author: ROGGENSACK, J. DEININGER, J.

text:
    City of Madison, Debra H. Amesqua and the Madison Board of Police and Fire Commissioners, Petitioners-Respondents, v. State of Wisconsin Department of Workforce Development, Equal Rights Division, Respondent-Appellant, Charles T. Wagner, Respondent-Co-Appellant.
    Court of Appeals

      No. 01-1910.

      Submitted on briefs January 11, 2002.

    Decided July 25, 2002.

    2002 WI App 199
    (Also reported in 651 N.W.2d 292.)

      On behalf of the respondent-appellant, the cause was submitted on the briefs of James E. Doyle, attorney general, and David C. Rice, assistant attorney general.
    On behalf of the respondent-co-appellant, the cause was submitted on the briefs of Charles W. Giesen of Giesen Law Offices, S.C. of Madison.
    On behalf of the petitioners-respondents, the cause was submitted on the briefs of Steven C. Zach of Boardman, Suhr, Curry & Field LLP of Madison.
    Brief of amicus curiae was filed by Bruce F. Ehlke of Shneidman, Hawks Ehlke, S.C. of Madison on behalf of Firefighters Local 311 and Joseph Conway, Jr.

    Brief of amicus curiae was filed by Claire Silverman of League of Wisconsin Municipalities of Madison on behalf of League of Wisconsin Municipalities.

    Before Vergeront, BJ., Roggensack and Deininger, JJ.

       Petition to review granted 10-21-02.

   ROGGENSACK, J.

¶ 1. The City of Madison's Police and Fire Commission (PFC) ordered the discharge from service of city firefighter Charles Wagner after it sustained charges that Wagner violated several fire department rules. Following his discharge, Wagner filed a complaint with the Department of Workforce Development (DWD) alleging that he was unlawfully terminated based on his arrest and conviction record, in violation of the Wisconsin Fair Employment Act (WFEA). The City of Madison, the PFC and the City's fire chief jointly petitioned the circuit court for a writ of prohibition, seeking to terminate DWD's investigation of Wagner's WFEA complaint. The circuit court granted the writ, concluding that matters involving the discharge of city firefighters are to be determined exclusively under Wis. Stat. § 62.13(5) (1999-2000) and that claim preclusion also barred the proceedings before DWD. We unanimously conclude that as to the City and the fire chief, DWD has statutory authority to receive and investigate Wagner's WFEA complaint, to which claim preclusion is no bar. As to the PFC, two members of the cdurt would not decide whether DWD has authority over the PFC at this point in the litigation, while I would conclude that DWD has no statutory authority over the PFC for actions it took. Therefore, this court reverses the order of the circuit court as to all parties.

BACKGROUND

¶ 2. Wagner began working for the City as a firefighter in 1993. In January 1997, a criminal complaint was filed against him alleging theft and fraud in connection with merchandise that was alleged to have been stolen in 1992. The acting chief of the Madison Fire Department, Fred Kinney, suspended Wagner with pay pending resolution of the criminal charges. In November 1997, Wagner was convicted of one count of misdemeanor theft pursuant to an Alford plea.

¶ 3. Fire Chief Debra Amesqua then filed a statement of charges with the PFC that alleged eight counts of department rule violations, some of which related to Wagner's admitted theft. Amesqua recommended that the PFC terminate Wagner's employment. The PFC held an evidentiary hearing at which Wagner was represented by counsel, and it determined, pursuant to Wis. Stat. § 62.13(5)(em), that there was just cause to sustain the charges as alleged in Counts 1,2 and 8. The PFC dismissed the remaining counts. As a penalty for committing the rule violation of conducting himself so as to bring disrepute on the department (Count 8), the PFC ordered Wagner's discharge from service. As a "separate and distinct" penalty for violating department rules against theft and dishonesty (Counts 1 and 2), the PFC also ordered discharge from service. The City then terminated Wagner's employment.

¶ 4. Wagner appealed to the circuit court. The circuit court dismissed the action because Wagner had not properly commenced it, and we affirmed the dismissal. After the circuit court dismissed Wagner's statutory appeal, he filed a discrimination complaint with DWD, naming the City of Madison, Amesqua — in her official capacity as fire chief — and the PFC as respondents. Wagner alleged that his suspension and discharge from service were unlawful because they were based on his arrest and conviction record, in violation of Wis. Stat. §§ 111.321 and 111.335.

¶ 5. The respondents asserted that DWD lacked jurisdiction over Wagner's complaint and that claim preclusion or issue preclusion barred his WFEA claim. DWD disagreed, stating that it intended to investigate Wagner's complaint and that the respondents could raise the other "jurisdictional issues" later.

¶ 6. In response, the City, Amesqua and the PFC petitioned the circuit court for a writ of prohibition to terminate DWD's investigation. The parties provided the circuit court with stipulated facts and exhibits, and the circuit court granted the writ. It concluded that matters involving the discharge of city firefighters are to be determined exclusively under the procedures set forth in Wis. Stat. § 62.13(5) and that claim preclusion barred the proceedings before DWD because Wagner could have litigated his discrimination claim before the PFC. DWD and Wagner appeal.

DISCUSSION

Standard of Review.

¶ 7. Our analysis of the circuit court's decision to issue the writ entails questions of statutory interpretation affecting DWD's authority to proceed, which are questions of law that we review de novo. See State ex rel. DPI v. DILHR, 68 Wis. 2d 677, 680-84, 229 N.W.2d 591, 593-95 (1975); State ex rel. St. Michael's Evangelical Lutheran Church v. DOA, 137 Wis. 2d 326, 335, 404 N.W.2d 114, 118 (Ct. App. 1987). However, whether a circuit court should issue a writ of prohibition is a discretionary decision. St. Michael's, 137 Wis. 2d at 330, 404 N.W.2d at 116. We will sustain the discretionary decision to issue a writ unless the circuit court based it on an error of fact or law. See State ex rel. Wis. Employers Ins. Co. v. Ins. Comm'r, 122 Wis. 2d 668, 670, 363 N.W.2d 585, 586 (Ct. App. 1985). Whether governmental immunity applies is a question of law. See Kimps v. Hill, 200 Wis. 2d 1, 8, 546 N.W.2d 151, 155 (1996).

Writ of Prohibition.

¶ 8. A writ of prohibition is an extraordinary remedy available to courts as part of their supervisory jurisdiction over inferior tribunals. State ex rel. Lynch v. County Court, 82 Wis. 2d 454, 459, 262 N.W.2d 773, 775 (1978). A circuit court may exercise its supervisory authority over a state agency to prevent the agency from exceeding its statutory authority. See State ex rel. DPI, 68 Wis. 2d at 687, 229 N.W.2d at 597; St. Michael's, 137 Wis. 2d at 335, 404 N.W.2d at 118. A writ of prohibition will issue "[o]nly where the duty of the court below is plain, and where there is a clear refusal to meet that duty or a clear intent to disregard it." State ex rel. Lynch, 82 Wis. 2d at 459, 262 N.W.2d at 775.

¶ 9. In addition to establishing error by the inferior tribunal, the petitioning party has the burden of showing (1) that ordinary remedies, by appeal or otherwise, are inadequate, and (2) that grave or extraordinary hardship will result if the writ does not issue. Id. at 460, 262 N.W.2d at 776. In some cases, however, the inadequacy of ordinary remedies and the gravity of the harm will be "inherent in the situation." State ex rel. DPI, 68 Wis. 2d at 687, 229 N.W.2d at 597 (concluding under a prior version of WFEA that DILHR had no authority to proceed upon a sex-discrimination complaint filed by an employee of a state agency and that the circuit court's failure to issue a writ of prohibition in such circumstances was an erroneous exercise of discretion due to the harm inherent in the situation).

Statutory Interpretation.

¶ 10. We begin our examination of the writ issued by the circuit court by interpreting Wis. Stat. § 62.13(5) and WFEA statutes that áre claimed to be in conflict. Where two statutes relate to the same factual occurrences and can reasonably be read to conflict with one another, we are required to construe the statutes together and, to the greatest extent possible, harmonize them to achieve the results intended by the legislature. See Gordie Boucher Lincoln-Mercury Madison, Inc. v. City of Madison Plan Comm'n, 178 Wis. 2d 74, 89-90, 503 N.W.2d 265, 270 (Ct. App. 1993); Cornell Univ. v. Rusk County, 166 Wis. 2d 811, 819-20, 481 N.W.2d 485, 489 (Ct. App. 1992). In harmonizing conflicting statutes, we will attempt to reach a construction that gives effect to the purpose of each statute and to avoid constructions that lead to absurd results. See Peters v. Menard, Inc., 224 Wis. 2d 174, 189, 589 N.W.2d 395, 403 (1999); Byers v. LIRC, 208 Wis. 2d 388, 395, 561 N.W.2d 678, 681 (1997).

¶ 11. Wagner has made a claim under WFEA, which generally prohibits termination from employment because of an employee's conviction record. Wis. Stat. §§ 111.321 and 111.335. Wagner was terminated, at least in part, due to his conviction record. However, termination of employment for a criminal conviction is not unlawful if the circumstances of the conviction are substantially related to the circumstances of the employment. Section 111.335(l)(e)l. Therefore, we must decide if DWD can investigate and decide whether the circumstances of Wagner's theft conviction are substantially related to the circumstances of his job as a firefighter, or if the just cause determination made by the PFC pursuant to Wis. Stat. § 62.13(5) precludes further investigation of Wagner's WFEA claim.

1. Wis. Stat. § 62.13(5) overview.

¶ 12. Wisconsin Stat. § 62.13(5) sets forth the procedures and standards that a PFC is to apply in disciplinary actions against city police officers and firefighters. The purpose of § 62.13(5) is to protect against and provide a remedial process for the wrongful discipline of firefighters. Larson v. City of Tomah, 193 Wis. 2d 225, 232, 532 N.W.2d 726, 729 (1995). And, pursuant to § 62.13(12), the legislature intends that § 62.13(5) "be construed as an enactment of statewide concern for the purpose of providing a uniform regulation of police and fire departments."

¶ 13. If a PFC sustains the disciplinary charges brought against a firefighter, it has the authority to remove the firefighter from service. See Wis. Stat. § 62.13(5)(e). The standards that a PFC applies in making its decision are set forth in § 62.13(5)(em). A firefighter may appeal a PFC's decision to the circuit court for review of the record that was before the PFC. Here, we have previously affirmed the circuit court's dismissal of Wagner's statutory appeal of the proceedings before the PFC. Accordingly, the PFC's findings and legal conclusions are conclusive.

2. WFEA overview.

¶ 14. The purpose of WFEA differs from that of Wis. Stat. § 62.13(5) because WFEA seeks to identify, remedy and deter discriminatory conduct by employers. See Byers, 208 Wis. 2d at 396-97, 561 N.W.2d at 681-82. The remedies available under WFEA are intended not only to compensate the victims of discrimination, but also to eliminate discriminatory workplace environments that are harmful to the entire workforce and the public welfare. Id. In enacting WFEA, the legislature created statutory rights and statutory remedies. Bachand v. Connecticut Gen. Life Ins. Co., 101 Wis. 2d 617, 623-24, 305 N.W.2d 149, 152 (Ct. App. 1981). In so doing, the legislature established DWD as the only state body with authority to receive, investigate, hear and determine a city employee's employment discrimination complaint. See Wis. Stat. § 111.375. Accordingly, a city employee must pursue WFEA remedies for unlawful discrimination, at least initially, through DWD. See Bachand, 101 Wis. 2d at 624, 305 N.W.2d at 152.

3. Parties subject to WFEAd

¶ 15. In order for DWD to have statutory authority to investigate and decide a WFEA claim, the claim must be made against one of the persons or entities specified in Wis. Stat. § 111.321, for an act of employment discrimination. Section 111.321 states in relevant part:

[N]o employer, labor organization, employment agency, licensing agency or other person may engage in any act of employment discrimination... on the basis of.. . conviction record....

There is no dispute that the City was Wagner's employer and that Amesqua, in her official capacity as fire chief, acted on behalf of the City when she filed charges against Wagner. The dispute relative to those two parties turns on whether filing charges and terminating Wagner were acts of employment discrimination. However, the PFC's role has been quite different in that it did not employ Wagner, see Wis. Stat. § 111.32(6); see also Moore v. LIRC, 175 Wis. 2d 561, 569, 499 N.W.2d 288, 291 (Ct. App. 1993), or act as an agent of the City when it performed its disciplinary function under Wis. Stat. § 62.13(5). See Eau Claire County v. General Teamsters Union Local No. 662, 228 Wis. 2d 640, 650, 599 N.W.2d 423, 428 (Ct. App. 1999) ("The PFC is comprised of citizen members who have no direct interest in the outcome of the case as would a party to the dispute. Member appointment is designed so as to prevent the commission from operating as an agent of a city officer or police chief."), aff'd, 2000 WT 57, 235 Wis. 2d 385, 611 N.W.2d 744.

¶ 16. However, what is not immediately apparent is whether a PFC falls within the meaning of "other person" or whether it could "engage in any act of employment discrimination" under Wis. Stat. § 111.321 when it acts pursuant to the legislature's directive under Wis. Stat. § 62.13(5). I conclude that the legislature did not intend a PFC to be an "other person" under WFEA when a PFC performs the functions the legislature requires of a PFC under § 62.13(5) in a disciplinary proceeding. I further conclude that performing those functions is not "engag[ing] in any act of employment discrimination" pursuant to § 111.321 because a PFC does not order discharge for a prohibited reason under § 111.322, but rather, for the violation of department rules.

¶ 17. First, the procedures the PFC employed to address the charges that Wagner violated department rules were those established by the legislature. See Wis. Stat. § 62.13(5)(d)-(i). The PFC was required to, and did, hold a public hearing at which Wagner was represented. Id. At the hearing, the PFC sought information to determine whether "there is just cause" to sustain the charges that Wagner violated department rules. Section 62.13(5)(em). In so doing, it considered the following criteria mandated by the legislature:

1. Whether the subordinate could reasonably be expected to have had knowledge of the probable consequences of the alleged conduct.
2. Whether the rule or order that the subordinate allegedly violated is reasonable.
3. Whether the chief, before filing the charge against the subordinate, made a reasonable effort to discover whether the subordinate did in fact violate a rule or order.
4. Whether the effort described under subd. 3 was fair and objective.
5. Whether the chief discovered substantial evidence that the subordinate violated the rule or order as described in the charges filed against the subordinate.
6. Whether the chief is applying the rule or order fairly and without discrimination against the subordinate.
7. Whether the proposed discipline reasonably relates to the seriousness of the alleged violation and to the subordinate's record of service with the chiefs department.

Id. Wagner does not contend that the PFC did anything other than follow the mandate of the legislature set out in § 62.13(5). Additionally, while the legislature's statutory formation of police and fire commissions preceded WFEA by many years, there is nothing in WFEA or in ch. 62 to indicate that a statutory claim for relief against a PFC exists when it is performing the disciplinary functions set out in § 62.13(5). Therefore, I cannot conclude that at the same time the legislature required the PFC to perform the functions it did here, the legislature also gave Wagner a statutory claim against the PFC for performing those required functions.

¶ 18. Second, Wis. Stat. § 62.13(5) grants firefighters extensive due process protections in disciplinary actions, including the right to a public hearing, the right to be represented by an attorney, the right to subpoena witnesses and the right to seek judicial review of an adverse PFC decision. Eau Claire County, 2000 WI 57 at ¶ 36; see also § 62.13(5)(i). A PFC is also required to reduce its findings and conclusions to writing, which facilitates a meaningful review. See § 62.13(5)(f). Absent some other clear directive by the legislature, these legislatively established procedures evidence an exclusive process for examining the acts of a PFC under § 62.13(5).

¶ 19. Third, the PFC is not a necessary party to Wagner's complaint that he was terminated for an impermissible reason under WFEA. The City is his employer, and if the department rule is found to be unenforceable because honesty is not substantially related to a firefighter's employment, the City can be ordered to reinstate him. See Knight v. LIRC, 220 Wis. 2d 137, 582 N.W.2d 448 (Ct. App. 1998).

¶ 20. Fourth, whether a conviction for theft and the misrepresentations associated with the theft are substantially related to the circumstances of Wagner's employment is a direct attack on the department rule that a firefighter must obey all laws. However, the PFC was asked to decide only whether department rules were violated, and it concluded there was just cause to uphold the charges that Wagner violated those rules. Accordingly, the PFC did not order Wagner's termination for a prohibited reason under Wrs. Stat. § 111.322, i.e., a criminal conviction that was not substantially related to his employment. But rather, the PFC ordered Wagner's termination because of its conclusion that there was just cause to support the charges that he violated department rules. Therefore, for the reasons set out above, I conclude that a PFC is not a person engaged in an act of employment discrimination within the scope of WFEA when it performs the disciplinary functions established by the legislature in Wis. Stat. § 62.13(5). It follows that DWD has no statutory authority to investigate and decide Wagner's claims against the PFC. See State ex rel. DPI, 68 Wis. 2d at 687, 229 N.W.2d at 597. Accordingly, I would affirm the issuance of the writ as to the PFC. Judges Vergeront and Deininger disagree with this conclusion for the reasons set out in the attached concurrence.

4. Harmonizing Wis. Stat. § 62.13(5) and Wis. Stat. § 111.321.

¶ 21. We next address the interplay between Wis. Stat. § 62.13(5) and Wis. Stat. § 111.321 for Wagner's WFEA claims against the City and Amesqua (hereinafter below "the City"). Painting with a fairly broad brush, the City contends that the legislative scheme established by § 62.13(5) requires the conclusion that WFEA does not apply to discrimination claims arising out of disciplinary decisions involving a prior "just cause" determination by a PFC. The City argues that a firefighter can adequately assert his or her rights under WFEA in § 62.13(5) proceedings. The City further argues that allowing a firefighter to pursue a WFEA claim with DWD after a "final and conclusive" § 62.13(5) proceeding opens the door to the possibility that a PFC would order the discharge of a firefighter in one proceeding while DWD would order the reinstatement of that same employee in another.

¶ 22. DWD and Wagner contend that the City's claim that Wis. Stat. § 62.13(5) is the exclusive provision for matters involving suspension and discharge must give way when the disciplined firefighter presents a claim that the disciplinary action was tainted by unlawful employment discrimination. DWD responds to the City's concerns about potentially conflicting orders by noting that the doctrine of issue preclusion and other defenses may affect both the scope of Wagner's WFEA claims and the scope of the remedies that would be appropriate if any discrimination were proven.

¶ 23. We disagree with the City's contention that the only way to give effect to Wis. Stat. § 62.13(5) is to conclude that DWD lacks statutory authority over Wagner's WFEA claims. Rather, in cases such as this one where a firefighter's employment discrimination claim is tied directly to the charges sustained and disciplinary sanctions imposed by a PFC, we conclude that the legislature's intent in enacting § 62.13(5) can be given effect by the filing of motions with DWD (e.g., failure to state a claim or issue preclusion). See, e.g., Jocz v. LIRC, 196 Wis. 2d 273, 284, 538 N.W.2d 588, 590 (Ct. App. 1995) (concluding that although LIRC had statutory authority to receive and investigate a WFEA complaint against a religious seminary, LIRC had properly dismissed the complaint because the department was constitutionally precluded from enforcing WFEA against the seminary).

¶ 24. The City also argues that our decision in City of Janesville v. WERC, 193 Wis. 2d 492, 535 N.W.2d 34 (Ct. App. 1995), demonstrates previous recognition of Wis. Stat. § 62.13(5) exclusivity over the issues set forth in Wagner's WFEA complaint. We disagree.

¶ 25. In City of Janesville, a police union proposed a change to the collective bargaining agreement that would have allowed officers disciplined by the city's PFC to obtain review of the just cause determination through arbitration. City of Janesville, 193 Wis. 2d at 496-97, 535 N.W.2d at 36-37. We held that the legislature intended the statutory appeal provided by Wis. Stat. § 62.13(5)(i) to be the exclusive remedy for challenging the disciplinary decisions of a PFC, and therefore, arbitration of the same dispute could not proceed. Id. at 504, 507-08, 535 N.W.2d at 39, 41. However, DWD is not proposing either that it redetermine the issue of whether there was just cause to sustain the charges that led to Wagner's dismissal or that it review the penalty imposed by the PFC. In refusing to immediately dismiss Wagner's action, DWD is merely recognizing its statutory authority to receive and act on a complaint that alleges employment discrimination. Accordingly, for the reasons explained above, we conclude that Wagner's claims under WFEA do not conflict with the determination previously made by the PFC under § 62.13(5).

Collateral Issues.

¶ 26. The City raises three other collateral issues that we address in an attempt to further clarify the proceedings that will follow this decision: quasi-judicial immunity, claim preclusion and issue preclusion.

1. Quasi-judicial immunity.

¶ 27. The City's immunity argument was raised before both DWD and the circuit court, but neither DWD nor the circuit court relied on immunity. However, whether there is immunity is a question of law, Kimps, 200 Wis. 2d at 8, 546 N.W.2d at 155, and immunity has been fully briefed as part of this appeal. In addition, DWD would decide the immunity issue on remand, and it has no special expertise in the application of immunity doctrines. Furthermore, we could find no precedent for the granting of an interlocutory appeal from a decision of an administrative agency. Therefore, under these circumstances, we conclude the issue merits a decision now. See Wal-Mart Stores, Inc. v. LIRC, 2000 WI App 272, ¶ 15, 240 Wis. 2d 209, 621 N.W.2d 633.

¶ 28. Immunity for acts done in the exercise of quasi-judicial functions has both statutory and common law grounding. See Wis. Stat. § 893.80(4); Kimps, 200 Wis. 2d at 9-11 & n.6, 546 N.W.2d at 155-56 & n.6. Where applicable, immunity is an absolute defense, defeating the suit at the outset. Ford v. Kenosha County, 160 Wis. 2d 485, 498, 466 N.W.2d 646, 651 (1991).

¶ 29. Disciplinary proceedings under Wis. Stat. § 62.13(5) are quasi-judicial proceedings that under some circumstances give rise to statutory governmental immunity. See Salerno v. City of Racine, 62 Wis. 2d 243, 214 N.W.2d 446 (1974) (holding that a municipality has immunity under Wis. Stat. § 895.43(3) (1973) against a claim that the city negligently failed to bring disciplinary charges against a police officer). Salerno's holding was stated in broad terms. "From the filing or not filing of charges, through the hearing to the imposition of appropriate penalty, the entire procedure of disciplinary proceedings against police department members is within the scope of the statutory reference to acts done in the exercise of a quasi-judicial function." Id. at 249, 214 N.W.2d at 449-50. However, later supreme court precedent explained that Wis. Stat. § 893.80(4), the current version of the municipal immunity statute, is limited to immunity from tort claims. Willow Creek Ranch, L.L.C. v. Town of Shelby, 2000 WT 56, ¶¶ 31-34, 235 Wis. 2d 409, 611 N.W.2d 693. In this case, Wagner is not bringing a tort claim, but rather a statutory claim under WFEA. Therefore, the broad language of Salerno does not apply, and any immunity that may be available to the City must be grounded in the common law. See Kurtz v. City of Waukesha, 91 Wis. 2d 103, 118, 280 N.W.2d 757, 765 (1979) (holding that the legislature has consented to the suit of municipalities for alleged WFEA violations).

¶ 30. The City directs our attention to Ford, 160 Wis. 2d 485, 466 N.W.2d 646, and Paige K.B. v. Molepske, 219 Wis. 2d 418, 580 N.W.2d 289 (1998). Both cases address immunity for non-judicial officers who perform functions intimately related to the judicial process. Both cases are based on common law tort claims, not on statutory claims for relief as Wagner has brought. Wagner's WFEA claim rests upon the City's actions as an employer. The supreme court has held that a municipality is an employer subject to suit under WFEA and that WFEA trumps at least some claims of immunity. Kurtz, 91 Wis. 2d at 118, 280 N.W.2d at 765. It is well-settled law that when the legislature enters a field to regulate it, as it has done with the Fair Employment Act, its enactments take precedence over the common law. See United Catholic Parish Sch. of Beaver Dam Educ. Ass'n v. Card Servs. Center, 2001 WI App 229, ¶ 20, 248 Wis. 2d 463, 636 N.W.2d 206. Therefore when there is a conflict between legislation and the common law, the legislation controls as the latest expression of the law. See Kensington Dev. Corp. v. Israel, 139 Wis. 2d 159, 167, 407 N.W.2d 269, 273 (Ct. App. 1987), aff'd, 142 Wis. 2d 894, 419 N.W.2d 241 (1988). Accordingly, we conclude that the common law doctrine of judicial (or quasi-judicial) immunity has no application to Wagner's WFEA claims against the City and Amesqua, in her official capacity.

2. Claim preclusion.

¶ 31. The City also argues that claim preclusion prevents DWD from proceeding upon Wagner's complaint. Claim preclusion causes a final judgment to be "conclusive in all subsequent actions between the same parties [or their privies] as to all matters which were litigated or which might have been litigated in the former proceedings." DePratt v. West Bend Mut. Ins. Co., 113 Wis. 2d 306, 310, 334 N.W.2d 883, 885 (1983) (citation omitted). Accordingly, as between the earlier action before PFC and the present action before DWD, identity of claims which were brought or which could have been brought is one of the factors that must be present before claim preclusion can be applied. See Northern States Power Co. v. Bugher, 189 Wis. 2d 541, 551, 525 N.W.2d 723, 728 (1995).

¶ 32. We conclude that claim preclusion does not apply. Wagner's employment discrimination claim was not and could not have been decided by the PFC in the Wis. Stat. § 62.13(5) disciplinary action because DWD has exclusive jurisdiction over all WFEA claims. See Bachand, 101 Wis. 2d at 624, 305 N.W.2d at 152. That Wagner might have raised his claim about a violation of WFEA to thwart a finding that the department's rules were reasonable, or a finding that it was fair to apply those rules to him, demonstrates only that some of the issues in the disciplinary proceedings overlap with the issues that are relevant to his employment discrimination claim.

3. Issue preclusion.

¶ 33. In reaching its decision, the PFC found that Wagner's theft conviction and associated conduct vioT lated several department rules, that the rules at issue were reasonable, and that the rules were applied fairly and without discrimination. The supreme court has analyzed the exception to WFEA's prohibition against employment discrimination on the basis of an employee's conviction record and explored the nature of the inquiry required by the exception. See County of Milwaukee v. LIRC, 139 Wis. 2d 805, 808, 407 N.W.2d 908, 909 (1987) (holding as a matter of law that the circumstances of the offenses for which the employee had been convicted "substantially related" to the circumstances of his job with the county). On remand to DWD, the agency may find County of Milwaukee instructive in addressing Wagner's claims. Along these lines, we note that issue preclusion may prevent Wagner from relitigating issues that are relevant to his discrimination claim and that were decided in the PFC's analysis of whether there was just cause to sustain the charges against him. However, on the record and briefing now before us, we are unable to determine whether issue preclusion bars Wagner's claims against the City and Amesqua.

CONCLUSION

¶ 34. We conclude that DWD has statutory authority to receive and investigate Wagner's WFEA complaint, to which claim preclusion is no bar. Therefore, this court reverses the order of the circuit court.

By the Court. — Order reversed.

¶ 35. (concurring). The question before us is whether the circuit court erred in granting the extraordinary remedy of judicially terminating the Department of Workforce Development's investigation of Wagner's complaint of a WFEA violation. All members of the panel conclude that the court erred in terminating the investigation insofar as the City of Madison and Chief Amesqua were named as respondents. Two members of the panel also conclude that the department should not be prohibited from considering whether the Madison Police and Fire Commission was also properly named as a respondent in Wagner's complaint. This concurrence is the opinion of the court majority with respect to the latter issue.

DEININGER, J.

¶ 36. It is not clear what difference it might make if the administrative proceedings on Wagner's allegations were to proceed with only the City and Chief Amesqua, but not the commission, as named respondents. Perhaps very little, given that the City is Wagner's employer, and most remedies the department might order if Wagner were to prevail would likely fall to the City to pay or implement. The department might also ultimately agree with the commission that it should be dismissed as a respondent for the reasons cited by Judge Roggensack, or for other reasons.

¶ 37. We acknowledge that the department could conceivably order relief that the commission believes adversely affects its interests separately or differently from the City's. A writ of prohibition is a "drastic and extraordinary remedy," however, and a court should not issue a writ unless "ordinary remedies, by appeal or otherwise, are inadequate." State ex rel. Lynch v. County Court, 82 Wis. 2d 454, 459-60, 262 N.W.2d 773 (1978). The panel majority concludes that (1) the commission, for the reasons discussed in ¶¶ 29-30 of the lead opinion, does not have immunity from Wagner's WFEA complaint; and (2) the availability of administrative and judicial review of the department's decisions provides adequate protection for the commission's interests.

¶ 38. The commission concedes it would be a proper respondent in a department investigation of a firefighter's claim of WFEA violations relating to "hiring practices, terms or conditions of employment, or adverse employment actions short of' demotions, suspensions or discharge. See Wis. Stat. § 62.13(4). Given the nature of the circuit court action under review, it is not necessary for this court to decide whether the commission is or is not a "person" within the meaning of Wis. Stat. § 111.321 when it performs functions under Wis. Stat. § 62.13(5). That issue is best decided, if necessary, after the department has had the opportunity to complete its investigation and to address the defenses the commission may raise.

¶ 39. I am authorized to state that Presiding Judge Vergeront joins this concurrence.

       All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

         North Carolina v. Alford, 400 U.S. 25 (1970).

       Counts 1 and 2 alleged the theft that led to Wagner's criminal conviction, as well as various misrepresentations associated with the theft that Wagner made to a third party. The PFC found that Wagner both committed the theft and misrepresented related circumstances. The PFC further determined that this conduct violated rules requiring members of the department to observe all laws and to speak the truth at all times. Although the conduct relevant to Counts 1 and 2 occurred prior to Wagner's employment with the City, the charges alleged that if the conduct had been disclosed at the time of his application, Wagner would not have been hired.
      Count 8 alleged that Wagner's status as a convicted thief violated a rule requiring that members of the department "conduct themselves so as not to bring the Department in disrepute." The PFC determined that Wagner's conviction "is damaging to the Department's reputation and constitutes on its face a violation of Rule 51."

       Pursuant to Wis. Stat. § 62.13(5)(i), the circuit court has the power to review the record that was before the PFC and, giving deference to the PFC's findings and credibility determinations, decide whether there was just cause to sustain the charges. See Younglove v. City of Oak Creek Fire & Police Comm'n, 218 Wis. 2d 133, 141, 579 N.W.2d 294, 297 (Ct. App. 1998).

        Wagner v. Madison Bd. of Police & Fire Comm'rs, No. 00-3097, unpublished slip op. (WI App Aug. 16, 2001).

       Other grounds for the writ that the City, the PFC and Amesqua briefed and argued before the circuit court were (1) that the respondents named in Wagner's WFEA complaint were all shielded by immunity from suit; and (2) that the PFC, when acting under Wis. Stat. § 62.13(5), was not Wagner's "employer" within the meaning of WFEA.

       Wisconsin Stat. § 62.13(1) requires cities with a population of 4000 persons or more to establish a PFC.

       In the remainder of the opinion, we refer only to firefighters. However, we do so with the understanding that the statute applies to police officers as well.

       Wisconsin Stat. § 62.13(5)(i) establishes the scope of judicial review of a PFC's disciplinary decision. In relevant part, § 62.13(5)(i)"provides:
      The question to be determined by the court shall be: Upon the evidence is there just cause, as described, under par. (em), to sustain the charges against the accused? .... If the order of the board is reversed, the accused shall be forthwith reinstated and entitled to pay as though in continuous service. If the order of the board is sustained it shall be final and conclusive.

       This section represents the views of Judge Roggensack, not that of the court.

       One of the department rules the PFC found just cause to conclude that Wagner violated was a firefighter's obligation to obey all laws. One could argue that if that department rule conflicts with WFEA, it could not be "reasonable" under Wis. Stat. '§ 62.13(5)(em)2. However, that argument is not before us because this is not an appeal of the PFC's decision. That argument also potentially conflicts with prior decisions, such as Bachand v. Connecticut Gen. Life Ins. Co., 101 Wis. 2d 617, 305 N.W.2d 149 (Ct. App. 1981), that require WFEA claims to proceed initially through DWD.

       Wisconsin Stat. § 893.80(4) provides that
      No suit may be brought against any ... political corporation, governmental subdivision or any agency thereof for the intentional torts of its officers, officials, agents or employees nor may any suit be brought against such corporation, subdivision or agency or volunteer fire company or against its officers, officials, agents or employees for acts done in the exercise of legislative, quasi-legislative, judicial or quasi-judicial functions.
      "Quasi-judicial functions" are synonymous with "discretionary," as opposed to "ministerial," acts. See Anhalt v. Cities & Villages Mut. Ins. Co., 2001 WI App 271, ¶ 11, 249 Wis. 2d 62, 637 N.W.2d 422.

       This statute was the predecessor to Wis. Stat. § 893.80(4), the current version of the governmental immunity statute.

        See Wis. Stat. §§ 111.39(5) and 111.395.


source: Caselaw Access Project

author: DEININGER, J.

license: Public Domain

text:
    No. 00-CV-3379
    No. 01-CV-259
    Dotty Dumpling's Dowry, Ltd., Plaintiff-Appellant, v. Community Development Authority of the City of Madison, Defendant-Respondent. Community Development Authority of the City of Madison, Plaintiff-Respondent, v. Dotty Dumpling's Dowry, Ltd., Defendant-Appellant.†
    Court of Appeals

      No. 01-1913.

      Submitted on briefs January 11, 2002.

    Decided July 25, 2002.

    2002 WI App 200
    (Also reported in 651 N.W.2d 1.)

      On behalf of the plaintiff-appellant/defendant-appellant, the cause was submitted on the briefs oí Alan Marcuvitz and Andrea Roschke of Weiss Berzowski Brady LLP, Milwaukee.
    On behalf of the defendant-respondent/plaintiff-respondent, the cause was submitted on the brief of Benjamin Southwick, Richland Center.
    Before Vergeront, PJ., Deininger and Lundsten, JJ.

       Petition to review denied 10-21-02.

   DEININGER, J.

¶ 1. Dotty Dumpling's Dowry, Ltd. (Dotty), appeals an order granting the Community Development Authority of the City of Madison a writ of assistance to remove Dotty from premises which the Authority had condemned. Dotty claims the circuit court erred in granting the writ because "a comparable replacement property" was not "made available" to Dotty, as required by Wis. Stat. § 32.05(8) (1999-2000). We conclude, however, that comparable replacement property was "made available" to Dotty "to the extent required by the relocation assistance law." City of Racine v. Bassinger, 163 Wis. 2d 1029, 1040, 473 N.W.2d 526 (Ct. App. 1991). Accordingly, the trial court did not err in granting the writ and we affirm its issuance.

BACKGROUND

¶ 2. The relevant facts are largely undisputed. Dotty owned and operated a restaurant business on Fairchild Street in downtown Madison since 1991. The sole shareholder of Dotty had operated a restaurant of the same name at two other locations on Madison's near west side since 1975. Dotty owned the Fairchild Street property in which the restaurant was located. The area in question was determined by the Madison City Council to be blighted, and the City's Community Development Authority sought to acquire and raze Dotty's building in order to further the redevelopment of the area by constructing a cultural arts facility. See Wis. Stat. § 66.1333.

¶ 3. The Authority initiated condemnation proceedings under Wis. Stat. § 32.05 and acquired title to Dotty's real estate. The Authority's jurisdictional offer to compensate Dotty for the loss of its "land including site improvements and fixtures actually taken" was $583,680. The acquisition of Dotty's and other property required the Authority to comply with statutory relocation assistance provisions. See Wis. Stat. § 32.19 et seq. Accordingly, the Authority retained a relocation specialist who devised a relocation plan for those displaced by its project. Dotty identified several criteria which a replacement property must meet in order to make it acceptable to Dotty as a comparable replacement for its business property. These were: (1) the property would have to be in the same vicinity as the condemned restaurant property; (2) Dotty must be able to own (not lease) the property; and (3) acquisition of the replacement property would not increase Dotty's existing level of business indebtedness.

¶ 4. The relocation specialist identified several potential replacement properties in the general area, but only one was deemed worthy of further inquiry. The cost to purchase and remodel this property would have been about $1.5 million dollars, almost $1 million more than the Authority made available to Dotty in its condemnation award and proposed relocation assistance payments. Dotty requested that the Authority pay this difference to Dotty so that it could acquire and renovate the property. In the alternative, Dotty asked the Authority to conduct another search and offer it a comparable property which it could acquire at a cost not exceeding the amount it would receive from the Authority. At about this same time, the Authority requested Dotty to vacate the condemned property so that the redevelopment project, which was already or soon to be underway, could proceed.

¶ 5. Asserting that the Authority had not offered "a comparable business replacement in compliance with sec. 32.05(8)," Dotty refused to vacate the property. The Authority petitioned the circuit court for a writ of assistance to oust Dotty from the property. See Wis. Stat. § 32.05(8). The Authority deposited $50,000 with the clerk of circuit court with instructions to release the sum to Dotty if it purchased a "comparable replacement business ... at a purchase price of at least $633,680" within two years of Dotty either vacating the condemned premises or receiving the condemnation award, whichever occurred later. See Wis. Stat. § 32.19(4m)(a). The trial court issued a writ of assistance, concluding that the Authority had complied with the statutory relocation assistance requirements. Dotty appeals.

ANALYSIS

¶ 6. We first note that this appeal does not involve a challenge to the Authority's right of condemnation, or to the adequacy of the damages awarded Dotty for the taking of its property. Rather, Dotty here challenges only the issuance of a writ of assistance under Wis. Stat. § 32.05(8) on the grounds that the Authority did not make a comparable replacement property available to it as required by that subsection.

¶ 7. The writ was issued on the Authority's motion for summary judgment, and accordingly, we review the issuance of the writ de novo, applying the same standards as the trial court. M&I First Nat'l Bank v. Episcopal Homes Mgmt., Inc., 195 Wis. 2d 485, 496-97, 536 N.W.2d 175 (Ct. App. 1995). "[S]ummary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Id. at 497; Wis. Stat. § 802.08(2).

¶ 8. Neither party asserts the existence of a factual dispute that would preclude summary judgment. Disposition of the appeal therefore presents only a question of law, specifically one of statutory interpretation, which we must decide de novo. Minuteman, Inc. v. Alexander, 147 Wis. 2d 842, 853, 434 N.W.2d 773 (1989). Our goal in interpreting a statute is to determine and give effect to the intent of the legislature. DeMars v. LaPour, 123 Wis. 2d 366, 370, 366 N.W.2d 891 (1985). Where the language chosen by the legislature is clear and unambiguous, we arrive at the intent of the legislature by "giving the language its plain, ordinary and accepted meaning." State v. Mendoza, 96 Wis. 2d 106, 114, 291 N.W.2d 478 (1980). If, however, the language of a statute is ambiguous, we must look beyond its language and examine such things as its scope, history, context, subject matter, and purpose. UFE Inc. v. LIRC, 201 Wis. 2d 274, 282, 548 N.W.2d 57 (1996).

¶ 9. The relevant provisions of Wis. Stat. § 32.05(8) are as follows:

(b). . .The condemnor has the right to possession when the persons who occupied the acquired property vacate, or hold over beyond the vacation date established by the condemnor, whichever is sooner, except as provided under par. (c). If the condemnor is denied the right of possession, the condemnor may, upon 48 hours' notice to the occupant, apply to the circuit court where the property is located for a writ of assistance to be put in possession. The circuit court shall grant the writ of assistance if all jurisdictional requirements have been complied with, if the award has been paid or tendered as required and if the condemnor has made a comparable replacement property available to the occupants, except as provided under par. (c).
(c) The condemnor may not require the persons who occupied the premises on the date that title vested in the condemnor to vacate until a comparable replacement property is made available. This paragraph does not apply to any person who waives his or her right to receive relocation benefits or services under s. 32.197 or who is not a displaced person, as defined under s. 32.19(2)(e), unless the acquired property is part of a program or project receiving federal financial assistance.

(Emphasis added.)

¶ 10. Dotty did not waive its right to receive relocation benefits, and the Authority does not dispute that Dotty is a "displaced person" within the meaning of the statute. Dotty contends that the only "comparable replacement property" identified by the Authority which met Dotty's criteria was not "made available" because the cost to purchase and remodel the property would be almost $1 million more than the amount Dotty could expect to receive from the Authority. Accordingly, Dotty claims the trial court erred in issuing the writ because a plain and unambiguous statutory precondition for issuing it had not been met. See Wis. Stat. § 32.05(8)(b) and (c). More specifically, Dotty argues that before a writ could issue, the Authority was obligated to make available to it a replacement business property which met its criteria, and which Dotty could acquire without expending a sum greater than the total of its condemnation award and the relocation benefits to which it was entitled under Wis. Stat. ch. 32.

¶ 11. We acknowledge that Wis. Stat. § 32.05(8), read in isolation, does not qualify or explain what a condemner must do in order to satisfy the requirement that a "comparable replacement property" be "made available." The absence of qualifying language lends superficial support to Dotty's "plain meaning" argument, and, at a minimum, would lend support to an argument that the language is ambiguous. We nonetheless reject Dotty's interpretation for three reasons: (1) statutes are not to be read in isolation; (2) we have previously interpreted Wis. Stat. § 32.05(8) as requiring that a condemnor need only comply with provisions of the relocation assistance law; and (3) Dotty's interpretation is unreasonable. A discussion of each of these reasons follows.

¶ 12. A statute "may not be considered in a vacuum, but must be considered in reference to the statute as a whole and in reference to statutes dealing with the same general subject matter." Aero Auto Parts, Inc. v. DOT, 78 Wis. 2d 235, 239, 253 N.W.2d 896 (1977). Statutes relating to the same subject are to be construed together and harmonized. State v. Robinson, 140 Wis. 2d 673, 677, 412 N.W.2d 535 (Ct. App. 1987). Wisconsin Stat. § 32.05(8)(c) expressly refers to the relocation assistance provisions and limits the applicability of the "comparable replacement property is made available" requirement to a "displaced person, as defined under s. 32.19(2) (e)" who has not waived "his or her right to receive relocation benefits or services." Given this express reference and the statutory context it provides, a reasonable reading of the "made available" requirement is that a condemnor may obtain a writ of assistance after it has provided the relocation assistance to which a "displaced person" is statutorily entitled.

¶ 13. We have previously adopted precisely this reading of Wis. Stat. § 32.05(8). We concluded in City of Racine v. Bassinger, 163 Wis. 2d 1029, 473 N.W.2d 526 (Ct. App. 1991), that "there are three conditions precedent to the issuance of a writ of assistance: (1) compliance with all jurisdictional requirements; (2) payment or tender of the award; and (3) making available comparable replacement property to the occupants." Id. at 1035. Just as Dotty does, the condemnee in Bassinger claimed that a writ of assistance had wrongly been issued because the third condition had not been met. We found ambiguity in the term "occupants," but based in part on the legislative history of Wis. Stat. § 32.05(8) (1989-90) and its relationship to the relocation assistance provisions, we concluded that

the legislative intent of the language in question was to provide, as one of the three conditions precedent to issuance of a writ of assistance, that a person displaced by a condemnation have comparable replacement property made available to the extent required by the relocation assistance law. The LRB analysis reveals that the language in question was added to sec. 32.05, Stats., to clarify existing law — not to create in condemnees new substantive rights. By placing the language in subsec.
(8), the legislature merely added a new condition, the substantive rights of which are found elsewhere in the statute.

Id. at 1040.

¶ 14. Dotty would have us distinguish Bassinger because it decided a different question than now before us, and because of the legislature's subsequent amendment of Wis. Stat. § 32.05(8). (See footnote 6.) We conclude, however, that our previous analysis and holding are applicable and controlling in the present dispute.

¶ 15. Our ultimate inquiry in Bassinger was whether the owner of a marina which rented property to boat owners was a "displaced person" under Wis. Stat. § 32.19, thus entitling the owner to relocation assistance in the form of having a comparable replacement property made available prior to being removed from the premises under Wis. Stat. § 32.05(8). Id. at 1041-43. The issue of whether Dotty was entitled to relocation assistance is admittedly not before us, given that there is no dispute that Dotty is a "displaced person" entitled to receive assistance and benefits under Wis. Stat. §§ 32.19-.25. Our holding in Bassinger, however, rested squarely on our conclusion that Wis. Stat. § 32.05(8) grants a condemnee no rights beyond what the legislature has authorized in the relocation assistance law, Wis. Stat. § 32.19 et seq. Id. at 1039-41.

¶ 16. We were quite specific in Bassinger, even to the point of adding emphasis to what we discerned as the legislature's intent underlying Wis. Stat. § 32.05(8): "that a person displaced by a condemnation have comparable replacement property made available to the extent required by the relocation assis tance law." Id. at 1040. Later in the opinion, we summarized our conclusion as follows: "Accordingly, we conclude that the relocation assistance law, not condemnation law, determines the extent to which the Bassingers are entitled to have made available to them comparable replacement property for the marina." Id. at 1041. Thus, even though the precise issue before us is not, as in Bassinger, whether a specific condemnee was entitled to relocation assistance, but whether a qualifying condemnee received assistance "to the extent required by the relocation assistance law," our analysis in Bassinger makes clear that we must look to the relocation assistance law to "determine [] the extent to which [Dotty is] entitled to have made available to [it] comparable replacement property for the [restaurant]." Id.

¶ 17. We also see nothing in the 1991 legislative rearrangement of the language in Wis. Stat. § 32.05(8) that alters our conclusions in Bassinger. Prior to 1991, § 32.05(8) was not divided into paragraphs, and it included the following language:

The condemnor has the right to possession when the persons who occupied the acquired property vacate, or hold over beyond the vacation date established by the condemnor, whichever is sooner, except that the con-demnor may not require the persons who occupied the premises on the date title vested in the condemnor to vacate until a comparable replacement property is made available.

Wis. Stat. § 32.05(8) (1989-90) (emphasis added). 1991 Wis. Act 39 simply moved the highlighted language to a newly created paragraph (c), where it remains today. 1991 Wis. Act 39 §§ 1030c and L.

¶ 18. Dotty asserts that by setting this language "apart as a separate and independent subsection," the legislature rendered the "made available" requirement something more than a condition precedent to the issuance of a writ, thereby undermining the continuing validity of our analysis in Bassinger. We disagree. The legislative tinkering made no substantive changes to the relevant language of Wis. Stat. § 32.05(8), and it yields no indication of a legislative intent other than the one we discerned in Bassinger. If anything, the linkage between the "made available" requirement of § 32.05(8) and the relocation assistance law is strengthened by the 1991 revision. The newly created paragraph (c) includes two specific references to the relocation assistance law which were not present in the former § 32.05(8). See § 32.05(8)(c) (references to §§ 32.19(2)(e) and 32.197).

¶ 19. Before taking up our final reason for rejecting Dotty's interpretation — its unreasonableness — we briefly address whether the Authority did, in fact, make available to Dotty a "comparable replacement property ... to the extent required by the relocation assistance law." Bassinger, 163 Wis. 2d at 1040. The trial court concluded that the Authority had done so, and Dotty does not explicitly contend otherwise until its reply brief. Instead, Dotty attempts to persuade us that the "made available" provision in Wis. Stat. § 32.05(8) requires the Authority to do something more or different than simply meeting statutory relocation assistance requirements.

¶ 20. There can be no dispute that the Authority made available to Dotty the maximum allowable "business replacement payment" authorized under Wis. Stat. § 32.19(4m). The Authority deposited $50,000 with the clerk of court and directed its payment upon Dotty meeting the statutory criteria for receiving it. See § 32.19(4m)(a). By the same token, although Dotty pointedly notes that the Authority had tendered no other cash payments, the record establishes that the Authority stood ready, willing and able to reimburse Dotty for its actual moving and "re-establishment" expenses, and/or to pay a business discontinuation payment, up to statutory máximums, and had offered to do so. See § 32.19(3).

¶ 21. We are satisfied that by identifying potential replacement properties, obtaining renovation cost estimates for a property in which Dotty expressed some interest, tendering the maximum business replacement payment, and offering to reimburse Dotty for its other statutorily authorized relocation expenses, the Authority "made available" to Dotty a comparable replacement property "to the extent required by the relocation assistance law." Bassinger, 163 Wis. 2d at 1040.

¶ 22. Dotty does assert in its opening brief that the Authority failed to comply with certain provisions of Wis. Admin. Code ch. Comm 202, which "establish[es] minimum standards for providing relocation payments and services." Wis. Admin. Code § Comm 202.001. Specifically, Dotty points to Wis. Admin. Code § Comm 202.92(3), which provides that a condemnor "shall offer a comparable replacement business .. . within the maximum differential payment determined," and shall undertake "[ajnother comparable study... to determine a new replacement payment when there is no comparable available." This subsection must be read in proper context, however. The introductory language of the rule plainly limits any replacement payment to a maximum of $50,000, as provided by statute. See § Comm 202.92 (intro); Wis. Stat. § 32.19(4m). Because the Authority advanced the maximum payment contemplated under § Comm 202.92, there was no reason for it to conduct "another comparable study" for the purpose of revising upward a previously determined, less-than-maximum differential payment, which is the circumstance § Comm 202.92(3) addresses.

¶ 23. Dotty also cites several other administrative code provisions which it claims the Authority failed to follow, and it complains that the trial court did not consider these alleged shortcomings in the relocation assistance provided by the Authority. Our review on summary judgment is de novo, and we have reviewed the parties' submissions in support of and in opposition to the Authority's motion. Among other things, these include lengthy excerpts from the deposition of a "relocation specialist," whom the Authority retained to provide relocation services and assistance to Dotty, as well as a copy of the Relocation Program Plan approved by the Authority. The relocation specialist described the steps he took to identify some ten potential replacement locations for Dotty, his discussions with Dotty's representatives regarding the asserted unsuitability of most of the identified properties, and the remodeling estimates he obtained for the one site Dotty seemed interested in pursuing further. He also testified that he had been a relocation specialist since 1970, that he was thoroughly familiar with the requirements of Wisconsin's relocation benefits law, and that, in his opinion, "the Authority has fully complied" with those requirements.

¶ 24. Dotty points to nothing in the record which rebuts or refutes the specialist's testimony and conclusions. Many, if not most, of Dotty's complaints about the Authority's failures are rendered moot by the Authority's decision to tender the maximum allowable business replacement payment for an owner-occupied business. Moreover, we are not convinced that the type of procedural missteps Dotty alleges constitute grounds for avoiding the issuance of a writ. The property owners in Bassinger also asserted that the condemning authority had failed to follow various statutes and rules relating to relocation assistance benefits, which they asserted were "jurisdictional requirements" within the meaning of Wis. Stat. § 32.05(8), and thus preconditions for writ issuance. Bassinger, 163 Wis. 2d at 1035-36. We rejected this claim, concluding the asserted procedural defects were not a bar to the issuance of a writ of assistance. Id. at 1038.

¶ 25. To be sure, Dotty does not contend that the procedural failures it cites are "jurisdictional" defects. Its claim is that the alleged shortcomings should be considered in determining whether the Authority in fact discharged its responsibility to make a comparable replacement property available to Dotty. Our rationale in denying relief to the property owners in Bassinger, however, also disposes of Dotty's contentions, despite the reformulation of the argument. Noting that the legislature has provided other forms of redress for displaced persons who believe a condemnor has not properly complied with relocation assistance requirements, we concluded that "procedural defects" relating to relocation assistance requirements "do not present a bar to the issuance of the writ." Id. The circuit court before issuing the writ required the Authority to demonstrate compliance with the basic requirements of the relocation assistance law. We conclude that the lesser shortcomings alleged by Dotty do not bar the issuance of a writ but may be redressed, if proven, in another forum.

¶ 26. Finally, we note that Dotty's reading of Wis. Stat. § 32.05(8) suggests that a condemnor must provide virtually unlimited relocation assistance before it can gain possession of condemned premises. In Dotty's view, a court may not grant a condemnor possession of condemned premises until a replacement property deemed acceptable by the condemnee is procured, regardless of its acquisition costs, all of which the con-demnor must bear or tender. Alternatively, Dotty's interpretation of the "made available" requirement implies that it will never have to vacate the condemned property if the Authority cannot identify a replacement property acceptable to Dotty which can be acquired for an amount not exceeding the award of compensation plus the maximum relocation benefits to which Dotty is entitled. Either result is unreasonable and contrary to the legislative intent regarding the "made available" requirement that we discerned in Bassinger.

¶ 27. Given the limits specified by the legislature for the various relocation assistance benefit payments authorized by Wis. Stat. § 32.19, we agree with the trial CQurt's conclusion that "[t]he law does not impose any. . . open-ended obligation upon a condemnor" to provide business relocation payments regardless of the cost to the condemnor. The obligation of the condemning agency under § 32.19 is to assist in the procurement and acquisition of replacement property, not to make a displaced business financially whole regardless of the cost to the condemning agency. In short, Dotty's interpretation would render meaningless the subsections of § 32.19 which place upper limits on relocation assistance -payments, and it is thus an interpretation we cannot adopt. See Capoun Revocable Trust v. Ansari, 2000 WI App 83, ¶ 13, 234 Wis. 2d 335, 610 N.W.2d 129.

¶ 28. In this regard, we also note that the legislature has expressly provided for an exception to the limits on replacement payments under the relocation assistance law, but not for business owners. Wisconsin Stat. § 32.19(4)(c) allows a condemning Authority to exceed statutory payment limits if a "comparable dwelling is not available within the monetary limits" for a person displaced from his or her residence. We agree with the trial court's observation that, in determining the legislature's intent regarding a condemnor's obligations to a displaced business, "[i]t is significant that the statute provides no equivalent authority for the [Authority] to exceed the limits when comparable replacement business property cannot be found."

¶ 29. Dotty's stated requirements for an acceptable replacement property included that it be able to acquire ownership, and not just a lease, of the replacement business location; that it be situated within several blocks of its former premises; and that acquisition and renovation costs not require it to increase its indebtedness. We agree with the Authority, however, that if Dotty could not acquire a replacement property within those parameters, a decision to go out of business instead of relocating with the assistance of the tendered relocation payments was a business decision for the owner of Dotty to make. The relocation statutes and regulations plainly contemplate that some business-owners will opt not to relocate or ultimately be unsuccessful in doing so. See Wis. Stat. § 32.19(3)(b) and (c); Wis. Admin. Code §§ Comm 202.56(4) and 202.58. Accordingly, Dotty's decision to forgo consideration of a replacement site beyond its narrow criteria does not provide legal justification for it to permanently or indefinitely occupy the condemned premises.

¶ 30. Dotty also claims that the issuance of the writ constituted an unconstitutional taking because it deprived Dotty, without just compensation, of its ability to continue operating its business. The Authority responds that Dotty waived any constitutional argument by failing to raise it in the circuit court. We agree and therefore we decline to address whether Wis. Stat. § 32.05(8), as applied to Dotty, resulted in an unconstitutional "taking" of a "right" to stay in business.

¶ 31. The trial court noted in an oral ruling that:

Dotty's has criticized the manner of the exercise of the condemnation authority, but it has not suggested that the [Authority] does not hold the lawful authority to acquire the real estate as part of the project that is being constructed. By the same token, before oral argument today there was no suggestion in any argument presented by Dotty's that any aspect of the current condemnation law violates either the United States Constitution or the Wisconsin Constitution.

We have examined Dotty's pleadings and its submissions and briefs in response to the Authority's summary judgment motions, and none make the constitutional claim Dotty now wishes to assert. In its reply brief to this court, however, Dotty asserts that both parties raised the constitutional issue during oral argument in the circuit court.

¶ 32. We have reviewed the transcript pages Dotty cites. The Authority's counsel during argument briefly distinguished what was at issue in this litigation ("relocation benefits") from "the constitutional concept of just compensation." He argued that "there is no constitutional right to relocate." In response, and without further elaboration, Dotty's counsel stated, "I believe it ['putting a business out just as [the Authority] is trying to do here'] violates our constitute [sic]... [and] the federal constitution." Except for these passing references to the constitution during oral argument, Dotty's defense to issuance of the writ focused exclusively on the Authority's alleged failure to meet the statutory preconditions for a writ because it had not provided Dotty with a comparable replacement property it deemed acceptable. The constitutional challenge that Dotty now wishes to raise was thus waived. See Schwittay v. Sheboygan Falls Mut. Ins. Co., 2001 WI App 140, ¶ 16 n.3, 246 Wis. 2d 385, 630 N.W.2d 772 ("A party must raise an issue with sufficient prominence such that the trial court understands that it is called upon to make a ruling.").

¶ 33. Finally, we note that in the last paragraph of its argument, the Authority asks us to conclude that Dotty's appeal is frivolous because Dotty should have known the appeal had no basis in law nor could it be supported by a good faith argument for extension, modification or reversal of existing law. See Wis. Stat. Rule 809.25(3)(c)2. Beyond making this request and citing the relevant language from § 809.25(3), the Authority makes no effort to further explain its request or develop a rationale to support it. We therefore deny the request without further discussion. See State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992) (We may decline to review issues that are "inadequately briefed," such as when "arguments are not developed themes reflecting any legal reasoning" and "are supported by only general statements.").

CONCLUSION

¶ 34. For the reasons discussed above, we affirm the appealed order.

By the Court. — Order affirmed.

       All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted. The relevant portions of Wis. Stat. § 32.05(8) are quoted in the Analysis section of this opinion, below at ¶ 9.

       The consolidated cases in the circuit court also involved an action by Dotty challenging the Authority's right to take its trade fixtures, in which Dotty prevailed. The circuit court initially denied the Authority's motion for summary judgment on its request for a writ of assistance, ruling that it must first comply with certain requirements of Wis. Stat. ch. 32. None of the rulings which preceded the court's issuance of the writ on July 16, 2001 are at issue in this appeal.

       Dotty responded to the Authority's petition for a writ with several affirmative defenses and a counterclaim for declaratory and injunctive relief seeking to prevent the Authority from gaining possession of Dotty's business premises. It did not, however, make an alternative claim for damages in the event of its removal. After the circuit court granted the writ, Dotty unsuccessfully moved the circuit court for a stay of its execution but did not thereafter seek a stay from this court. We take judicial notice of the facts that Dotty's building has been razed and construction of the arts facility has proceeded on Dotty's former property. See Wis. Stat. § 902.01(2)(a) and (3) (A "court may take judicial notice, whether requested or not" of a "fact generally known within [its] territorial jurisdiction."). The only relief Dotty requests in this appeal is that we "overturn the trial court's granting of the writ of assistance." The Authority does not argue, and thus we do not address, whether the appeal should he dismissed as moot.

       Wis. Stat. § 32.19(2)(e)1., a. ("'Displaced person' means . . . any person ... who moves his or her personal property from real property... [a]s a direct result of a written notice of intent to acquire or the acquisition of the real property, in whole or in part or subsequent to the issuance of a jurisdictional offer under this subchapter, for public purposes ....")

       A "comparable replacement business" is defined in Wis. Stat. § 32.19(2)(c) as
      a replacement business which, when compared with the business premises being acquired by the condemnor, is adequate for the needs of the business, is reasonably similar in all major characteristics, is functionally equivalent with respect to condition, state of repair, land area, building square footage required, access to transportation, utilities and public service, is available on the market, meets all applicable federal, state or local codes required of the particular business being conducted, is within reasonable proximity of the business acquired and is suited for the same type of business conducted by the acquired business at the time of acquisition.

       The text of Wis. Stat. § 32.05(8) (1989-90) contained essentially the same language as that now found in Wis. Stat. § 32.05(8) (b) and (c). In the 1991 budget act, the legislature revised subsection (8) to include a definition as paragraph (a), retained most of the then existing language of the subsection as paragraph (b), and created paragraph (c) as it now reads and as we have quoted it above in ¶ 9. 1991 Wis. Act 39, §§ 1030c, g, and L.

       For example, Dotty argues that under Wis. Admin. Code § Comm 202.92(2)(b) and (d) the Authority was required to base a replacement payment in part on the cost of improvements necessary at a new location, or on new construction costs if no comparable replacement property was available, and the Authority never did this. The failure to make these computations, however, would only be assailable if the Authority had tendered some amount less than the $50,000 maximum business replacement payment.

       See, e.g., Wis. Stat. §§ 32.20 and 32.26(5).

       In its first summary judgment ruling (see footnote 2, above), the circuit court determined that Dotty was an owner-occupant, entitled to a business replacement payment of up to $50,000, as opposed to the $30,000 statutory maximum for tenant-occupied businesses, which the Authority initially maintained applied to Dotty. Accordingly, the court declined to issue a writ of assistance until the Authority had tendered the higher sum. The Authority does not argue that the circuit court erred by initially denying a writ for that reason.

       Dotty's owner testified at a deposition that "in the hospitality industry, location, location, location is the key to general success, and... my plans are to try to stay in that area," clarifying that he meant "a block or two to the left, a block of two to the right."

       The owner testified that he had "three real estate guys out looking all over for me," all of whom were unable to locate a replacement business site he deemed acceptable for relocation. In response to a question whether he knew "of any properties in the vicinity that would be suitable that are available that you might he able to move to for less than 1.5, 1.6 million," Dotty's owner replied that he'd had "two full-time guys ... looking for the last three years, and I've come up with nothing."


author: ROGGENSACK, J.

text:
    Brent J. Stubbe, Plaintiff-Appellant, v. Guidant Mutual Insurance Company, Guidant Insurance Group, formerly known as Preferred Risk Mutual Insurance Company/Preferred Risk Group, Defendant-Respondent.

    Court of Appeals

      No. 01-2509.

      Submitted on briefs March 14, 2002.

    Decided July 25, 2002.

    2002 WI App 203
    (Also reported in 651 N.W.2d 318.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Michael Riley of Attérbury & Riley, S.C. of Madison.
    On behalf of the defendant-respondent, the cause was submitted on the brief of Richard G. Niess of Coyne, Niess, Schultz, Becker & Bauer, S.C. of Madison.
    Before Vergeront, PJ., Roggensack and Deininger, JJ.

       Petition to denied 12-10-02.

   ROGGENSACK, J.

¶ 1. In the course of his employment, Brent Stubbe was injured in an automobile accident that was caused by an underinsured driver. Stubbe sought underinsured motorist benefits from his personal insurer, Guidant Mutual Insurance Company (Guidant), under both his automobile policy and his personal umbrella policy. An arbitration panel determined that Stubbe's accident-related damages were $436,332, with the parties reserving coverage issues. The underinsured motorist paid $50,000, worker's compensation paid $33,939.37 and Guidant paid $166,060.63 under Stubbe's automobile policy, but Guidant contested coverage under Stubbe's personal umbrella policy. When Stubbe sued for the balance of the arbitration award, Guidant raised its coverage defenses and counterclaimed, alleging that its initial payment to Stubbe erroneously included future medical expenses that it should not have paid. The circuit court granted summary judgment to Guidant on all issues. We conclude that Stubbe's umbrella policy is ambiguous and therefore, we construe it in favor of the insured to provide underinsured motorist protection for damages in excess of the automobile policy's limit. We further conclude that Stubbe's automobile policy is ambiguous in regard to its treatment of future medical expenses, and therefore, Stubbe is entitled to retain any payment for future medical expenses already paid by Guidant. Accordingly, we reverse the judgment of the circuit court and direct it to enter judgment in Stubbe's favor on remand in the amount of $186,332, the balance of the arbitration award that remains unpaid.

BACKGROUND

¶ 2. On June 9, 1997, Stubbe sustained severe personal injuries in an automobile accident caused by the negligence of Terry Thielmann. Thielmann carried an automobile insurance policy with a $50,000 liability limit, and Stubbe settled his claim against Thielmann and Thielmann's insurer for $50,000. Stubbe then sought additional damages from his own insurer, Guidant. Stubbe had two policies with Guidant relevant to this appeal: (1) a "Personal Car Policy,"-which provides $250,000 of underinsured motorist protection for claims involving bodily injury; and (2) a $1,000,000 "Personal Excess Liability Policy," or "umbrella" policy.

¶ 3. Pursuant to the requirements of the automobile policy, Stubbe and Guidant arbitrated the amount of damages, reserving coverage issues. The arbitration panel found total damages of $436,332, comprised of past medical expenses ($26,104); future medical expenses ($22,500); past lost earnings ($6,364); future lost earnings ($6,364); and general damages ($375,000).

¶ 4. Guidant remitted $166,060.63 to Stubbe, asserting that the payment satisfied its obligations. Guidant calculated this amount by off-setting from the automobile policy's $250,000 underinsured motorist limit the $50,000 paid by Thielmann's insurer and the $33,939.37 paid by worker's compensation. Guidant contended that the umbrella policy provided no coverage for injuries caused by an underinsured motorist.

¶ 5. Stubbe sued Guidant to obtain additional payments, and Guidant counterclaimed for $22,500, asserting that its $166,060.63 payment to Stubbe erroneously included the amount the arbitration panel awarded for future medical expenses, which were subject to an exclusion and a reducing clause for medical expenses paid or payable as worker's compensation benefits. The parties agreed to a stipulated statement of facts and filed cross-motions for summary judgment. The circuit court decided all issues in favor of Guidant. Stubbe appeals.

DISCUSSION

Standard of Review.

¶ 6. We review a circuit court's decision to grant summary judgment de novo, using the same standard applied by the circuit court. Guenther v. City of Onalaska, 223 Wis. 2d 206, 210, 588 N.W.2d 375, 376 (Ct. App. 1998). We first examine the complaint to determine whether it states a claim, and then we review the answer to determine whether it joins a material issue of fact or law. Smith v. Dodgeville Mut. Ins. Co., 212 Wis. 2d 226, 232, 568 N.W.2d 31, 34 (Ct. App. 1997). If we conclude that the complaint and answer are sufficient to join issue, we examine the moving party's affidavits to determine whether they establish a prima facie case for summary judgment. Id. at 232-33, 568 N.W.2d at 34. If they do, we look to the opposing party's affidavits to determine whether there are any material facts in dispute that entitle the opposing party to a trial. Id.

¶ 7. The primary issues on appeal involve policy defenses which require us to construe the insurance policies. The construction and interpretation of a written insurance policy is a question of law, which we review without deference to the decision of the circuit court. Guenther, 223 Wis. 2d at 210, 588 N.W.2d at 377.

Policy Defenses.

¶ 8. When construing an insurance policy, we first look to the language of the written agreement. See Kremers-Urban Co. v. American Employers Ins. Co., 119 Wis. 2d 722, 735, 351 N.W.2d 156, 163 (1984). We construe the language used in the policy from the perspective of a reasonable insured, giving the words used their common and ordinary meanings. Wisconsin Label Corp. v. Northbrook Prop. & Cas. Ins. Co., 2000 WI 26, ¶ 25, 233 Wis. 2d 314, 607 N.W.2d 276. If the policy language is clear on its face, we will simply apply the policy terms. Id. at ¶ 24. However, if the policy language is susceptible to more than one reasonable construction, it is ambiguous. Smith v. Atlantic Mut. Ins. Co., 155 Wis. 2d 808, 811, 456 N.W.2d 597, 598-99 (1990). Ambiguities are resolved in favor of the insured. Donaldson v. Urban Land Interests, Inc., 211 Wis. 2d 224, 230, 564 N.W.2d 728, 731 (1997). In addition, our interpretation of ambiguous language should advance the insured's reasonable expectations of coverage. Taylor v. Greatway Ins. Co., 2001 WI 93, ¶ 10, 245 Wis. 2d 134, 628 N.W.2d 916.

1. Umbrella policy.

¶ 9. Guidant's view of the umbrella policy focuses almost exclusively on the policy's statement of coverage, which provides:

We will pay the ultimate net loss that any covered person becomes legally obligated to pay because of personal injury or property damage to which the insurance applies occurring during the policy period. We will pay only that part of the ultimate net loss which is in excess of the applicable underlying limit or retained limit.

(Footnote added.) Guidant argues that this language, including its defined terms, unambiguously shows that the exclusive purpose of the policy is to provide excess liability coverage for third-party claims brought against the insured; therefore, there is no coverage for first-party claims. In particular, Guidant emphasizes that Stubbe is a "covered person" under the policy and that he is not "legally obligated to pay" the damages awarded by the arbitration panel. Rather, he is entitled to receive those damages. Stubbe asserts that the policy must be read as a whole and further contends that other policy provisions affect the scope of coverage.

¶ 10. We agree that the policy must be read as a whole. See D'Angelo v. Cornell Paperboard Prods. Co., 59 Wis. 2d 46, 50-51, 207 N.W.2d 846, 848-49 (1973) ("[T]he contract should be construed whenever possible so that. .. none of the language [is] discarded as superfluous or meaningless."). Additionally, we conclude that three prominent references to underinsured motorist protection appearing in the policy create an ambiguity in the insuring agreement.

¶ 11. The first time that Stubbe's umbrella policy refers to underinsured motorist protection is on the declarations page, which provides a table titled "SCHEDULE OF UNDERLYING INSURANCE LIMITS." The schedule of underlying limits expressly lists "AUTOMOBILE LIABILITY," and five subheadings appear under that heading. The schedule indicates that a subheading is "Included only if marked by an X." "Underinsured Motorist" is clearly marked with an "X" as "included."

¶ 12. Although the importance of the schedule of underlying limits is not immediately apparent from the declarations page itself, the insured is told in a section of the policy titled "MAINTENANCE OF UNDERLYING INSURANCE" that:

You must maintain in full effect the insurance afforded by each policy described in the Declarations. This does not apply to any reduction in limits of those policies caused by payment of claims in accordance with their terms, if such reduction occurs during the period of this policy.
If you fail to comply with this provision, we will be liable only to the extent that we would have been liable if the underlying policies had been maintained in force.

It is reasonable to read the schedule of underlying limits (which lists underinsured motorist coverage as "included") and the policy's requirement that the insured "maintain in full effect the insurance afforded by each policy described in the Declarations" to indicate that underinsured motorist protection is available as part of the umbrella policy. In particular, we conclude that a reasonable insured would believe that if under-insured motorist coverage were not available under the umbrella policy, the insured would not be required to maintain the underinsured motorist portion of their automobile policy "in full effect."

¶ 13. The two remaining references to underin-sured motorist protection appearing in the umbrella policy appear in an exclusion and a related endorsement. Generally, an exclusion is a clause in an insur-anee policy that subtracts from coverage and puts a reasonable insured on notice that coverage will be limited. Bulen v. West Bend Mut. Ins. Co., 125 Wis. 2d 259, 263, 371 N.W.2d 392, 394 (Ct. App. 1985). An endorsement is "a provision added to an insurance contract altering its scope or application that takes precedence over printed portions of the policy in conflict therewith." Muehlenbein v. West Bend Mut. Ins. Co., 175 Wis. 2d 259, 265, 499 N.W.2d 233, 235 (Ct. App. 1993) (citation omitted).

¶ 14. The umbrella policy's "UNINSURED OR UNDERINSURED MOTORISTS" exclusion states that Guidant does not provide insurance for "[a]ny loss for which you or a passenger in your car may have a legal right to recover from an owner or driver of an uninsured or underinsured auto because of an accident involving that auto." At first blush, the underinsured motorists exclusion would appear to support Guidant's argument that there is no first-party coverage under the umbrella policy. However the policy also contains an endorsement informing the insured that the underin-sured motorists exclusion "is deleted in its entirety."

¶ 15. Stubbe argues that when the policy is read as a whole, the endorsement gives rise to a reasonable expectation of coverage for underinsured motorist claims. We agree. An insured may reasonably expect that when an insurance company deletes limiting language in the policy, the purported limitations no longer apply. Here, it would be reasonable for Stubbe to conclude that because there are other provisions dealing with underinsured motorist protection in the umbrella policy, the exclusion of coverage for underinsured motorist claims no longer applies and therefore, there is coverage for such claims to the extent that the claims exceed the liability limits of the underlying policy.

¶ 16. Additionally, we conclude that these prominent references to underinsured motorist protection — in a policy that the insurer claims has nothing to do with such claims — serve to distinguish this case from Muehlenbein, which was relied on by Guidant. Like Stubbe, the injured plaintiff in Muehlen-bein was involved in an accident with an underinsured driver and sought additional underinsured motorist coverage under an umbrella policy because his damages exceeded the liability limits of the underlying automobile policy. Muehlenbein, 175 Wis. 2d at 262, 499 N.W.2d at 234. We concluded that a "reading of [the insurer's] umbrella policy as a whole does not support [the plaintiffs'] argument." Id. at 266, 499 N.W.2d at 235. First, we noted that the policy's statement of coverage in Muehlenbein gave no indication to the insured that the policy covered anything other than third-party liability claims. Id. at 266-67, 499 N.W.2d at 236. Second, we noted that the umbrella policy's lone reference to un-derinsured motorist protection — an endorsement that excluded coverage for any claim covered under the underinsured motorist provision of any policy covering the insured — clearly and unambiguously eliminated any potential ambiguity regarding underinsured motorist coverage. Id. at 267-69, 499 N.W.2d at 236-37. In contrast, the very provisions that we conclude give rise to an ambiguity in Stubbe's policy (the declarations page and the endorsement deleting an exclusion for underinsured motorist coverage) were absent from the policy at issue in Muehlenbein.

¶ 17. Because we conclude that the umbrella policy issued to Stubbe is ambiguous in regard to coverage for underinsured motorist claims and that Stubbe has a reasonable expectation of coverage for this claim, we resolve the ambiguity in the umbrella policy against Guidant. Accordingly, to the extent that there are amounts that would have been paid under the underinsured motorist provision in Stubbe's automobile policy but for that policy's monetary limits, they are covered by the umbrella policy.

2. The automobile policy exclusions and reducing clause.

¶ 18. Stubbe contends that the circuit court erred in granting summary judgment to Guidant on its counterclaim for $22,500 in "future medical expenses" that Guidant claims to have erroneously included in its $166,060.63 payment under the automobile policy. Stubbe contends that the automobile policy language is ambiguous in regard to reducing the policy limits by the estimated amount of future medical expenses and therefore, the ambiguity should be construed in favor of the insured. If the policy language is ambiguous in regard to exclusions or reducing clauses, it will be construed in favor of the insured. See Sprangers v. Greatway Ins. Co., 182 Wis. 2d 521, 536, 514 N.W.2d 1, 6 (1994) (exclusions from coverage are to be construed narrowly against the insurer). We agree the policy is ambiguous and construe.it against Guidant.

¶ 19. The stipulated facts establish that the arbitration panel awarded $22,500 for "future medical expenses," that the accident occurred in the course of Stubbe's employment and that Stubbe has received worker's compensation benefits for accident-related medical expenses in the past. The underinsured motorist provisions of the automobile policy state that Guidant "will not pay for any element of loss if a person is entitled to receive payment for the same element of loss under . . . [wjorker's compensation law." Similarly, a reducing clause states that the limit of liability "shall be reduced by all sums . .. [p]aid or payable because of the 'bodily injury' under.. . [w]orker's compensation law."

¶ 20. Stubbe asserts that the phrases "entitled to receive payment" and "sums. . . payable" under worker's compensation law are ambiguous with respect to an insured's future medical expenses. He contends that a reasonable insured would interpret the phrases to refer only to sums for accident-related medical expenses that have been paid or that are currently due and owing from an employe? under the worker's compensation statutes. On the other hand, Guidant contends that the phrases reach all reasonable accident-related medical expenses, past and future, that may be reimbursed by the employer. According to Guidant, the fact that Stubbe has received worker's compensation coverage for his past accident-related medical expenses is sufficient to show that his employer will also pay for his future accident-related medical expenses. Both interpretations are reasonable.

¶ 21. The worker's compensation statutes define the scope of the employer's liability for an employee-claimant's medical expenses. Wisconsin Stat. § 102.03 sets forth several conditions that trigger employer liability under ch. 102. Stubbe raises no issue concerning the § 102.03 requirements, and we conclude that the fact that Stubbe has received worker's compensation benefits for his past accident-related medical expenses is sufficient to support , at least a prima facie showing that the statutory conditions precedent to a worker's compensation claim have been satisfied.

¶ 22. However, Stubbe contends that the worker's compensation statutes do not require employers to make lump sum payments of estimated future medical expenses to an employee. That is, even when the injured employee's need for future medical care can be expressed to a degree of medical certainty, the employer does not stand in the shoes of a third-party tortfeasor in terms of liability for the reasonable value of expected future medical care, but instead, the employer pays for reasonable medical expenses as they are incurred. See Wis. Stat. § 102.42(1); Lisney v. LIRC, 171 Wis. 2d 499, 507, 493 N.W.2d 14, 16-17 (1992). Additionally, he claims that the amount the employer (or its carrier) actually pays for medical services may be affected by contractual agreements and, therefore, may differ from a before-the-fact estimate of future medical expenses.

¶ 23. We agree that Wisconsin's worker's compensation laws create a system whereby (at least in the absence of a negotiated compromise) the employer or the employer's insurance carrier pays for reasonable and necessary medical expenses as those expenses are incurred and that those expenses cannot be determined with complete accuracy before they are incurred. Furthermore, under Guidant's view of the policy, if the insured is injured during the course of his or her employment and was eligible for worker's compensation benefits, the insured takes on a substantially different risk with respect to estimated future medical expenses than would be true if the insured were not eligible for worker's compensation benefits. That is, under Guidant's proposed interpretation of the automobile policy, an insured with Stubbe's automobile policy who is injured on the job potentially bears a risk that future medical expenses will be overestimated and thereby reduce the policy limits for which actual payment is made. For example, if the reducing clause is applied as Guidant requests us to do, such an insured loses potential coverage for other damages to the extent that the future medical expenses actually paid as worker's compensation turn out to be less than the amount estimated by the arbitrator. If, on the other hand, the same insured is injured in an accident off the job, the insured's potential risk is that estimated future medical expenses will be underestimated — which is essentially the same risk that an injured insured would have in a direct action against a tortfeasor. And, so long as there are other damages from the accident that reach the policy limit, the insured who is injured off the job will receive a payment equal to the policy limit even if future medical expenses are underestimated.

¶ 24. Because we conclude that as applied to an award of future medical expenses the policy language is ambiguous and that a reasonable insured would interpret the phrases "entitled to receive" and "sums payable" to refer only to amounts due and owing from an employer for expenses already incurred, we reverse the circuit court's decision with respect to Guidant's counterclaim. Therefore, Stubbe is entitled to retain any payment for future medical expenses.

Undeveloped argument.

¶ 25. Stubbe's briefs appear to suggest that because the umbrella policy contains no reducing clause relating to payments previously made and because his total claimed damages do not approach the $1 million liability limit of the umbrella policy, any reducing clause or "no-duplication" clause found in the automobile policy is not dispositive of the damages he is entitled to receive. To the extent Stubbe is asserting that the absence of a reducing clause in the umbrella policy means that he is entitled to recover (1) the $50,000 he received from Thielmann's insurer or (2) the $33,939.37 he received in net worker's compensation benefits, we conclude that his argument is not sufficiently developed, and we decline to further address the issue. W.H. Pugh Coal Co. v. State, 157 Wis. 2d 620, 637, 460 N.W.2d 787, 793 (Ct. App. 1990). For this reason, our calculation of the $186,332 balance owed to Stubbe includes neither the $50,000 he received from Thielmann's insurer nor the $33,939.37 he received in worker's compensation benefits.

CONCLUSION

¶ 26. We conclude that Stubbe's umbrella policy is ambiguous and that it should be construed in favor of the insured to provide underinsured motorist protection for damages in excess of the automobile policy's liability limit. We further conclude that the underlying automobile policy is ambiguous as applied to a claim for future medical expenses that may be covered under the worker's compensation laws and that Stubbe is entitled to retain any payment for future medical expenses already paid by Guidant. Accordingly, we reverse the judgment of the circuit court and direct the circuit court to enter judgment in Stubbe's favor on remand in the amount of $186,332.

By the Court. — Judgment reversed and cause remanded with directions.

       The policy defines "ultimate net loss" as the sum of:
      a. all sums which any covered person becomes legally obligated to pay for personal injury and property damage; and
      b. all reasonable expenses of the investigation, settlement and defense of any claim or suit seeking damages.
      The following expenses are not included in ultimate net loss:
      a. Expenses with respect to claims or suits to which an underlying policy applies.
      b. Expenses insured under Part B, Defense of Suits Not Covered by Other Insurance.

       The policy expressly defines "underlying limit" to mean "the total of applicable limits of insurance of the underlying policies described in the declarations and amounts of any other underlying insurance collectible by you."

       Guidant suggests that the purpose of showing "underin-sured motorist" as an "included" type of "underlying insurance" on the declarations page of the umbrella policy is simply to summarize the scope of Stubbe's separate personal automobile policy. That is, the declarations page shows that underinsured motorist coverage is "included" in the automobile policy, and the subheadings in the schedule of underlying limits are not intended to say anything about the umbrella policy's scope of coverage. Even assuming that Guidant's argument reflects a reasonable reading of the declarations page, the argument does not erase the ambiguity that we conclude is created by the policy as a whole.

       Guidant offers an alternative reading of the exclusion and the endorsement. According to Guidant, the purpose of the exclusion was to emphasize that the policy's scope of coverage reaches only third-party liability claims. Deleting the exclusion, Guidant argues, had no real effect on the policy because the exclusion itself was essentially superfluous. Apparently, the insurer simply decided that the clarifying language found in the exclusion was no longer useful or necessary. We have previously held that there is no proscription against using an exclusion to clarify potential ambiguities in the insuring agreement. See Muehlenbein v. West Bend Mut. Ins. Co., 175 Wis. 2d 259, 268-69, 499 N.W.2d 233, 237 (Ct. App. 1993). And, once again, we are willing to assume that Guidant's interpretation of the exclusion and the endorsement is reasonable. However, because we also conclude that in combination with the other policy provisions addressing underinsured motorist protection a reasonable expectation of coverage could arise from the otherwise unexplained decision to delete the exclusion, Guidant has succeeded only in showing that the policy, read as a whole, is ambiguous.

       Stubbe also argues that Guidant abandoned its right to challenge the policy's coverage of the future medical expenses by voluntarily remitting payment for those damages. He characterizes the payment of the damages as a "partial settlement." Because the record does not disclose the terms under which Guidant tendered its $166,060.63 payment to Stubbe, because there is some evidence that the parties reserved all rights to challenge the policy's scope of coverage and because Stubbe has provided no citation to legal authority for his claim that Guidant is bound by its initial calculation of the amount owed, we decline to address this argument.

       The language that Guidant used to define the scope of the reducing clause related to worker's compensation benefits parallels the language used in Wis. Stat. § 632.32(5) (i) (1997-98), which authorizes the use of such reducing clauses in conjunction with uninsured and underinsured motorist insurance. However, we interpret the language of the contract, not the language of the statute. See Fletcher v. Aetna Cas. & Sur. Co., 165 Wis. 2d 350, 357, 477 N.W.2d 90, 92 (Ct. App. 1991).
      In addition, all references to the Wisconsin Statutes are to the 1997-98 version unless otherwise noted.

       Although Lisney v. LIRC, 171 Wis. 2d 499, 493 N.W.2d 14 (1992) addressed an earlier version of Wis. Stat. § 102.42(1), there have been no material changes to that section in the intervening years.

       For example, if an insured with an automobile policy providing $100,000 of underinsured coverage for bodily injury is injured on the job and the estimated accident-related future medical expenses are $100,000, the insurer will pay $0 under Guidant's interpretation of the reducing clause. However, if the actual future medical expenses paid by the employer turn out to be only $50,000, then the insured has effectively lost $50,000 in coverage, at least so long as there were $50,000 or more in additional damages and no additional set-offs.

       Despite the suggestion of such a claim, we note that elsewhere in Stubbe's briefs he asserts that he is not challenging the validity of any applicable reducing clause. In addition, the stipulated facts indicate that Stubbe's position is that the arbitration panel's award should be reduced by the $50,000 paid by Thielmann's insurer.