author: BROWN, J.

text:
    Bank One, Wisconsin, Plaintiff-Respondent, v. Gregg A. Koch, Defendant, Donald Stair, Defendant-Appellant.

    Court of Appeals

      No. 01-2174.

      Oral argument April 30, 2002.

    Decided June 5, 2002.

    2002 WI App 176
    (Also reported in 649 N.W.2d 339.)

      On behalf of the defendant-appellant, there were briefs and ¿ral argument by George W. Love of Love, Voss, Murray & Goeschko of Waukesha.
    On behalf of the plaintiff-respondent, the cause was submitted on the briefs of Penny G. Gentges and Steven E. Zablocki of Bass & Moglowsky, S.C. of Milwaukee. There was oral argument by Arthur M. Moglowsky.

      Before Nettesheim, EJ., Brown and Anderson, JJ.

       Petition to review denied 9-3-02.

   BROWN, J.

¶ 1. Donald Stair seeks compensation for attorney fees he incurred in defending himself against a foreclosure action premised on a forged signature notarized by a bank employee. He argues that Wxs. Stat. § 137.01(8) (1999-2000), which holds a notary public liable for "all the damages" resulting from neglect of duty, incorporates attorney fees as compensatory damages. We determine that the statute's reference to "all damages" incorporates the American rule of damages that attorney fees are not recoverable by a prevailing party unless certain exceptions apply. Because none of the exceptions to the American rule apply in this case, we affirm the order of the trial court.

¶ 2. Stair and his half-brother, Gregg A. Koch, were co-owners as tenants-in-common of real estate located in Waukesha. Koch executed a home equity line of credit agreement with Bank One, Wisconsin, in the amount of $75,000. To secure the agreement, Koch executed and delivered to Bank One a mortgage on his undivided one-half interest in the real property. The mortgage document also contained a notarized signature purporting to be the signature of Stair. Koch defaulted under the payment terms of the credit agreement and mortgage, and Bank One commenced foreclosure proceedings.

¶ 3. Stair filed an answer and counterclaims, alleging that his signature on the mortgage was forged. Stair sought damages for a frivolous action, slander of title and misconduct of the notary public, a Bank One employee who notarized the forged signature. Stair also requested a declaration voiding the mortgage lien, reasoning that the forged signature on the mortgage failed to create a valid lien. Finally, Stair asked for an award of attorney fees associated with defending the foreclosure action.

¶ 4. In addition to attorney fees, Stair incurred the expenses of hiring a handwriting expert and deposing the notary public, Scott Hall. Hall testified that he did not remember the loan transaction at issue, and that it was not his practice to ask for identification of those persons whose signatures he notarized. Stair contended that Hall's conduct constituted neglect of duty under Wis. Stat. § 137.01(8). Bank One agreed that Hall was negligent but asserted that his conduct did not amount to "neglect of duty."

¶ 5. Bank One amended its complaint and brought a motion for default judgment for the foreclosure and sale of the undivided one-half interest of Koch, and for summary judgment dismissing Stair's counterclaims. The trial court granted Bank One's motion for summary judgment and dismissed all of Stair's counterclaims. The court also denied Stair's request for attorney fees. Stair appeals only the issue concerning recovery of attorney fees as damages under Wis. Stat. § 137.01(8).

¶ 6. Stair's theory on appeal is that the conduct of the notary public is attributable to Bank One, subjecting it to liability for damages, which Stair defines as his costs and attorney fees in defending this action. Stair asserts that he is entitled to damages under Wis. Stat. § 137.01(8) and asks us to construe the phrase "all the damages thereby sustained" to include attorney fees. Bank One disputes that Hall's conduct was "neglect of duty." Even if it was, Bank One argues, the statute incorporates the common law definition of damages, the American rule, which requires each party in litigation to bear the cost of its own legal fees unless expressly authorized by statute, contract or pursuant to certain limited circumstances.

¶ 7. We agree with Bank One that according to Wisconsin law, we cannot construe the statute to include attorney fees as an award of damages absent explicit authorization. In Murray v. Holiday Rambler, Inc., 83 Wis. 2d 406, 435, 265 N.W.2d 513 (1978), the supreme court refused to indirectly authorize the recovery of attorney fees not expressly provided for by the Uniform Commercial Code. Similarly, in Domain Industries, Inc. v. Thomas, 118 Wis. 2d 99, 101-03, 345 N.W.2d 516 (Ct. App. 1984), we reversed a trial court's award of attorney fees because the applicable statute did not authorize recovery of attorney fees. We stated that "[s]ince there are statutes that specifically provide for attorney fees, power to award such fees is not implied from statutes that authorize other forms of relief." Id. at 101-02. In addition, we noted "the legislature is presumed to have acted with full knowledge of the general rule that attorney fees are not recoverable unless expressly authorized by statute." Id. at 103.

¶ 8. In this case, the statute under which Stair seeks recovery does not expressly authorize an award of attorney fees. Applying the law in Murray and Domain Industries, we assume that when the legislature enacted Wis. Stat. § 137.01(8), it did so with full knowledge of the American rule requiring each party to shoulder its own attorney fees.

¶ 9. Stair acknowledges the American rule and the precedent holding that the power to award attorney fees will not be implied from statutes lacking express authorization. Nevertheless, Stair asserts that Wxs. Stat. § 137.01(8) was crafted in 1848 before the American rule existed in common law. Therefore, according to Stair, when this particular statute came into existence, the legislature intended "all damages" to include attorney fees in addition to compensatory damages. Stair's historical argument is based on a misunderstanding of the origin and development of the American rule.

¶ 10. Contrary to Stair's belief, the American rule is firmly rooted in American and Wisconsin jurisprudence prior to 1848. As early as 1796, the United States Supreme Court overturned an award of attorney fees as damages on the ground that "[t]he general practice of the United States is in opposition to it; and even if that practice were not strictly correct in principle, it is entitled to the respect of the court, till it is changed, or modified, by statute." Arcambel v. Wiseman, 3 U.S. (3 Dall.) 306 (1796). The Supreme Court continues to adhere to that early holding. See Alyeska Pipeline Serv. Co. v. The Wilderness Soc'y, 421 U.S. 240, 249-60 (1975) (reviewing origin and development of American rule in federal judiciary system).

¶ 11. Wisconsin courts were also applying the American rule prior to enactment of the 1848 Laws of Wisconsin. In Gear v. Shaw, 1 Pin. 608 (1846), the Supreme Court of the Territory of Wisconsin reviewed the award of counsel fees as part of the plaintiffs' damages in an injunction action. Noting the necessity of hiring counsel to defend in such an action, the court determined that "[a]ll a party could claim, under any circumstances, would be the fees and expenses incident to the injunction." Id. at 615. Citing to Arcamble, the court concluded that the plaintiffs were entitled to their costs but "the attorney's fees paid are not a legal charge in the assessment of damages." Gear, 1 Pin. at 615. See also Fairbanks v. Witter, 18 Wis. 301, 304 (1864) (noting that a "jury neither at common law nor by statute could allow counsel fees and expenses as a part of the actual damages").

¶ 12. We are convinced that the American rule has been applied consistently by the United States Supreme Court since 1796, and by the courts of our state since 1846, prior to enactment of the statute at issue in this case. Therefore, we conclude that the 1848 legislature that enacted "all damages" intended the American rule of damages which excludes attorney fees.

¶ 13. We also note that Wis. Stat. § 137.01 has been amended several times since its enactment in 1848. See Wis. Stat. Ann. § 137.01 (West 2001) (Historical Note). If the legislature had intended to include attorney fees within "all damages," it would have amended the statute to reflect its intention to override the consistent application of the American rule. No such amendment has been made. Pursuant to Domain Industries, 118 Wis. 2d at 103, we presume the legislature has acted with full knowledge of the general rule that attorney fees are not recoverable unless expressly authorized by statute.

¶ 14. We recognize the inequity involved when an individual is forced to defend his or her interests in a lawsuit in which the individual does not properly belong because of a wrong committed by someone else. At oral argument we explored whether an exception to the American rule might apply in this instance. One such exception is the judicially-created Weinhagen rule, an equitable exception that was set forth in Weinhagen v. Hayes, 179 Wis. 62, 65, 190 N.W. 1002 (1922). This "third-party litigation" exception permits the award of attorney fees if the wrongful acts of a defendant have involved a plaintiff in litigation with others, or placed him or her in such relation with others as to make it necessary for the plaintiff to incur expenses to protect his or her interest. Marquardt v. Milwaukee County, 2002 WI App 12, ¶ 16, 249 Wis. 2d 780, 639 N.W.2d 762, review denied, 2002 WI 48, 252 Wis. 2d 150, 644 N.W.2d 686 (Wis. Mar. 19, 2002) (No. 01-0267). At oral argument, the parties agreed that this is a direct action rather than a third-party action and therefore the Weinhagen rule is inapplicable.

¶ 15. We also discussed whether an expansion of the bad faith exception to the American rule, established in DeChant v. Monarch Life Insurance Co., 200 Wis. 2d 559, 547 N.W.2d 592 (1996), is applicable in this case. In DeChant, Monarch Life was found to have acted in bad faith when it refused to provide DeChant with benefits he was entitled to under his disability insurance policy. Id. at 571. The court determined that the American rule does not prevent a recovery of attorney fees when an insurer's bad faith compels an insured to retain an attorney to obtain benefits due under the policy. See id. at 571-77 (discussing the award of attorney fees based on the tort of bad faith). However, Stair concedes that this is not a DeChant case and it would be inappropriate for us to visit this issue further.

¶ 16. In sum, the applicable statute incorporates the American rule of damages and therefore we affirm the trial court's denial of attorney fees. Because our determination of this issue resolves the case on appeal, we do not discuss whether there was neglect of duty on the part of the notary public and, if so, whether the neglect is attributable to Bank One under a theory of respondeat superior. See Clark v. Waupaca County Bd. of Adjustment, 186 Wis. 2d 300, 304, 519 N.W.2d 782 (Ct. App. 1994) (If our decision on one issue disposes of an appeal, we need not review the other issues raised.).

By the Court. — Order affirmed.

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

       Wisconsin Stat. § 137.01(8) provides: "If any notary public shall be guilty of any misconduct or neglect of duty in office the notary public shall be hable to the party injured for all the damages thereby sustained."
      In addition, Wis. Stat. § 706.07(2)(a) and (f) set forth the duty of the notary public to verify the identification of the person signing the proffered document:
      (2) Notarial acts, (a) In taking an acknowledgement, the notarial officer must determine, either from personal knowledge or from satisfactory evidence, that the person appearing before the officer and making the acknowledgment is the person whose true signature is on the instrument.
      (0 A notarial officer has satisfactory evidence that a person is the person whose true signature is on a document if that person:
      1. Is personally known to the notarial officer;
      2. Is identified upon the oath or affirmation of a credible witness personally known to the notarial officer; or
      3. Is identified on the basis of identification documents.

       The predecessor to the current statute appeared in section 10 of An Act relating to the appointment and duties of Notaries Public, Laws of 1848. The section stated in relevant part:
      For any misconduct in any of the cases where notaries public appointed under the authority of this state are authorized to act either by the laws of this state, government or country or by the laws of nations or by commercial usage they shall be liable to the parties injured thereby for all damages sustained ....

       In contrast, Independence Leasing Corp. v. Aquino, 506 N.Y.S.2d 1003 (N.Y. Co. Ct. 1986), is a classic third-party litigation case. In that case, a son forged his father's name on automobile leasing documents notarized by a bank employee. Id. at 1004. After the son failed to make payments on the lease, the leasing company sued the father for breach of contract. Id. at 1004 n.l. The father successfully defended on the merits. Id. The leasing company then joined the bank and the notary as defendants alleging negligence and misconduct of a notary. Id. The father cross-claimed against the bank for attorney fees. The court held that the father was entitled to recover attorney fees under a theory of implied indemnity arising out of his having to defend his interest in the leasing company's action which was occasioned by the notary's grossly negligent actions in notarizing the lease documents. Id. at 1008.


source: Caselaw Access Project

author: ROGGENSACK, J.

license: Public Domain

text:
    Town of Barton, Petitioner-Respondent, v. Division of Hearings and Appeals, Respondent, City of West Bend, Interested Party-Appellant.
    Court of Appeals

      No. 01-1209.

      Submitted on briefs December 7, 2001.

    Decided June 6, 2002.

    2002 WI App 169
    (Also reported in 649 N.W.2d 293.)

      On behalf of the interested party-appellant, the cause was submitted on the briefs oí Richard C. Yde, of Stafford Rosenbaum LLP, of Madison.
    On behalf of the petitioner-respondent, the cause was submitted on the brief of Timothy J. Andringa of Cramer, Multhauf & Hammes, LLP of Waukesha.
    Brief of amicus curiae was filed by Daniel M. Olson of League of Wisconsin Municipalities of Madison on behalf of League of Wisconsin Municipalities.

    Before Dykman, Roggensack and Deininger, JJ.

       Petition to review denied 9-26-02.

   ROGGENSACK, J.

¶ 1. The City of West Bend appeals the circuit court's reversal of a decision of the Division of Hearings and Appeals of the Department of Administration (DHA), wherein DHA ordered the Town of Barton to permit the City to install a sanitary sewer interceptor and laterals in two highways in the Town, pursuant to its authority under Wis. Stat. § 86.16(5) (1999-2000). The circuit court reversed DHA because it concluded that DHA did not have jurisdiction to review the Town's refusal to grant permission to the City to build the sewer interceptor, or in the alternative, because DHA should have required the City to permit abutting land owners to immediately connect to city sewer through the laterals DHA required as a condition of its order. Because we conclude DHA had authority under § 86.16(5) to determine whether, and on what conditions, the City could build a sanitary sewer in highways in the Town, and because the circuit court's decision that if the sewer interceptor is constructed the residents who abut the highway must be permitted to hook up immediately is not more reasonable than DHA's decision, we reverse the decision of the circuit court and remand to reinstate DHA's order.

BACKGROUND

¶ 2. The City designed an addition to its sanitary sewer system that it refers to as the "Northwest Interceptor." This interceptor is to assist in providing sewer service for three areas of the City: the "Wink lands," anticipated expansion of the Moraine Park Technical College and anticipated growth of "Young America." It will also eliminate a lift station. The City needed the Town's permission to construct a 2640-foot segment of the Northwest Interceptor in the rights-of-way of River Drive and Woodford Drive that are located in the Town.

¶ 3. In a letter dated August 7, 1996, the City requested permission. The Town refused to permit the construction unless all of the Town's residents who abut the interceptor were given immediate sewer system access. The City denied the Town's access request because it has a policy of not providing sewer access to properties located outside of the City. It proposed to wait to provide service until annexation of the properties. However, the City agreed to construct laterals as part of the interceptor's initial installation, thereby avoiding any further disruption of the highways in the event that the properties adjacent to the interceptor were later provided sewer service.

¶ 4. The Town refused permission, and the City appealed the refusal to DHA pursuant to Wis. Stat. § 86.16(5). DHA held a hearing and concluded that under § 86.16(5) and Wis. Stat. § 227.43(l)(bg), DHA had jurisdiction to hear the City's appeal, and it ordered the Town to grant the City a permit to construct and maintain the proposed sewer interceptor within the rights-of-way of River Drive and Woodford Drive, conditioned on the City's installing laterals and keeping at least one lane of traffic open on each roadway during construction.

¶ 5. The Town appealed, and the circuit court concluded that DHA did not have jurisdiction over the City's appeal. In the alternative, the circuit court also concluded that if DHA did have jurisdiction under Wis. Stat. § 86.16(5), DHA should have ordered that the Town residents who abut the interceptor be permitted to connect to sewer service immediately. The City appeals.

DISCUSSION

Standard of Review.

¶ 6. The scope of an agency's authority to act is a legal issue that we review de novo. Loomis v. Wisconsin Pers. Comm'n, 179 Wis. 2d 25, 30, 505 N.W.2d 462, 464 (Ct. App. 1993).

¶ 7. When we review the merits of the decision previously made, we review the agency's decision, not that of the circuit court. Gordon v. State Med. Examining Bd., 225 Wis. 2d 552, 556, 593 N.W.2d 481, 483 (Ct. App. 1999). We will not disturb an agency's factual findings if they are supported by credible and substantial evidence. CBS, Inc. v. LIRC, 219 Wis. 2d 564, 570, 579 N.W.2d 668, 671 (1998). DHA's statutory construction and its application of a statute to undisputed facts are questions of law, and we are not bound by an agency's legal conclusions. DOR v. Caterpillar, Inc., 2001 WI App 35, ¶ 6, 241 Wis. 2d 282, 625 N.W.2d 338. However, under some circumstances, we may deem it appropriate to grant deference to the legal conclusions of an administrative agency. See Behnke v. DHSS, 146 Wis. 2d 178, 184, 430 N.W.2d 600, 602 (Ct. App. 1988).

¶ 8. An agency's interpretation or the application of an ambiguous statute may be accorded great weight deference, due weight deference or de novo review, depending on the circumstances. UFE Inc. v. LIRC, 201 Wis. 2d 274, 284, 548 N.W.2d 57, 61 (1996). We accord great weight deference only when all four of the following requirements are met: (1) the agency was charged by the legislature with the duty of administering the statute; (2) the agency's interpretation is of long standing; (3) the agency employed its expertise or specialized knowledge in forming the interpretation; and (4) the agency's interpretation will provide uniformity and consistency in the application of the statute. Id.

¶ 9. We will accord due weight deference when "the agency has some experience in an area, but has not developed the expertise which necessarily places it in a better position to make judgments regarding the interpretation of the statute than a court." Id. at 286, 548 N.W.2d at 62. The deference allowed under the due weight standard is accorded largely because the legislature has charged the agency with the enforcement of the statute in question. Id. Under this standard, we will not overturn a reasonable agency decision that furthers the purpose of the statute unless we determine that there is a more reasonable interpretation than that made by the agency. Id. at 286-87, 548 N.W.2d at 62.

¶ 10. Here, DHA has been charged with administering Wis. Stat. § 86.16(5), and it has some experience, even though its experience is not of long standing because the Transportation Commission formerly was responsible for appeals, see City of Appleton v. Transportation Comm'n, 116 Wis. 2d 352, 342 N.W.2d 68 (Ct. App. 1983). Accordingly, if we conclude that the scope of DHA's authority extends to this controversy, we will apply due weight deference to DHA's order directing the Town to grant permission to the City to construct the Northwest Interceptor, conditioned on the City's meeting DHA's requirements.

Scope of DHA's Authority.

¶ 11. The circuit court concluded that Wis. Stat. § 86.16(5) provided no authority for DHA to resolve the dispute about whether, and on what terms, the City would be permitted to build a portion of the Northwest Interceptor in two highways within the Town. The court was persuaded that any review of the Town's refusal to issue a permit to build the interceptor had to be found in sections of the statutes other than § 86.16. The Town agrees with the circuit court's position and focuses its argument to us on terms used in § 86.16(1), contending § 86.16 applies to laying pipelines that transport fresh water, not to those that transport waste water. Therefore, the Town argues that because § 86.16(1) does not apply to the proposed construction in the first instance, § 86.16(5) does not give DHA authority to resolve this dispute between the Town and the City. The City contends that the statute employs only general categories of substances that may be transported within pipelines that can be constructed in public ways and that "water" is a broad enough category to include waste water as well as fresh water. Therefore, argues the City, DHA's review of the Town's denial is proper under subsec. (5).

¶ 12. These conflicting positions present a question of statutory construction that involves the scope of DHA's authority. Therefore, we decide it without deference to DHA's interpretation of the statute. Loomis, 179 Wis. 2d at 30, 505 N.W.2d at 464. When we are asked to apply a statute whose meaning is in dispute, we direct our efforts at determining what the legislature intended the statute to mean. Truttschel v. Martin, 208 Wis. 2d 361, 365, 560 N.W.2d 315, 317 (Ct. App. 1997). We begin with the words chosen by the legislature. Wisconsin Stat. § 86.16 states in relevant part:

(1) Any person, firm or corporation . .. may ... with the written consent of local authorities with respect to highways under their jurisdiction, including connecting highways, construct and operate telegraph, telephone or electric lines, or pipes or pipelines for the purpose of transmitting messages, water, heat, light or power along, across or within the limits of the highway.
(5) Any person, firm or corporation whose written application for permission to construct such lines within the limits of a highway has been refused, or has been on file with the ... local authority for 20 days and no action has been taken thereon, may file with the ... local authority a notice of appeal to the division of hearings and appeals.... [T]he division of hearings and appeals shall hear and try and determine the appeal on 10 days' notice to the ... local authority, and the applicant.

¶ 13. In determining whether "water" includes both fresh water and waste water, we begin with the plain meaning of the statute. Truttschel, 208 Wis. 2d at 365, 560 N.W.2d at 317. If the language chosen unambiguously sets forth the legislature's intent, we go no further. Id. On the other hand, if the language used in the statute is capable of more than one reasonable meaning, we will determine legislative intent from the words of the statute in relation to their context, the subject matter, scope and history of the statute, as well as the purpose the legislature was attempting to accomplish by enacting the statute. Id. at 365-66, 560 N.W.2d at 317. However, a statute is not ambiguous merely because two parties contend it ought to be interpreted in different ways. State v. Orlik, 226 Wis. 2d 527, 534, 595 N.W.2d 468, 472 (Ct. App. 1999).

¶ 14. We note that "water" is not modified by either "fresh" or "waste," and that Wis. Stat. § 86.16 refers to the placement of many types of utilities within "highways." Highways are defined as:

[A]ll public ways and thoroughfares and bridges on the same. It includes the entire width between the boundary lines of every way open to the use of the public as a matter Of right for the purposes of vehicular travel.

Wis. Stat. § 340.01(22). Therefore, the words chosen by the legislature provide for the placement of pipelines for utilities in public lands. Because the proposed placements of the interceptor are in public ways, the issue presented is not similar to that presented in Danielson v. City of Sun Prairie, 2000 WI App 227, 239 Wis. 2d 178, 619 N.W.2d 108, where an interceptor was constructed on private property that had to be condemned under ch. 32 procedures. No condemnation is involved when utility construction occurs in public ways.

¶ 15. While placement of an interceptor in a highway does not require condemnation, it does allow a town in which construction is to occur to assure that the placement of a utility's pipeline will not unreasonably disrupt traffic on highways within the town's boundaries. See Milwaukee Elec. Ry. & Light Co. v. City of Milwaukee, 209 Wis. 668, 671, 245 N.W. 860, 861 (1932). We can see no reason why we should interpret "water" in Wis. Stat. § 86.16(1) as being limited to "fresh water," thereby permitting one utility that transports water for the benefit of the public to use the public ways for laying its pipelines and not include another utility, simply because that utility transports "waste water." Additionally, any disruption in traffic on the highways would not be related to the type of water that the pipelines transport. Accordingly, we conclude that the "pipelines" to transport "water" referred to in § 86.16(1) unambiguously include wastewater as well as freshwater pipelines. Therefore, it follows as a matter of course that review of the Town's refusal to grant permission to the City to construct the interceptor is within the scope of DHA's authority under § 86.16(5).

DHA's Order.

¶ 16. DHA ordered the Town to grant the City permission to construct and maintain the Northwest Interceptor within the rights-of-way of River Drive and Woodford Drive in the Town. It also ordered the City to construct laterals up to the property lines of the abutting properties to ensure that at all times there is adequate access to the residences to accommodate emergency vehicles. In coming to this conclusion, the DHA framed the issue it was required to decide as follows: "[W]hether the construction and maintenance of the proposed sewer will result in an unreasonable obstruction to traffic on a public highway." That is the correct formulation of the issue underlying whether permission has been properly withheld. As the supreme court explained, "Sec. 86.16 grants to towns authority in the nature of police powers so that public highways may not be unreasonably obstructed by [construction and maintenance of lines]." Milwaukee Elec., 209 Wis. at 671, 245 N.W. at 861.

¶ 17. However, a public utility acquires the right to construct its lines in highways that are within the boundaries of a town directly from the State. Id. (citing South Shore Util. Co. v. Railroad Comm'n, 207 Wis. 95, 240 N.W. 784 (1932)). Therefore, the authority of a town to deny permission to a utility to construct its pipelines in the public highways within the town's control is limited both by the grant of authority from the legislature to the utilities and by the scope of a town's police power. Stated another way, the power to permit or to deny permission that a town is given under Wis. Stat. § 86.16 is not a bargaining chip that a town can use to force a city to provide services to town residents that a city would not otherwise provide under its normal procedures and policies. Accordingly, the Town had no authority to require the City to permit immediate hookup to the sewer, so long as the City's refusal to do so did not cause an unreasonable obstruction to traffic within the Town. Therefore, the circuit court's decision was not more reasonable than DHA's which required both of the following conditions: (1) laterals to eliminate the need for future construction, if the abutting properties become eligible for city sewer, and (2) sufficient flow of traffic to ensure that police and fire trucks would not he impeded as they provide service to residents of the Town. Accordingly, we reverse the order of the circuit court and remand to reinstate DHA's order.

CONCLUSION

¶ 18. Because we conclude DHA had authority under Wis. Stat. § 86.16(5) to determine whether, and on what conditions, the City could build a sanitary sewer in highways in the Town, and because the circuit court's decision that if the sewer interceptor is constructed the residents who abut the highway must be permitted to hook up immediately is not more reasonable than DHA's decision, we reverse the decision of the circuit court and remand to reinstate DHA's order.

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

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

       The Town does not contend that River . Drive and Wood-ford Drive are not "highways" within the scope of Wis. Stat. § 86.16.

       Both the DHA hearing examiner and the circuit court were concerned about the applicability of Wis. Admin. Code § Comm 83.01(2)(b) (1997), which formerly provided:
      Every building intended for human habitation or occupancy on land abutting a street, right-of-way, or easement in which there is a public sewer, or on land deemed accessible to public sewer, shall have an individual connection to the public sewer and the private sewage system serving such building shall he properly abandoned.
      This provision is no longer in force, effective March 1, 2000. Therefore, we do not address it further in this opinion.
      The Town also contends that the City cannot delay hookups to the sewer because of Washington County's requirements. However, how the County will interpret its own ordinance is not before us. It could be that the County will not deem sewer service "available" until the City says that it is. We leave this question to another day when the County can, if it chooses, address the issue. Truttschel v. Martin, 208 Wis. 2d 361, 369, 560 N.W.2d 315, 318-19 (Ct. App. 1997) (concluding that we will not address issues unless they have been sufficiently developed).


author: CURLEY, J.

text:
    Fireman's Fund Insurance Company of Wisconsin, Plaintiff-Appellant, v. Bradley Corporation and Kevin B. Kline, Defendants-Respondents, Lawler Manufacturing Corporation, Inc., Defendant.
    Court of Appeals

      No. 01-2432.

      Submitted on briefs March 28, 2002.

    Decided June 11, 2002.

    2002 WI App 179
    (Also reported in 649 N.W.2d 685.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of William P. Croke of Quale, Feldbruegge, Calvelli, Thom & Croke, S.C., of Milwaukee.
    On behalf of the defendants-respondents, the cause was submitted on the brief of Lisa S. Neubauer and Michael D. Rosenberg of Foley & Lardner, of Milwaukee.
    Before Fine, Schudson and Curley, JJ.

       Petition to review granted 10-21-02.

   CURLEY, J.

¶ 1. Fireman's Fund Insurance Company of Wisconsin (Fireman's) appeals from the trial court's denial of its motion for summary judgment in a declaratory judgment action. Fireman's also appeals from the trial court's grant of summary judgment to Bradley Corporation (Bradley). Fireman's raises three issues on appeal: (1) whether the insurance policies issued to Bradley by Fireman's provide coverage for any of the claims in the complaint filed in the underlying lawsuit by Lawler Manufacturing Corporation, Inc., (Lawler), against Bradley; (2) whether Bradley's delay of over one year in providing Fireman's with notice of the underlying lawsuit was prejudicial; and (3) whether the trial court's assessment of Bradley's legal expenses was proper.

¶ 2. We conclude that the insurance polices do not provide coverage for any of the allegations in Lawler's complaint raised by Bradley. Because this issue is dispositive, we need not address the remaining issues. See Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W. 663 (1938) (stating that if a decision on one point disposes of the appeal, we need not address the other issues raised); see also State v. Blalock, 150 Wis. 2d 688, 703, 442 N.W.2d 514 (Ct. App. 1989) ("[C]ases should be decided on the narrowest possible ground."). Accordingly, the trial court is reversed and the cause remanded for the trial court to enter an order in conformity herewith.

I. Background.

¶ 3. In February of 1996, Fireman's issued four liability insurance policies to Bradley. These policies were effective from February 1, 1996 to February 1, 2000. The policies provided that Fireman's would pay those sums that the insured, Bradley, became obligated to pay as damages because of bodily injury, property damage, personal injury, or advertising injury. The policies define each of these terms.

¶ 4. On December 3, 1998, Lawler filed a federal lawsuit in the southern district of Indiana against Bradley claiming breach of fiduciary duty, trade secret misappropriation, unjust enrichment, diversion of corporate opportunities, conversion, negligence and unfair competition. Approximately six months later, Lawler filed a supplemental complaint also asserting a claim for patent infringement.

¶ 5. Bradley and Lawler are competitors in the development and sale of thermostatic mixing systems intended for emergency applications. The lawsuit resulted from alleged corporate/industrial espionage by a former Lawler employee, Kevin Kline. The complaint alleges that Kline stole Lawler's designs for its thermostatic mixing valve technology, and that Bradley then hired Kline and used the stolen technology to create its own emergency showers and eyewash systems.

¶ 6. On March 2, 2000, Bradley notified Fireman's of the lawsuit. Fireman's denied coverage for the lawsuit, claiming that Lawler's complaint did not contain allegations that were potentially covered under the policies. On August 18, 2000, Fireman's sought a declaratory judgment in Milwaukee County stating that it had no obligation to defend or indemnify Bradley in the Lawler lawsuit. Both parties filed motions for summary judgment, and on July 25, 2001, the trial court denied Fireman's motion and granted Bradley's. The trial court ordered Fireman's to pay Bradley $2,887,594.24 for defense and indemnification costs.

II. Analysis.

A. Fireman's does not have a duty to indemnify Bradley based on Lawler's claim for trade secret misappropriation.

¶ 7. In its summary judgment analysis, the trial court determined that Fireman's was obligated to defend and indemnify Bradley based on Lawler's claim of trade secret misappropriation. Fireman's contends that there is no coverage under the advertising injury clause of the insurance policies because there is no causal connection between Lawler's alleged injuries and Bradley's advertising activities.

¶ 8. Our review of the circuit court's decision to grant summary judgment is de novo. See Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315-16, 401 N.W.2d 816 (1987). Summary judgment must be granted if the evidence demonstrates "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Wis. Stat. § 802.08(2). Further, "the construction of the words and clauses in an insurance policy is a question of law for the court," Katze v. Randolph & Scott Mut. Fire Ins. Co., 116 Wis. 2d 206, 212, 341 N.W.2d 689 (1984), which we review de novo.

¶ 9. "To determine whether a duty to defend exists, the complaint claiming damages must he compared to the insurance policy and a determination made as to whether, if the allegations are proved, the insurer would be required to pay the resulting judgment." School Dist. of Shorewood v. Wausau Ins. Cos., 170 Wis. 2d 347, 364-65, 488 N.W.2d 82 (1992). "We determine an insurer's duty to defend solely from the allegations contained in the complaint; extrinsic facts are not considered." Atlantic Mut. Ins. Co. v. Badger Med. Supply Co., 191 Wis. 2d 229, 236, 528 N.W.2d 486 (Ct. App. 1995). We review the complaint in the instant case with the following in mind:

An insurer's duty to defend the insured in a third-party suit is predicated on allegations in a complaint which, if proven, would give rise to the possibility of recovery that falls under the terms and conditions of the insurance policy. The duty has nothing to do with the merits of the claim because the insurer agreed to defend even if the allegations in the suit are groundless, false or fraudulent. Rather, it is the nature of the claim alleged against the insured which is controlling. If there is any doubt about the duty to defend, it must be resolved in favor of the insured.

School Dist. of Shorewood, 170 Wis. 2d at 364 (citations omitted).

¶ 10. The insurance policies in question state, in relevant part:

We will pay those sums that the insured becomes legally obligated to pay as' damages because of personal injury or advertising injury ....
. . . This insurance applies to:
... Advertising injury caused by an offense committed in the course of advertising your goods, products or services.

An amendment to the original policies defines an "advertising injury" as the following:

Advertising injury means injury arising out of one or more of the following offenses:
a. Oral, written, televised or videotaped publication of material that slanders or libels a person or organization or disparages a person's or organization's goods, products or services;
b. Oral, written, televised or videotaped publication of material that violates a person's right of privacy;
c. Misappropriation of advertising ideas or style of doing business; or
d. Infringement of trademark, copyright, title or slogan.

¶ 11. Bradley argues that paragraph 72 of Lawler's complaint falls within the coverage in Bradley's insurance policy for the " [m] isappropriation of advertising ideas or style of doing business." Paragraph 72 of the complaint states:

Count II
Trade Secret Misappropriation
72. During his employment with Lawler and as an officer, director and shareholder of Lawler, Kline had access to, learned and acquired Lawler's highly confidential and proprietary information including but not limited to Lawler's annual business and strategic plans, sales reports and strategies, pricing margin and profitability information, material pricing and distribution costs, new product development, technology, personnel information and production, planning and scheduling, all of which is hereinafter collectively referred to as the "Trade Secrets" of Lawler.

¶ 12. Bradley links these activities to those alleged in paragraph 63 of the complaint in support of its conclusion that the injury complained of was committed in the course of advertising. Paragraphs 63 states:

63. During the week of October 26,1998, at a show of the American Society of Plumbing Engineers (ASPE) held in Indianapolis, Indiana, Bradley and its representatives displayed emergency shower systems incorporating the accused products to existing and potential customers.

¶ 13. The offense Bradley relies on - the misappropriation of advertising ideas or style of doing business - may be committed in one of two ways: by misappropriating advertising ideas or by misappropriating a style of doing business. See Atlantic Mut. Ins. Co., 191 Wis. 2d at 238. "[T]he essence of the cause of action in misappropriation is the defendant's use of the plaintiffs product, into which the plaintiff has put time, skill, and money; and the defendant's use of the plaintiffs product or a copy of it in competition with the plaintiff and gaining an advantage in that competition because the plaintiff, and not the defendant, has expended the energy to produce it." Id. An "advertising idea" is "an idea for calling public attention to a product or business, especially by proclaiming desirable qualities so as to increase sales or patronage." Id. at 239. " 'Style of doing business' is a phrase used by the courts to refer to 'a company's comprehensive manner of operating its business.'" Id.

¶ 14. Two fundamental prongs must be satisfied before we may find coverage under an advertising injury clause: (1) the injury must fall within one of the categories covered under the insurance policy, e.g., the injury qualifies as either the misappropriation of advertising ideas or the misappropriation of the style of doing business; and (2) there is a causal connection between the advertising and the injury. See Frog, Switch & Mfg. Co. v. Travelers Ins. Co., 193 F.3d 742, 748 (3d Cir. 1999) (stating that to be covered under a similar policy, allegations of unfair competition have to involve an advertising idea, not just an idea that is made the subject of advertising). While the allegations in Count II of Lawler's complaint might be liberally construed to fit within the definition of "the misappropriation of advertising ideas or style of doing business," we need not address the issue because we conclude that there is not a satisfactory causal connection between the advertising and the injury in question. See Simply Fresh Fruit, Inc. v. Continental Ins. Co., 94 F.3d 1219, 1223 (9th Cir. 1996) (explaining that "the advertising activities must cause the injury - not merely expose it.") (emphasis in original).

¶ 15. The plain language of the insurance policies requires the advertising injury to have been "caused by an offense committed in the course of advertising your goods, products or services." As stated in Advance Watch Co. v. Kemper Nat'l Ins. Co., 99 F.3d 795 (6th Cir. 1996):

The policy in issue provides coverage for liability for advertising injury "caused by an offense committed in the course of advertising.. . goods, products or services." The policy therefore requires some nexus between the ground of asserted liability and the insured's advertising activities before there is coverage or a duty to defend. [T]his policy provision requires that the injury claimed to have been suffered by the claimant ha[s] been caused by the insured's advertising activities. Otherwise, advertising injury coverage would apply whenever an advertised product or service is alleged to have caused harm, rendering the coverage applicable with respect to most claims against an insured business.

Id. at 806 (citations omitted).

¶ 16. Here, Count II of Lawler's complaint, however, alleges that Bradley's injury was caused by the theft of its trade secrets, not the subsequent advertising:

93. Bradley's and Kline's actual or threatened misappropriation of Lawler's Trade Secrets has caused and will continue to cause other immediate, substantial and irreparable harm to Lawler, for which there is no adequate remedy at law.

Thus, Lawler's injury occurred independent and irrespective of any advertising by Bradley. Accordingly, we conclude that the alleged harm was caused by the misappropriation of the trade secrets, not by the advertising itself, and, therefore, Bradley fails to satisfy the requirement that the injury be caused by an offense committed in the course of advertising its goods or products.

B. Fireman's does not have a duty to indemnify Bradley based on Lawler's Lanham Act claim.

¶ 17. Alternatively, Bradley responds that Fireman's had a duty to defend and must indemnify Bradley on the basis of Lawler's Lanham Act claim. Bradley argues that Lawler's Lanham Act claim qualifies as an "advertising injury" under the "[i]nfringement of trademark" amendment to the 1998-99 and 1999-2000 policies. Fireman's replies that Lawler's Lanham Act claim only alleges the basis for a claim of unfair competition, not trademark infringement, thereby failing to trigger Fireman's duty to defend and indemnify Bradley against Lawler's claims.

¶ 18. In its argument, Bradley asserts that the terms "trademark infringement" and "unfair competition" are essentially synonymous and involve identical proof. Thus, Bradley concludes that because Lawler asserted a claim for unfair competition, it likewise asserted a claim for trademark or trade dress infringement. The premise of Bradley's argument ignores a fine distinction - while a claim for unfair competition under the Lanham Act may be based on trademark or trade dress infringement, unfair competition is a general term encompassing a number of anticompetitive activities not limited to trademark or trade dress infringement. After examining Lawler's complaint, we conclude that although the complaint sets forth a claim for unfair competition, the claim is based on the theft of trade secrets rather than trademark or trade dress infringement. Accordingly, Fireman's has no duty to indemnify Bradley under the "[i]nfringement of trademark" provision of the insurance policies.

¶ 19. The complaint against Bradley reads, in relevant part:

Count VII
Federal Unfair Competition
115. Bradley's misappropriation of Lawler's Trade Secrets, technologies and designs relating to thermostatic mixing valves and the use thereof in connection with the accused products is a false designation of origin, or a false description or representation, and wrongfully and falsely designates the origin of Lawler's thermostatic mixing valve technology as originating from or being connected with Bradley, and amounts to using a false description or representation in commerce.
116. Bradley's said acts are in violation of the federal Lanham Act (15 U.S.C. § 1125).

¶ 20. "A trademark is a word or other designation, or combination of such designations, that is distinctive of a person's goods or services and that is used in a manner that identifies those goods or services and distinguishes them from the goods or services of others." Madison Reprographics, Inc. v. Cook's Reprographics, Inc., 203 Wis. 2d 226, 234 n.3, 552 N.W.2d 440 (Ct. App. 1996). By contrast, "a trade secret is something that derives its value from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use." World Wide Prosthetic Supply, Inc. v. Mikulsky, 2002 WI 26, ¶ 35, 251 Wis. 2d 45, 640 N.W.2d 764 (citation omitted).

¶ 21. A party may allege trademark infringement pursuant to either § 32 or § 43 of the Lanham Act. See 15 U.S.C. §§ 1114 and 1125. The difference between a standard claim for trademark infringement pursuant to § 32 and a claim for unfair competition pursuant to § 43, is that a party may recover for trademark infringement under § 43 regardless of whether its mark is registered, or even registrable, by proving that its mark is so associated with its goods that the use of the same or similar marks by another company constitutes a representation that its goods come from the same source. See Metric & Multistandard Components Corp. v. Metric's, Inc., 635 F.2d 710, 714 (8th Cir. 1980). Lawler's complaint alleges that Bradley violated § 43(a) of the Lanham Act. See 15 U.S.C. § 1125(a). Section 43(a)(1) of the Lanham Act states:

(1) Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which-
(A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, or
(B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person's goods, services, or commercial activities, shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.

¶ 22. The purpose of § 43(a) is to create a federal remedy for the particular kind of unfair competition that results from false designation of origin or other false representation used in connection with the sale of a product. See Metric, 635 F.2d at 713. However, "unfair competition" is a vague term proscribing a number of activities, including, but not limited to: (1) infringement of trademarks and service marks; (2) dilution of good will in trademarks; (3) use of confusingly similar corporate, business and professional names; (4) use of similar product configuration, trade dress or packaging; (5) infringement of the right of publicity; (6) "bait and switch" selling tactics; (7) below-cost selling; (8) false representation and false advertising; and (9) theft of trade secrets. See 1 J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition § 1:10 (3d ed. 1996). Thus, trademark and trade dress infringement are specific examples of the more broadly defined tort of unfair competition. See Marathon Mfg. Co. v. Enerlite Prods. Corp., 767 F.2d 214, 217 (5th Cir. 1985). Because trademark infringement is a narrower concept than unfair competition, it is possible to be guilty of unfair competition even when infringement is not present. See Estate of Presley v. Russen, 513 F. Supp. 1339, 1373 (D.N.J. 1981).

¶ 23. Thus, Bradley's understanding of unfair competition falls short of being fully inclusive by omitting such important areas of unfair competition such as false advertising, dilution, theft of trade secrets and infringement of the right of publicity, which do not require proof of consumer confusion as to the source or origin of the goods in question. See McCarthy on Trademarks § 1:9 (stating that while a claim of unfair competition involving trademark or trade dress infringement must involve an allegation of consumer confusion, a claim of unfair competition involving theft of trade secrets does not). Therefore, in a case of trademark or trade dress infringement, it is only the exclusive symbol, packaging or product configuration, characterized as either a trademark or trade dress, that is juxtaposed against another's usage to determine whether or not the two uses are likely to confuse consumers. See id. § 2:7.

¶ 24. Bradley's claim for coverage under the insurance policies for infringement of a trademark fails for two reasons. First, the complaint does not allege a claim for trademark infringement under § 43(a): Lawler's complaint never explicitly mentions a trademark or even refers to any trademark right or any other word, name or symbol that would distinguish its goods from the goods or services of others. See Restatement (third) of Unfair Competition § 9 (1995). Second, the complaint does not allege a claim for trade dress infringement: Lawler does not claim that Bradley copied the overall image of its showers or eyewash stations, including any factors such as size, shape, color, texture, etc. See generally Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763 (1992). Further, Lawler failed to allege other key elements regarding trade dress - that the thermostatic mixing valve technology was distinctive and that it was not functional. See id. at 769-70. The fact that Lawler's unfair competition claim is not based on either trademark or trade dress infringement is further evidenced by the fact that the complaint fails to allege consumer confusion. See id. at 769 (stating that liability under § 43(a) based on trademark or trade dress infringement requires proof of the likelihood of confusion).

¶ 25. Conversely, Lawler's complaint establishes a claim of unfair competition based on the theft of trade secrets. Count VII clearly states that Lawler's claim for unfair competition is based on the "misappropriation of Lawler's Trade Secrets." Despite this language, Bradley argues that this section sets forth claims "for trade dress and/or trademark infringement." This argument is belied by the fact that Lawler uses the term "trade secret" over thirty times throughout the complaint, while never mentioning or using the terms "trademark" or "trade dress" anywhere. This situation fits squarely within the category of instances where a defendant may be guilty of competing unfairly without having technically infringed any protectible trademark or trade dress right. See Professional Golfers Ass'n v. Bankers Life & Cas. Co., 514 F.2d 665, 671 (5th Cir. 1975) ("Unfair competition ... is a more broadly conceived tort than its frequent litigation partner, trademark infringement, and there are some instances where a defendant is guilty of competing unfairly without having technically infringed."); see also Fotomat Corp. v. Photo Drive-Thru, Inc., 425 F. Supp. 693, 708-09 (D.N.J. 1977) ("It is possible to be guilty of unfair competition even when trademark infringement is not present, if use of a similar but noninfringing mark or device is combined with unfair practices in a manner which is likely to deceive purchasers regarding the origin of goods under all the circumstances."). Thus, we conclude that although Count VII of Lawler's complaint sets forth a claim for unfair competition based on Kline's theft of Lawler's trade secrets, it does not set forth a claim for either trademark or trade dress infringement.

¶ 26. Finally, Bradley also contends that Lawler's Lanham Act claim falls within the "[m]isappropriation of advertising ideas or style of doing business" clause of the insurance policies. Again, there is no causal connection between the advertising and the injury. Because Lawler's injury was caused by the theft of trade secrets rather the subsequent advertising, we conclude that Lawler's claim for unfair competition does not qualify as an offense committed in the course of advertising the goods in question. Accordingly, there is no coverage under the policies.

' ¶ 27. Based upon the foregoing, the trial court is reversed and the cause remanded for the trial court to enter an order in conformity herewith.

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

       A thermostatic mixing valve is a device that mixes hot and cold water to produce tempered water which is used in emergency shower and eyewash systems to ensure that the water will be delivered at a safe temperature whenever needed in a chemical or industrial emergency.

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

       Although the original insurance policies executed in 1996 did not include coverage for trademark infringement, coverage for trademark infringement was added by a broadened form endorsement to the policies executed in 1998-99 and 1999-2000.

       The Lanham Act is the federal trademark and unfair competition statute codified at 15 U.S.C. § 1051 et seq.


author: CANE, C.J.

text:
    Patricia Hause, Richard Bates, Todd Bates, Jeffrey Bates, Bradley Bates, and Alexis Bates, by their Guardian ad Litem, William J. Katt, Plaintiffs-Appellants, v. John P. Bresina and Cornell Aero Works, Defendants, Phoenix Aviation Managers and Old Republic Insurance Company, Defendants-Respondents.
    Court of Appeals

      No. 01-3041.

      Submitted on briefs May 21, 2002.

    Decided June 11, 2002.

    2002 WI App 188
    (Also reported in 649 N.W.2d 736.)

      On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of William J. Katt and Kevin A. Christensen of Leib & Katt, S.C., of Milwaukee.

      On behalf of the defendants-respondents, the cause was submitted on the brief of Russell A. Klingaman of Hinshaw & Culbertson of Milwaukee.
    Before Cane, C.J., Hoover, EJ., and Peterson, J.

       Petition to review denied 9-3-02.

   CANE, C.J.

¶ 1. Patricia Hause and Richard Bates, individually; and Todd, Jeffery, Bradley, and Alexis Bates, by their guardian ad litem, (the Bateses) bring this interlocutory appeal of a nonfinal order for declaratory relief limiting the insurance liability of Old Republic Insurance Company. The Bateses claim the circuit court erred when it determined their negligent infliction of emotional distress and wrongful death claims stemming from the death of Deborah Hause-Bates were covered by Old Republic's policy's $100,000 "each person" coverage rather than its $1,000,000 "each occurrence" coverage. We granted the Bateses' petition to determine which policy clause covers their claims. We conclude their claims are covered by the "each person" clause and affirm the circuit court's order.

BACKGROUND

¶ 2. Although the interpretation of an insurance contract is solely a matter of law, a brief summary of the allegations found in the Bateses' amended complaint is necessary to resolve this dispute. On May 2, 2000, Deborah Hause-Bates was killed in an airplane crash near the Cornell Municipal Airport in Chippewa County. Her son Jeffery was at the airport and saw the crash. Deborah's other children, Todd, Bradley, and Alexis, arrived with Deborah's mother, Patricia Hause, after the crash and saw the burning airplane. The pilot, Arthur Bresina, was also killed in the crash. The Bateses brought suit against John Bresina, who had flown the airplane prior to Arthur; Cornell Aero Works, Arthur and John's employer; and Old Republic and Phoenix Aviation Managers, which both insured Arthur, John, and Cornell. Here, we are only concerned with Old Republic's policy. In their amended complaint, the Bateses brought claims for wrongful death and negligent infliction of emotional distress.

¶ 3. Old Republic asked the court for declaratory relief limiting its liability to the policy's $100,000 "each person" coverage. The Bateses also moved for declaratory relief to set Old Republic's liability at the policy's $1,000,000 "each occurrence" coverage. After receiving briefs and hearing arguments, the court agreed with Old Republic's interpretation of the policy and the Bateses appealed. We granted the Bateses' petition to determine whether their claims for wrongful death and negligent infliction of emotional distress are covered under the policy's "each person" or "each occurrence" clause. We conclude the Bateses' claims are covered by the "each person" clause and affirm the court's order.

DISCUSSION

¶ 4. The interpretation of an insurance contract is a question of law we review de novo. Danbeck v. American Fam. Mut. Ins. Co., 2001 WI 91, ¶ 10, 245 Wis. 2d 186, 629 N.W.2d 150. An insurance policy is construed to give effect to the intent of the parties, expressed in the language of the policy itself, which we interpret as a reasonable person in the position of the insured would understand it. Id. The words of an insurance policy are given their common and ordinary meaning. Id. An insurance policy is ambiguous if the language when read in context is fairly or reasonably susceptible to more than one construction. Sprangers v. Greatway Ins. Co., 182 Wis. 2d 521, 536-37, 514 N.W.2d 1 (1994). Where the language of the policy is plain and unambiguous, we enforce it as written, without resort to rules of construction or principles in case law. Danbeck, 2001 WI 91 at ¶ 10. This is to avoid rewriting the contract by construction and imposing contract obligations that the parties did not undertake. Id. If a policy is ambiguous, it is construed in favor of coverage. Id.

¶ 5. Old Republic offers several different types of coverage under its Aviation Policy. In the policy in question, Cornell opted for "Coverage D — Single Limit Bodily Injury and Property Damage Liability," which obligates Old Republic "To pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of bodily injury sustained by any person (excluding passengers unless the words "Including Passengers" appear in Item 4 of the Declarations) and property damage."

¶ 6. Item four of the declarations sets Old Republic's liability under "Coverage D" for the "Single Limit Bodily Injury, Including Passengers, and Property Damage" at $1,000,000 for "each occurrence." It also says "Passenger Liability Limited To" $100,000 for "each person." The policy limits its liability under "Coverage D," in relevant part, as follows:

The total liability of the Company for all damages, including damages for care and loss of services because of bodily injury or property damages sustained by one or more persons or organizations as the result of any one occurrence shall not exceed the limit of liability stated in the Declarations as applicable to "each occurrence".
And further provided that if the Declarations are completed to show "passenger Liability limited to", the total liability of the Company for all damages, including damages for care and loss of service because of bodily injury to passengers shall not exceed:
(a) as respects any one passenger, the amount stated in the Declarations as applicable to "each person," regardless of the number of persons bringing a claim. []

¶ 7. From this policy language, the trial court concluded that Old Republic's liability for the Bateses' claims was subject to the "each person" limitation. We agree. Under the terms of the agreement, if the declarations are completed to show "passenger liability limited to," as they are in this policy, then the total liability of Old Republic for all damages that happen because of the bodily injury to one passenger is limited to the "each person" coverage in the declarations. Here, that coverage is limited to $100,000. Any injuries the Bateses have suffered would not have happened but for Deborah's death. Their claims, and any subsequent damages, arise only because of the bodily injury she suffered.

¶ 8. The Bateses argue the trial court erred by determining that the policy's limitation of coverage is clear and unambiguous. They correctly point out a policy is ambiguous when it is subject to more than one reasonable construction. Smith v. Atlantic Mut. Ins. Co., 155 Wis. 2d 808, 811, 456 N.W.2d 597 (1990). However, a policy is not ambiguous simply because the insured has offered a "remotely possible second interpretation." United States Fire Ins. Co. v. Ace Baking Co., 164 Wis. 2d 499, 503, 476 N.W.2d 280 (Ct. App. 1991). Nor are policy provisions ambiguous merely because the language is complex or cumbersome. Sukala v. Heritage Mut. Ins. Co., 2001 WI App 266, ¶ 10, 240 Wis. 2d 65, 622 N.W.2d 457. The Bateses suggest it is a reasonable interpretation to read the policy as limiting the passengers' claims to $100,000 and the nonpassengers' claims to $1,000,000. They point to the distinction the policy makes between "passengers" and "persons" and suggest this distinction makes the first paragraph under "Coverage D" in the policy's "Limit of Company's Liability" section applicable to the claims of nonpassengers, while the remaining language of that section applies to the claims of passengers.

¶ 9. The policy language does not support the Bateses' proposed construction. If the parties have agreed to have the policy's declarations read "passenger liability limited to," as they have in this case, Old Republic's liability for "all damages, including damages for care and loss of service because of bodily injury to passengers" is limited to the $100,000 "each passenger" limit, "regardless of the number of persons bringing a claim." The Bateses argue that this specific language only applies to claims made by passengers and their claims fall under the preceding clause in the policy, which would subject Old Republic to the $1,000,000 "each occurrence" limit. The plain meaning of these clauses, however, is that when the parties agree to limit the amount of recovery per passenger, then Old Republic's liability for all claims that are made because of the injury to a passenger is limited to the "each person" limit.

¶ 10. The Bateses also argue the $100,000 "passenger" coverage is in addition to the $1,000,000 overall coverage, and it would be an absurd reading of the policy to have its additional coverage reduce the overall coverage. They also contend that the two limitation of liability clauses conflict. The Bateses misconstrue the policy. The $1,000,000 "per occurrence" coverage is Old Republic's overall limit of liability for any one event, and the $100,000 "per person" limit is a limit on the claims that arise because of bodily injury to any one passenger because of that event. The clause does not reduce Old Republic's overall liability; it defines how that liability would be divided among claims. Read together, these clauses are neither absurd nor conflicting.

¶ 11. Our reading of the policy is supported by two other phrases in the limitation of liability clause. First, the language saying the company is liable for "all damages, including damages for care and loss of services because of bodily injury to passengers" suggests the parties intended to limit liability for all claims related to the bodily injury of one passenger to the $100,000 limit, whether suffered by the passenger or another person. A loss of services claim, for instance, would have to be made by someone other than the injured passenger. Further, subsec. (a) under "Coverage D" in the limitations clause caps liability for bodily injury to any one passenger at the "per person" amount "regardless of the number of persons bringing a claim." If the limitation of liability clause were interpreted to mean only the injured passenger could make claims under this section, these two sections would appear to be meaningless. In determining whether there is an ambiguity in an insurance contract, we must look to the policy as a whole and give meaning to each of the provisions in the policy if possible. Kraemer Bros. v. United States Fire Ins. Co., 89 Wis. 2d 555, 562, 278 N.W.2d 857 (1979). Here, if we are to give meaning to these phrases, it can only mean that the parties intended to include all claims related to the injury of a passenger in the $100,000 limit.

¶ 12. The Bateses also rely on a tenth circuit case, interpreting a very similar Old Republic policy under Colorado law. In Old Republic Ins. Co. v. Durango Air Serv., Inc., 283 F.3d 1222 (10th Cir. 2002), the court determined that the wrongful death claims of the families of two men killed in an airplane crash were unambiguously covered by the policy's "each occurrence" limit. Id. at 1227. The relevant parts of the policy's limitations on liability section are nearly identical to those in this case, the only apparent difference being the absence of the "regardless of the number of persons bringing a claim" language at the end of paragraph (a) under Coverage D. Id. at 1226. The court determined the policy distinguished between passengers and nonpassengers and the parties intended to have the claims of nonpassengers subject to the "each occurrence" limit. Id. at 1227. We are not persuaded that the analysis in Durango applies to this policy. Importantly, we note the Durango policy lacks the "regardless of the number of persons" language found in Old Republic's policy here. As noted, we believe this shows the intent of the parties in this case to include all claims arising because of the bodily injury to one passenger under the "each person" limit. In addition, we are satisfied the "all damages, including damages for care and loss of service because of bodily injury to passengers" language clearly limits Old Republic's liability for the claims of nonpassengers which result from bodily injuries to passengers.

¶ 13. The Bateses also make specific arguments why their negligent infliction of emotional distress and wrongful death claims fall under the policy's "each occurrence" limit. Regarding the emotional distress claims, the Bateses point to Bowen v. Lumbermens Mut. Cas. Co., 183 Wis. 2d 627, 517 N.W.2d 432 (1994), in which our supreme court first recognized an independent claim for emotional distress injuries to bystanders. The Bateses contend their Bowen claims are independent from those suffered by Deborah, and because Old Republic's policy includes mental anguish in its definition of bodily injury, these claims should fall under the "each occurrence" policy limit. The Bateses further contend that the trial court erred in its reliance on Estate of Gocha v. Shimon, 215 Wis. 2d 586, 573 N.W.2d 218 (Ct. App. 1997). In Gocha, the family of Kyle Gocha filed claims for emotional distress after witnessing his death after an automobile struck him. Id. at 589. The insurance policy in Gocha defined "bodily injury to one person" to include all injury and damages to others resulting from that bodily injury. Id. at 589. We determined that under the policy's terms, the family's claims were subject to the "each person" limit rather than the "each accident" limit, noting: "But for the bodily injury to Kyle, the Gochas would not have suffered any emotional injuries." Id. at 593. The Bateses argue Gocha is irrelevant because of the differences in policy-language.

¶ 14. The Bateses' arguments are not persuasive. While Gocha!s and Old Republic's policies use different language, they have a similar effect. Both limit claims related to the bodily injury of one person to a certain coverage limit. The Old Republic policy limits coverage for all damages that occur because of bodily injuries to passengers to the "each person" amount. The Gocha policy defines "bodily injury" in a way to limit its coverage for related claims. Id. at 589. We also rejected the Gochas' argument, similar to the Bateses', regarding the independent nature of their Bowen claims. Id. at 591. The issue is how the policy treats the claims, not how the law defines them. Under Old Republic's policy, the Bateses' claims fall under the "each person" limit.

¶ 15. In addition, the Bateses argue that their wrongful death claims should be covered by the policy's "each occurrence" limit. The Bateses contend that the trial court accepted Old Republic's argument that the derivative nature of the’claims brought them under the "per person" limit. Old Republic relies primarily on two cases, Ruppa v. American States Ins. Co., 91 Wis. 2d 628, 284 N.W.2d 318 (1979) and Richie v. American Fam. Mut. Ins. Co., 140 Wis. 2d 51, 409 N.W.2d 146 (Ct. App. 1987). In Ruppa, the plaintiffs husband had been killed in a horse show, but had signed a release prior the accident. Id. at 633, 635-36. In assessing the effect of the release on the plaintiffs wrongful death claim, the supreme court noted "an action for wrongful death is derivative. One is liable to the plaintiff in an action under that statute only if and to the extent that he would have been liable to the decedent had death not ensued." Id. at 646.

¶ 16. In Richie, the wife and children of a man injured in a car accident brought claims for medical expenses and loss of consortium. Richie, 140 Wis. 2d at 53. The Richies sought coverage under the policy's "each occurrence" limit, rather than its "each person" limit. Id. The policy limited the amount of recovery for bodily injury to one person to the "each person" limit of $100,000. Id. at 55. We determined that under the policy in Richie, the loss of consortium claim was not a bodily injury and the "each person" limit applied to the family's claims because they arose out of one person's bodily injuries. Id. Old Republic argues that together, Ruppa and Richie stand for the proposition that derivative claims, such as the Bateses' wrongful death claims, must fall under the "each person" limit in their policy.

¶ 17. The Bateses distinguish Ruppa by arguing it involves a liability release rather than an insurance agreement. In addition, they contend Richie is inapplicable because the Richie policy language is different from Old Republic's. They argue that Old Republic's "passenger" and "person" distinction in its policy is not found in the Richie policy, making it irrelevant to this case. Instead, the Bateses point out, Richie recognized: "If more than one person suffers bodily injury, there may be separate claims." Id. at 55. The Bateses contend that Old Republic's policy recognizes separate bodily injury claims for the family members and coverage should fall under the "each occurrence" limit.

¶ 18. While we do not believe Ruppa and Richie, when examined together, require a finding the Bateses' claims fall under the "each person" limit, these cases are not completely irrelevant. Wrongful death claims are derivative, as explained in Ruppa, 91 Wis. 2d at 646. How an insurance policy treats derivative claims, however, is determined by the language in that policy. In Richie, the derivative claims were treated as having arisen from the bodily injury of one person, limiting the coverage under that policy to the "each person" limit. Richie, 140 Wis. 2d at 57. Similarly, Old Republic's policy limits recovery to its "each persdn" limit for all damages that occur because of bodily injury to a passenger. This includes the Bateses' wrongful death and emotional distress claims.

By the Court. — Order affirmed.

      In addition, Deborah's estate brought a claim for pain and suffering and emotional distress. Richard Bates, Deborah's husband, also brought a wrongful death claim. Patricia Hause sought to recover Deborah's medical and funeral expenses.

       The policy defines "bodily injury" as "bodily injury, sickness, disease or mental anguish sustained by any person which occurs during the policy period, including death at any time resulting therefrom."

       We find no indication in the record that the trial court based its decision on the Bateses' wrongful death claims being derivative.


text:
    Margaret Hoffman and Neil Hoffman, Plaintiffs-Appellants, v. Thomas V. Rankin, M.D., The Medical Protective Company, and Wisconsin Patients Compensation Fund, Defendants-Respondents, AARP Claim Unit and Medicare Parts A & B, Defendants.
    Court of Appeals

      No. 01-3202.

      Submitted on briefs May 13, 2002.

    Decided June 11, 2002.

    2002 WI App 189
    (Also reported in 649 N.W.2d 350.)

      On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of CM. Bye of Bye, Goff & Rohde, Ltd. of River Falls.
    On behalf of the defendants-respondents, Thomas V. Rankin, M.D., and The Medical Protective Company, the cause was submitted on the brief of William R. Wick of Nash, Spindler, Grimstad & McCracken LLP of Manitowoc.
    On behalf of the defendant-respondent, Wisconsin Patients Compensation Fund, the cause was submitted on the brief of Mark E. Larson of Gutglass, Erickson, Bonville, Seibel & Falkner, S.C. of Milwaukee.

      Before Cane, C.J., Hoover, EJ., and Peterson, J.
   CANE, C.J.

¶ 1. Neil and Margaret Hoffman appeal the dismissal of their medical negligence action against Thomas Rankin, M.D., the Medical Protective Company and the Wisconsin Patients Compensation Fund (hereinafter, "the respondents"). The sole issue involves the interpretation of Wis. Stat. § 655.445. Specifically, we must decide whether "mailing" is the equivalent of "filing" within the meaning of the statute.

¶ 2. The Hoffmans argue that the trial court erroneously ruled that the terms were synonymous and incorrectly held that the Hoffmans failed to wait for the expiration of the mandatory mediation period before filing their lawsuit. Based upon the plain statutory language, we agree. We therefore reverse the order and remand for further proceedings.

BACKGROUND

¶ 3. Margaret Hoffman claimed she was injured as a result of spinal surgery that Rankin performed in January 1997. On December 13, 1999, the Hoffmans mailed a summons and complaint to the clerk of circuit court for filing and, on the same day, mailed their request for mediation to the administrator of Medical Mediation Panels. The clerk of the circuit court date stamped the pleadings as filed December 15, 1999. On December 15, the administrator received the Hoffmans' request for mediation.

¶ 4. Before trial, the respondents moved to dismiss the action. They contended that the Hoffmans failed to comply with Wis. Stat. § 655.44(5), providing for the expiration of a waiting period for mediation before filing their medical malpractice action. The respondents claimed that the court therefore lacked competency to exercise its jurisdiction. The Hoffmans opposed the motion, arguing that they followed an alternative procedure available under Wis. Stat. § 655.445, allowing them to file a mediation request within fifteen days of filing their lawsuit.

¶ 5. The trial court rejected the Hoffmans' argument. The trial court ruled that "the date of mailing is the date of filing" the mediation request. The court concluded that because the mediation request was mailed on December 13, 1999, it was filed before the lawsuit. Relying on Ocasio v. Froedtert Mem'l Luth. Hosp., 2001 WI App 264, 248 Wis. 2d 932, 637 N.W.2d 459, review granted, 2002 WI 23, 250 Wis. 2d 555, 643 N.W.2d 93 (No. 00-3056), the trial court determined that the Hoffmans failed to wait until the expiration of the mandatory mediation period under Wis. Stat. § 655.44(5) before filing their complaint, depriving the court of competency to exercise its subject matter jurisdiction. The court dismissed the Hoffmans' complaint. The Hoffmans appeal the order of dismissal.

DISCUSSION

¶ 6. The Hoffmans claim that they followed the appropriate procedure available under Wis. Stat. § 655.445 and the court had competency to proceed. The Hoffmans contend that mailing is not the same as filing and, therefore, the alternative under § 655.445, providing for the mediation request to be filed "within 15 days after the date of filing an action in court," applies. We conclude that the Hoffmans' statutory interpretation is correct.

A. Standard of Review

¶ 7. This issue is resolved by resort to statutory language, an issue of law we decide de novo. State v. Setagord, 211 Wis. 2d 397, 405-06, 565 N.W.2d 506 (1997). The purpose of statutory interpretation is to ascertain and give effect to the legislature's intent. Id. at 406. We first look to the language of the statute itself. Id. If the meaning of the statute is unambiguous, we do not look beyond the statutory language; we simply apply the statute to the case at hand. Id.

¶ 8. In the absence of an applicable statutory definition, the legislature is presumed to intend the common usage of a term. Hilmes v. DILHR, 147 Wis. 2d 48, 54, 433 N.W.2d 251 (Ct. App. 1988); see also Wis. Stat. § 990.01. The common and ordinary usage of words may be established by their definition in a recognized dictionary. Enpro Assessment Corp. v. Enpro Plus, Inc., 171 Wis. 2d 542, 546, 492 N.W.2d 325 (Ct. App. 1992).

B. Wis. Stat. Ch. 655

¶ 9. Turning to the language of the statutes in question, we observe that Wis. Stat. ch. 655, an "exclusive procedure for the prosecution of malpractice claims against a health care provider," sets out two alternative procedures to pursue claims. Ocasio, 2001 WI App 264 at ¶¶ 9, 13 (citation omitted). The first, governed by Wis. Stat. § 655.44, is entitled "Request for mediation prior to court action." Under this section, an injured patient may file a request for mediation with the Wisconsin Patients Compensation Fund rather than file a lawsuit.

¶ 10. When a person opts for the first method, the expiration of the mediation period is a condition precedent to the commencement of a medical malpractice action. Ocasio, 2001 WI App 264 at ¶ 1. "Once the request has been filed, the patient may not commence a court action until the mediation period under [Wis. Stat.] sec. 655.465(7) has expired." Id at ¶ 9; see also Wis. Stat. § 655.44(5). The mediation period expires ninety days after the director of state courts receives the mediation request if delivered in person or ninety-three days after the date of mailing if sent by registered mail. Wis. Stat. § 655.465(7).

¶ 11. In Ocasio, the claimant followed this first alternative, Wis. Stat. § 655.44. Because the waiting requirement is mandatory, the filing of the summons and complaint within the mediation period is void because failure to comply with a mandatory statutory provision eliminates "the ability of a court to exercise its subject matter jurisdiction." Ocasio, 2001 WI App 264 at ¶ 27 (citation omitted). Ocasio held therefore that the circuit court correctly dismissed a medical malpractice action for lack of competency to exercise its jurisdiction when a party filed her medical malpractice suit before the expiration of the statutory mediation period under § 655.465(7). Id. at ¶ 1.

¶ 12. Wisconsin Stat. ch. 655 provides a second alternative to prosecute medical malpractice claims, Wis. Stat. § 655.445, entitled "Request for mediation in conjunction with court action." Under this section, a party may commence a lawsuit in the usual manner. Eby v. Kozarek, 153 Wis. 2d 75, 82, 450 N.W.2d 249 (1990). A request for mediation shall then be filed within fifteen days of filing the court action. Id. This is the procedure the Hoffmans claim to have followed.

C. Filing vs. Mailing

¶ 13. The respondents contend that the Hoff-mans' act of mailing their request for mediation was the equivalent of filing their request. We conclude that it was not. The recognized dictionary definition of to "file" is: "[T]o deliver (as a legal paper or instrument) after complying with any condition precedent (as the payment of a fee) to the proper officer for keeping on file or among the records of his office ... to place (as a paper or instrument) on file among the legal or official records of an office esp. by formally receiving, endorsing, and entering." Webster's Third New Int'l Dictionary 849 (unabr. 1993). To "mail" is to "send postal matter." Id. at 1361.

¶ 14. Wisconsin courts have distinguished filing from mailing in a variety of contexts. "To construe or define 'mailing' as 'filing' is to ignore the plain meaning of the word. Mailing merely initiates the process by which an article in the due course of the post will be delivered." E. M. Boerke, Inc. v. Williams, 28 Wis. 2d 627, 635, 137 N.W.2d 489 (1965). "We are not aware of any statute or court rule providing that when a paper is presented for filing by mail, the filing is complete upon mailing." First Wis. Nat'l Bank v. Nicholaou, 87 Wis. 2d 360, 365, 274 N.W 2d 704 (1979); see also Nelson v. DNR, 90 Wis. 2d 574, 576, 280 N.W.2d 334 (Ct. App. 1979) (The date of filing notice of appeal is the date it is received in the clerk's office, "not the date it is mailed to the clerk."); see also Hilmes, 147 Wis. 2d at 53-54 ("In this case, [Wis. Admin. Code] sec. Ind 88.01(6) accords with well-settled Wisconsin case law holding that 'filing' entails delivery to the intended recipient.").

¶ 15. We are satisfied that under Wis. Stat. § 655.445, the term "filing" should be accorded its ordinary meaning, requiring delivery to the proper officer. Nothing in Wis. Stat. ch. 655 expressly alters this interpretation. Because the Hoffmans' mediation request was filed on the day it was actually received by the administrator, we conclude that their mediation request was filed within fifteen days of the filing of the summons and complaint. Consequently, the Hoffmans proceeded properly under § 655.445. Ocasio, which solely addressed the first alternative pursuant to § 655.44, does not control.

¶ 16. The respondents argue, nonetheless, that a mediation request is filed when mailed because of the computation of the time for the mediation period in Wis. Stat. § 655.465(7). Under that section, the mediation period expires ninety days after the director of state courts receives a request for mediation if delivered in person or ninety-three days after the date of mailing if the request is sent by registered mail. We are unpersuaded that § 655.465(7) necessarily implies that a mediation request is filed upon mailing. Because it provides an additional three days if the request was mailed, it could just as easily imply that filing would not be complete on the date of mailing.

¶ 17. The respondents also rely on Wis. Stat. § 655.44(4), which provides that the statute of limitations is tolled "on the date of mailing" if the request for mediation is mailed rather than hand delivered. In addition, they point to § 655.455, providing that the director of state courts must serve notice of the request upon named health care providers within seven days after delivery in person or within ten days after the date of mailing the request. The respondents argue that these sections demonstrate the legislature intended the date of mailing to be the date of filing.

¶ 18. We disagree. The better approach is to presume that the legislature meant what it said when it used the word "file." Ball v. District No. 4 Area Bd., 117 Wis. 2d 529, 539, 345 N.W. 2d 389 (1984). ("The more reasonable presumption is that the legislature chose its terms carefully and precisely to express its meaning."). We conclude that the statutes evince the legislative intent to avoid confusion in making time calculations. The respondents' interpretation would have us rule that the legislature, without saying so, used two materially distinct definitions of the word "file" in Wis. Stat. § 655.445(1). To interpret the statute to use two words, when one would suffice, would violate the tenet that we must "attempt to give effect to every word of a statute" so as not to render any portion of it superfluous. County of Jefferson v. Renz, 231 Wis. 2d 293, 305, 603 N.W.2d 541 (1999). Consequently, the respondents' argument must be rejected.

¶ 19. Our supreme court has observed that by "providing claimants with alternatives for pursuing redress, the legislature demonstrated an intent to provide claimants with more flexible procedures in medical malpractice cases." Eby, 153 Wis. 2d at 83. A statutory interpretation that holds claimants to inflexible requirements as a prerequisite to jurisdiction would be inconsistent with this intent. Id. Our interpretation is consistent with the legislature's intent to provide flexible procedures in medical malpractice cases as evinced by the plain statutory language.

CONCLUSION

¶ 20. We conclude that the terms "filing" and "mailing" should be read according to their common and ordinary usage. We therefore conclude that filing must be distinguished from mailing. Filing means delivery to the proper officer for keeping on file or among records of his or her office. Because the Hoffmans' request for mediation was filed within fifteen days of the filing of the summons and complaint, they properly followed the procedure in Wis. Stat. § 655.445(1).

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

       The AARP Claim Unit and MEDICARE Parts A & B were also defendants but not respondents on appeal.

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

       Wisconsin Stat. § 655.44, entitled "Request for mediation prior to court action" reads:
      (1) Request and pee. Beginning September 1,1986, any person listed in s. 655.007 having a claim or a derivative claim under this chapter for bodily injury or death because of a tort or breach of contract based on professional services rendered or that should have been rendered by a health care provider may file a request for mediation and shall pay the fee under s. 655.54.
      (3) Delivery or registered mail. The request for mediation shall be delivered in person or sent by registered mail to the director of state courts.
      (4) Statute op limitations. Any applicable statute of limitations is tolled on the date the director of state courts receives the request for mediation if delivered in person or on the date of mailing if sent by registered mail. The statute remains tolled until 30 days after the last day of the mediation period under s. 655.465(7).
      (5) No COURT ACTION COMMENCED BEFORE MEDIATION. Except as provided in s. 655.445, no court action may be commenced unless a request for mediation has been filed under this section and until the expiration of the mediation period under s. 655.465(7).
      (6) Notice of court action to director of state courts. A claimant who files a request for mediation under this section and who commences a court action after the expiration of the mediation period under s. 655.465(7) shall send notice of the court action by 1st class mail to the director of state courts.

       Wisconsin Stat. § 655.465(7) provides in part:
      (7) Mediation period. The period for mediation shall expire 90 days after the director of state courts receives a request for mediation if delivered in person or within 93 days after the date of mailing of the request to the director of state courts if sent by registered mail, or within a longer period agreed to by the claimant and all respondents and specified by them in writing for purposes of applying ss. 655.44(4) and (5) and 655.445(3).

       Wisconsin Stat. § 655.445 entitled, "Request for mediation in conjunction with court action" reads:
      (1) Commencing action. Request and fee. Beginning September 1, 1986, any person listed in s. 655.007 having a claim or a derivative claim under this chapter for bodily injury or death because of a tort or breach of contract based on professional services rendered or that should have been rendered by a health care provider shall, within 15 days after the date of filing an action in court, file a request for mediation. The request shall be prepared and delivered in person or sent by registered mail to the director of state courts, in the form and manner required under s. 655.44(2) and (3), together with a notice that a court action has been commenced and the fee under s. 655.54 shall be paid.
      (2) Scheduling. All time periods under s. 802.10(3) are tolled on the date of filing the court action. The time periods remain tolled until the expiration of the mediation period under s. 655.465(7).
      (3) No COURT PROCEEDINGS BEFORE MEDIATION. For actions filed under sub. (1), no discovery may be made and no trial, pretrial conference or scheduling conference may he held until the expiration of the mediation period under s. 655.465(7).

       In Hilmes v. DILHR, 147 Wis. 2d 48, 54, 433 N.W.2d 251 (Ct. App. 1988), our supreme court referred to a standard dictionary definition, stating:
      Both Hilmes and the department concede that the dictionary definition of "file" is accurately set forth in EM. Boerke: "to deliver (as a legal paper or instrument) after complying with any condition precedent... to the proper officer." Id. (quoting Webster's Third New International Dictionary). This is the ordinary meaning of the word; any specialized usage employed by the IRS is irrelevant to the instant inquiry.
      We note that the seventh edition of Black's Law DICTIONARY defines to "file" and to "mail" consistently with the definitions found in Webster's ThiRD New Int'l Dictionary. See Black's Law Dictionary 642, 964 (7th ed. 1999).

       The respondents do not suggest that the phrase "within 15 days after the date of filing," see Wis. Stat. § 655.445(1), is to be distinguished from "within 15 days of filing" the court action. See Eby v. Kozarek, 153 Wis. 2d 75, 82, 450 N.W.2d 249 (1990). The respondents do not contend that the filing of both the mediation request and lawsuit on the same day renders the lawsuit's filing premature under Wis. Stat. § 655.44(5) or the mediation request prematurely filed under § 655.445.

       See note 3, supra.

       See note 3, supra.

       Wisconsin Stat. § 655.455 reads:
      Notice to health care providers. The director of state courts shall serve notice of a request for mediation upon all health care providers named in the request, at the respective addresses provided in the request, by registered mail within 7 days after the director of state courts receives the request if delivered in person or within 10 days after the date of mailing of the request to the director of state courts if sent by registered mail.

       Our result renders it unnecessary to address the Hoff-mans' estoppel argument.