33, 236 Wis. 2d 113, 613 N.W.2d 557 (Dowhower /)• Although a reducing clause may comply with the statute's language, the clause may still be unenforceable if its effect is not "crystal clear in the context of the whole policy." Schmitz, 2002 WI 98 at ¶ 46. If the coverage provided is misleading and unclear, the policy is ambiguous and the reducing clause is unenforceable. Id. at ¶ 49.

¶ 9. The Gohdes' policy is nineteen pages and consists of a title page, an index, the declarations, and the terms of coverage. In addition, before and after the declarations page are two separate endorsements unrelated to UIM coverage. The bottom of the title page reads, "READ YOUR POLICY CAREFULLY. This policy is a legal contract between you and us. It is written in 'easy to read and understand' language." The index follows the title page. The index lists the Uninsured Motorist and UIM coverage in Part C of the policy, beginning on page six. The declarations state the UIM coverage limits are $100,000 for each person and $300,000 for each accident. Part C of the policy begins on page six and starts with the UM coverage. The UIM coverage begins on page eight.

¶ 10. The UIM limits of liability and the reducing clause are on page nine:

The limit of liability shown in the Declarations for "each person" is our maximum limit of liability for all damages for bodily injury to any one person. The limit of liability shown for "each accident" is our maximum limit for all damages to two or more persons in the same accident.
This is the most we will pay regardless of the number of insureds, claims made, vehicles or premiums shown in the Declarations, or vehicles involved in the accident.

The limit of liability shall be reduced by:

1. all sums paid because of the bodily injury by or . on behalf of persons or organizations who may be legally responsible. This includes all sums paid under the Liability Coverage of this policy, and
2. all sums paid or payable because of the bodily injury under any workers' compensation, disability benefits or any similar law.
Any payment under this coverage to or for an insured will reduce any amount that person is entitled to recover under the Liability Coverage of this policy.
In no event will an- insured be entitled to recover duplicate payment for the same element of loss.

¶ 11. The Gohdes and MSI make a number of arguments why the policy is or is not ambiguous or coverage illusory. Not surprisingly, most of these claims focus on the Schmitz policy. In Schmitz, the court invalidated the reducing clause because although it complied with Wis. Stat. § 632.32(5)(i), it was ambiguous within the context of the whole policy. Id. at ¶ 61. Similarly, there is no dispute here that the reducing clause complies with § 632.32(5)(i). Our question then becomes whether the clause is ambiguous within the policy. We conclude it is.

¶ 12. Both parties compare the policy to the one in Schmitz and take a similar approach to the Schmitz court in their analyses. The Schmitz court examined the whole policy, tracing the route the insured needs to take from the declarations through the UIM section to the endorsement containing the reducing clause. Id. at ¶¶ 62-66. After doing this, the court concluded the policy was organizationally complex and plainly contradictory and thus did not establish that the insured was purchasing a fixed level of UIM coverage arrived at by combining payments from all sources. Id. at ¶¶ 72, 75.

¶ 13. The Gohdes' policy does not suffer from the same organizational complexity as the Schmitz policy. In Schmitz, the UIM coverage was not referenced in the policy's "quick reference sheet" or its declarations. Id. at ¶¶ 62-63. The UIM provisions were located on page twenty-three of the policy and the reducing clause was in a separate endorsement on page twenty-eight. Id. at ¶ 57-59. Here, however, UIM coverage is referenced in the declarations and the index. Further, the reducing clause is located within the UIM provisions and is found immediately following the limit of liability it modifies.

¶ 14. Most of the Gohdes' arguments then focus on what they consider contradictions in the policy's UIM coverage. The Gohdes argue the declarations page contradicts other parts of the policy because it never mentions that the UIM limits are subject to a reducing clause and gire virtually never obtainable. They make a similar argument about the policy's index. Finally, they contend the "limits of liability" section of the UIM coverage contradicts the reducing clause because the former implies the limits in the declaration are attainable while the reducing clause does not. This inconsistency, the Gohdes contend, violates Schmitz's "crystal clear" requirement.

¶ 15. Neither the declarations nor the index mention that the UIM coverage is subject to a reducing clause. MSI, however, contends this does not matter because we should construe insurance policies in their entirety, see Kraemer Bros. v. United States Fire Ins. Co., 89 Wis. 2d 555, 562, 278 N.W.2d 857 (1979), and because it would be impractical to refer to every provision limiting liability in the declarations. Nonetheless, we conclude the fact the declarations do not refer to the reducing clause is relevant.

¶ 16. In Justice Bradley's concurrence in Dowhower I, she noted a reasonable insured often only looks to the declarations to verify they have been provided with the coverage for which they have contracted. Dowhower I, 2000 WI 73 at ¶ 41 (Bradley, J., concurring). The Dowhower I court remanded for a determination whether the policy was ambiguous. The trial court determined it was, and we recently affirmed that decision. Dowhower v. Marquez (Dowhower II), 2003 WI App 23, No. 01-1347. There, we noted, as Justice Bradley did, the Dowhower "Declarations page creates an illusion of coverage because it misrepresents West Bend's liability as $50,000, when in reality the insurer will rarely, if ever, disburse the full amount by virtue of the reducing clause found elsewhere in its policy." Dowhower II, 2003 WI App 23 at ¶ 16. In addition, Schmitz emphasized that neither the declarations page in that policy, nor the schedule that listed the amounts of UIM coverage, mentioned a reducing clause. Schmitz, 2002 WI 98 at ¶¶ 62, 65.

¶ 17. Both Schmitz and Dowhower II make clear that the lack of a reference to the reducing clause in the declarations is a factor to consider when examining a UIM policy containing a reducing clause. While we agree with MSI it would be impractical to refer to every limit of liability in the declarations, a reducing clause is not a typical limit of liability. In the UIM context, reducing clauses practically guarantee the stated limits will never be fully paid. As a result, Wisconsin courts generally voided reducing clauses as providing illusory coverage and being against public policy before the enactment of Wis. Stat. § 632.32(5) (i). See, e.g., Kuhn v. Allstate Ins. Co., 181 Wis. 2d 453, 463, 510 N.W.2d 826 (Ct. App. 1993), aff'd, 193 Wis. 2d 50, 532 N.W.2d 124 (1995). After the legislature authorized reducing clauses, the supreme court still required they be "crystal clear" within the context of the entire policy. Based on Schmitz and Dowhower II, we determine it is relevant whether the declarations mention the reducing clause.

¶ 18. We do not agree that the index's failure to mention the reducing clause adds to the confusion quite as much as the declarations. To the extent it would continue to fail to inform the insured the UIM coverage is subject to reduction, it adds to the confusion. While both Schmitz and Dowhower II place emphasis on the policy's table of contents, it is those tables of contents' failure to even mention UIM coverage that those courts found most relevant. Schmitz, 2002 WI 98 at ¶ 63; Dowhower II, 2003 WI App 23 at ¶ 18. As noted, the Gohdes' policy's index refers to UIM coverage and easily directs the insured to its terms.

¶ 19. Finally, we address the Gohdes' and amicus's argument that the language found in the policy's limit of liability section directly conflicts with the reducing clause. Specifically, they contend its reference to the declaration's UIM limit of liability being described as "our maximum limit of liability for all damages" and "the most we will pay" gives the impression the full limit found in the declarations is attainable, when it is not because of the reducing clause. We addressed this argument in Dowhower II, where we interpreted a nearly identical limit of liability and reducing clause. Id. at ¶ 21. Rejecting the insurers' argument that the limit of liability language was not ambiguous because it contemplated a lower payment than the maximum, we determined the term suggested to a reasonable insured that the maximum limit of coverage was attainable. Id.; see also Schmitz, 2002 WI 98 at ¶ 65. This language "reinforces the illusion of coverage" because the insurer will rarely, if ever, pay the limit of liability listed in the declarations. Dowhower II, 2003 WI App 23 at ¶¶ 16, 21.

¶ 20. We then considered this language with the reducing clause and rejected the insurer's argument that the clause clarified any UIM coverage ambiguity that might exist. Id. at ¶ 17. Although the clause itself was unambiguous and complied with Wis. Stat. § 632.32(5)(i), we determined the clause was nonetheless inconsistent with the rest of the policy. Id.

¶ 21. Similarly, we conclude MSI's reducing clause conflicts with the limit of liability language immediately preceding it and with the declarations. Admittedly, the Gohdes' policy lacks the complexity we and the supreme court found troubling in Dowhower II and Schmitz. The provisions of the UIM coverage, however, must still be consistent no matter how easy it is for the insured to find them. Here, the policy's declarations and the limits of liabilities sections lead the insured to believe the limits are obtainable when, in reality, the reducing clause guarantees they will rarely, if ever, be paid by MSI. These conflicting terms are ambiguous and provide illusory coverage and, therefore, we must interpret the policy in favor of the insured.

By the Court. — Judgment reversed.

       WISCONSIN Stat. § 632.32(5)(i) provides:
      Provisions of motor vehicle insurance policies.
      (5) Permissible provisions.
      (i) A policy may provide that the limits under the policy for uninsured or underinsured motorist coverage for bodily injury or death resulting from any one accident shall be reduced by any of the following that apply:
      1. Amounts paid by or on behalf of any person or organization that may be legally responsible for the bodily injury or death for which the payment is made.
      2. Amounts paid or payable under any worker's compensation law.
      3.Amounts paid or payable under any disability benefits laws.