author: CURLEY, J.

text:
    Zachariah J. Treder, a minor, by his Guardian ad Litem, Joseph Weigel, Brian Treder and Lori Treder, Plaintiffs, United Healthcare of Wisconsin, Subrogated-Plaintiff, v. LST, Limited Partnership, d/b/a Lake Shore Towers, a Wisconsin Limited Partnership, Defendant, Commercial Union Insurance Company, a foreign corporation, Defendant-Respondent, Bieck Management, Inc., Defendant, West Bend Mutual Insurance Company, Defendant-Appellant. LST, Limited Partnership, d/b/a Lake Shore Towers, Plaintiff, Commercial Union Midwest Insurance Company, Plaintiff-Respondent, v. Bieck Management, Inc., Defendant, West Bend Mutual Insurance Company, Defendant-Appellant.

    Court of Appeals

      No. 03-0848.

      Oral argument December 19, 2003.

    Decided March 9, 2004.

    2004 WI App 75
    (Also reported in 679 N.W.2d 555.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Jeffrey Leavell of Jeffrey Leavell, S.C., of Racine, with oral argument by Jeffrey Leavell.
    On behalf of the defendant-respondent, the cause was submitted on the brief of Michael T. Steber of Zimmerman & Steber Legal Group, S.C., of Brookfield, with oral argument by Michael T. Steber.
    Before Fine, Schudson and Curley, JJ.

       Petition to review denied 5-17-04.

   CURLEY, J.

¶ 1. West Bend Mutual Insurance Company (West Bend) appeals the trial court's declaratory judgment making West Bend's policy responsible for the second layer of coverage for a $2,075,000 personal injury settlement. This coverage dispute arose out of an injury occurring in an apartment building owned by LST, Limited Partnership, d/b/a Lake Shore Towers (LST), and managed by Bieck Management, Inc. (Bieck). West Bend, whose policy names only Bieck as an insured, contends that Commercial Union Insurance Company (Commercial Union), whose umbrella policy names both Bieck and LST as insureds, should have been required to pay the remaining settlement amount after Commercial Union's general liability policy limit of $1,000,000 was exhausted. Alternatively, West Bend argues that its policy and Commercial Union's umbrella policy should both be considered excess policies and the remaining settlement amounts should be shared pro rata according to each policy's limits.

¶ 2. In Oelhafen v. Tower Insurance Co., 171 Wis. 2d 532, 492 N.W.2d 321 (Ct. App. 1992), this court concluded that umbrella policies, such as Commercial Union's, "are regarded as true excess over and above any type of primary coverage, including excess provisions arising in regular primary policies [,]" id. at 539; thus, neither the "other insurance" clause found in Commercial Union's umbrella policy nor the "real estate managed property" endorsement found in West Bend's policy defeats the holding that umbrella policies are intended to be the last line of defense. Consequently, West Bend's policy was not on equal footing with Commercial Union's umbrella policy, and sharing the losses on a pro rata basis per the holding in Schoenecker v. Haines, 88 Wis. 2d 665, 277 N.W.2d 782 (1979), would be inappropriate.

I. Background.

¶ 3. Zachariah Treder, then an infant, suffered severe and permanent head injuries when he was accidentally lifted into the whirring blades of a ceiling fan that was installed too low by Bieck employees in an apartment building owned by LST. Three insurance policies provided coverage for LST and Bieck. Bieck secured all of them. Two policies were written by Commercial Union, one of which was a commercial general liability policy with a limit of $1,000,000, and the other, an umbrella policy with a $3,000,000 policy limit. These two policies named both LST and Bieck as insureds. Bieck also purchased an insurance policy from West Bend with a policy limit of $1,000,000, naming only Bieck and its office. However, this policy contained a "real estate managed property" endorsement covering Bieck in regard to the properties it managed.

¶ 4. A suit was commenced on Zachariah's behalf against LST and its insurance carrier, Commercial Union. As a result, LST and Commercial Union brought suit against Bieck and its insurance carrier, West Bend, seeking contribution. The parties also requested that the trial court determine the priority of coverage for the two remaining polices — West Bend's policy and Commercial Union's umbrella policy — as the parties stipulated that Commercial Union's general liability policy was first in line. The two lawsuits were later consolidated and the plaintiffs amended their complaint, adding Bieck and West Bend as defendants. As noted, the parties settled the claim for Zachariah's injuries.

¶ 5. The trial court concluded that pursuant to Oelhafen, after Commercial Union's general liability policy paid the first $1,000,000, West Bend's policy was responsible for the next layer of insurance, and Commercial Union's umbrella policy was responsible for any remaining monies.

II. Analysis.

¶ 6. West Bend claims that the trial court erred. First, it submits that Commercial Union's umbrella policy should have been ordered second in line because the intent and purpose of the insurance purchaser must he given weight when determining the priority of the policies. West Bend asserts that evidence established that Bieck purchased the West Bend policy to primarily cover the company and its business property, with the understanding that the West Bend policy would apply to managed properties only after Commercial Union's umbrella policy limit was exhausted.

¶ 7. Second, West Bend argues that since Commercial Union's umbrella policy named only its general liability policy as underlying insurance, the umbrella policy anticipated only $1,000,000 in underlying coverage before it would be required to pay. Thus, West Bend argues that it is unfair for Commercial Union to request West Bend to pay when Commercial Union's expectation was that the umbrella policy would be responsible for coverage after the $1,000,000 limit of the underlying insurance policy was met.

¶ 8. Third, West Bend contends that the trial court "overread" the language in Oelhafen, and insists that the trial court's reliance on Oelhafen was improper because the facts and policy language of the two cases are distinguishable. Finally, and alternatively, West Bend proposes that its policy and the Commercial Union umbrella policy should both be considered excess policies. Relying on Schoenecker, West Bend submits that the wording of its "real estate property managed" endorsement makes its policy an excess policy over any other available insurance, and when compared to the "other insurance" clause found in Commercial Union's umbrella policy, the two clauses directly conflict. Schoe-necker instructs that:

The rule in Wisconsin, then, is that, where there are two applicable insurance policies, the provisions of each will be given effect if possible. If it is impossible to give effect to both because they are directly conflicting, then neither will be given effect and the loss will be prorated between the concurrent insurers.

88 Wis. 2d at 672-73. As a result, West Bend submits that neither policy should be given priority over the other. Instead, it proposes that each should contribute toward the loss on a pro rata basis. We remain unpersuaded by all of West Bend's arguments.

¶ 9. This dispute requires us to interpret language found in the two insurance policies. The interpretation of insurance contracts presents a question of law. Danbeck v. American Fam. Mut. Ins. Co., 2001 WI 91, ¶ 10, 245 Wis. 2d 186, 629 N.W.2d 150. We review questions of law without deference to the trial court. See id.

A. The facts do not support West Bend's contentions concerning Bieck's intent and motive when purchasing the West Bend policy.

¶ 10. We first address West Bend's contention that the intent and purpose of the purchaser of the policy — in this case, Kenneth Bieck — must be given great weight in deciding the priority of the policies. West Bend points to the deposition of Kenneth Bieck to establish that Mr. Bieck purchased the West Bend policy with the intent that it be in excess of the Commercial Union policies procured by him for both LST and Bieck. Even if we were to embrace West Bend's argument that the intentions of an insurance purchaser would be critical to our ordering of insurance coverage, our review of Bieck's deposition belies West Bend's contention. Bieck related that he purchased separate insurance for his company, but he offered no reason for the purchase, except to say that he wanted coverage for his business and office. Furthermore, he did not discuss his expectations in buying the insurance. Contrary to West Bend's assertion, Mr. Bieck offered no opinion as to which policy should apply first. In fact, in his deposition, Bieck never mentions the words "primary," "excess," or "umbrella." Consequently, the record is totally devoid of any support for this argument.

B. West Bend's contention that Commercial Union should pay all damages above the $1,000,000 limit is contrary to Oelhafen's holding.

¶ 11. West Bend contends that it should not be required to pay the next layer of coverage, because when Commercial Union issued the umbrella policy, it only expected there to be $1,000,000 of underlying insurance. Therefore, West Bend reasons that it should not be required to provide an additional $1,000,000 worth of insurance before the umbrella policy's limitations are utilized. This argument was soundly rejected by Oelhafen.

¶ 12. In that case, Oelhafen was injured in a boating accident. The boat owners had primary insur-anee with a limit of $300,000. On top of that, the owners had a $2,000,000 umbrella policy. There were also two boat operators with separate primary policies of $100,000 each issued by different insurance companies. The case was ultimately settled for $925,000. The three primary insurers argued that because the umbrella policy agreed to indemnify any loss over $300,000, the primary insurers should share the first $300,000 of coverage — $100,000 each — and the umbrella policy should be responsible for the remainder of the settlement amount. This court rejected that argument and determined that the umbrella policy was only responsible for the settlement amounts remaining after all the primary insurance policies exhausted their policy limits. We concluded that umbrella policies "are regarded as true excess over and above any type of primary coverage, including excess provisions arising in regular primary policies[.]" Oelhafen, 171 Wis. 2d at 539. Thus, we find this argument without merit.

C. The holding in Oelhafen is on point.

¶ 13. Next, West Bend argues that the trial court erred in its conclusion that West Bend must provide the next layer of insurance because the Oelhafen facts are different from those here and the trial court "overread" the Oelhafen case.

¶ 14. Before applying Oelhafen to the facts of this case, we pause to emphasize the nature of the differences between primary coverage and umbrella coverage, and the typical escape clauses found within the policies, as this case concerns both types of coverage. Primary insurance policies cover a risk. An umbrella policy is unique and provides special coverage. Id. at 538. The umbrella coverage's purpose is different than that of primary coverage; i.e., it provides the insured with liability coverage in excess of that offered by the primary policy. Id. at 538-39; see also Davis v. Allied Processors, Inc., 214 Wis. 2d 294, 299-300, 571 N.W.2d 692 (Ct. App. 1997). This difference was recognized in Oelhafen:

One very important type of coverage in these days of potentially high verdicts is that provided by so-called umbrella or catastrophe policies.... [This coverage] gives a financial security, as well as peace of mind, to the individual purchasing such coverage who is hopeful that he will never be involved in any substantial claim or lawsuit, but, if he is, is desirous of not losing the security it may have taken a lifetime to acquire.
The courts are not ignorant of [these] desirable socio-economic consequences attendant upon the providing of umbrella or catastrophe coverages.

171 Wis. 2d at 538-39 (quoted source and footnote omitted). Another important difference between umbrella policies and primary policies is that umbrella policies always require underlying insurance: "Both true excess and umbrella policies require the existence of a primary policy as a condition of coverage." Lee R. Russ & Thomas F. Segalla, 15 Couch on Insurance § 220:32 (3d ed. 1999) (footnote omitted).

¶ 15. Both types of insurance often contain "other insurance" clauses that attempt to rank the order of policies and limit liability when more than one primary insurance policy exists. See id., § 219:1. "[0]ne category of 'other insurance' provisions is the 'excess clause,' in which the insurer's liability extends only to the amount by which the loss exceeds the coverage of all other valid and collectible insurance up to the limits of the excess policy." Schoenecker, 88 Wis. 2d at 671. A second category "is the 'escape clause,' which provides that there is no coverage when there is other valid and collectible insurance." Id. In situations involving the interplay between primary and umbrella coverages, this court should "examine the overall pattern of insurance and . .. construe each policy as a whole." Oelhafen, 171 Wis. 2d at 538.

¶ 16. West Bend argues that Oelhafen's facts are distinct from those in operation here. West Bend points out that here, the West Bend policy was purchased for a different primary purpose, i.e., to protect Bieck, not LST. And, unlike Oelhafen, where there were three underlying policies disputing primary coverage, Commercial Union concedes that its underlying policy is first in line for payment.

¶ 17. We first address West Bend's argument that since West Bend's policy was intended to cover only Bieck's business, Oelhafen is inapplicable. We disagree. We see no reason to reach a conclusion unlike the one in Oelhafen simply because West Bend's exposure occurred as a result of its "real estate managed property" endorsement rather than a policy written specifically to cover this risk. So, too, we see no merit in West Bend's contention that because Commercial Union agreed its primary general liability policy should pay the first $1,000,000, Oelhafen's holding is inapplicable. Distilled to its essence, the dispute here, as in Oelhafen, concerns the priority of primary and umbrella policies.

¶ 18. Next, West Bend argues that several major differences exist between the Oelhafen policies and the policies in this case, making the holding of Oelhafen inapposite. West Bend submits that the wording of the umbrella policy in Oelhafen was what drove the ultimate result, and since the wording here differs significantly from that of the policy in Oelhafen, the result should be different. Oelhafen's umbrella policy's "other insurance" clause reads:

Other insurance. Our coverage is excess over any other insurance. This applies whether the other insurance is primary, contributing, excess or contingent. If the other insurance provides coverage only in excess of a stated amount of liability for each accident, we shall pay that part of the Net Loss covered by this policy. In such cases we will pay only our share. Our share is the proportion that our Limit of Coverage bears to the total of all limits of all other excess indemnity policies applicable to the loss.

Id. at 536.

¶ 19. The "other insurance" clause found in Commercial Union's umbrella policy reads:

This insurance is excess over "underlying insurance" or any other valid and collectible insurance (except other insurance purchased specifically to apply in excess of this insurance) which is available to the "insured" covering a loss also covered by this policy.

West Bend submits that the key phrase "except other insurance purchased specifically to apply in excess of this insurance," when read in conjunction with its "real estate property managed" endorsement, turns the West Bend policy into an excess policy over and above the umbrella policy. The endorsement reads in part: "With respect to your liability arising out of your management of property for which you are acting as real estate manager this insurance is excess over any other valid and collectible insurance available to you." Observing that Commercial Union's umbrella policy never lists West Bend's policy as underlying insurance, West Bend reaches several conclusions. It submits that because the umbrella policy's "other insurance" clause references policies specifically purchased to be excess and the West Bend policy's "real estate managed property" endorsement requires it to be excess, and because the West Bend policy was specifically purchased to be in excess of the umbrella coverage, West Bend's policy comes last in line. We disagree.

¶ 20. First, as noted, the record does not support West Bend's assertion that Bieck purchased West Bend's policy specifically to be in excess of the umbrella policy. Further, by attempting to transform what is essentially a primary policy into an "umbrella" policy by pointing to the "other insurance" clause found in the Commercial Union policy, and coupling it with the wording of the "real estate property managed" endorsement found in the West Bend policy, West Bend has ignored the reasoning behind the Oelhafen ruling. As noted, the umbrella policy serves a different function than primary policies — it is the last line of defense — and that is why coverage offered in primary policies is utilized before that found in umbrella policies. Oelhafen requires an exhaustion of primary policies before the umbrella policy becomes responsible for any liability. See 171 Wis. 2d at 539. Thus, as we have noted, Oelhafen declared that umbrella policies stand apart from primary policies, umbrella policies serve a different function than primary policies, and, unlike a primary insurance policy, an "umbrella policy specifically contemplates and, in fact, requires" underlying insurance. Id. at 538 (emphasis in original).

¶ 21. The West Bend policy purchased here was intended to he a primary policy covering the business and business property. The endorsement for managed properties has no requirement that underlying insurance exist. Thus, the West Bend policy is not an umbrella policy; rather, it is a primary policy with an excess insurance clause. We also observe that the "real estate managed property" endorsement was honored in this case because the Commercial Union general liability policy paid its policy limit — the first $1,000,000— before coverage was sought from West Bend. Moreover, the phrase "except other insurance purchased specifically to apply in excess of this insurance" references, by implication, additional umbrella coverage that may be purchased to sit on top of the Commercial Union umbrella policy. Because West Bend's policy requires no underlying coverage, it is a primary policy and does not qualify under the exception. Despite West Bend's efforts, its policy remains one of primary coverage; it is not an umbrella policy. Thus, it is obligated to pay its limits before the Commercial Union umbrella policy.

¶ 22. Furthermore, in analyzing the policies, the Oelhafen court observed that the relatively small premiums charged for umbrella policies, in relation to the risk, supports its conclusion that umbrella policies are last in order of payment. Several reasons are presented for this conclusion:

We also note that the intent of umbrella policies to serve a different function from primary policies with excess clauses is reflected in the rate structure of the two types of policies. In general, umbrella policy premiums are relatively small in relation to the amount of risk "so that the company cannot be expected to prorate with other excess coverages; and public policy should not demand that this be done."

Id. at 539 (quoted source omitted). As re-stated by Davis:

[A]n umbrella policy provides special coverage normally not applicable except in the case of a "catastrophic" loss. Therefore, the premium charged for such a policy is substantially lower than for a primary policy.
This stands to reason. Insurance companies charge premiums based upon statistics. Undoubtedly, [the insurance companyl's conclusions were that it was far more likely that payment would be required for compensatory damages under the underlying policy than would be required for a compensatory loss of over $500,000 through the umbrella policy. Because the risk was diminished for the umbrella policy, it could and did charge a smaller premium.

214 Wis. 2d at 300. Here, the premiums charged for the various policies support the Oelhafen conclusions. The Commercial Union primary policy premium for $1,000,000 of coverage was $8,986, while the premium charged for its umbrella coverage of $3,000,000 was $2,430 (only $810 per $1,000,000 of coverage). On the other hand, the West Bend policy's premium for its $1,000,000 of coverage was $2,322. Thus, because Commercial Union's umbrella policy coverage is relatively far less costly, Commercial Union's policy satisfies the "premiums charged" test.

¶ 23. Finally, we decline to require pro rata sharing of the liability because the policies are not identical. Rather, Commercial Union's policy is an umbrella policy, while West Bend's policy is a primary policy. All primary policy limits must be paid before the umbrella policy's limits are invaded. Thus, for the reasons stated, we affirm.

By the Court. — Judgment affirmed.

       The policy names two offices. Testimony elicited at a deposition established this second address was a mistake.


source: Caselaw Access Project

author: VERGERONT, J.

license: Public Domain

text:
    County of Dane, Plaintiff-Respondent, v. Larry N. Winsand, Defendant-Appellant.

    Court of Appeals

      No. 03-2004.

      Submitted on briefs January 23, 2004.

    Decided March 11, 2004.

    2004 WI App 86
    (Also reported in 679 N.W.2d 885.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Ralph A. Kalal of Kalal & Associates, Monona.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Joseph E. Mimier, assistant district attorney, Dane County District Attorney's Office, Madison.
    Before Deininger, PJ., Vergeront and Higgin-botham, JJ.

       Petition to review denied 6-8-04.

   VERGERONT, J.

¶ 1. Larry Winsand appeals a judgment of conviction for operating a motor vehicle while intoxicated (OWI) in violation of an ordinance adopting Wis. Stat. § 346.63(l)(a) (2001-02). He contends the trial court erred in denying his motion to exclude from evidence the results of the Intoximeter EC/IR test of his breath. He asserts the approval of the instrument by the chief of the chemical test section of the Department of Transportation (DOT) involved standards that should have been, but were not, promulgated as an administrative rule under the rulemaking procedures established in Wis. Stat. ch. 227, and therefore the approval was invalid. We conclude that none of the exhibits or testimony establishes that the approval of the instrument by the section chief involved standards that meet the definition of "rule" within the meaning of Wis. Stat. § 227.01(13). We therefore affirm.

BACKGROUND

¶ 2. Winsand was given a citation for OWI and requested a jury trial. Prior to trial he moved to exclude the results of the breath test administered to him by a law enforcement officer using an Intoximeter EC/IR. He contended that the approval of this instrument by the section chief constituted an invalid administrative rule because it involved standards not promulgated as required by Wis. Stat. ch. 227. In support of his motion, Winsand presented the transcript of the testimony of the section chief in another case, a procedure to which the State agreed.

¶ 3. The section chief testified she was responsible for approving breath test instruments, and she had approved the instrument referred to as the In-toximeter EC/IR. She identified a number of exhibits, which fall into these categories as relevant to this appeal: (1) specifications for bids that resulted in the purchase of the Intoximeter EC/IR; (2) an instrument evaluation protocol used as a guideline to approve the Intoximeter EC/IR; and (3) methodology and results of various tests performed on particular Intoximeter EC/IRs at various times. When asked if the Intoximeter EC/IR met her standards, the chief answered "yes," and when asked to describe those standards, she answered: "We did testing for accuracy and precision and interfer-ents, mouth alcohol and RFI, and it satisfied us on all the performances of those separate items." When later asked if she had submitted "any of these standards or criteria or whatever" to the legislative council or otherwise followed the rulemaking procedures in chapter 227 with respect to them, she answered "no."

¶ 4. The trial court concluded that the section chief had acted within her statutory and regulatory authority in approving the Intoximeter EC/IR and that the rulemaking procedure in Wis. Stat. ch. 227 was not required. Winsand then withdrew his request for a jury trial and the parties stipulated to the evidence for purposes of trial and sentencing. The court found Winsand guilty of OWI.

DISCUSSION

¶ 5. Winsand contends the trial court's conclusion that the rule-making procedures in Wis. Stat. §§ 227.135-227.26 did not apply was based on an erroneous construction of § 227.01(13). According to Win-sand, the section chief used standards in her approval of the Intoximeter EC/IR that come within the definition of "rule" in 227.01(13): a "standard... of general application which has the effect of law and which is issued by an agency to implement. . . legislation .. . administered by the agency or to govern the . . . procedure of the agency." Because the standards she used were not promulgated as a rule, he asserts, the court should declare them invalid. The construction of statutes when the relevant facts are not disputed presents a question of law, which we review de novo. State v. Busch, 217 Wis. 2d 429, 441, 576 N.W.2d 904 (1998).

¶ 6. Before addressing Wis. Stat. § 227.01(13), we set forth the statutory framework relevant to approval of the Intoximeter EC/IR. Upon an arrest for OWI and certain other offenses, a law enforcement officer may request the driver to submit to a test of breath, blood, or urine, following certain procedures. Wis. Stat. § 343.305(l)-(5). Section 343.305(6) establishes the requirements for the tests, with § 343.305(6)(b) providing:

(b) The department of transportation shall approve techniques or methods of performing chemical analysis of the breath and shall:
1. Approve training manuals and courses throughout the state for the training of law enforcement officers in the chemical analysis of a person's breath;
2. Certify the qualifications and competence of individuals to conduct the analysis;
3. Have trained technicians, approved by the secretary, test and certify the accuracy of the equipment to be used by law enforcement officers for chemical analysis of a person's breath under sub. (3)(a) or (am) before regular use of the equipment and periodically thereafter at intervals of not more than 120 days; and
4. Issue permits to individuals according to their qualifications.

¶ 7. The results of a test administered in accordance with Wis. Stat. § 343.305 is admissible in an OWI proceeding on the issue whether the person was under the influence of an intoxicant, and it is given "prima facie effect" without the need for expert testimony in certain circumstances. Sections 343.305(5)(d) and 885.235. The purpose of requiring the evaluation and approval of breath test instruments is to make sure the results have the accuracy that is deserving of the prima facie effect given them without an expert testifying on the accuracy. State v. Baldwin, 212 Wis. 2d 245, 259-60, 569 N.W.2d 37 (Ct. App. 1997), rev'd sub nom. on other grounds, State v. Busch, 217 Wis. 2d 429, 576 N.W.2d 904 (1998).

¶ 8. To implement Wis. Stat. § 343.305(6)(b), DOT has adopted Wis. Admin. Code § Trans 311. Section Trans 311.04 provides:

Approval of breath alcohol test instruments.
(1) Only instruments and ancillary equipment approved by the chief of the chemical test section may be used for the qualitative or quantitative analysis of alcohol in the breath.
(2) (a) All models of breath testing instruments and ancillary equipment used shall be evaluated by the chief of the chemical test section.
(b) The procedure for evaluation shall be determined by the chief of the chemical test section.
(3) Each type or category of instrument shall be approved by the chief of the chemical test section prior to use in this state.

¶ 9. Turning now to the definition of "rule" in Wis. Stat. § 227.01(13), we observe that Winsand does not explain precisely what should have been promulgated as a rule. He does refer to the "approval" of the instrument, but approval of a particular item or program is not in itself a rule because it is not a general order of general application. See Milwaukee Area Joint Plumbing Apprenticeship Comm. v. DILHR, 172 Wis. 2d 299, 316-17, 493 N.W.2d 744 (Ct. App. 1992). Win-sand also refers to the section chiefs testimony in response to questioning that the Intoximeter EC/IR met her "standards." However, her testimony does not describe any specific standards but, rather, describes the qualities the instrument was tested for. Therefore, if there are any standards used in the approval process that meet the definition of "rule," they must be contained in the exhibits she identified. We examine each of the three categories of exhibits in turn.

¶ 10. The first category is the specifications for bidders. This exhibit is entitled "Evidential Breath Alcohol Testing Instruments — Specifications for Bidders." The introduction explains that DOT is "planning to purchase 325 evidential breath alcohol testing instruments and 275 breath alcohol simulators. Only those instruments which meet the specifications listed in this document will be considered for purchase . . . ." We conclude this exhibit comes within the exception in Wis. Stat. § 227.01 (13)(k) for action or inaction of an agency that "[r] elates to . . . the purchase of. .. equipment... by... a state agency." The specifications for bidders without question relate to the purchase of equipment by a state agency.

¶ 11. The second category is an exhibit entitled "Breath Alcohol Analyzer Intrument [sic] Evaluation Protocol, March 1994." This contains procedures for testing the instruments and consists largely of questions to be asked in evaluating the instruments. The section chief explained in her testimony that "[w]e left the guidelines broad in the protocol so that we could discuss them amongst the team. It was a different team that put them together... for the testing." Materials developed by an agency as a reference aid for its staff that are "couched ... in terms of advice and guidelines rather than setting forth law-like pronouncements" are not a "rule" within the meaning of Wis. Stat. § 227.01(13) because they are not intended to have the effect of law. Schoff v. Employee Trust Funds Bd., 230 Wis. 2d 677, 691 n.5, 602 N.W.2d 543 (Ct. App. 1999) (citation omitted). Thus, we distinguish between mandatory language in which the agency "speaks with an official voice intended to have the effect of law," Plumbing Apprenticeship Comm., 172 Wis. 2d at 320, 321 n.12, and informational and descriptive materials prepared by an agency. Id. at 322. We are satisfied that the evaluation protocol is intended as guidelines for the staff in testing the instruments and does not establish any standards of general application having the effect of law.

¶ 12. The third category of document is comprised of tests of various kinds that were conducted on particular Intoximeter EC/IR instruments, apparently not all the same instruments, on various dates. The documents relate the methodology used and the results of the tests. Winsand does not explain what in these exhibits meets the definition of a rule. We can discern nothing that does. The record of a test conducted on a particular instrument is not a standard of "general application." See Id. at 316-17.

¶ 13. In summary, Winsand has not established that, in approving either the specific instrument that tested his breath or that category of instruments, the section chief used standards that meet the definition of Wis. Stat. § 227.01(13) but were not promulgated as a rule. In addition, he does not argue that the section chief did not comply with § 343.305(6)(b) or with the regulations in Wis. Admin. Code § Trans 311. Accordingly, the test results are admissible under § 343.305(5)(d) with the benefits of Wis. Stat. § 885.235. The trial court therefore correctly denied Winsand's motion to exclude the test results.

By the Court. — Judgment affirmed.

       All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted. Although this case was originally a one-judge appeal, we ordered that this case be made a three-judge appeal pursuant to Wis. Stat. Rule 809.41(3).

       The chemical test section is within the Wisconsin State Patrol, which is within the Division of Motor Vehicles, which is within DOT.

       In a letter to the court, the State also stipulated that Winsand's breath was tested by an Intoximeter EC/IR, and no evidence was taken on that issue.

       Wisconsin Stat. § 227.01(13) provides:
      "Rule" means a regulation, standard, statement of policy or general order of general application wliich has the effect of law and which is issued by an agency to implement, interpret or make specific legislation enforced or administered by the agency or to govern the organization or procedure of the agency. "Rule" does not include, and s. 227.10 does not apply to, any action or inaction of an agency, whether it would otherwise meet the definition under this subsection, which [comes within any of the following exceptions],

       Winsand apparently relies on Wis. Stat. § 227.40(4)(a), which provides: "In any proceeding pursuant to this section for judicial review of a rule, the court shall declare the rule invalid if it finds that it violates constitutional provisions or exceeds the statutory authority of the agency or was promulgated without compliance with statutory rule-making procedures." Section 227.40(1) provides that "[e]xcept as provided in sub. (2), the exclusive means of judicial review of the validity of a rule shall be an action for declaratory judgment as to the validity of such rule brought in the circuit court for Dane County." Section 227.40(2) then lists certain proceedings in which "(t]he validity of a rule may be determined. .. when material therein." Winsand is apparently of the view that he may challenge the approval of the Intoximeter EC/IR as an invalid rule because this proceeding is a prosecution for violation of a county ordinance. See § 227.40(2)(c). The State makes a brief statement suggesting that it is not material to this proceeding whether the procedures and criteria used to approve the Intoximeter EC/IR were promulgated as a rule because Winsand is not asserting they resulted in approval of an inaccurate instrument. We recognize there may be an issue whether the challenge Winsand makes is "material" in this proceeding within the meaning of § 227.40(2). However, because this argument is not more fully developed by the State and because we are satisfied that Winsand has not shown that the section chief used standards in the approval of the Intoxime-ter EC/IR that are a "rule" within the meaning of § 227.01(13), we do not address this issue.

       Winsand apparently overlooks the fact that, even if he were successful in establishing that the requirements of Wis. Stat. § 343.305(6)(b) were not met with respect to the instrument that tested his breath, he would not be entitled to exclusion of the results; rather, that evidence would simply lose the benefit of §§ 343.305(5)(d) and 885.235.

       Winsand asserts in his reply brief that he is concerned with the section chiefs approval of the type of instrument under Wis. Admin. Code § Trans 311.04, not the testing and certification of all instruments approved for use, which are addressed in § Trans 311.10. Section Trans 311.10 provides:
      Procedure for testing and certifying the accuracy of breath alcohol test instruments. (1) All quantitative breath alcohol test instruments approved for use in this state shall be tested and certified for accuracy in accordance with the following standards:
      (a) Each instrument shall be tested and certified for accuracy before regular use and periodically thereafter pursuant to s. 343.305(10)(b)3., Stats.
      (b) Each test for accuracy shall include, but not be limited to, an instrument blank analysis and an analysis utilizing a calibrating unit. The result of the calibrating unit analysis shall fall within 0.01 grams of alcohol per 210 liters of the established reference value.
      (c) The original reports of instrument maintenance and certifications shall be forwarded to and retained by the department.
      (2) Each qualitative breath alcohol test instrument approved for use in this state shall be checked for accuracy as follows:
      (a) The instrument shall be checked by an individual holding a valid permit for the operation thereof.
      Os) The checks shall be conducted at intervals established by the department.
      (c) Each check shall consist of an analysis utilizing a calibrating unit, the results of which shall fall within tolerances established by the department.
      (3) Reference solutions for use in calibrating units shall have the approval of the chief of the chemical test section.
      (a) Each reference solution shall be identified with a lot number.
      (b) An assay report for each lot of reference solution shall be retained by the department specifying the amount of alcohol per milliliter of solution and the predicted result when used in a calibrating unit with a breath alcohol test instrument.
      We are uncertain why Winsand considers this distinction significant, but, in any event, it does not affect our analysis.


author: ANDERSON, EJ.

text:
    Paul D. Riegleman, D.C., Plaintiff-Respondent, v. Eric J. Krieg and Warshafsky, Rotter, Tarnoff, Reinhardt & Bloch, S.C., Defendants-Appellants.

    Court of Appeals

      No. 03-1826.

      Submitted on briefs December 5, 2003.

    Decided March 17, 2004.

    2004 WI App 85
    (Also reported in 679 N.W.2d 857.)

      On behalf of the defendants-appellants, the cause was submitted on the briefs of Ann S. Jacobs and Aaron J. Bernstein of Warshafsky, Rotter, Tarnoff, Reinhardt & Bloch, S.C., Milwaukee.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Dan A. Riegleman and Amy M. Bates of Riegleman Law Offices, S.C., Sussex.
    Before Anderson, EJ., Brown and Nettesheim, JJ.

       Petition to review denied 6-8-04.

   ANDERSON, EJ.

¶ 1. Eric J. Krieg and the law firm of Warshafsky, Rotter, Tarnoff, Reinhardt & Bloch, S.C. (the Warshafsky law firm) appeal from a judgment of the circuit court denying their summary judgment motion and holding, after a two-day trial, that Krieg's chiroprator, Faul D. Riegleman, D.C., was entitled to payment for his medical services. The court determined that Riegleman met his burden of proof that the medical expenses incurred by Krieg as a result of treatment provided by Riegleman were reasonable and necessary. The court also determined that the Warshafsky law firm entered into a written contract binding Krieg and the firm jointly and severally to protect the outstanding balance claimed due and owing by Riegleman. The court concluded that Riegleman was entitled to judgment in the amount of $5000. We agree and affirm.

¶ 2. Krieg was involved in a work-related automobile accident on July 15,1997. He retained the services of the Warshafsky law firm to represent him in his personal injury claim. Riegleman provided chiropractic treatment to Krieg for approximately three years after his accident. Riegleman's total treatment bill exceeded $19,000. Over this time, Riegleman testified that Krieg reported that his pain and health condition improved with chiropractic care. On March 7, 2000, the second to last day Krieg received treatment from Riegleman, Krieg signed a "Doctor's Lien" document. Attorney Victor C. Harding of the Warshafsky law firm also signed the document on March 9, 2000. The document is the subject of the underlying small claims action and this appeal. It states in pertinent part:

I do hereby authorize the above doctor to furnish you, my attorney, with a full report of his case history, examination, diagnosis, treatment, and prognosis of myself in regard to the accident in which I was involved in....
I hereby give a lien to said doctor on any settlement, judgment, or verdict as a result of said accident, and authorize and direct you, my attorney, to pay directly to said doctor such sums as may be due and owing him for service rendered me, and to withhold such sums from such settlement, judgment, or verdict as may be necessary to protect said doctor adequately.
[dated and signed by Krieg]
The undersigned, being attorney of record for the above patient does hereby acknowledge receipt of the above lien, and does agree to honor the same to protect adequately said above named doctor.
[dated and signed by an attorney from the Warshafsky firm]

¶ 3. In October 2001, Krieg's personal injury case ultimately settled in mediation. Krieg's worker's compensation carrier retained an orthopedic surgeon, Dr. Richard Karr, to perform an independent medical examination. Karr's report stated that Krieg's treatment by Riegleman was excessive, contrary to reasonable standards of care, unnecessary, and potentially deleterious to Krieg's health. Karr's report also stated that he believed Krieg had reached "an end of healing no later than 8 months post-injury, i.e. no later than 3/15/98. Any treatments subsequent to that date had not been made necessary by the 7/15/97 injury." After Karr's report, the insurance company reimbursed Riegleman for $13,210.55. It denied payment of $5640.84, which was the bill for treatment after Krieg's perceived end of healing date. After the insurance company reimbursed Riegleman, the balance of the settlement was paid to the Warshafsky law firm, which deposited it into its trust account.

¶ 4. Sometime after the insurance company's payment decision, Krieg said he "came to realize the enormity and uncustomary amount" of the chiropractic charges for the treatments he received. He now refused to release from his settlement funds the remaining $5640.84 that Riegleman claimed due and owing. Instead, Krieg directed his attorney to pay that money directly to him.

¶ 5. On October 2, 2001, the Warshafsky law firm notified Riegleman that Krieg's case had settled and that based on Karr's report, Krieg and the firm did not believe that the firm was obligated to protect the lien because the treatment charges after March 10, 1997, are not related to Krieg's accident. The Warshafsky law firm informed Riegleman that although it would not remit the remaining amount it had put aside in its trust account, it would hold it for thirty days to allow Riegleman time to take what steps he deemed necessary to protect his lien.

¶ 6. Riegleman subsequently consulted with counsel and authorized communication with the War-shafsky law firm, which lasted approximately ten weeks. During this time, the Warshafsky law firm gave Riegleman several "deadlines" to "start the appropriate legal action to protect his lien." Riegleman's attorney expressly requested that the Warshafsky law firm retain the disputed funds in trust pending the filing of litigation if the parties could not settle the matter.

¶ 7. No legal action had been taken by January 31, 2002, and on that date, the Warshafsky law firm disbursed the funds held in trust to Krieg. On February 8, 2002, Riegleman filed a small claims summons and complaint against Krieg and the Warshafsky law firm.

¶ 8. As to Krieg, the complaint alleged that Riegleman's treatment was reasonable and appropriate and that Krieg owed the remaining balance (limited to the $5000 limit of small claims actions).

¶ 9. As to the Warshafsky law firm, Riegleman alleged, among other things, that the firm entered into a written contract binding Krieg and the firm jointly and severally to protect the outstanding balance claimed by Riegleman. The complaint further alleged that the Warshafsky law firm refused to honor its contractual obligations and is therefore in breach of the lien. Riegleman requested judgment against Krieg and the Warshafsky law firm, jointly and severally, for $5000 plus costs and attorneys fees.

¶ 10. The Warshafsky law firm answered the complaint on behalf of itself and Krieg denying, among other things, that the care Krieg received was reasonable or necessary, that the lien was binding on either defendant jointly and severally, and alleging, as an affirmative defense, that the plaintiffs action was barred by the doctrine of laches.

¶ 11. After a two-day trial, the court issued a decision holding that Riegleman met his burden of proof that the expenses incurred were reasonable and necessary and that the "Doctor's Lien" document was an enforceable contract thereby entitling him to judgment against Krieg and the Warshafsky law firm jointly and severally for $5000.

¶ 12. The court balanced the testimony of two chiropractors against the report of an orthopedic doctor retained specifically to perform an examination on behalf of the insurance company and concluded that the chiropractors' testimonies were more credible. Reigle-man testified that he believed Krieg had reached his "healing plateau" somewhere during the summer of 1998. He said that with a soft tissue injury, the healing plateau is approximately one year postaccident. Riegle-man said that at the time Krieg reached his healing plateau, Riegleman discussed further treatment options, including types other than chiropractic care. Riegleman said he knew that Krieg had tried physical therapy and reported that he was not very happy with this. Riegleman testified that Krieg chose to continue with "maintenance care" and came in for care about once a month. Riegleman testified that this sort of maintenance care is "absolutely" beneficial even though "[a]fter you hit a healing plateau ... the soft tissues are no longer going to alter." He explained that "adjustments after a plateau are certainly effective in trying to restore as much function as possible, keep as much motion in the spine, and decrease pain for the patient."

¶ 13. Chiropractor Peter Heffernan testified that his "take" on chiropractic care beyond a healing plateau was different than the orthopedic doctor's take. He stated that "the literature is pretty supportive that soft tissue injuries will go through a repair process up to one year post trauma." He concluded that Krieg's chiropractic care after the healing plateau, which he believed was probably in June 1998, "afforded [Krieg] the greatest amount of relief, even though it was temporary."

¶ 14. In its decision, the court stated that it found it troubling that the Warshafsky law firm, at the time it was representing Krieg against the insurance company, took the position that Riegleman's chiropractic charges were reasonable and necessary and that all of the medical expenses were appropriately payable to Krieg and then, after the settlement, it took the opposite position, choosing to give Karr's opinion greater credibility than Riegleman's. Finally, the court noted that an attorney has an ethical obligation not to advance a claim if the attorney knows it is not supportable by the evidence; therefore, the court said, if it was clear to the Warshafsky law firm that Krieg was being over-treated, no claim should have been made for those charges in the underlying personal injury case. The court stated, "Clearly, Mr. Krieg wants to have it both ways. He wants the money from the insurance company, but he does not want to pay for the services that he received."

¶ 15. With regard to the claim against the War-shafsky law firm, the issue of liability revolved around the enforceability of the "Doctor's Lien" document. The court held that both Krieg and the Warshafsky law firm did receive consideration for entering into the agreement. It held that it clearly was contemplated that, in addition to medical records, Riegleman was agreeing to furnish a report regarding the case, which could be used in pursuing the claim. In addition, Riegleman was agreeing that Krieg would receive continued treatment, with the expectation that the bills would be paid at a later date. It noted that the Warshafsky law firm specifically agreed to "honor the same (liens) to protect adequately said above named doctor." According to the trial court, this was clearly done at the request of and with the approval of the client, Krieg. In addition, the language agreed to by Krieg authorized payment "for services rendered to me."

¶ 16. The court noted that there was no limiting language referring to treatment for the accident and that, in short, Krieg agreed to have the chiropractor paid for his outstanding medical bills from any medical proceeds — and the Warshafsky law firm agreed to this as well. The court concluded that all these factors made the "Doctor's Lien" an enforceable contract.

¶ 17. The court went on to address what it considered "of greater concern": the obligation of the law firm to deal appropriately with the funds held in trust. The court noted that clearly an attorney's primary duty is to his or her client. Here, Krieg told the Warshafsky law firm that he withdrew his consent to pay his medical bills. The question is: What is the attorney's duty to the parties at that point in time? The Warshaf-sky law firm's answer to this question was to adopt the position that the medical expenses incurred after the "end of healing" date given by the insurance company's expert were not related to the accident and the firm was therefore entitled to ignore the lien document.

¶ 18. The court determined that the Warshafsky law firm "arbitrarily" placed a deadline on Riegleman to commence an action to collect his bill or declare his rights telling Riegleman that if he did not do so, the money would be released to Krieg. The court then stated that the "real issue is who has the burden to bring the dispute to resolution." The court determined that the best way to resolve this dispute was by way of declaratory judgment pursuant to Wis. Stat. § 806.04 (2001-02). The court noted that although counsel for the Warshafsky law firm correctly pointed this out, it incorrectly made the assumption that the claimant, Riegleman, has the duty to bring the declaratory judgment action. The court said that this assumption is contrary to the language in SCR 20:1.15(d), which requires that the funds be held in trust "until the dispute is resolved."

¶ 19. The court concluded that had the Warshaf-sky law firm not wanted to hold the funds indefinitely, it could have, and should have, brought an action for declaratory judgment and sought guidance from the court as to who was entitled to the disputed funds. The court opined that this was not done, and that the disbursing of the funds, contrary to the signed agreement, may have deprived Riegleman of the opportunity to collect those funds from Krieg. The court held that the expenses incurred were reasonable and necessary and that the "Doctor's Lien" document was an enforceable contract thereby entitling Riegleman to judgment against Krieg and the Warshafsky law firm jointly and severally for $5000. Krieg and the Warshafsky law firm appeal.

¶ 20. In evaluating a breach of contract claim, we must first determine whether a valid contract exists. Pasko v. City of Milwaukee, 222 Wis. 2d 274, 279, 588 N.W.2d 642 (Ct. App. 1998). If a valid contract exists, we then must determine whether a party has violated its terms, and whether any such violation is material such that it has resulted in damages. Id. Contracts are construed to achieve the parties' intent. Goldstein v. Lindner, 2002 WT App 122, ¶ 12, 254 Wis. 2d 673, 648 N.W.2d 892, review denied, 2002 WI 121, 257 Wis. 2d 119, 653 N.W.2d 890 (Wis. Sept. 3, 2002) (No. 01-2068). The terms used in a contract are to be given their plain or ordinary meaning. Id. The analysis ends if the words convey a clear and unambiguous meaning. Id. "If [the parties'] intent can be determined with reasonable certainty from the face of the contract itself, there is no need to resort to extrinsic evidence." Id. (citation omitted). When the contract is unambiguous, determining its meaning presents a question of law we review de novo. Pasko, 222 Wis. at 279.

¶ 21. We review any factual determinations made by the trial court in the course of reaching a reasonableness determination under the clearly erroneous standard. Wis. Stat. § 805.17(2). Section 805.17(2) states in part that "[f]indings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses."

¶ 22. Initially, we dispose of Krieg and the War-shafsky law firm's argument that the actions against them are barred by the doctrine of laches. "For laches to bar a claim, an unreasonable delay must occur, the plaintiff must know the facts and take no action, the defendant must not know the plaintiff would assert the right on which the suit is based, and prejudice to the defendant must occur." Policemen's Annuity v. City of Milwaukee, 2001 WI App 144, ¶ 20, 246 Wis. 2d 196, 630 N.W.2d 236 (citation omitted). Whether the doctrine of laches applies is fact specific. Id. The facts in this case do not support the application of the doctrine because the parties were in discussion throughout the ten-week period before the filing of the small claims action.

¶ 23. That determined, we address Riegleman's underlying claim that the medical expenses incurred by Krieg as a result of treatment provided by Riegleman were reasonable and necessary and that the Warshafsky law firm entered into a written contract binding Krieg and the firm jointly and severally to protect the outstanding balance claimed due and owing by Riegleman.

¶ 24. First, we hold that the trial court did not err in its determination that the medical expenses for treatment provided by Riegleman were reasonable and necessary. The court balanced the testimony of two chiropractors against the report of an orthopedic doctor and concluded that the chiropractors' testimonies were more credible. We are obligated to give due regard to the trial court's ability to judge the credibility of the witnesses and weigh it against other evidence. See Wis. Stat. § 805.17(2). In so doing, we cannot say that the trial court's determination upon this record is clearly erroneous.

¶ 25. Next, we hold that the document at the center of this controversy is a valid contract, which conveys an assignment. The question of how to classify this type of document is an issue that has not yet been fully addressed in Wisconsin. However, our research reveals that the prevailing trend is for courts to hold that this type of document — i.e., the type containing language agreeing to protect a medical provider's right to payment for services from any insurance settlement — is a valid contract which creates an assignment and entitles the medical provider (the assignee) the right of contractual enforcement against both the patient (the assignor) and the patient's lawyer.

¶ 26. Wisconsin Stat. § 402.210(5) explains:

An assignment... of "all my rights under the contract" or an assignment in similar general terms is an-assignment of rights and... it is a delegation of performance of the duties of the assignor and its acceptance by the assignee constitutes a promise by the assignee to perform those duties. This promise is enforceable by either the assignor or the other party to the original contract.

¶ 27. Krieg authorized and directed the Warshaf-sky law firm "to pay directly to [Riegleman] such sums as may be due and owing him for service rendered [Krieg], and to withhold such sums from such settlement, judgment, or verdict as may be necessary to protect [Riegleman] adequately." The language of the contract before us is unambiguous and contains an assignment by Krieg to Riegleman that the Warshafsky law firm was notified of and agreed to honor. We therefore agree with the trial court that the Warshafsky law firm and Krieg are jointly and severally liable for the medical fees due and owing Riegleman.

¶ 28. We are persuaded by the reasoning of state courts that have already addressed this issue. In Berkowitz v. Haigood, 606 A.2d 1157 (N.J. Super. L. 1992), a chiropractor sued a former patient and the patient's attorney for payment of medical bills. The document involved stated: "I hereby authorize and direct you, my attorney, to pay directly to said doctor such sums as may be due and owing him for medical service rendered me . . . ." Id. at 1158 n.1. Upon review of the language, the Law Division concluded that the attorney was liable under the circumstances because there was clear evidence of a valid assignment and the attorney had been properly notified of the assignment. Id. at 1159. The attorney was thus charged with the duty to pay the assignee the amount of the undisputed medical bills and not pay such amount to his client, the assignor. Id.

¶ 29. In re Moore, 4 P.3d 664, 665 (N.M. 2000), a chiropractor filed a complaint that a lawyer failed to pay the bill for treatment provided to his client, despite having issued a letter stating payment would be made from the settlement. The pertinent language in the letter the lawyer sent the chiropractor stated:

[Client] has requested that my office tender to your office a letter stating that payment of any bill for services she may incur will be made from settlement or ultimate judgment which [client] may receive as a result of the . .. automobile accident. It is understood that [client] will be ultimately responsible for the payment of any bill for services incurred with your office.

Id.

¶ 30. The lawyer denied to the chiropractor and later to disciplinary counsel that the letter in question obligated him to withhold funds to pay the chiropractor. Id. The lawyer contended that the letter only stated that his client would pay the bill from the settlement funds, although he acknowledged his letter was sent in response to a request for a letter of protection. Id. The lawyer also argued that there was no assignment of proceeds and that without an unambiguous assignment, no individual responsibility for payment to the healthcare provider could be imposed upon him. Id. at 665-66.

¶ 31. The court held that the language of the letter the lawyer sent to the chiropractor clearly communicated that payment would be made "from settlement or ultimate judgment." Id. at 666. The fact that the letter ended by saying that the client would be ultimately responsible for payment did not change the message. Id. A client remains ultimately liable for paying the medical vendor, for example, when no recovery is received. Id. The essence of the letter and the language that obligated the lawyer to pay the vendor from the settlement proceeds was the statement that the client had asked him to communicate that payment would be made from settlement proceeds. Id. The court then cautioned:

[I]f [the lawyer] sent this letter intending that the vendor rely upon it to continue to render care and to postpone collection efforts, while intending not to be obligated to dispense settlement proceeds to the vendor, a more serious question of misrepresentation and fraud could arise.

Id.

¶ 32. The Moore court concluded by addressing another issue present in the case before us. In response to the contention that the doctors were not paid because the client changed her mind, the court held that an attorney's obligation to abide by a client's directives "does not extend to assisting the client in defrauding courts and creditors." Id. (citation omitted); see also Matter of Rawson, 833 P.2d 235, 239 (N.M. 1992). The court held that if a lawyer decides to send such a letter, the lawyer should be reminded that, notwithstanding a disclaimer, he or she has a continuing obligation not to engage in dishonest or fraudulent conduct or statements. Moore, 4 P.3d at 666.

¶ 33. In Romero v. Earl, 810 P.2d 808, 809 (N.M. 1991), the court again considered the effect of an agreement signed by the lawyer and the client granting to a doctor a lien on the proceeds of a personal injury suit. It held that once a lawyer has executed such an assignment, he or she is "obligated to distribute the proceeds of [the] claim in accordance with [it]," and that this obligation may be enforceable against the lawyer. See id.

¶ 34. The court in Rawson determined that formal assignment language is not essential to the creation of the obligation. Rawson, 833 P.2d at 238. In Rawson, the attorney sent letters to three doctors stating they would be paid from the proceeds of any recovery the client received. Although Rawson's letter did not contain formal assignment language, it did contain a promise to pay the doctors from the proceeds of the suit. Id. The court stated that "[t]he attorney in such a situation is obligated to distribute the proceeds of the settlement in accordance with the promise to the creditors ...." Id.

¶ 35. Berkowitz, Moore, Romero and Rawson are instructive and persuasive. Applying the reasoning of the above analyses to the case at bar, we hold that the document before us is an unambiguous contract creating an assignment that is enforceable under contract law. It shows in clear language its intent: Krieg authorized "my attorney, to pay directly to said doctor such sums as may he due and owing him for service rendered me, and to withhold such sums from such settlement, judgment, or verdict as may be necessary to protect said doctor adequately"; the Warshafsky law firm agreed "to honor the (hen) to protect adequately said above named doctor." The document also communicates that Krieg and the Warshafsky law firm received consideration for entering into the agreement because Riegleman agreed to furnish medical records and a report regarding the case, which could be used in pursuing the claim; in addition, Riegleman agreed to provide continued treatment to Krieg, with the expectation that his bills would be paid at a later date.

¶ 36. We conclude with this instruction: If an attorney and client have signed an assignment in favor of a medical provider and a dispute arises over whether the amount owing is reasonable and necessary, and if the attorney does not want to hold funds indefinitely, he or she should bring an action for declaratory judgment pursuant to Wis. Stat. § 806.04 and seek guidance from the court as to who is entitled to the disputed funds. Specifically, the attorney should do the following:

1. Commence a declaratory judgment action under Wis. Stat. § 806.04 naming the patient as plaintiff and the medical care provider as defendant.
2. Deposit or file the disputed amount with the Clerk of Courts.

We note that the standard language of these assignments authorizes payment of a yet to be determined amount of money (i.e., authorizes the patient's attorney to pay directly to the medical provider such sums as may be due and owing). When an amount is yet to be determined, the trial court has the inherent authority to determine what is reasonable and necessary.

¶ 37. Finally, we offer these words of advice and caution to attorneys faced with similar circumstances: An attorney should not assume that he or she can ignore an assignment that he or she has agreed to honor simply because a client changes his or her mind about the assignment — to make such an assumption is contrary to rules of professional conduct, which require that disputed funds be held in trust "until the dispute is resolved." SCR 20:1.15(d). When dealing with an attorney, another person (whether an attorney or a lay person) has the right to expect that the attorney will be honest and straightforward. See generally Moore, 4 E3d at 666. If an attorney signs a document intending that the medical provider rely upon it to continue to render care and to postpone collection efforts, while intending not to be obligated to dispense settlement proceeds to the medical provider, a more serious question of misrepresentation and fraud could arise. Id.

¶ 38. We affirm the court's decision to hold Krieg and the Warshafsky law firm jointly and severally liable to Riegleman in the amount of $5000 plus costs.

By the Court. — Judgment affirmed.

       Initially, Krieg hired an attorney from a different firm who subsequently retired.

       This case was converted to a three-judge panel by order of the chief judge.

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

       We also hold that this document does not create a common law or "equitable lien" as Riegleman asserts. In Matter of Harris, 50 B.R. 157, 160 (E.D. Wis. 1985), the bankruptcy court applied Wisconsin law and found that while a doctor could have a common-law lien on the proceeds of a patient's insurance settlement, it was not present in that case for two reasons: (1) the lien claimants never had possession of the insurance settlement proceeds — the key requirement for obtaining a common-law lien; (2) there was "no evidence that the personal benefit the debtor derived from the services provided by [the doctor] enhanced the value of the insurance settlement proceeds." Id.

      Similarly, a requirement for a common-law lien is missing in the case at hand: "there is no evidence that the personal benefit [Krieg] derived from the [medical] services provided by [the chiropractor] enhanced the value of the insurance settlement proceeds." See id. Consequently, like the court in Harris, we conclude that Riegleman does not have a common-law lien in the insurance settlement proceeds.

       "Letter of protection" is the customary nomenclature for a document by which a lawyer notifies a medical vendor that payment will be made when the case is settled or judgment is obtained. This is a common practice by which lawyers repre-£ting personal injury plaintiffs ensure clients will receive essary medical treatment, even if unable to pay until the case is concluded. In re Moore, 4 P.3d 664, 665 n.1 (N.M. 2000).

       Wisconsin Stat. § 806.04, the Uniform declaratory judgments act, states in pertinent part:
      (1) Scope. Courts of record within their respective jurisdictions shall have power to declare rights, status, and other legal relations whether or not further relief is or could be claimed. No action or proceeding shall be open to objection on the ground that a declaratory judgment or decree is prayed for. The declaration may be either affirmative or negative in form and effect; and such declarations shall have the force and effect of a final judgment or decree, except that finality for purposes of filing an appeal as of right shall be determined in accordance with s. 808.03(1).
      (2) Power to construe, etc. Any person interested under a deed, will, written contract or other writings constituting a contract, or whose rights, status or other legal relations are affected by a statute, municipal ordinance, contract or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract or franchise and obtain a declaration of rights, status or other legal relations thereunder. No party shall be denied the right to have declared the validity of any statute or municipal ordinance by virtue of the fact that the party holds a license or permit under such statutes or ordinances.


author: SHIRLEY S. ABRAHAMSON, C.J.

text:
    Chris Gentilli, Petitioner-Appellant, v. Board of the Police and Fire Commissioners of the City of Madison, Respondent-Respondent, Fire Chief Debra H. Amesqua, Intervenor-Respondent.
    Supreme Court

      No. 02-3208.

      Oral argument April 8, 2004.

    Decided June 2, 2004.

    2004 WI 60
    (Also reported in 680 N.W.2d 335.)

      Roggensack, J., took no part.
    For the petitioner-appellant there were briefs by Bruce F. Ehlke and Shneidman, Hawks & Ehlke, S.C., Madison, and oral argument by Bruce F. Ehlke.

    For the respondent-respondent there was a brief by Scott Herrick and Herrick & Kasdorf, L.L.E, Madison, and oral argument by Scott N. Herrick.

    For the intervenor-respondent there was a brief by James M. Voss and Carolyn S. Hogg, City Attorney, Madison, and oral argument by Carolyn S. Hogg.

    An amicus curiae brief was filed by Gordon E. McQuillen, Madison, on behalf of the Wisconsin Professional Police Association/Law Enforcement Employee Relations Division and the Madison Professional Police Officers Association.

       Motion for reconsideration filed 6-22-04.

   SHIRLEY S. ABRAHAMSON, C.J.

¶ 1. This is an appeal of an order of the Circuit Court for Dane County, Paul B. Higginbotham, Judge. The circuit court dismissed Chris Gentilli's petition for certiorari review of an order of the Board of Police and Fire Commissioners of the City of Madison (PFC board). This case comes before this court on certification by the court of appeals pursuant to Wis. Stat. § (Rule) 809.61 (2001-02).

¶ 2. This case concerns the interaction of Wis. Stat. § 62.13(5)(i), governing circuit court review of an order of a board of police and fire commissioners, and common law certiorari review of such an order. More specifically, the question is whether § 62.13(5)(i) as amended in 1993 is the exclusive remedy for Gentilli's claim that the rules he was found to have violated were unconstitutionally vague and overbroad.

¶ 3. We conclude that § 62.13(5)(i) as amended in 1993 is not the exclusive remedy for a claim that the rules a subordinate was found to have violated were unconstitutionally vague and overbroad. The constitutional issues of vagueness or overbreadth of administrative rules that Gentilli raised in his petition for a writ of certiorari are issues of law that even if somewhat overlapping with the issues in the statutory appeal proceeding may be considered under certiorari because they concern whether the PFC board kept within its jurisdiction and proceeded on a correct theory of the law. Accordingly, we conclude that the circuit court erred as a matter of law in quashing the writ of certiorari and dismissing the action without considering the merits of Gentilli's constitutional claims. We remand the certiorari proceeding to the circuit court.

HH

¶ 4. The facts are undisputed for purposes of this appeal. During a series of police investigations into drug-related offenses within the City of Madison Fire Department, Gentilli allegedly acknowledged that over a ten-year period he had purchased, possessed, and consumed cocaine and shared cocaine with and provided cocaine to others. His actions did not result in criminal prosecution. In the internal fire department investigation, Gentilli denied many of the admissions he allegedly made in the course of the police investigation.

¶ 5. In September of 2000, Fire Chief Debra H. Amesqua filed charges against Gentilli before the PFC board. After a hearing, the PFC board recommended Gentilli's termination, and the Madison Fire Department discharged him.

¶ 6. Gentilli sought review of the PFC board's order in two parallel actions filed in the circuit court. The first was an appeal of his termination in the circuit court pursuant to the statutory appeal procedures embodied in Wis. Stat. § 62.13(5)(i). This appeal was a review of whether there was "just cause" for the termination. The second was a review of his termination in the circuit court pursuant to a petition for writ of certiorari. This certiorari proceeding sought to determine whether the PFC board had kept within its jurisdiction and proceeded on a correct theory of the law. Both proceedings were assigned to the same branch of the circuit court.

¶ 7. Upon motion of the PFC board, the circuit court held the certiorari action in abeyance while it considered the statutory appeal. The circuit court concluded that Gentilli's termination was supported by just cause under the statutory standards. This circuit court decision is not appealable.

¶ 8. Upon the PFC board's motion, the circuit court dismissed the certiorari action, concluding that all of the issues raised in the petition were "encompassed within the scope of the companion statutory appeal. . . pursuant to 62.13(5), Wis. Stat., and were effectively resolved by the Court's decision in that matter." The matter before this court involves the dismissal of the certiorari action.

¶ 9. Gentilli appeals the dismissal of his certiorari action. In his certiorari petition before the circuit court and in his appeal, Gentilli asserts, among other claims, that the PFC board's order violated his right to due process. Gentilli alleges that the administrative rules relied on by the fire chief to justify his termination were overbroad and vague. Arguing these defects, Gentilli asserts that the PFC board did not keep within its jurisdiction and proceeded on an incorrect theory of law.

¶ 10. The record of the PFC board proceeding, which the circuit court reviewed in the statutory appeal, was not certified to the circuit court in the certiorari proceedings and is not a part of the record in the instant appeal.

¶ 11. This case turns on the interpretation of Wis. Stat. § 62.13(5). More specifically, the question of statutory interpretation is whether § 62.13(5), as amended in 1993, proscribes consideration of a constitutional claim of vagueness and overbreadth in a common law certiorari proceeding.

¶ 12. This court decides questions of statutory interpretation independently of the circuit court and court of appeals, but benefiting from their analyses.

h-H I — I

¶ 13. To resolve this dispute we must examine Wis. Stat. § 62.13(5), governing an appeal from an order of a board of police and fire commissioners, and common law certiorari.

¶ 14. As a preliminary matter, it is important to understand that significant consequences attach to the use of either the statutory appeal or a certiorari proceeding. Under a statutory appeal, if the order of the board of police and fire commissioners is sustained, it "shall be final and conclusive"; it is not reviewable by an appellate court. In contrast, a circuit court's decision in a certio-rari proceeding is reviewable by the court of appeals and this court.

¶ 15. We examine first Wis. Stat. § 62.13(5) governing an appeal from an order of a board of police and fire commissioners.

¶ 16. Under Wis. Stat. § 62.13(5)(i), any person suspended, reduced, suspended and reduced, or removed by a board of police and fire commissioners may appeal from the order to the circuit court.

¶ 17. Prior to 1993, Wis. Stat. §62.13(5)0) (1991-92) provided that in this statutory appeal from a board order ”[t]he question to be determined by the [circuit] court shall be: Upon the evidence was the order of the board reasonable?" In 1993, § 62.13(5)(i) was amended to provide that in this statutory appeal "[t]he question to be determined by the [circuit] court shall be: Upon the evidence is there just cause, as described under par. (em), to sustain the charges against the accused?" Aside from the addition of paragraph (em) and this change in language, § 62.13(5)(i) has remained substantially the same over the years.

¶ 18. Both before and after the 1993 amendment, Wis. Stat. § 62.13(5)(i) governing statutory appeal has provided that if the circuit court sustains the order of the board, the order shall be final and conclusive. The public policy undergirding the finality of the statutory appeal is to balance the benefits of a speedy judicial process against the right of an accused to mount a full defense. Finality limits the negative effects on public employees of long, drawn-out proceedings while allowing the accused a fair hearing.

¶ 19. We turn to the common law writ of certio-rari. The right to seek certiorari review of an administrative agency decision exists when statutory review is inadequate or not available. Certiorari does not lie, however, when the legislature has created an exclusive statutory review procedure. Certiorari review of a decision of an administrative agency is limited to questions of law and addresses the following issues:

(1) Whether the board kept within its jurisdiction;
(2) Whether the board proceeded on a correct theory of the law;
(3) Whether the board's action was arbitrary, oppressive, or unreasonable and represented its will and not its judgment; and
(4) Whether the evidence was such that it might reasonably make the order or determination in question.

¶ 20. In State ex rel. Kaczkowski v. Fire & Police Commissioners of Milwaukee, the court concluded that statutory appeal under Wis. Stat. § 63.13(5)(i) provided an exclusive procedure for a circuit court to determine certain issues, namely whether a board's action was arbitrary, oppressive, or unreasonable, and whether the board could reasonably make the order or determination at issue. These issues, the court held, are encompassed by the standard of review, namely "under the evidence was the decision of the board reasonable." Circuit courts retained jurisdiction to review by certiorari, however, those strictly legal questions that were not or could not have been raised through a statutory judicial review proceeding under § 63.l3(5)(i).

¶ 21. Thus, according to Kaczkowski, Wis. Stat. § 62.13(5)(i) is not an exclusive procedure for review of a disciplinary order of a board of police and fire commissioners. The statute merely limits a circuit court's scope of certiorari review, but does not eliminate a circuit court's ability to issue writs of certiorari. Under Kaczkowski, the first two questions a circuit court may address in a certiorari proceeding are not encompassed by Wis. Stat. § 62.13(5), and therefore a circuit court can issue a writ of certiorari to answer those questions. Consequently a circuit court may determine in a certiorari action whether a board of police and fire commissioners kept within its jurisdiction and whether the board proceeded on correct theory of the law. That said, writs of certiorari should be issued sparingly and only when those errors clearly appear.

¶ 22. As the court of appeals noted in its certification, this bifurcated review process set forth in Kac-zkowski was followed in subsequent cases decided prior to the adoption of the 1993 amendment.

¶ 23. Since the 1993 amendment, this court and the court of appeals have continued to treat jurisdictional and legal errors of a board of police and fire commissioners as reviewable by a circuit court on. a writ of certiorari. For example, in City of Madison v. DWD, 2003 WI 76, ¶ 33, 262 Wis. 2d 652, 664 N.W.2d 584, the court commented that "there are 'two exclusive avenues of review of the determinations of a fire and police commission ... the appeal procedures provided by the legislature or by means of a writ of certiorari.' "

¶ 24. None of these cases, however, directly raised the issue presented in the instant case: whether the Kaczkowski bifurcated review of an order of a board of police and fire commissioners remains good law after the 1993 amendment.

¶ 25. As we stated previously, the 1993 amendment to Wis. Stat. § 62.13(5) changed the question addressed by a circuit court in a statutory appeal of an order of a board of police and fire commissioners. The former statute required a circuit court to determine whether upon the evidence the order of the board was reasonable. The present amended version requires a circuit court to determine whether upon the evidence there is just cause to sustain the charges against the accused; the 1993 amendment added paragraph (em) setting forth statutory standards for just cause, as we discuss below.

¶ 26. Although under both the pre- and post-1993 statutes a circuit court determines the validity of an order of a board of police and fire commissioners on the basis of the evidence, the PFC board argues that the 1993 amendment expanded the scope of the available statutory appeal and concomitantly narrowed the scope of common law certiorari review.

¶ 27. The 1993 amendment added statutory standards for determining whether "just cause" exists, and the PFC board argues that these new standards, which a board of police and fire commissioners and a circuit court must apply in disciplinary proceedings against subordinates, include matters previously reviewed in a petition for a writ of certiorari. According to the PFC board, these standards provide a comprehensive blueprint for a board of police and fire commissioners and a circuit court to apply in disciplinary proceedings against subordinates. The PFC board argues that this blueprint encompasses and accommodates all arguments Gentilli now seeks to make in this separate certiorari proceeding. In sum, the PFC board asserts that "reasonableness" differs from "just cause," the former being narrower than the latter. The PFC board concludes that after 1993 the statutory standards encompass issues that could have previously been raised in a petition for a writ of certiorari: whether the rule was overbroad or vague, violating due process, or otherwise constitutionally unsound.

¶ 28. The standards adopted in the 1993 amendment for just cause are as follows:

No subordinate may be suspended, reduced in rank, suspended and reduced in rank, or removed by the board under par. (e), based on charges filed by the board, members of the board, an aggrieved person or the chief under par. (b), unless the board determines whether there is just cause, as described in this paragraph, to sustain the charges. In making its determination, the board shall apply the following standards, to the extent applicable:
1. Whether the subordinate could reasonably be expected to have had knowledge of the probable consequences of the alleged conduct.
2. Whether the rule or order that the subordinate allegedly violated is reasonable.
3. Whether the chief, before filing the charge against the subordinate, made a reasonable effort to discover whether the subordinate did in fact violate a rule or order.
4. Whether the effort described under subd. 3 was fair and objective.
5. Whether the chief discovered substantial evidence that the subordinate violated the rule or order as described in the charges filed against the subordinate.
6. Whether the chief is applying the rule or order fairly and without discrimination against the subordinate.
7. Whether the proposed discipline reasonably relates to the seriousness of the alleged violation and to the subordinate's record of service with the chiefs department.

¶ 29. According to the PFC board, allegations that a rule is unconstitutionally vague and overbroad address the content of the rules and their application and are at the heart of the first two standards of just cause. The PFC board contends that a rule that is vague or overbroad in the constitutional sense is unreasonable and does not provide reasonable notice to a subordinate; it does not satisfy the standards of just cause.

¶ 30. The PFC board further argues that if Gen-tilli could have made the constitutional claims before the PFC board and the circuit court in his statutory appeal, he is now barred from making the claims in a certiorari proceeding. The PFC board characterizes its position as simple and its conclusion as straightforward: Gentilli was accorded the opportunity in the statutory appeal to state all claims, defenses, challenges, and arguments he wished to advance, and the statutory appeal resolved all issues that Gentilli sought an opportunity to argue or reargue on certiorari.

¶ 31. We do not agree with the PFC board's position for several reasons.

¶ 32. First, the legislature has given no indication in amending the one sentence in the text of Wis. Stat. § 63.15(5)(i) and adding the paragraph (em) standards for just cause that it intended to further limit or eliminate the common law writ of certiorari. Nor do the context, scope, or history of the amendment indicate a legislative intent to limit or eliminate the common law writ of certiorari.

¶ 33. Second, none of the standards enumerated in Wis. Stat. § 62.13(5)(em) for determining "just cause" state that a board of police and fire commissioners or a circuit court should determine whether a PFC board acted in accordance with the law and within its jurisdiction. Thus, on the face of § 62.13(5)(em) and (i), the statutory appeal does not encompass the first two issues to be determined in a petition for a writ of certiorari.

¶ 34. Over the years courts have consistently held that the "final and conclusive" judicial review provided by statute was limited to the sufficiency of the evidence and the relationship between the discipline imposed and the seriousness of the conduct justifying the discipline and that the "reasonableness" standard did not encompass claims of legal error.

¶ 35. Third, although the text of Wis. Stat. § 62.13(5)(i) has changed and § 62.13(5)(em) has been added, the role of a circuit court in a statutory appeal remains the same under both the new and old texts. A circuit court continues to determine whether an order of a board of police and fire commissioners is supported by the evidence. While the postrl993 statute more specifically defines the "just cause" test than the pre-1993 statute defined the "reasonableness" test, both the "just cause" and the "reasonableness" determinations are based "upon the evidence."

¶ 36. Furthermore, the pre-1993 "reasonableness" standard seems to encompass much if not all of the "just cause" standard, and both the "just cause" and the "reasonableness" standards are ultimately based on the proposition that the grounds for an order of a board of police and fire commissioners must be reasonable. Thus even though Gentilli's vagueness and overbreadth allegations may relate to reasonableness, as the PFC board argues, Gentilli's constitutional arguments apparently would have been permitted in certiorari under the pre-1993 "reasonableness" standard and should be permitted in certiorari under the post-1993 "just cause" standard.

¶ 37. Fourth and finally, if the 1993 amendment were interpreted as invalidating the bifurcated review process, appellate court review of the PFC board's exercise of its jurisdiction and the lawfulness of its action would be eliminated. Such an interpretation would undermine the legislative purpose. The legislature has explicitly stated that it intends Wis. Stat. § 62.13 to "be construed as an enactment of statewide concern for the purpose of providing a uniform regulation of police and fire departments."

¶ 38. Given the lack of precedential value of an unpublished circuit court decision in a Wis. Stat. § 62.13(5)(i) statutory appeal and the finality of the circuit court decision, the legislative policy to provide "uniform regulation of police and fire departments" would be undermined if a circuit court could not review orders of a board of police and fire commissioners on questions of law in a certiorari proceeding and if an appellate court could not independently review a circuit court's rulings on issues of law. Without appellate review and without published appellate decisions that are precedential in all circuit and appellate courts, the legislative policy of "uniform regulation of police and fire departments" could not be achieved.

¶ 39. In sum, the bifurcated system of statutory appeal and certiorari action has apparently functioned well before and after the 1993 amendments to fulfill the legislative purposes, and we see nothing in the 1993 amendment to indicate that the legislature intended to make any change in certiorari review of orders of a board of police and fire commissioners.

¶ 40. The PFC board also argues that the doctrine of issue preclusion estops Gentilli in a certiorari proceeding from relitigating issues that were heard and determined in the Wis. Stat. § 62.13(5) statutory appeal. Issue preclusion wards off endless litigation, ensures the stability of judgments, and guards against inconsistent decisions on the same set of facts. Issue preclusion is ordinarily determined as a matter of discretion by the circuit court on a case-by-case basis. A court balances competing goals in determining whether to invoke the doctrine.

¶ 41. In the present case, a significant factor to balance in applying issue preclusion is that issues of law in a certiorari action are reviewable by an appellate court and that issues arising in a just cause determination in a statutory appeal are not. As we noted previously, the legislature has mandated that Wis. Stat. § 62.13 "be construed as an enactment of statewide concern for the purpose of providing a uniform regulation of police and fire departments." If this goal is to be achieved, an analysis of just cause by a board of police and fire commissioners and a circuit court should not be the final and conclusive determination of whether the board kept within its jurisdiction and proceeded on a correct theory of the law. These latter issues are subject to independent judicial determination in a certiorari proceeding and in appellate courts.

¶ 42. Accordingly, we conclude that issue preclusion does not apply with respect to a certiorari proceeding subsequent to a § 62.13(5)(i) statutory appeal even though factors that a board of police and fire commissioners and a circuit court might consider in determining just cause under Wis. Stat. § 62.13(5)(em) and (i) might overlap with issues that are subject to a certiorari proceeding, namely whether the board kept within its jurisdiction and proceeded on a correct theory of the law.

¶ 43. For the reasons set forth, we conclude that § 62.13(5)(i) as amended in 1993 is not the exclusive remedy for a claim that the rules a subordinate was found to have violated were unconstitutionally vague and overbroad. The constitutional issues of vagueness or overbreadth of administrative rules that Gentilli raised in his petition for a writ of certiorari are issues of law that, even if somewhat overlapping with the issues in the statutory appeal proceeding, may be considered under certiorari because they concern whether the PFC board kept within its jurisdiction and proceeded on a correct theory of the law. Accordingly, we conclude that the circuit court erred as a matter of law in quashing the writ of certiorari and dismissing the action without considering the merits of Gentilli's constitutional claims.

¶ 44. For the reasons set forth we reverse the order of the circuit court dismissing the certiorari action and remand the cause to the circuit court.

By the Court. — The order of the Circuit Court for Dane County is reversed and the cause is remanded to the circuit court.

¶ 45. PATIENCE D. ROGGENSACK, J., did not participate.

       The fire chief is intervenor-respondent and filed her own brief. The briefs of the PFC board and the fire chief make similar arguments, and for ease of reference, when we refer to the arguments of either or both of them, we shall simply refer to the PFC board.

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

       1993 Wis. Act 53, §§ 6, 7.

        In re Charges of Debra H. Amesqua v. Firefighter Chris Gentilli, Dane County Circuit Court Case No. 01-CV-1659.

       Wisconsin Stat. § 62.13(5)(i) provides:
      Any person suspended, reduced, suspended and reduced, or removed by the board may appeal from the order of the board to the circuit court by serving written notice of the appeal on the secretary of the board within 10 days after the order is filed. Within 5 days after receiving written notice of the appeal, the board shall certify to the clerk of the circuit court the record of the proceedings, including all documents, testimony and minutes. The action shall then be at issue and shall have precedence over any other cause of a different nature pending in the court, which shall always be open to the trial thereof. The court shall upon application of the accused or of the board fix a date of trial, which shall not be later than 15 days after such application except by agreement. The trial shall be by the court and upon the return of the board, except that the court may require further return or the taking and return of further evidence by the board. The question to be determined by the court shall be: Upon the evidence is there just cause, as described under par. (em), to sustain the charges against the accused? No costs shall be allowed either party and the clerk's fees shall be paid by the city. If the order of the board is reversed, the accused shall be forthwith reinstated and entitled to pay as though in continuous service. If the order of the hoard is sustained it shall be final and conclusive (emphasis added).

        See also Clancy v. Bd. of Fire & Police Comm'rs of Milwaukee, 150 Wis. 630, 633, 138 N.W 109 (1912).
      The final and conclusive judicial review provided by the statute is limited to determinations of sufficiency of the evidence and the relationship between the discipline imposed and the seriousness of the conduct that was the reason for the discipline. State ex rel. Enk v. Mentkowski, 76 Wis. 2d 565, 572, 252 N.W2d 28 (1977); Durkin v. Bd. of Police & Fire Comm'rs for Madison, 48 Wis. 2d 112, 117,180 N.W.2d 1 (1970); State ex rel. Kaczkowski v. Bd. of Fire & Police Comm'rs of Milwaukee, 33 Wis. 2d 488, 500-02, 148 N.W.2d 44 (1967).

       Wis. Stat. § 62.13(5)(i) (1991-92).

       Wis. Stat. § 62.13(5)(i).

        Kaczkowski, 33 Wis. 2d at 497 (citing Clancy, 150 Wis. at 634).

         Id.

        See, e.g., Franklin v. Housing Auth. of Milwaukee, 155 Wis. 2d 419, 424, 455 N.W.2d 668 (Ct. App. 1990).

        Kaczkowski, 33 Wis. 2d at 496.

        See Kaczkowski, 33 Wis. 2d at 500 (quoting State ex rel. Ball v. McPhee, 6 Wis. 2d 190,199, 94 N.W.2d 711 (1959)); State ex rel. Gudlin v. Civil Service Comm'n of West Allis, 27 Wis. 2d 77, 133 N.W.2d 799 (1965); State ex rel. Wasilewski v. Bd. of School Dirs. of Milwaukee, 14 Wis. 2d 243, 111 N.W.2d 197 (1961); Tomaszewski v. Giera, 2003 WI App 65, ¶ 18, 260 Wis. 2d 569, 659 N.W2d 882.

       33 Wis. 2d 488, 148 N.W.2d 44 (1967).

        Kaczkowski, 33 Wis. 2d at 501.

        Id.

        Kaczkowski, 33 Wis. 2d at 500 (quoting State ex rel. Ball v. McPhee, 6 Wis. 2d 190, 199, 94 N.W.2d 711 (1959)); State ex rel. Smits v. City of DePere, 104 Wis. 2d 26, 31-32, 310 N.W.2d 607 (1981); Herek v. Police & Fire Comm'n of Menomonee Falls, 226 Wis. 2d 504, 510, 595 N.W.2d 113 (Ct. App. 1999).

        See also Petition of Heffernan, 244 Wis. 104, 108, 11 N.W.2d 680 (1943) (jurisdictional errors are beyond the scope of the statutory appeal process and must be addressed by certiorari review); Lamasco Realty Co. v. City of Milwaukee, 242 Wis. 357, 394-396, 8 N.W.2d 372 (1943) (when statutory review is limited, courts may entertain questions of jurisdiction which could not be raised by way of the exclusive statutory process); Borgnis v. Falk Co., 147 Wis. 327, 359, 133 N.W. 209 (1911) (the question of whether a board exceeded its jurisdiction is always open to the examination and decision of the proper court by writ of certiorari).

        Kaczkowski, 33 Wis. 2d at 496.

        Id. at 501, 504; Borgnis, 147 Wis. at 359.

        Kaczkowski, 33 Wis. 2d at 501.

        Id. at 504.

        See, e.g., State ex rel. Hennekens v. City of River Falls

        Police & Fire Comm'n, 124 Wis. 2d 413, 419, 369 N.W.2d 670 (1985); Smits, 104 Wis. 2d at 31-32; Enk, 76 Wis. 2d at 572 (whether board applied proper burden of proof was deemed outside the scope of statutory review proceeding); State ex rel. Reedy v. Law Enforcement Disciplinary Comm., 156 Wis. 2d 600, 606, 457 N.W.2d 505 (Ct. App. 1990); Owens v. Bd. of Police & Fire Comm'rs of Beloit, 122 Wis. 2d 449, 451-52, 362 N.W.2d 171 (Ct. App. 1984) (whether board failed to follow its own rules regarding the investigation of the police officer was deemed outside the scope of certiorari proceeding).

        City of Madison v. DWD, 2003 WI 76, ¶ 33, 262 Wis. 2d 652, 664 N.W.2d 584 (citing Kaczkowski, 33 Wis. 2d at 500). See also State ex rel. Heil v. Green Bay Police & Fire Comm'n, 2002 WI App 228, 256 Wis. 2d 1008, 652 N.W.2d 118; Umhoefer v. Police & Fire Comm'n of Mequon, 2002 WI App 217, 257 Wis. 2d 539, 652 N.W.2d 412; Herek v. Police & Fire Comm'n of Menomonee Falls, 226 Wis. 2d 504, 595 N.W.2d 113 (Ct. App. 1999); Younglove v. City of Oak Creek Fire & Police Comm'n, 218 Wis. 2d 133, 579 N.W.2d 294 (Ct. App. 1998).

        City of Madison, 262 Wis. 2d 652, ¶ 33 (quoting Erik, 76 Wis. 2d at 571).

       Wis. Stat. § 62.13(5)(i) (1991-92).

       Wis. Stat. § 62.13(6)0).

       Wis. Stat. § 62.13(5)(em).

       The board also argues that standards 4, 6, and 7 cannot be met if the prosecution is based on a vague and overbroad rule.

       The PFC board cites City of Madison v. DWD, 2003 WI 76, 262 Wis. 2d 652, 664 N.W.2d 558, in which the court held that the Equal Rights Division of the Department of Workforce Development could not take jurisdiction over a complaint alleging conviction record discrimination arising out of a disciplinary proceeding under Wis. Stat. § 62.13(5). The court stated that under the just cause standard a rule or discipline that violates a statute cannot be reasonable. 262 Wis. 2d 652, ¶ 28.

        See, e.g., Erik, 76 Wis. 2d at 572; Durkin, 48 Wis. 2d at 117; Kaczkowski, 33 Wis. 2d at 500-02.

       Wis. Stat. §62.13(12).

       The PFC board argued that the 1993 amendment reduced the application of certiorari. However, no example was cited illustrating when a writ of certiorari would be used under the PFC board's broad view of statutory appeal.

        Michelle T. v. Crozier, 173 Wis. 2d 681, 698, 495 N.W.2d 327 (1993).

       Wis. Stat. § 62.13(12).

        See Umhoefer v. Police & Fire Comm'n of the City of Mequon, 2002 WI App 217, 257 Wis. 2d 539, 652 N.W2d 412; Herek, 226 Wis. 2d at 510.