author: JON E WILCOX, J.

text:
    James E. Vieau, Plaintiff-Appellant-Petitioner, v. American Family Mutual Insurance Company and Acuity, a mutual insurance company, Defendants-Respondents.
    Supreme Court

      No. 2004AP1358.

      Oral argument December 1, 2005.

      Decided April 19, 2006.

    2006 WI 31
    (Also reported in 712 N.W.2d 661.)

      For the plaintiff-appellant-petitioner, there were briefs by Robert J. Janssen, Christina Peterson, and Stellpflug, Janssen, Hammer, Kirschling & Bartels, S.C., De Pere, and oral argument by Robert J. Janssen.

    For the defendant-respondent American Family Mutual Insurance Company, there was a brief by Robert N. Duimstra and Menn Law Firm, Ltd., Appleton, and oral argument by Jonathan M. Menn.

   JON E WILCOX, J.

¶ 1. The petitioner, James E. Vieau (Vieau), seeks review of a court of appeals decision affirming a summary judgment order of the Brown County Circuit Court, Donald R. Zuidmulder, Judge, in favor of American Family Mutual Insurance Company (American Family) in a personal injury action arising from a motor vehicle accident. See Vieau v. Am. Family Mut. Ins. Co., 2005 WI App 34, 278 Wis. 2d 683, 693 N.W.2d 127. Vieau did not petition for review of the decision as it pertains to Acuity, a mutual insurance company; therefore, this appeal is limited to the decision as it pertains to American Family.

¶ 2. We first determine that Wis. Stat. § 632.32(6)(b)l. (2003-04) applies to underinsured motorist (UIM) coverage when issued as part of a policy containing liability insurance. We further conclude that American Family's "own-other-car" definitional exclusion is valid under Wis. Stat. § 632.32(5)(e) as Vieau is excluded from his mother's UIM coverage because he owns his own motor vehicle and not because he is related by blood to the named insured. Therefore, we affirm the court of appeals.

HH

¶ 3. The pertinent facts are set forth as follows. This case arises from an automobile accident that occurred on June 1, 2002. Vieau was a passenger in a truck owned and operated by Shane E Kaczrowski (Kaczrowski). Vieau alleged in his complaint that Kac-zrowski was driving the vehicle while intoxicated; Kac-zrowski denied this allegation. While attempting to negotiate a curve in the roadway, the vehicle traveled off of the roadway and into a ditch. The truck then struck a driveway embankment and became airborne for approximately 93 feet before it struck the ground and rolled several times. Vieau suffered serious injuries as a result of the accident and claimed medical expenses in excess of $60,000.

¶ 4. There were three policies in force at the time of the accident that might have provided coverage to Vieau. First, Vieau had a policy issued by Acuity, insuring his 1976 Ford pickup truck; this policy in-eluded UIM coverage limits of $50,000 per person and $100,000 per accident. Second, Kaczrowski had a policy issued by Acuity with bodily injury limits of liability of $25,000 per person and $50,000 per occurrence; the policy also contained UIM coverage limits of $50,000 per person and $100,000 per accident. Third, Kathy Vieau had a policy issued by American Family for her 1993 Plymouth Acclaim that had UIM coverage limits of $100,000 per person and $300,000 per accident.

¶ 5. On April 17, 2003, Vieau filed a lawsuit for personal injuries against American Family, Kaczrowski, and Acuity seeking UIM coverage from the insurance carriers and Kaczrowski. Manitowoc County was also named in the complaint but was later voluntarily dismissed.

¶ 6. Vieau recovered the $25,000 bodily injury liability insurance proceeds under Kaczrowski's Acuity policy, and he also recovered $25,000 of UIM insurance proceeds under his own policy. However, he further alleged entitlement to UIM benefits under his mother's policy. In response to Vieau's claim, American Family moved for summary judgment declaring that Kathy Vieau's policy provided no UIM coverage to Vieau. American Family based its argument on the fact that Vieau was not a "relative" entitled to coverage because the policy's definition of "relative" did not include anyone who owned a motor vehicle.

¶ 7. The policy's UIM endorsement defines an "insured person" as "[y]ou or a relative." A "relative," in turn, is defined throughout the policy as "a person living in your household, related to you by blood, marriage or adoption. ... It does not include any person who, or whose spouse, owns a motor vehicle other than an off-road motor vehicle." It is undisputed that, at the time of the accident, Vieau lived with his parents, Robert and Kathy Vieau, and Vieau owned a motor vehicle.

¶ 8. After briefing and a hearing, the circuit court granted American Family's summary judgment motion in an order filed April 7, 2004, and Vieau's claims against American Family were dismissed. The court determined that Kathy Vieau's policy provided no UIM coverage for the claims of Vieau.

¶ 9. Vieau appealed, and the court of appeals affirmed. The court first recognized the uncertainty in the case law as to whether Wis. Stat. § 632.32(6)(b)l. applies to indemnity coverage. However, the court assumed for the sake of argument the provisions of § 632.32 did apply to indemnity insurance, and it instead based its holding on § 632.32(5)(e), which states: "[a] policy may provide for exclusions not prohibited by sub. (6) or other applicable law. Such exclusions are effective even if incidentally to their main purpose they exclude persons, uses or coverages that could not be directly excluded under sub. (6)(b)." Comparing the situation to Peabody v. American Family Mutual Insurance Co., 220 Wis. 2d 340, 582 N.W.2d 753 (Ct. App. 1998), the court of appeals determined that "[t]he purpose of this exclusion is not to deny coverage or benefits to relatives, but to prevent car owners who either reject UIM coverage or who have independent policies from getting coverage they have not paid for simply because of their resident relative status." See Vieau, 278 Wis. 2d 683, ¶ 11 (citing Peabody, 220 Wis. 2d at 354).

I — l h — 1

¶ 10. This case comes before us on summary judgment. "We review a circuit court's grant of summary judgment independently, applying the same methodology as the circuit court." Smaxwell v. Bayard, 2004 WI 101, ¶ 12, 274 Wis. 2d 278, 682 N.W.2d 923 (citing Town of Delafield v. Winkelman, 2004 WI 17, ¶ 15, 269 Wis. 2d 109, 675 N.W.2d 470). Pursuant to Wis. Stat. § 802.08(2), summary judgment "shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." "Where the material facts are not disputed, the court is presented solely with a question of law, subject to de novo review." Smaxwell, 274 Wis. 2d 278, ¶ 12 (citing Winkelman, 269 Wis. 2d 109, ¶ 16).

¶ 11. In this case, we address whether American Family's "own-other-car" definitional exclusion is valid under Wis. Stat. § 632.32(6)(b)l. "This issue requires that we interpret and apply statutory provisions to undisputed facts and that we interpret an insurance policy. These are questions of law subject to independent appellate review." Progressive N. Ins. Co. v. Hall, 2006 WI 13, ¶ 9, 288 Wis.2d 282, 709 N.W.2d 46 (citing Beerbohm v. State Farm Mut. Auto. Ins. Co., 2000 WI App 105, ¶ 8, 235 Wis. 2d 182, 612 N.W.2d 338).

¶ 12. As a preliminary matter, the parties dispute whether the requirements of § 632.32(6)(b)l. extend to UIM coverage. More specifically, the parties dispute whether Wis. Stat. § 632.32(1) limits the scope of § 632.32(6)(b)l. to liability coverage and not indemnity coverages such as UIM coverage.

¶ 13. Vieau relies on Mau v. North Dakota Insurance Reserve Fund, 2001 WI 134, 248 Wis. 2d 1031, 637 N.W.2d 45, for his argument that § 632.32(6)(b)l. applies to both liability and indemnity policies. In Mau, this court questioned statements from previous decisions that suggested certain provisions of § 632.32 applied solely to liability policies:

Wis. Stat. § 632.32, which, except as otherwise provided, applies to all motor vehicle insurance policies issued or delivered in Wisconsin. Clark v. Am. Family Mut. Ins. Co., 218 Wis. 2d 169, 173, 577 N.W.2d 790 (1998). Some earlier cases suggest that certain provisions of § 632.32 apply only to liability policies, not indemnity insurance. See Martin v. Milwaukee Mut. Ins. Co., 146 Wis. 2d 759, 770, 433 N.W.2d 1 (1988); Peabody v. American Family Mut. Ins. Co., 220 Wis. 2d 340, 350, 582 N.W.2d 753 (Ct. App. 1998). However, the plain language of several subsections in § 632.32 demonstrate the applicability of those sections to indemnity insurance... . Furthermore, this court has applied § 632.32 to indemnity insurance.

Id., ¶ 30 (citations omitted).

¶ 14. Thus, Vieau argues that the circuit court erroneously relied on Peabody for its conclusion that American Family's definition of "relative" is not barred by § 632.32(6)(b)l. because, Vieau contends, Mau overruled Peabody. American Family, on the other hand, contends Mau is distinguishable from Peabody because Mau considered an excess liability policy, whereas Peabody considered UIM indemnity coverage.

¶ 15. In Peabody, the court of appeals addressed a factually analogous case with an identical "own-other-car" exclusion. Peabody, 220 Wis. 2d at 347-48. In that case, Angela Peabody, like James Vieau, was attempting to obtain UIM benefits as a resident relative under her father's American Family policy issued on his own vehicle. Id. at 345. The court of appeals first determined that the policy "clearly and unambiguously limits the UIM coverage to the named insured or a relative, provided the relative does not own his or her own vehicle." Id. at 347. Peabody owned her own vehicle; therefore, the court concluded that on its face, the policy prevented her from receiving UIM coverage because she did not meet the definition of "relative." Id. at 349.

¶ 16. Peabody argued § 632.32(6)(b)l. applied to all insurance policies, and therefore, American Family's exclusion was contrary to § 632.32(6)(b)l., because the policy excluded a blood relative. Id. Relying on § 632.32(1), the court of appeals disagreed with Peabody and concluded that § 632.32(6)(b)l. "prevents insurers from excluding persons related by blood or marriage from receiving coverage or benefits under a liability insurance policy." Id. at 350 (emphasis in original). In other words, subsection (6)(b)l. "does not contain any language otherwise providing that its applicability is anything other than to liability policies. The plain language of the statutory scheme indicates that insurance policies may not exclude relatives by blood or marriage from liability coverage or benefits, but does not prohibit all exclusions under all circumstances." Id. at 350 (citing Wis. Stat. § 632.32(5)(e)) (emphasis in original).

¶ 17. Interestingly, Peabody seemingly ignored the completely opposite language in distinguishing Bindrim v. B. & J. Insurance Agency, 190 Wis. 2d 525, 527 N.W.2d 320 (1995). In Bindrim, this court determined that "the plain language of § 632.32(6)(b)l., requires all policies to comply with its terms[.]" Id. at 534 (emphasis in original); see also Clark, 218 Wis. 2d at 173 ("Wisconsin Stat. § 632.32 applies to all motor vehicle insurance policies issued or delivered in Wisconsin."). As we stated in Bindrim, "[t]he terms of the Omnibus Coverage Statute are clear. 'No policy' may exclude a person related by blood or marriage to the insured. Section 632.32(6)(b)l., Stats. No policy means no policy." Bindrim, 190 Wis. 2d at 534.

¶ 18. For its part, the Peabody court determined that Bindrim did not apply because of a different factual scenario and also because liability coverage, not UIM coverage, was at issue. Peabody, 220 Wis. 2d at 351-52. The court did not address the differing positions on whether § 632.32(6)(b)l. applied to all types of coverage or just liability coverage.

¶ 19. We agree with Vieau that § 632.32(6)(b)l. applies to indemnity coverage when issued as part of a policy containing liability insurance, contrary to the language of Peabody. We base this conclusion on our decision in Bindrim and the language in Mau cited previously, which called into question the suggestion in Peabody that § 632.32(6)(b)l. applies only to liability policies. Additionally, in our recent decision in Hall, we stated the Mau court "determined that it is appropriate to apply provisions of § 632.32 to wnderinsured motorist coverage, at least when that coverage is part of a liability policy." Hall, 288 Wis.2d 282, ¶ 21 (citing Mau, 248 Wis. 2d 1031, ¶ 30 & n.13) (emphasis in original).

¶ 20. We also stated in Hall that Mau "further suggested that any distinction between liability coverage and indemnity coverage does not matter for purposes of § 632.32 when underinsured motorist coverage is issued as part of a policy containing liability insurance[.]" Id., ¶ 22. This language from Mau reads as follows:

Liability coverage "requires the insurer to shield the insured from making payment on a claim for which the insured is liable." Blazekovic v. City of Milwaukee, 2000 WI 41, ¶ 38, 234 Wis. 2d 587, 610 N.W.2d 467. "In contrast, uninsured motorist coverage (indemnity coverage] seeks to compensate the insured after the insured has sustained an actual loss." Id. Similar to uninsured motorist coverage, underinsured motorist coverage is indemnity coverage.
Here the distinction between liability and indemnity coverage does not change our conclusion as to the applicability of Wis. Stat. § 632.32. The excess policy falls within the scope of § 632.32 because it is a liability policy. Mau was covered under the excess policy because he bought the IEP Option. According to the rental jacket, "EP [Extended Protection] provides both LIS [Liability Insurance Supplement] and UM protection." The excess policy, therefore, is a liability policy with uninsured and underinsured motorist coverage.

Mau, 248 Wis. 2d 1031, ¶ 30 n.13.

¶ 21. We conclude that under the reasoning and language of Bindrim and Mau, it is appropriate to apply § 632.32(6)(b)l. to Kathy Vieau's policy as she was issued UIM coverage as part of a policy containing liability insurance. We further withdraw the language in Peabody, which states that § 632.32(6)(b)l. applies only to liability insurance, but we do not overrule the opinion in its entirety. As described below, the reasoning of the remainder of Peabody is applicable to our ultimate holding.

IV

¶ 22. We next turn to the question of whether American Family's "own-other-vehicle" definitional exclusion is permissible under the statutes. This court has set out a two-step test for analyzing the validity of an exclusion. See Blazekovic, 234 Wis. 2d 587, ¶¶ 12-13. First, the court must determine whether § 632.32(6) prohibits the exclusion. Id., ¶ 13. Second, the court must determine whether "any 'other applicable law'" prohibits the exclusion. Id. (citation omitted).

¶ 23. As such, if we were to focus solely on the language of § 632.32(6)(b)l., Vieau would be entitled to UIM benefits under his mother's policy as this statute prohibits policies from excluding coverage to persons related by blood to the insured. However, there is another step to the analysis inherent in the language of § 632.32(5)(e). That is, "[a] policy may provide for exclusions not prohibited by sub. (6) or other applicable law. Such exclusions are effective even if incidentally to their main purpose they exclude persons, uses or coverages that could not be directly excluded under sub. (6)(b)." Wis. Stat. § 632.32(5)(e).

¶ 24. Vieau argues that excluding a person who owns a motor vehicle from the policy's definition of "relative" contravenes § 632.32(6)(b)l., and cannot be saved by § 632.32(5)(e), because excluding Vieau from his mother's coverage is not "incidental" to the main purpose of the exclusion. Vieau defines incidental based on a dictionary definition: "subordinate, nonessential, or attendant in position or significance . .. occurring merely by chance or without intention or calculation." Webster's Third New International Dictionary 1142 (3d ed. 1986). Using this definition, Vieau contends that it was the blatant purpose of American Family not to provide coverage to a blood relative living in the household, and the exclusion of Vieau as a relative did not happen "merely by chance or without intention or calculation."

¶ 25. For its part, American Family takes the position that the omnibus statute does not prohibit a policy which excludes Vieau from coverage for reasons other than those enumerated in § 632.32(6)(b)l. American Family argues that Vieau is excluded from UIM coverage by virtue of his ownership of a motor vehicle, not because he is related by blood to the named insured, Kathy Vieau.

¶ 26. Although there is merit to Vieau's position, we believe that when considering the facts and circumstances of this case, the nature of UIM insurance, the prior precedent, and public policy, American Family's position is stronger.

¶ 27. Underinsured motorist coverage in Wisconsin is optional and not mandatory. See Pitts v. Revocable Trust of Knueppel, 2005 WI 95, ¶¶ 28-29, 282 Wis. 2d 550, 698 N.W.2d 761. "Under most UIM policies, 'UIM coverage is designed "to put the insured in the same position as he or she would have occupied had the tortfeasor's liability limits been the same as the under-insured motorist limits purchased by the insured."'" Id., ¶ 29 (citations omitted). An insurer must offer UIM coverage to persons purchasing motor vehicle insurance policies, but it is left to the policyholder to determine the extent to which they want to protect themselves against inadequately insured tortfeasors, if at all. See Wis. Stat. § 632.32(4m).

¶ 28. In this case, Vieau has already collected the policy limits from Kaczrowski's liability insurance and the UIM limits from his own insurer. It is unfortunate that Vieau did not purchase enough UIM coverage to fully cover his medical expenses under his own motor vehicle insurance policy, but it does not follow that he should be able to also tap into his mother's UIM coverage to make up the difference. Under § 632.32(5)(e), we believe American Family's definitional exclusion is valid because it is properly focused on relatives who own their vehicles, with their own corresponding insurance, and who can consider for themselves how much UIM insurance to purchase to fully protect themselves from inadequately insured tortfeasors. In other words, although American Family's exclusion may not allow certain persons related by blood to share in the UIM coverage of the policy, such an exclusion is incidental to its central purpose.

¶ 29. For support of our interpretation of "incidental," we turn to its legal definition as defined by Black's Law Dictionary. We note that we have previously looked to the legal definition of "incidental" when attempting to interpret when a negligent act is "incidental to" the operation of a gas station for purposes of deciding insurance coverage. See Home Mut. Ins. Co. v. Ins. Co. of N. Am., 20 Wis. 2d 48, 121 N.W.2d 275 (1963). "Incidental" is defined as "[sjubordinate to something of greater importance; having a minor role[.]" Black's Law Dictionary 765 (7th ed. 1999). When we consider the rationale and purpose behind American Family's exclusion, we conclude that American Family was first and foremost excluding Vieau by virtue of his ownership of another vehicle for the reasons alluded to above, and it was not excluding Vieau on the basis that he was related to Kathy Vieau. That is, the main purpose of the exclusion is to prevent resident relatives who own their own vehicles from piggybacking on the uninsured motorist (UM) coverage and UIM coverage of a single insured.

¶ 30. We next review the case law that has been analyzed when exclusions of blood relatives is "incidental" for purposes of § 632.32(5)(e). In Bindrim, Susan Degano (Mrs. Degano) struck a motorcycle driven by Thomas Bindrim, while driving an automobile owned by a third party. Bindrim, 190 Wis. 2d at 531. Colonial Insurance Company (Colonial) had issued an insurance policy to Mrs. Degano's husband, Giuliano Degano (Mr. Degano), which had two fatal flaws: (1) the policy tried to limit the coverage given to situations where Mr. Degano was driving a motor vehicle not owned by him; and (2) the policy attempted to restrict coverage to only Mr. Degano via an endorsement which read "insured person or insured persons are restricted to the individual named on the policy, you, while using the car. ..." Id. at 533 (emphasis in original). The court concluded that this provision directly contradicted § 632.32(6)(b)l., and Colonial could not deny coverage to Mrs. Degano. Id.

¶ 31. Colonial argued that the exclusion of Mrs. Degano was permissible "because it is incidental to writing a policy the purpose of which is to meet the requirements of the Financial Responsibility Statutes." Id. at 536. We rejected that argument because there was no policy form that had to be followed to meet these requirements. Id. "Since the statutes do not provide for a particular type of coverage, it cannot be argued that the exclusion of Susan Degano was 'incidental' to meeting the requirements of the Financial Responsibility Statutes." Id. at 537.

¶ 32. Unlike the direct exclusion of Mrs. Degano from her husband's policy, the exclusion of Vieau from his mother's policy is much more indirect. The Colonial policy restricted coverage to the "individual named" on the policy and therefore expressly excluded all blood relatives. The American Family policy in this case restricted coverage solely to those relatives who owned their own vehicle. It does not expressly remove all relatives from coverage, and there is a rational basis for restricting coverage to such relatives.

¶ 33. This case is also on point with State Farm Mutual Automobile Insurance Co. v. Kelly, 132 Wis. 2d 187, 389 N.W.2d 838 (Ct. App. 1986). In that case, fifteen-year-old Joseph Kelly (Kelly) took, without permission, the keys of a car owned by Kelly's stepfather, Frank Guskey (Guskey), went for a drive, and collided with another automobile. Id. at 188. Guskey's insurer, Home Mutual Insurance Company (Home Mutual), denied coverage to Kelly based on a definitional exclusion in the policy, which stated that "no person shall he considered an insured person if the person uses a vehicle without having sufficient reason to believe that the use is with permission." Id. at 192. The injured party's insurer contended Home Mutual's policy was contrary to § 632.32(6)(b)l. Id. at 189. The court of appeals disagreed and concluded the policy's definitional exclusion was valid:

As the trial court here properly noted, however, Home Mutual did not deny coverage because Guskey's stepson was driving, but because the stepson was driving without Guskey's permission. The trial court, in analyzing Home Mutual's policy, concluded that there was no "blanket exclusion" of family members; "rather there is coverage with a qualifier." The "qualifier," clearly stated in the policy, is that no one will be considered an insured person unless he or she has permission to use the vehicle.

Id. at 194-95. Thus, even though the effect of Home Mutual's policy was to deny coverage to a relative of the insured, the court of appeals held that such an exclusion was permissible as the primary purpose of it was to deny coverage for relatives driving without permission. We view American Family's policy in this case as also containing a permissible "qualifier" on the general definition of a relative.

¶ 34. As alluded to above, the court of appeals utilized the analysis of Peabody in determining whether Vieau was properly excluded from coverage. Vieau claims that it was improper to exclude him from the definition of "relative" because he owned his own vehicle, when ownership or use of the car was in no way related to the accident in which he was injured. This fact, Vieau argues, distinguishes his case from Peabody, and the court of appeals incorrectly relied on the policy analysis in Peabody.

¶ 35. Contrary to Vieau's contention, Peabody is essentially identical to the facts of this case. Angela Peabody was injured as a passenger in a vehicle she did not own. Peabody, 220 Wis. 2d at 344. At the time of the accident, Peabody owned her own vehicle, insured by a policy that did not include UIM coverage. Id. Peabody attempted to get UIM benefits under her father's insurance policy on his own vehicle. Id. at 345.

¶ 36. Similar to Vieau's position, Peabody argued that "because she was injured in a third party's vehicle, it is irrelevant that she owned her own car and that she is therefore entitled to coverage." Id. at 353. The court of appeals was not persuaded by this argument and it instead applied the reasoning and holding of Schwochert v. American Family Mutual Insurance Co., 139 Wis. 2d 335, 407 N.W.2d 525 (1987), aff'd, 172 Wis. 2d 628, 494 N.W.2d 201 (1993). Although the following discussion of the Peabody court was not couched in terms of the relationship between §§ 632.32(5)(e) and (6)(b), we quote it at length because it aptly describes why American Family's "own-other-car" exclusion is a legitimate incidental exclusion under § 632.32(5)(e):

We conclude that the facts of the case at hand are sufficiently similar to apply the reasoning and holding of the Schwochert court. Although Peabody was not injured in her own car which did not include UIM coverage as the Schwocherts did, she nevertheless is seeking to tap the UIM benefits of her father's policy on a non-accident vehicle, which policy contained an exclusion of resident relatives who own their own cars from UIM benefits. Peabody owned her own vehicle, insured it with an independent policy, and rejected UIM coverage. We conclude that [Peabody's father's] UIM coverage does not apply to Peabody's injuries sustained in an underinsured vehicle, because the endorsement for UIM coverage was written on another vehicle and specifically excluded coverage for damages incurred by resident relatives who owned their own vehicles. Furthermore, application of the exclusion comports with the public policy that resident relatives should obtain independent policies to guard against the situation where a single insurance policy covers multiple owners because of their resident relative status, and to protect insurance companies from being held responsible for risks for which they did not contract or receive compensation.

Peabody, 220 Wis. 2d at 353-54. Likewise, we reject the fact Vieau was injured in a third party's vehicle as irrelevant to our holding.

¶ 37. American Family also cites to Clark, 218 Wis. 2d 169, and Beerbohm, 235 Wis. 2d 182, for support of its argument that Vieau's position is untenable under our prior precedent. In Clark, this court upheld the validity of an exclusion that barred coverage outside of the United States and Canada, even though the effect of the exclusion was to deny UM coverage to the insured's son. In Beerbohm, the court of appeals upheld an exclusion for bodily injuries arising out of the use of a motorcycle, even though the effect of the exclusion was to deny liability coverage to the named insured.

¶ 38. We do not find either of these opinions especially useful, as these opinions did not focus on the language of § 632.32(6)(b)l. in the analysis. In Clark, we looked solely at whether § 632.32(6) prohibited a territorial exclusion for UM coverage; we did not consider how such an exclusion implicated subparagraph (6)(b)l. Similarly, in Beerbohm, the court of appeals looked to § 632.32(6) to determine if it prohibited policy provisions excluding motorcycle coverage.

¶ 39. Indeed, most policies seemingly contravene § 632.32(6)(b)l. by excluding blood relatives who live outside the household. Section 632.32(6)(b)l., on its face does not allow for limiting coverage to relatives who live in the household, but past precedent has placed this gloss on § 632.32(6)(b)l. in the face of this subsection's broad requirement that "[n]o policy may exclude from the coverage afforded... [p]ersons related by blood[.]" We believe such an absolutist view of § 632.32(6)(b)l. is contrary to the language of § 632.32(5)(e) and our past decisions, which have permissibly allowed restrictions to the coverage of relatives living in the household.

¶ 40. Thus, we conclude that under the facts and circumstances of this case American Family's definitional exclusion, which denies Vieau the UIM coverage under his mother's policy, is permissible. Were we to decide this case otherwise, a family of five with five vehicles could pay one premium on one policy with UIM coverage and potentially collect UIM proceeds five times. We cannot support such a result.

V

¶ 41. In sum, we conclude that Wis. Stat. § 632.32(6)(b)l. applies to UIM coverage when issued as part of a policy containing liability insurance. We further conclude that American Family's "own-other-car" definitional exclusion is valid under Wis. Stat. § 632.32(5)(e) as Vieau is excluded from coverage because he owns his own motor vehicle and not because he is related by blood to the named insured. Therefore, we affirm the court of appeals.

By the Court. — The decision of the court of appeals is affirmed.

       All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

       Our review solely concerns American Family and the policy it issued to Kathy Vieau. Therefore, Acuity's involvement in this case and the policies Acuity issued to Vieau and Kac-zrowski will be discussed only as needed.

       Vieau's policy contains a reducing clause that reduced his UIM coverage from $50,000 to $25,000 by virtue of the $25,000 liability payment made by Acuity on behalf of Kaczrowski.

       Wisconsin Stat. § 632.32(1) provides: "Except as otherwise provided, this section applies to every policy of insurance issued or delivered in this state against the insured's liability for loss or damage resulting from accident caused by any motor vehicle, whether the loss or damage is to property or to a person."

       We recognize the requirement that a relative not own another car is part of the definition of "relative" and is not framed as an outright exclusion. However, we treat the definition the same as an exclusion. See Mau v. N.D. Ins. Reserve Fund, 2001 WI 134, ¶ 32, 248 Wis. 2d 1031, 637 N.W.2d 45.

       Vieau does not contend that any other applicable law prohibits the exclusion in Kathy Vieau's policy, and therefore, the second step of the Blazekovic test is not pertinent to our analysis.

       We recognize that our interpretation of the term "incidental" may lead some insurance companies to attempt to implement otherwise prohibited exclusions under § 632.32(6) under the guise of some other main purpose. In future cases involving the validity of an exclusion under § 632.32(5)(e), courts should closely scrutinize the facts and circumstances of each case when determining whether "persons, uses, or coverages" are incidentally excluded under a legitimate and justifiable main purpose. Wis. Stat. § 632.32(5)(e).


source: Caselaw Access Project

author: SNYDER, PJ.

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Respondent, v. Keith S. Krause, Defendant-Appellant.
    Court of Appeals

      No. 2005AP472-CR.

      Submitted on briefs December 15, 2005.

      Decided February 1, 2006.

    2006 WI App 43
    (Also reported in 712 N.W.2d 67.)

      On behalf of the defendant-appellant, the cause was submitted on the brief of Roger Merry of Merry Law Offices of Monroe.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general, and Christopher G. Wren, assistant attorney general.
    Before Snyder, PJ., Brown and Anderson, JJ.
   SNYDER, PJ.

¶ 1. Keith S. Krause appeals from a judgment of conviction for operating a motor vehicle while intoxicated (OWI), fifth offense, and from an order denying his request for postconviction relief. Krause contends that the circuit court erred when it denied him the opportunity to collaterally attack a prior offense used to enhance his sentence. He contends that the prior offense, which was a refusal revocation, should not be available for penalty enhancement purposes because he was not afforded his constitutional right to counsel during the refusal proceeding; thus, the current OWI conviction should have been treated as a fourth offense rather than a fifth. We disagree and affirm the order denying postconviction relief as well as the judgment of conviction.

BACKGROUND

¶ 2. We begin with the facts relevant to Krause's refusal revocation. Krause was arrested for OWI on September 5, 2000. He was deemed to have refused to provide a sample of his breath, blood, or urine at the time of the arrest. In a letter dated September 26, 2000, Krause's court-appointed lawyer confirms that no refusal hearing was requested because, under the circumstances, the "chances of winning such a hearing [were] zilch." Because Krause did not request a hearing, the refusal revocation period began thirty days after his refusal. See Wis. Stat. § 343.305(10)(a) (2003-04). In January 2001, Krause moved to dismiss the OWI in a negotiated plea. No conviction related to the September 2000 arrest appears on Krause's record.

¶ 3. The case before us stems from a two-car collision that occurred on July 19, 2002. As a result, Krause was convicted of OWI, fifth offense, on March 18, 2003. At his plea hearing, Krause pled no contest to the OWI charge and advised the court that of the four prior OWI offenses on his record, only three were OWI convictions and one was a refusal revocation without a corresponding conviction. Following the plea colloquy, the court found Krause guilty. The court also determined, and Krause acknowledged, that the refusal revocation counted as a prior offense for sentencing purposes. See Wis. Stat. § 343.307(l)(f). At the sentencing hearing on May 22, 2003, the court ordered Krause to serve two years of prison confinement followed by three years of extended supervision.

¶ 4. Krause brought a motion to reopen the refusal proceeding and the court heard arguments on May 5, 2004. Krause contended that he did not receive adequate notice of his rights at a refusal hearing; in particular, he did not know what issues could be challenged at a refusal hearing. Krause's primary argument rested on Wis. Stat. § 806.07(l)(a), which permits a court to relieve a party from a judgment where there was mistake, inadvertence, surprise, or excusable neglect. The court denied Krause's motion because it was not made within a reasonable time period; specifically, the court noted that more than one year had passed since the refusal revocation occurred. See § 806.07(1) and (2) (a motion for relief due to mistake, inadvertence, surprise or excusable neglect "shall be made within a reasonable time, and.. . not more than one year after the judgment was entered").

¶ 5. On November 23,2004, Krause filed a motion for postconviction relief under Wis. Stat. § 974.06. In this motion, Krause: (1) asked the court to reverse his conviction on the fifth OWI offense, (2) presented a collateral attack on the refusal revocation used to enhance the imposed penalty, and (3) requested an evidentiary hearing. The State responded, arguing that Krause was precluded from collaterally attacking his refusal revocation on any grounds other than a denial of his right to counsel. Because Krause was not denied counsel, the State asserted, he could not collaterally attack the refusal revocation. The State asked the court to deny Krause's motion without a hearing, stating that where "the motion and record conclusively show the defendant is not entitled to relief, the court may summarily dismiss the motion without a hearing." See § 974.06(3). The court summarily dismissed Krause's motion, and Krause appeals.

DISCUSSION

¶ 6. The parties agree that Wisconsin law limits a defendant's ability to collaterally attack prior convictions used for sentence enhancement to those circumstances where the defendant's constitutional right to counsel in the prior proceeding was violated. See State v. Hahn, 2000 WI 118, ¶ 17, 238 Wis. 2d 889, 618 N.W.2d 528. "In an enhanced sentence proceeding predicated on a prior conviction, the U.S. Constitution requires a trial court to consider an offender's allegations that the prior conviction is invalid only when the challenge to the prior conviction is based on the denial of the offender's constitutional right to a lawyer." Id.-, see also Custis v. United States, 511 U.S. 485, 496 (1994) (declining to "extend the right to attack collaterally prior convictions used for sentence enhancement beyond the right to have appointed counsel").

¶ 7. Where a person seeks to collaterally attack a prior conviction, he or she has the initial burden of coming forward with evidence to make a prima facie showing of a deprivation of his or her constitutional right to counsel at the prior proceeding. See State v. Baker, 169 Wis. 2d 49, 77, 485 N.W.2d 237 (1992); State v. Ernst, 2005 WI 107, ¶ 2, 283 Wis. 2d 300, 699 N.W.2d 92. Whether a party has met its burden of establishing a prima facie case is a question of law, subject to de novo review. Baker, 169 Wis. 2d at 78.

¶ 8. Krause essentially presents a single argument on appeal: had he received "proper representation" at the refusal hearing he would have known to challenge the refusal to avoid having it count as a prior offense in future OWI prosecutions. Krause equates ineffective assistance of counsel with no assistance at all, and entreats us to conclude his Sixth Amendment right to counsel has been violated.

¶ 9. Krause correctly acknowledges that a refusal hearing is not a criminal matter. In State v. Jakubowski, 61 Wis. 2d 220, 224 n.2, 212 N.W.2d 155 (1973), our supreme court concluded that "a proceeding under sec. 343.305 is a special proceeding and must be so defined." Furthermore, in a refusal hearing, rules of civil, not criminal, procedure apply. See State v. Schoepp, 204 Wis. 2d 266, 272, 554 N.W.2d 236 (Ct. App. 1996) (a refusal hearing is a special proceeding and the discovery procedures of Wxs. Stat. ch. 804, Civil Procedure— Depositions and Discovery, apply); State v. Nordness, 128 Wis. 2d 15, 32, 381 N.W.2d 300 (1986) (a refusal hearing "shall proceed in the Court in the same manner as other civil proceedings") (quoting Illinois v. Batchelder, 463 U.S. 1112, 1114 (1983)).

¶ 10. To mount his collateral attack, therefore, Krause must establish that the Sixth Amendment right to counsel attaches in a civil proceeding. Krause's argument on this critical point consists of one paragraph in his appellate brief. He asserts that collateral attacks have been successful in preventing the use of a first OWI offense as a penalty enhancer. He cites only to Pickens v. State, 96 Wis. 2d 549, 292 N.W.2d 601 (1980), overruled by State v. Klessig, 211 Wis. 2d 194, 564 N.W.2d 716 (1977), apparently to support his contention that "though a refusal hearing is not a criminal matter, it must be dealt with the same constitutional considerations as a first offense." In Pickens, the defendant was convicted of rape. Id. at 551. Pickens appealed the judgment of conviction on several grounds, the most significant of which involved the constitutional right to counsel in criminal cases. Id. at 554. Because we have established that a refusal hearing is not a criminal proceeding, the analysis lends no support for Krause's position.

¶ 11. On the contrary, case law establishes that a constitutional right to counsel does not attach in civil proceedings. Stroe v. INS, 256 F.3d 498, 500 (7th Cir. 2001) (where the proceedings are civil, "the Sixth Amendment is not in play"). The general rule is that civil litigants have no constitutional right to counsel and therefore no constitutional right to effective assistance of counsel. Id. The inescapable conclusion is that Krause had no right to counsel at the refusal hearing because such a hearing is civil, not criminal, in nature. Thus, Krause has failed to establish a prima facie case of deprivation of his constitutional right to counsel at the prior proceeding. See Baker, 169 Wis. 2d at 77. Because the motion and record conclusively show that Krause is not entitled to the relief he seeks, the circuit court's summary dismissal was proper. See Wis. Stat. § 974.06(3).

CONCLUSION

¶ 12. In an enhanced-penalty situation, a collateral attack on a prior conviction used for enhancement must be founded on a claim of actual or constructive denial of the constitutional right to counsel. See Hahn, 238 Wis. 2d 889, ¶ 17. However, because a refusal hearing is a civil proceeding, no constitutional right to counsel attaches. See Schoepp, 204 Wis. 2d at 272; Stroe, 256 F.3d at 500. Accordingly, Krause did not have a constitutional right to counsel upon which to base his collateral attack. We affirm the judgment of conviction and the order denying postconviction relief.

By the Court. — Judgment and order affirmed.

       All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise indicated.

       In State v. Gautschi, 2000 WI App 274, ¶¶ 5, 6, 14, 240 Wis. 2d 83, 622 N.W.2d 24, we concluded that the "Notice of Intent to Revoke Operating Privilege" form in effect at the time was technically deficient because it failed to adequately inform the recipient that he or she may challenge whether the officer had probable cause to believe that the person was operating a vehicle while intoxicated and whether the arrest was lawful.


author: BROWN, J.

text:
    Acuity Mutual Insurance Company, Plaintiff-Appellant, v. Miguel A. Olivas, Defendant-Respondent.
    Court of Appeals

      No. 2005AP685.

      Submitted on briefs November 29, 2005.

      Decided February 1, 2006.

    2006 WI App 45
    (Also reported in 712 N.W.2d 374.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Daniel J. Flynn of Kohner, Mann & Kailas, S.C. of Milwaukee.
    On behalf of the defendant-respondent, the cause was submitted on the brief of Ness Flores and Paul Bugenhagen Jr. of Flores & Reyes of Waukesha.
    Before Snyder, PJ., Brown and Nettesheim, JJ.

       Petition to review granted 4-10-06.

   BROWN, J.

¶ 1. This case involves a dispute between an insurance carrier and one of its policyholders. Acuity Mutual Insurance Company increased Miguel A. Olivas' worker's compensation insurance premiums when it concluded that other workers who accompanied Olivas to his jobs were actually his employees. Olivas failed to pay these increased amounts, and Acuity sued. Acuity takes the position that we should treat this case like other worker's compensation cases. It concludes, therefore, that Olivas had the burden of proving he was an independent contractor rather than an employee and that we should apply the Wis. Stat. § 102.07(8) (2003-04) definitions of those terms. We disagree that worker's compensation law controls this case. That body of law applies to disputes between injured workers claiming they are entitled to compensation and employers (or the employers' insurance carriers) who dispute that they owe compensation benefits. Here, on the other hand, we have a run-of-the-mill breach of contract dispute about whether a policyholder owes certain premiums. The mere fact that the policy provides worker's compensation coverage does not change the nature of the dispute. We therefore affirm.

¶ 2. Roughly five years ago, Olivas approached Steve Tenpas, the owner of a drywall, contracting and painting business called Tenpas Drywall, looking for work as a subcontractor. Tenpas told Olivas that he only hired subcontractors who had worker's compensation and liability insurance. Olivas subsequently went to Schultz & Schultz, an insurance agent, to obtain an insurance policy per Tenpas' requirements. After Olivas obtained the Acuity policy, Tenpas hired him to do drywalling work. .

¶ 3. Olivas does not do the jobs from Tenpas by himself. He has a group of non-English-speaking friends who work with him. Tenpas pays Olivas on a "per job" basis, calculating the amount earned for each job by the amount of square feet of drywall used on the job. When Olivas receives the check, he distributes to the other workers their shares of the money. At the end of the tax year, Tenpas issues Olivas a 1099 form, and Olivas gives 1099 forms to each of the other .workers.

¶ 4. In April 2003, Acuity's senior premium auditor performed an audit of Olivas' account. Olivas had no records except for the 1099 forms. At that time, the auditor discovered that Olivas was working with several other subcontractors who did not have insurance certificates. The auditor concluded that these other crewmembers stood in an employer-employee relationship to Olivas, which would increase Acuity's exposure to liability. Accordingly, Acuity increased Olivas' premiums. Olivas did not pay these increased amounts, and the policy was eventually cancelled.

¶ 5. On October 2, 2003, Acuity filed a complaint, demanding $32,192.30 in unpaid insurance premiums plus interest. It moved for summary judgment on December 8. Although the fate of that motion is not clear from the record, the case evidently proceeded to trial.

¶ 6. The trial centered on the single issue of whether the individuals working with Olivas were employees or independent contractors. The distinction was apparently determinative of Olivas' liability for the additional premiums. Tenpas and the auditor testified for Acuity. Olivas and one of the other contractors testified on behalf of Olivas. The auditor took the stand first. She conceded that the determinative factor in reaching her conclusion that Olivas had an employer-employee relationship with the other workers was the fact that none of the others had compensation insurance coverage. She also considered that the crewmem-bers worked together, that they all did the same job, that Olivas obtained all of the jobs for the group, that Olivas issued 1099 forms to the rest of the crew, and that Tenpas paid Olivas only and not the other workers. The auditor assumed because they worked together that Olivas must have been overseeing the others.

¶ 7. The major theme of Tenpas' testimony was that he interacts directly only with Olivas and has no control over the other members of Olivas' crew. According to Tenpas, he describes what needs to be done on a job to Olivas and pays only him for the job. He does not dictate how many people or which workers Olivas brings to any particular job, has never fired any of the other workers, and does not designate what hours the crew has to work or impose deadlines for projects. Tenpas also testified that he has no say in how much Olivas pays the other workers and could not confirm whether he pays them at all.

¶ 8. Olivas testified next. He characterized the crew as "a group of workers" in which each member works for his own account. "It is a group of Mexicans. We just kind of get together, and we all look for work .... We were looking for work, and that is how we met. We are friends, we look for work, we talk, and we go look for work." According to Olivas, the other workers do not communicate directly with Tenpas because they are undocumented aliens and do not speak English. Instead, Olivas obtains the assignments for the group. If a project is large, the group meets, and everyone agrees to bring in one more person. Olivas stated that he does not set hours for the other workers, tell them how to do the job, or otherwise supervise them, nor does he have the right to fire anyone from the group. Further, Olivas affirmed that all of the workers are responsible for bringing their own tools to the job.

¶ 9. He asserted that the group gathers when he receives payment from Tenpas and decides how to divide up the check. Experienced crewmembers receive larger shares than less experienced members of the group. Olivas averred that he does not withhold any amounts for taxes and makes no profit when he divides the check. At the end of the tax year, he gets his 1099 form from Tenpas, and the group buys the rest of the 1099 forms that he gives to the other employees from OfficeMax.

¶ 10. The final witness was a member of Olivas' work group. This witness corroborated Olivas' characterization of his relationship to the other workers. He confirmed that Olivas obtains the jobs for the group due to the language barrier, that the group gets paid only when Olivas gets the check from Tenpas, and that the group divides the payment for each job, allocating each worker's share according to experience because the more experienced workers hang more drywall than the others. He also attested that Olivas does not withhold taxes from any worker's share and that he never knew Olivas to hold back any profits from the check. This witness further verified that Olivas did not regulate the other workers' hours, did not tell them how to hang the drywall, did not provide tools for any of the workers, and had no right to fire anyone from the group.

¶ 11. At the conclusion of the testimony, Acuity argued that it should prevail based on Wis. Stat. § 102.07(8), which includes independent contractors in its definition of "employee" unless the relationship between the worker and the employer meets all nine criteria listed in para. (b). Olivas stated that the common-law definition of "independent contractor" controlled. Without determining the applicability of the common-law definition, the trial court found, based on § 102.07(8)(b), that the other workers were independent contractors.

I do find that each of these fellows owns their own equipment, each received a 1099 for tax purposes, each perforins work under their agreement. They agreed on how the compensation would be distributed. After the job is done, they are in fact paid pursuant to that agreement. Each is equally responsible to complete the job satisfactorily. Each runs the same risk of nonpayment, which admittedly is minimal, because they don't buy any of the supplies. The only risk would be nonpayment by Mr. Tenpas.

Accordingly, the court dismissed the complaint.

¶ 12. On appeal, Acuity does not appear to dispute the facts brought out in the trial testimony. Rather, its argument appears to be that the court did not properly assess these facts in light of Wis. Stat. § 102.07(8) and misallocated the burden of proof. In its brief, Acuity disputes the applicability of the common-law definition of "employee," and we initially had the impression that the court had employed that standard below. As it turns out, the court did apply the § 102.07(8) definition that Acuity advocates and simply disagreed that Acuity should prevail. Olivas responds that Acuity had the burden of proof and that § 102.07(8) does not control. Thus, we are left with questions of law, which we review de novo. See Wolfe v. Wolfe, 2000 WI App 93, ¶ 14, 234 Wis. 2d 449, 610 N.W.2d 222 (which party bears burden of proof and whether the party has met that burden are questions of law); State v. Harwood, 2003 WI App 215, ¶ 10, 267 Wis. 2d 386, 671 N.W.2d 325 (application of law to set of facts is a question of law); Steven V. v. Kelley H., 2003 WI App 110, ¶ 29, 263 Wis. 2d 241, 663 N.W.2d 817 (determining what legal rules to apply presents a legal question), aff'd on other grounds, 2004 WI 47, 271 Wis. 2d 1, 678 N.W.2d 856.

¶ 13. We first address Acuity's argument that Olivas had the burden of proof. We acknowledge that in Habrich v. Industrial Commission of Wisconsin, 200 Wis. 248, 254, 227 N.W. 877 (1929), abrogated in part by Scholz v. Industrial Comm'n of Wis., 267 Wis. 31, 65 N.W.2d 1 (1954), the supreme court stated that the employer had the burden of proof in worker's compensation cases because saddling workers with the burden of proving they are servants rather than independent contractors defeated the beneficent purpose of the worker's compensation laws by withdrawing the compensation the legislature intended the law to offer.

¶ 14. However, that is not what this case is really about. This case does not involve burdening the victim of an accident with the task of proving his or her entitlement to compensation. Rather, the complaint is that Olivas had an Acuity insurance policy under which he agreed to pay premiums and that he did not pay all of the required amounts. We see this case as a garden-variety breach-of-contract claim. In a breach of contract action, the plaintiff bears the burden of proving that the defendant violated the terms of the contract. See Spielberg v. Harris, 202 Wis. 591, 594-95, 232 N.W. 547 (1930). Thus, the burden is not on Olivas to prove that his fellow workers were independent contractors. Instead, Acuity must prove that they were employees.

¶ 15. We next consider Acuity's argument that the trial court improperly applied Wis. Stat. § 102.07(8) to the facts of this case. We note that Wis. Stat. ch. 102 is devoted entirely to the subject of worker's compensation. As we indicated above, this case is not about worker's compensation but rather involves an ordinary breach of contract. Thus, this court is not constrained by the narrow definition of "independent contractor" in § 102.07(8)(b).

¶ 16. The common law has long drawn a distinction between servants and independent contractors, and the historical definition is much broader than Wis. Stat. § 102.07(8)(b). The common law defines as an independent contractor "one who undertakes to do specific jobs of work, as an independent business, without submitting himself to control as to the petty details."Madix v. Hochgreve Brewing Co., 154 Wis. 448, 451, 143 N.W. 189 (1913) (citation omitted). The predominant indicium of an independent contractor is whether the worker, rather than the employer, has the right to control the details of his or her performance. Id. The court may also consider lesser factors, such as the place of work, the duration of the employment, the method of payment, and whether the employer retains the right to discharge the worker. Habrich, 200 Wis. at 252. Courts are more likely to infer independent contractor status "where the contract calls for the performance of an entire piece of work at a specified price." Id.

¶ 17. We acknowledge that the trial court reached its result based on its application of Wis. Stat. § 102.07(8). Although it was not required to consider the factors in para, (b) of that statute, the common-law definition of "independent contractor" certainly does not preclude courts from considering such other factors. Moreover, the trial testimony supports the existence of an independent contractor relationship between Olivas and the other workers based on the dominant "control" test. The unimpeached testimony of the defense witnesses established that Olivas does not control the time or method of the other workers' performance and has no right to discharge them. The auditor's opinion that he must have been overseeing the other workers was based predominantly on speculation. Her observations that Olivas obtained the jobs and received the money and that the workers all worked together at the same jobs were no more probative of an employer-employee relationship than an independent contractor relationship. The fact that the others lacked their own insurance policies, though indicative, was not conclusive. Moreover, Tenpas' affirmation that the other crew-members were not employees of Tenpas Drywall revealed nothing whatsoever about what kind of relationship they have with Olivas.

¶ 18. Acuity failed to establish that the other workers were employees and not self-employed contractors who happened to work as a team with Olivas. Because Olivas was not obligated to pay additional premiums for independent contractors, it could not make out a prima facie case for breach of contract. The trial court therefore was correct to conclude that Olivas should prevail.

By the Court. — Order affirmed.

       All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

       Moreover, Scholz v. Industrial Commission of Wisconsin, 267 Wis. 31, 41a-41c, 65 N.W.2d 1 (1954), made clear that even in a worker's compensation case, the presumption of employee status disappears once the other party has adduced contrary evidence. Olivas presented both his own testimony and the testimony of a colleague.


author: NETTESHEIM, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Chad W. Ziegler, Defendant-Appellant.

    Court of Appeals

      Nos. 2005AP1098-CR, 2005AP1099-CR, 2005AP1100-CR.

      Submitted on briefs January 6, 2006.

      Decided February 1, 2006.

    2006 WI App 49
    (Also reported in 712 N.W.2d 76.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Kenneth P Casey of The University of Wisconsin Law School, Frank J. Remington Center, Madison.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general, and Juan B. Colas, assistant attorney general.
    Before Snyder, PJ., Nettesheim and Anderson, JJ.

       Petition to review denied 4-10-06.

   NETTESHEIM, J.

¶ 1. Chad W. Ziegler appeals from a postconviction ruling denying his motion for resentencing. Ziegler's motion contended that the trial court's sentencing remarks did not adequately explain why the court imposed consecutive sentences and how the length of the combined sentences served the sentence objectives. We disagree. We affirm.

TRIAL COURT PROCEEDINGS

¶ 2. Ziegler was originally charged with three counts of party to the crime (PTAC) of burglary, two counts of PTAC of misdemeanor theft, operating a motor vehicle without the owner's consent as a passenger, retail theft, and misdemeanor bail jumping. Pursuant to a plea agreement, Ziegler pled no contest to the three counts of PTAC of burglary. In exchange, the State dismissed, but read in for purposes of the sentencing, all of the remaining charges. In addition, the State was free to make any sentencing recommendation it deemed appropriate. The court accepted Ziegler's no contest pleas and ordered a presentence investigation (PSI) report. At this plea hearing, Ziegler was represented by two attorneys because the charges had been separately filed at different times, resulting in separate representation.

¶ 3. At the sentencing, Ziegler was again represented by both of his attorneys. The trial court opened the proceedings by noting the PSI report recommendation for consecutive periods of confinement of five to seven years on each count for a total of fifteen to twenty-one years of confinement, followed by consecutive periods of extended supervision of three to four years on each count. The State followed with its request that the court impose consecutive periods of confinement of five years on each count for a total of fifteen years, followed by consecutive five-year periods of extended supervision.

¶ 4. Next, both of Ziegler's attorneys spoke on his behalf. One attorney recommended imposed and stayed prison sentences with county jail confinement as a condition of probation; the other attorney also recommended probation under either imposed and stayed prison sentences or straight probation. In addition, Ziegler presented statements from members of his family and his sponsor in his drug treatment program. Finally, Ziegler himself spoke, expressing remorse for his crimes and asking that the court fashion a sentence that would allow him to continue with his drug treatment.

¶ 5. That brings us to the trial court's sentencing remarks, which consume some fifteen pages of transcript. We recount these remarks in some detail since they lie at the heart of the appellate issues.

¶ 6. Before speaking to the sentencing factors and objectives, the court resolved some conflicting issues raised by the State's and Ziegler's sentencing statements. First, the trial court addressed whether Ziegler was the ringleader of the burglary group, which included younger offenders. The court observed that while Ziegler was older than the other participants, there was not sufficient information demonstrating that he was the ringleader.

¶ 7. Next, the trial court addressed the question of remorse. Acknowledging that Ziegler "could be conning me" with his claim of remorse, the court nonetheless rejected the PSI report, which questioned Ziegler's sincerity on this point. Instead, the court accepted Ziegler's expression of remorse "at face value."

¶ 8. Next, the trial court addressed the remarks of Ziegler's family, which attributed Ziegler's criminal conduct to difficulties during his teenage years, his involvement with drugs, and family members' opinions that he was a follower, not a leader. The court noted that many persons experience the same kind of difficulties but do not engage in criminal conduct. While the court accepted this history as background information, the court did not accept it as an excuse or explanation for Ziegler's criminal conduct.

¶ 9. Next, the trial court addressed Ziegler's request for probation so that he could continue with his treatment. The court commended Ziegler for getting involved with this treatment, but the court observed that treatment was also available within the prison system.

¶ 10. The trial court then turned to the sentencing factors and objectives that the court deemed relevant. As to the severity of the crimes, the court rated Ziegler's crimes in the "mid-level" range on the court's sentencing guideline worksheet. The court did so because the burglaries were not committed on the "spur of the moment," but instead were planned out, even to the extent of Ziegler casing one of the sites in advance to check if surveillance cameras were in place. The court also noted Ziegler's use of gloves to avoid detection, and his instructions to a compatriot, who had stolen the vehicle of one of the victims, to get rid of a car because "it's going to be hot." In addition, the court observed that when one of the burglaries did not yield the loot expected, Ziegler and the others proceeded to burgle another place.

¶ 11. In response to Ziegler's argument that these events fell on a less serious scale because they occurred within a limited two-day period, the trial court responded that Ziegler was also charged in other courts with two additional burglaries committed the following day. When the police attempted to arrest Ziegler for one of those burglaries, he fled, resulting in an eluding charge. That charge had been dismissed, but read in, when Ziegler had admitted to the related burglary. Given this background, the court wondered aloud, "So my question is does he keep burglarizing if he doesn't get arrested that day."

¶ 12. Next, the trial court addressed Ziegler's character, focusing principally on Ziegler's substantial current contacts with the criminal justice system. The court correctly observed that Ziegler had no juvenile record and that his adult record was limited to two misdemeanor convictions — a possession of marijuana conviction in Utah and an obstructing conviction. The court stated that were this record the extent of Ziegler's contacts with the criminal justice system, the court would likely rate Ziegler as a lower risk. But the court concluded that the multitude of pending cases against Ziegler did not allow for that rating.

¶ 13. Those pending cases, as documented in the PSI report, included a drug-related charge in Illinois, a first-degree sexual assault of a child under the age of thirteen, three counts of second-degree sexual assault of a child under the age of sixteen, two counts of manufacturing or delivering a controlled substance with intent to deliver, three counts of child enticement by giving or selling a controlled substance to a child, and four counts of felony bail jumping. In addition, although not documented in the PSI report, the court noted the two additional burglaries committed on the heels of the instant burglaries. Ziegler had admitted to one of these charges and a related charge and was awaiting sentencing on these matters in another branch of the Fond du Lac county circuit court. The court also noted that twelve other charges had been dismissed and read in in that case.

¶ 14. In conjunction with its assessment of Ziegler's character, the trial court acknowledged the support of Ziegler's family and credited Ziegler for his participation in the drug treatment program during the pendency of these charges.

¶ 15. Next, the trial court addressed the need to protect the public and observed that this need was "self-evident." On this point, the court recounted the totality of Ziegler's contacts with the criminal justice system that the court had previously noted when assessing Ziegler's character and which we have already summarized. As to the specific crimes in the instant case, the court again noted that they had been planned. The court described the events as a "crime spree" that merited confinement, not probation.

¶ 16. Finally, the trial court expressed its belief that this case warranted "escalating penalties," explaining that successive crimes warrant greater penalties than those imposed for prior crimes. ("[I]f you do something again the penalty's got to be more, and it's got to be a little bit more after that.") Under that logic, the court sentenced Ziegler sequentially, starting with the first burglary and concluding with the third burglary. The sequential sentences were: three years' confinement; three years and six months' confinement; and four years' confinement. After imposing the second period of confinement, the court stated that the confinement was consecutive to the first; and after imposing the third period of confinement, the court stated that the confinement was consecutive to the second. The aggregate period of the confinement portion of the consecutive sentences totaled ten and one-half years. These sentences fell below those requested by the State and those recommended in the PSI report.

¶ 17. Postconviction, Zielger moved for resentenc-ing, contending that the trial court had failed to adequately explain why the sentences were made consecutive and why ten and one-half years of total confinement was necessary to achieve the court's sentencing goals. Ziegler's motion relied principally on State v. Gallion, 2004 WI 42, 270 Wis. 2d 535, 678 N.W.2d 197. The trial court denied the motion following a hearing. Ziegler appeals.

DISCUSSION

McCleary, Gallion, General Principles Governing Sentencing, and Standards For Appellate Review

¶ 18. We begin our discussion with the same quote from McCleary v. State, 49 Wis. 2d 263, 182 N.W.2d 512 (1971), that introduced the supreme court's opinion in Gallion-.

In all Anglo-American jurisprudence a principal obligation of the judge is to explain the reasons for his [or her] actions. His [or her] decisions will not be understood by the people and cannot be reviewed by the appellate courts unless the reasons for decisions can be examined.

McCleary, 49 Wis. 2d at 280-81; Gallion, 270 Wis. 2d 535, ¶ 1. It is thus apparent that requisite to a prima facie valid sentence is a statement by the trial judge detailing the reasons for selecting the particular sentence imposed.

¶ 19. In the wake of truth-in-sentencing, the Gal-lion court saw the need to "reinvigorate" McCleary. Gallion, 270 Wis. 2d 535, ¶ 4. Thus, Gallion did not change, but rather confirmed, the established law of McCleary. Bluntly put, Gallion was a "shot across the bow" to sentencing courts, reminding them of the McCleary dictates. We do not understand Ziegler to contend otherwise.

¶ 20. In addition, Gallion's reinvigoration of Mc-Cleary did not alter the applicable standards of appellate review of a trial court's sentence. Gallion, 270 Wis. 2d 535, ¶ 4. However, Gallion did require that appellate courts "more closely scrutinize the record to ensure that 'discretion was in fact exercised and the basis of that exercise of discretion [is] set forth.'" Id. (citation omitted).

¶ 21. Discretion contemplates a process of reasoning, which depends on the facts of record or that are reasonably derived by inference from the record, and a conclusion based on a logical rationale founded upon proper legal standards. McCleary, 49 Wis. 2d at 277.

¶ 22. On appeal, our review is limited "to determining if discretion was erroneously exercised." Gallion, 270 Wis. 2d 535, ¶ 17. When the trial court has properly exercised its discretion, we follow a consistent and strong policy against interference with the discretion of the trial court, and we afford a strong presumption of reasonability to the court's sentencing determination because the court is best suited to consider the relevant factors and demeanor of the convicted defendant. Id., ¶ 18. Finally, we may not substitute our judgment for that of the trial court simply because we might have imposed a different sentence. Id.

¶ 23. The principal objectives of a sentence include, but are not limited to, the protection of the community, the punishment of the defendant, rehabilitation of the defendant, and deterrence to others. Id., ¶ 40. A sentencing court should indicate the general objectives of greatest importance and explain how, under the facts of the particular case, the sentence selected advances those objectives. Id., ¶¶ 41, 42. Besides the objectives of the sentence, the sentencing court must also identify the factors that the court considered in arriving at the sentence and must indicate how those factors fit the objectives and influenced the sentencing decision. Id., ¶ 43. The primary sentencing factors which a court must consider are the gravity of the offense, the character of the defendant, and the need to protect the public. State v. Davis, 2005 WI App 98, ¶ 13, 281 Wis. 2d 118, 698 N.W.2d 823. The weight to be given to each factor is within the discretion of the sentencing court. Id. However, other factors may also be relevant. These include, but are not limited to:

1. the defendant's past criminal record,
2. the defendant's history of undesirable behavior pattern,
3. the defendant's personality, character and social traits,
4. the presentence investigation report,
5. the vicious or aggravated nature of the crime,
6. the degree of the defendant's culpability,
7. the defendant's demeanor before the court,
8. the defendant's age, educational background and employment record,
9. the defendant's remorse, repentance and cooperativeness,
10. the defendant's need for close rehabilitative control,
11. the rights of the public, and
12. the length of pretrial detention.

Gallion, 270 Wis. 2d 535, ¶ 43 & n.11. The sentencing court need not discuss all of these factors, but rather only those relevant to the particular case. Id.

¶ 24. In addition, the sentencing court may use the recommendations of counsel, any PSI report recommendation, and any applicable sentencing guidelines as "touchstones" in the sentencing decision. Id., ¶ 47.

¶ 25. Finally, Gallion recognized that "the exercise of discretion does not lend itself to mathematical precision." Id., ¶ 49. But, in the same breath, Gallion required "an explanation for the general range of the sentence imposed." Id. Although not changing the standard of appellate review, Gallion also conveyed a message to appellate courts. We are not permitted to engage in "implied reasoning" by the sentencing court when we review a sentence. See id., ¶ 50. Rather, we must have an "on-the-record explanation for the particular sentence imposed." Id.

¶ 26. With these principles reviewed, we turn to this case.

Review Of The Trial Court's Sentence

¶ 27. Wisely, Ziegler does not challenge the sufficiency of the trial court's reasons to impose periods of confinement. We say this because the court's sentencing remarks are a textbook example of a proper consideration of the relevant sentencing objectives and factors.

¶ 28. First, the trial court addressed and resolved the conflicting issues presented by the parties' sentencing statements. The State contended that Ziegler was the ringleader of the group and impugned Ziegler's claim of remorse. Ziegler contended otherwise. The court resolved these questions in favor of Ziegler. On the other hand, the court rejected the notion that Ziegler's conduct was explained or excused by the difficulties of his earlier years, his drug problems, and his tendency to be a follower, not a leader.

¶ 29. Having resolved those disputes, the trial court then thoroughly addressed the relevant sentencing objectives and factors. The court spoke to severity of the crimes, Ziegler's character, the need for protection of the public, Ziegler's past record, his history of undesirable behavior patterns as reflected by his pending cases, the PSI report and recommendation, the State's recommendation, the degree of Ziegler's culpability, and Ziegler's expression of remorse. Finally, the court explained its "escalating penalties" approach in instances where, as here, the court is confronted with successive offenses.

¶ 30. Instead, Ziegler's argument is that the trial court's sentencing remarks do not explain why consecutive sentences were necessary and why a ten- and-one-half-year period of aggregate confinement was necessary to accomplish the court's sentencing objectives. We address these separate arguments in a single discussion because our analysis of both claims rests on the same facts.

¶ 31. Ziegler correctly observes that a consecutive sentence must be supported by "a statement of reasons for the selection of consecutive terms." State v. Hall, 2002 WI App 108, ¶ 14, 255 Wis. 2d 662, 648 N.W.2d 41 (citation omitted). Ziegler also correctly observes that the justification for the length of a sentence should be set forth in the record as well as the reasons for not imposing a sentence of lesser duration. Gallion, 270 Wis. 2d 535, ¶ 24.

¶ 32. We conclude that the trial court's sentencing remarks satisfy Hall as to the reasons for the consecutive sentences and Gallion as to the reasons for the length of the sentence. As noted, the trial court engaged in a thorough and exhaustive examination of the relevant sentencing objectives and factors. This discourse clearly reveals that the court considered Ziegler's character, as represented by his multiple crimes in this case and the numerous other offenses then pending against him, and the corresponding need to protect the public, as the most compelling factors in this sentencing. Prior to his arrest, Ziegler was on a virtual crime spree. Besides the three burglaries in this case, we count some sixteen charges then pending against Ziegler at the time of sentencing. These included additional burglaries, sexual assaults against children, manufacturing or delivering controlled substances, child enticements by the delivery of controlled substances, and multiple bail jumpings. In addition, some twelve other charges had been dismissed and read in in the case pending in another branch of the circuit court. But for his arrest, the court was reasonably concerned that Ziegler would have continued in his criminal ways.

¶ 33. The maximum penalty for burglary, a Class F felony, is twelve years and six months. Thus, Ziegler faced potential maximum confinement for the three burglaries of thirty-seven years and six months. The State requested a sentence of five years' confinement on each count for a total of fifteen years' confinement. The PSI report recommended confinement of five to seven years on each count, for a total confinement of fifteen to twenty-one years of confinement. The trial court's confinement portion of the sentence was ten and one-half years, well under these recommendations. As Gallion notes, a sentencing court may use the recommendations of counsel and any PSI report as "touchstones" in the sentencing decision. Here, the trial court used the recommendations of the State and the PSI as "touchstones," but explained why it was fashioning a sentence less than those recommendations. Given that backdrop, we are not left to wonder why the court fashioned an aggregate confinement sentence of ten and one-half years.

¶ 34. Distilled to its core, Ziegler's argument that the trial court did not explain the reasons for the ten-and-one-half-year period of confinement is really one that augurs for mathematical precision in sentencing, a proposition that Gallion expressly disavows. Instead, Gallion requires "an explanation for the general range of the sentence imposed." Gallion, 270 Wis. 2d 535, ¶ 49. The trial court's sentencing remarks well satisfy this requirement.

¶ 35. As to Ziegler's complaint that the trial court did not adequately explain why it imposed consecutive sentences, we recall what we have already recited regarding Ziegler's substantial contacts with the criminal justice system. After reciting that history, the trial court employed an "escalating penalty" mechanism under which the court saw the need for increased penalties for successive crimes. That logic is unassailable under the facts of this case. As the court noted, these burglaries were not "spur of the moment" offenses committed on a lark. Instead, the crimes were planned out. In one instance, Ziegler cased one of the burglary sites in advance to make sure there were no surveillance cameras. He wore gloves to avoid detection. When one of the burglaries did not yield the expected swag, Ziegler and his compatriots moved on to another site. Ziegler instructed his compatriot, who had stolen a car belonging to one of the victims, to get rid of the vehicle because it was "hot." Based on the totality of the history Ziegler presented, the trial court reasonably chose to impose escalating consecutive penalties by way of increased sentences for the second and the third burglaries.

¶ 36. Ziegler would have us conclude that the trial court's "escalating penalties" traveled only to the individual sentences meted out on the second and third burglaries, not to the trial court's decision to make all of the sentences consecutive. We reject that interpretation of the court's remarks. After the court had addressed the relevant sentencing objectives and factors, the court explained that it would employ the "escalating penalties" methodology in sentencing Ziegler. Immediately thereafter, the court sentenced Ziegler sequentially on each count. When the court imposed the sentence for the second burglary, the court immediately stated the sentence was consecutive to the first sentence. Similarly, when the court imposed the sentence for the third burglary, the court immediately stated that the sentence was consecutive to the second sentence. Thus, the court's underlying rationale for the individual sentences and the court's accompanying decision to make the sentences consecutive were part of a capsulated sentencing disposition and explained in a capsulated fashion.

¶ 37. As with Ziegler's argument regarding the length of the sentence, we are not left to wonder why the sentences were made consecutive.

CONCLUSION

¶ 38. We hold that the trial court sufficiently explained its reasons for imposing consecutive sentences and why the ten-and-one-half-year aggregate amount of those sentences was proper.

By the Court. — Orders affirmed.

       The appellate record does not advise whether these attorneys were privately retained, appointed by the public defender's office, or appointed by the trial court.

       According to the PSI report, the obstructing conviction resulted in probation for Ziegler, but the probation "failed" and Ziegler "was sentenced to a short jail term with Huber privileges."

       According to the PSI report, an arrest warrant had been issued for Ziegler in that matter for failure to appear and a failure to comply with the bail and bond conditions.

       The trial court also imposed corresponding periods of extended supervision: three years on each of the. first two sentences and four years on the third sentence, producing a total sentence of twenty and one-half years. We do not read Ziegler to challenge the extended supervision portions of the sentences.

       In addition, Ziegler's motion sought sentence modification on the grounds of new factors. The trial court denied this motion, and Ziegler does not challenge this ruling on appeal.

       In a later case, State v. Matke, 2004 WI App 4, ¶ 18, 278 Wis. 2d 403, 692 N.W.2d 265, the court of appeals held that State v. Hall, 2002 WI App 108, 255 Wis. 2d 662, 648 N.W.2d 41, applied in instances where multiple sentences were imposed at a single sentencing, not where a sentence was ordered consecutive to a sentence that the defendant was then serving. This is a Hall case, not a Matke case.

       A sentencing court is entitled to consider pending criminal charges against the defendant when imposing a sentence. State v. Jackson, 110 Wis. 2d 548, 551, 329 N.W.2d 182 (1983).

       The record does not reveal the nature of those read-in charges. Regardless, the sheer number confirms the trial court's "crime spree" statement.